Since you were an expert in this question, I assume that you heard something about this matter?
A. No, I never heard anything about it. Even now after you tell me all this I don't remember.
Q. Did you, even if only as a rumor in the Reich Ministry of Justice, around the same time hear that the Minister, Thierack, had given up the authority to issue orders about Sonnenburg?
A. No.
Q. Witness, if you don't know that, may I remind you that a few minutes ago during the direct examination you spoke about it, that Thierack during these nightly telephone conversations told you that the peneitentiary Sonnenburg would have to defend itself, and further on you told us that during the second conversation with the director of the penitentiary you personally said on your own that you had misgivings that the penitentiary should take military measures.
A. Yes.
Q. I am now asking you, could Thierack, the Minister of Justice, issue instructions to anyone to defend a building, to put a building or a group of people in a condition of military defense?
A. The question was this: If troops which were advancing toward the penitentiary should try to liberate the prisoners, measures against this would have to be taken. This question was occasionally discussed even before during discussions within the Ministry.
Q. "Measures" is a general term. You yourself realized at that time that they were military measures that were in question, defense measures that were connected with tactics, etc.
A. Yes.
Q. And you yourself discussed this question with the director of the institution, so there were questions of tactics of battle, or something like that, and I am just asking you whether in his sphere, in the military sense, Herr Thierack could issue any orders.
A. Well, it was this way. The general order was to defend all this, all of the localities and so forth, and the possibility did exist that the officials of the institution, who did have rifles, when the troops tried to occupy the penitentiary, the officials themselves would make use of those weapons.
Q. You said that there was a general directive for the defense of these localities?
A. Yes, that was in the newspapers. It had been published that, well, that the localities were to be defended. That was what had been announced at that time.
Q. Was this directive issued by the director Thierack?
A. No.
Q. By whom?
A. If I remember correctly, the order had been issued by Goebbels, Himmler, and Keitel. I think so.
Q. Goebbels too?
A. That is how I remember it. Of course, at this time I cannot say anything with certainty about it but I remember that those three issued it.
Q. That was probably Goebbels in his capacity as Reich Defense Commissar.
A. No, not Reich Defense Commissar, because he was Reich Defense Commissar only for Berlin itself.
Q. Witness, my question is really so clear. I only want to ask you, did a civilian, the minister in charge of a civilian authority, have the possibility to organize military resistance, to issue military orders?
A. No, the question is whether the institution as such could offer resistance or whether they should just let them occupy the penitentiary without offering resistance. He could offer his opinion. He could not issue military orders but naturally he can tell the officials, can't he, that if an attack is made then defend themselves.
Q. You said that he could state his opinion. Does the Minister of Justice thus issue military orders? Could he do that?
A. No, he could not do that.
Q. This question I have discussed with you in order to refresh your memory. You yourself said on direct examination that Thierack had told you the institution was to be defended.
A. Yes.
Q. That is meant in a military sense?
A. Yes.
Q. Do you believe that what he told you during the night was an order issued by Thierack or whether it was an order of a military authority which was given via Thierack?
A. I assume that he made this decision on the basis of the directives which the different offices to whom he was subordinate, well, let's say the Reich Defense Commissar or it might be any military office, that he had been informed by these authorities and that thereupon, within the framework of these instructions which were known to him, he made this decision.
Q. These questions which I have just discussed with you did not give you a possibility to remember that Sonnenburg was within the operational district and was put immediately under a military order of Himmler?
A. No, I don't remember that.
Q. I now have a further question in regard to the conversation that you had with Thierack during that night. Are you able to give the conversation in somewhat more detail?
A. Yes, the telephone call was in the following form. The decision would have to be made in one quarter of an hour as to whether the institution was to be defended if the occasion arose and how it should act if the Russians should go through Sonnenburg. Thereupon the Minister answered briefly, "The institution is to be defended." That was not a long conversation because during the night it is not the usual thing to carry on long conversations.
Q. I only wanted to know whether it was a very brief conversation.
A. Yes, it was a very brief conversation.
Q. In your affidavit you then described the further telephone conversations that took place during the night. The next one - I would like you to correct me if I make any mistakes - the next one was apparently a new telephone call from Sonnenburg.
A. No, I believe that first of all after I talked with Sonnenburg I tried to speak with the General Public Prosecutor of the Kammergericht.
Q. But that would not be in agreement with your affidavit. I am therefore forced to read this to you. The affidavit is Exhibit 427. At the bottom of the first page in the German it says the following: "Thereupon I again got in touch with the penitentiary in order to inform them of the decision of the Minister."
A. Yes. The matter was as follows: That, of course, I immediately registered a call to Sonnenburg. In the meantime I must have made the call to Berlin because that went much faster, until I again could get in touch with Sonnenburg. At first, of course, I registered the call to Sonnenburg, but as far as I know, without being able to reconstruct it in sequence, in the meantime, before I got the line, I had the conversation with the Kammergericht.
Q. Then I have to read you a further part of your affidavit. "An hour later there was another telephone call from Sonnenburg that possibly there would be no breakthrough as yet. They asked whether the evacuation should be carried out." Now, you say in your affidavit, "Thereupon I again called the Kammergericht in Berlin in order to get in touch with the General Public Prosecutor Hansen, but I only got the First Public Prosecutor, who was on night duty."
A. Yes. The affidavit says that I again called the General Public Prosecutor. I had already called him once. Of course, during such a night I called several times and in the meantime the General Public Prosecutor in Brandenburg had been reached, and he was again in Berlin.
Q. Witness, I want to get this quite clear. You stated in your affidavit - without reading it I'll sum it up. First you called Hansen; nobody was there. Then you spoke to Thierack on your own initiative.
Then Sonnenburg called you, and then the General Public Prosecutor was not there, and you spoke to the First Public Prosecutor. That is how you stated the succession in your affidavit. Do you want to correct your affidavit?
A. The question as to how often -- I know only that during the night I had a number of telephone conversations with Sonnenhurg, as well as with the Kammergericht. The exact succession of the telephone calls I don't know. I know only one thing with certainty, that my first conversation-
Q. You were interrupted, witness. Please continue.
A. Yes. My first conversation was to the Minister of Justice in order to get my instructions. Then I immediately put in a call to Sonnenhurg, and then during the course of the night I repeatedly spoke to Sonnenhurg penitentiary; partly in the meantime I also tried to get a competent person in the Kammergericht who had to make the decision, and I tried to get in touch with the General Public Prosecutor himself. What the succession of the individual conversations was, that, of course, I cannot remember any more today with certainty. These conversations took place during the night, and I carried them on during the night.
Q I only wanted to ask you for the reason that in your affidavit the words, "Thereupon, appears repeatedly and from that a logical succession could result.
A Yes. I repeat again that I am referring to the fact that this was the second conversation.
Q In reality, it was not quite as clear as you wrote it down here in your affidavit. I wanted to ask you for the name of the first public prosecutor at the General Public Prosecutor's Office.
A I don't know his name. He told me only -- and this I do remember -that he on his part was in touch with the office of the police -- that is, the Gestapo; that he had touch with them for official reasons, had contact with them, and that he had to deal with that office. And that, therefore, surprisingly, he know about this matter of Sonnenburg, while, as a rule, most of the people didn't know anything about this affair -- but he knew it. But what his name was, I don't know. I can't tell you that because otherwise I had nothing to do with him. In any case, it was none of the experts of the department V of Strafvollzug; it was an expert of the socalled Strafabteillung (Penal Division). And I don't know that by name. It was evidently none of the experts in division Strafvollzug (Penal Execution) at the General Prosecutor's Office.
Q This First Public Prosecutor made a statement that he knew something about it, that the matter had already been settled by the Gestapo?
A Yes, it was -- No. Whether it was settled with the Gestapo -- he said the Gestapo was to be informed about it -- and the correct thing would be that the Gestapo would be informed in such a case.
Q In this conversation, was it perhaps discussed that the penitentiary Sonnenburg was to be subordinated to the military order of Himmler?
A No, No. I know that for sure. This matter was neither mentioned in the conversation with Sonnenburg nor in the conversation with the First Public Prosecutor. That I can say with certainty. I do not want to deny that such an order existed, but I didn't know about it.
Q Now, in the chronological succession of your conversations you thereupon again called the director of the penitentiary in Sonnenburg on the telephone. In any case, according to your affidavit, you say "Thereupon, I told the director of the prison, that I could not permit an evacuation, after the minister had said that the prisoners should remain there.
A Yes.
Q I did not quite get that. You said that the last conversation during the night which you had with Sonnenburg is apparently in agreement with the first conversation when you had already informed them of the decision of the ministers that it should be defended?
A Yes, it was like this: That the penitentiary again asked me during the night once more whether they could evacuate, and thereupon I said, No. During one of these conversations the director of the institution again asked whether they could start to evacuate, that now the possibility was there to evacuate because when the inmediate danger -- because at first when the immediate danger for the institution was there, they could not carry out an evacuation. But later when the news became known the situation was of such a nature that an evacuation during the night would have been possible to carry out, and he asked whether they should start -- I stated that that could not be done according to the directives which had been issued.
Q Did you tell the director of the penitentiary anything about your conversation with the prosecutor, that already some kind of an agreement with the Gestapo existed?
A He knew about that. He, himself, was present at these discussions and the General Public Prosecutor had seen him quite frequently, and he, himself, discussed with the prosecutor the measures which would have to be taken in the case of an evacuation, with the director.
Q With the director of the institution?
A Yes, the director of the institution was informed about it. He had been instructed by the General Public Prosecutor.
Q But something is quite unclear and it still remains unclear: Why did he call altogether: "Should I evacuate, or not"? For if already before, as you say, in repeated conversations with the General Public Prosecutor, in Sonnenburg, he had discussed all the measures which were to be taken, and had been informed about them, then I do not understand how he could call several times and could ask, "May I evacuate?" He had instructions before that already to hand the people over to the Gestapo?
MR. LA FOLLETTE: Your Honors, I object to this for the constitutional argument with witness and not in an attempt to elicit facts. It constitutes an argument with the witness as to conclusions and the state of mind of a man, and does not attempt to elicit facts. I object to the question as clearly improper.
THE PRESIDENT: I think the question is objectionable. The situation was changing from hour to hour during the night and it isn't strange that there would be other conversations, and I think the question is objectionable.
It will be sustained.
BY DR. SCHILF:
Q Witness, who told you that the director of Sonnenburg was, as you said already, long before this decisive night, in discussions with the General Public Prosecutor, Hansen; and that he had discussed that certain people, or all of them, wore to be transferred to the Gestapo?
A Well, during the night I discussed this with him, you see, and I told him that the Prosecution at the Kammergericht was supposed to inform the Gestapo that the case for a evacuation had arisen now. And on this occasion he told me that he had already discussed this matter with the General Public Prosecutor, and he had the instructions, if the case should arise.
Q That is, before that night already, it had been determined what the director of the institution should do in case of an evacuation?
A Yes, he had his instructions without one knowing them in detail.
Q These questions which I am putting to you, witness, are put only because I personally can not understand how, in your affidavit, at the end of your affidavit, you can state "thereupon" -- that is, after the conversation with the First Public Prosecutor at the General Public Prosecutor's Office -- "I told the director of the Sonnenberg penitentiary I could not agree to an evacuation after the minister had said that the prisoners should remain."
If one reads this without any prejudice or preconceived ideas, one would get the impression that they should all remain there. That is, all the prisoners should remain there, and that the matter which Hansen had discussed with the director of the penitentiary before and had agreed about with him, and the matters you discussed during the night with Hansen before were not important any more. Is my conception correct?
A Yes, the facts were as follows. During the night, first of all, we were only concerned with the decision as to whether an evacuation was supposed to take place during the night -
Q May I interrupt you? Were all of the prisoners supposed to be evacuated?
A The director of the institution had asked whether he and his officials were supposed to evacuate all of the prisoners; and in answer to that I said that I could not give my approval to this. After the minister had informed me of his decision. And in saying so I was basing myself on the fact that I did not have the documents, or knew what detailed measures were supposed to be taken, and therefore, I myself, could not interfere in this matter without having first discussed the matter somehow with the General Public Prosecutor, and I did not want to forestall the General Public Prosecutor. I did not know the detailed instructions which had been made for an evacuation.
Now, suddenly, the director of the penitentiary came during the night and said "I want to evacuate all of the people. This is the moment the enemy is not so near yet that it would be impossible. I want to evacuate." And thereupon I said I could not give my approval.
Q Witness -
THE PRESIDENT: There seems to be a good deal of repetition in your examination, Dr. Schilf. We hope that you will not extent that line of questioning any further unless you see something more important than we have yet heard.
DR. SCHILF: May it please the Court, for your clarification I would like to say only that the affidavit as such did not give a very clear picture, and I am trying to find this clear picture in the cross examination.
THE PRESIDENT: However, the subject about the conversations during the night in concluded now.
JUDGE BRAND: The difficulty is that the long and continued repetition has not clarified it for the Court at all.
DR. SCHILF: May I say for me neither because the witness did not make any clear statements, clarifying statements.
Q Witness, you just said the agreements in detail are not known to you?
A No.
Q How they were supposed to act if the enemy were approaching; are the secret directives for the evacuation of penitentiaries and prison in the Framework of the evacuation of endangered Reich territories known to you?
A Yes.
Q Is this heading known to you?
A Yes, the directives were to the effect that in the case of an approaching of the enemy the institutions were to be evacuated, and, in general, it had been provided in these directives that the territories which were endangered were evacuated in time so that it did not take place when the enemy was immediately there. Such a transfer took place already before, as, for example, in northern Germany and western Germany, there it was carried out at an earlier time, and in the same way also in the eastern territories.
Here we were concerned with a case where the enemy was already immediately before the gates of the city. Whereas, otherwise, in general, the evacuations took place when the enemy was relatively far away still, so that the evacuation could take place in an orderly manner.
Q These directives which you are talking about -- I have a copy of them in front of me. It is Exhibit 290 of the Prosecution, Document NG-030, Document Book VII-B. In order to find out whether you are referring to those directives you have just mentioned, I would like to submit, to show, those to you. (Document is handed to witness)
A These I am only learning about now...these directives which were shown to me in my interrogation-
Q They were shown to you in the interrogation?
A Yes, during the interrogation. It was not shown to me before.
Q These directives consist of about six or seven closely written pages; during your official activity you did not know these directives?
A In any case, not in this form. There were directives but in this form about a transfer to another office--that I did not know about.
Q Can you say if these directives according to the file numbers which I have here were worked upon in Department 5--that is, in your own division, own department? Who was in charge of the working on these directives, or who worked on them? Who was the expert or the associate?
A Well, the matter was this. I was the referent, the expert for these matters. I did not issue directives or sent them on to the particular prosecutors. I only worked them out myself on the occasion of discussions which took place at first concerning northern Germany, and then, later on there were discussion with the General Public Prosecutors in the West. And on this occasion certain directives to the General Prosecutor in Linz was not done by me. And I do not know who did it. Before I was interrogated -
Q Witness, you stated further that according to your statement today, three or four days later you had this conversation with Dr. Eggensberger.
A Yes.
Q Dr. Eggenberger, as you say, gave you a typewritten copy of a note?
A Yes.
Q The word "vermerk"--note or memorandum-is somewhat indefinite.
Was that the telephone note; was it the telephone note? Was it a transcript record, or what was it?
A It was a note about the telephone conversation, about the documents which he had obtained through the conversation with the General Public Prosecutor at the Kammergericht.
Q There were, I would like to say, facts?
A Yes, next to each other, yes.
Q They show what he had discussed with the General Public Prosecutor, and above that, that what he, hemself, with his documents, had found out.
A Yes.
Q On the basis of his documents?
A Yes, yes; not on the basis of his documents, but after his discussion he had during the night, telephone conversations with Sonnenberg. And then in order to get the basis about it, how the connections were, he discussed it with the General Public Prosecutor. And he asked later what were the connections of this evacuation. And this he also included, incorporated in his telephone note. And he gave me a copy of this -- which was then in my office safe.
Q How long was this note?
A Oh, it was about one page long.
Q In this note, was there any discussion about the fact that Eggensberger got in touch with the defendant Klemm outside of Eggensberger?
A No, that was not in there.
MR. LaFOLLETTE: I don't understand it. Excuse me.
DR. SCHILF: May I repeat the question?
MR. LAFOLLETTE: Yes. I didn't understand it.
BY DR. SCHILF:
Q In this so-called "vermerk", this so-called note, which Eggelsberger-
MR. LEFOLLETTE: Excuse me. The man's name is Eggensgerger, E-g-g-e-n-s-b-e-r-g-e-r.
THE WITNESS: E-g-g-e-n-s-b-e-r-g-r-r--Eggensberger.
BY DR. SCHILF:
Q This note by Eggensberger--the name of Klemm was not in it at all?
A It was like this. That in the note there was mention made that the affair was discussed with the General Public Prosecutor and the Under-Secretary, the Staats-Sekretaer.
Q But it was only a report of that what Hansen was supposed to have told Eggensberger?
A Yes, of course, that was not in the note but he told me that later, that these things that he found out which he had included and incorporated in the note, that the information he had received from the General Public Prosecutor--and he did not mention that he had discussed this matter with the State Secretary, Under Secretary. In the note itself there was nothing that he had discussed the matter with the General Public Prosecutor. He later told me about it, that he wanted to state the fact completely. He was competent for the district of the Kammergericht, it was his own district. And in the note, itself, there were only these facts. And since we were always talking to each other, he told me, "I have this knowledge from the General Public Prosecutor."
Q You never said he heard anything from Klemm?
A No.
Q Now, this so-called note, was supposed to refer to an agreement?
A To an agreement between the Reich Defense Kommissar, a discussion between him and the General Public Prosecutor--about which, the State Staats-Sekretaer or the Under Secretary had knowledge.
Q May I ask you to repeat how it could have been in the note?
A That in regard to the evacuation of Sonnenberg, discussions between the General Public Prosecutor at the Kammergericht and the Reich Defense Commisar had taken place--discussions had taken place-and that the Under Secretary had been informed about these discussions.
Q You just said "informed," and If I understood you correctly before you said he had "knowledge" about it?
A Yes, the matter was discussed between the General Public Prosecutor and the Under Secretary.
Q If the word "agreement" however, appeared, then do I understand you correctly if I say that the "agreement" was made between the General Public Prosecutor and the Reich Defense Kommissar, Stuertz, and that Klemm, as Under Secretary only got knowledge of this agreement?
A Yes, in some form or other, the Under Secretary and the General Public Prosecutor discussed it.
Q May it please the Court, in regard to the Exhibit 427, I have no further questions. It would be possible, however, in regard to the earlier exhibit, in regard to the Nacht und Nebel matters (Night and Fog) I would hate a question. But I would like to suggest that this would be done after the noon recess.
THE PRESIDENT: As to the Night and Fog exhibit, which we understandis Document 737, there has been a cross-examination of that document and no further cross examination is to be permitted on that subject.
MR. LA FOLLETTE: No, no. Your honor is misinformed. That is the document upon which there may be cross-examination.
THE PRESIDENT: Yes, I had the two confused. That is right.
Well, any further questions. Then at this time -
JUDGE BRAND: I should like to ask the witness one question. What happened to the prisoners who were not evacuated? What was done to the prisoners who were not evacuated from the prison?
THE WITNESS: As far as I was informed, the prisoners were shot by the Gestapo.
THE PRESIDENT: I should like to ask a question. In your affidavit you stated that by agreement that part of the prisoners were evacuated and another part remained behind and were shot. Now, are you able to tell the Court how those were classified? That is, what class of prisoners were evacuated and what other class were shot?
THE WITNESS: No; according to what basic principle the prison directors took prisoners along? That I did not find out. I did not know what principles applied. I only found out that a part of the prisoners were taken along and a part was left behind. What principles were decisive in this selection, and whether the General Public Prosecutor had issued directives previously for this---that I do not know.
THE PRESIDENT: Is there any further direct examination on the part of the Prosecution?
MR. LA FOLLETTE: If your Honor please, as I understand Dr. Schilf, he wants to go to the other matter after the noon recess. I do think I am entitled to say in view of the Court's question that if the connecting matter in this matter is Exhibit No. 293, Document NG-741, on the last questions which the Court asked, that is in evidence.
THE PRESIDENT: Those matters can be taken up after we reconvene.
At this time we will take the usual noon recess until one thirty o'clock.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again insession.
MR. LAFOLETTE: May it please your Honor, I would like to petition the court for a variation in the schedule of cross-examining any present witnesses. The prosecution's next witness is the witness Eggensperger, who has come here as a voluntary witness from the French Zone. If he cannot be heard this afternoon it will be necessary for him to stay over the whole week-end, and he is presently employed there and would like to return. For that reason I would like to request that presently any further cross-examination of this witness be restricted to his testimony this morning, and his affidavit of this morning, that then we may be permitted to offer the witness Eggensperger on a related testimony relating to the subject matter, and then recall the witness Hecker for cross-examination on the Nacht und Nebel affidavit. It seems that that would make a more orderly proceeding and would not be unfair to any one.
THE PRESIDENT: In other words you request that this witness stand aside and let the other witness testify?
A. LAFOLLETTE: Unless Dr. Link desires to cross-examine this witness now on his testimony up to date. I don't know. There will be no crossexamination on Nacht und Nebel of this witness.
DR. LINK (for the defendant Engert): If the Tribunal please, I want to start my cross-examination of this witness.
Q Witness, we know from your first interrogation, and you have repeated today, that you worked in the Department V of the Reich Ministry of Justice. That is correct isn't it?
A Yes.
Q You furthermore stated today that you worked in the Department for penal Execution, and that the transfer of the prisons belonged to the sphere of activities of this Department. You furthermore stated that the tasks in this field of transferring prisons were not contained in individual directives, from individual agencies, but that rather the directives were given to you by lectures in Nothern Germany, or Western Germany, and they were general directives.
Is that also correct?
A Yes.
Q Would you please explain this matter to the tribunal a little bit more indetail--that is, of what consisted the tasks of the Department V, and your own task in this matter concerning the evacuation and transfer of prisons.
A The activities of Department V consisted in caring for a timely transfer of prisoners, and they had to make the rooms and accomodations available for this transfer. The transfer of prisoners originated from two considerations: On the one side because of the danger of air raids and on the other side because the enemy came closer. Therefore, the various districts had to receive information where they had to transfer their prisoners in such cases. The first plans of this nature were formulated for the West, considering that the air raids took place in this area. Then plans of the some nature were formulated for the North because of the possibility of an invasion of this area. Thus, for every district it was determined where the district would transfer its prisoners if the need arose. The competent general attorneys approached the districts which were in their field of tasks for these purposes, and they together established to what penitentiaries the prisoners should be sent if the need arose.
Q Witness, is it true that you declared this morning that concerning the field in which were an expert, the question of evacuating penal execution penitentiaries in the framework of evacuating the area of the Reich, that you do not longer recall all matters. Therefore, I have to ask you, and I quote from the document--Exhibit 290 in the Document Book 7-B: Its states there: "The individual evacuation because of the required knowledge of local conditions and the necessary collaboration with the local administrative and party organizations, have to be left to the greatest extent to the competent attorneys-general.
These directives can only given hints." Does that mean you worked in this matter, and gives a clear picture of it?
A Yes. These are only general directives which have been issued. The matter was slightly different when it concerned the North. At that time--I don't exactly recall when it was--there were, repeatedly, conferences at Hamburg, conferences which I attended myself, but then was appointed for this whole area, an attorney general who, after that, had to execute all these various measures. Apart from that, I myself did not participate in these conferences.
Q This last restriction, however, does not concern the field of task of the local court, to which Sonnenburg belonged.
A No.
Q May I then take it from your previous answer, that the execution --that is, the evacuation of the various penitentiaries, had nothing to do with your work, and that the general public prosecutors had to execute these matters in accordance with the directives by the penitentiaries.
A Yes. These conferences were a matter for the general public prosecutors, and did not depend on the Ministry.
Q May I bring this answer into connection with the fact that according to your affidavit, the statement which you made this morning, that you had nothing got do with these matters of Sonnenburg, except your contact which you had quite by accident?
A Yes, that is correct. Otherwise, I only had knowledge of the trans fers which had already taken place, and that happened either when I had a phone conversation with the competent man, or else on the strength of the monthly reports where I saw that prisoners had been transferred to other institutes.
Q Witness, may I remind you of the following: This morning you stated that you heard for the first time of the evacuation plans at Sonnenburg, because the general public prosecutor Hanson, who was competent for Sonnenburg, discussed the matter with you and told you that- as you expressed it- conversations and conferences, had been held-but that he had no authority to give you closer details concerning this matter.