He suggested that you might talk to the State Under Secretary concerning this matter. Don't you think it is rather striking, witness, or was it quite in line with the usual measures, that you had no connections whatsoever with these individual cases and that the general public prosecutor told you, "I can't tell you what we have talked about."
Court No. III, Case No. 3.
A Well, I conceive that in the following manner. I thought that was a matter which had been considered top secret and the publication of which, to me, was not considered necessary because I was not familiar with the details of the matter. Thus, only the general information seemed necessary and opportune to the general public prosecutor in order to give me some knowledge of the matter.
A But according to the opinion of Mr. Hansen, what was the matter you were to talk over with the Under Secretary of State if you were not to receive any knowledge of the preceding conferences?
A Yes. Well, the Undersecretary of State had authority to give me the information.
Q You did not think it unusual that the general public prosecutor did not consider himself authorized to give you the details of this matter?
A No, in itself that was not unusual.
Q Is it correct if I say that the reason was that you actually were not officially concerned with this matter?
A No, but it might have been possible that from these conferences some general facts arose which might have been of importance for me. Therefore, he told me that I should talk with the Undersecretary of State, and that the discussion of this matter with the Undersecretary of State might have been of some interest for me.
Q May I furthermore assume, concerning this conference which took place about the 30th of January in Sonnenburg, that you came from Sonnenburg and that you, according to your affidavit, as an expert reported, then took service in the Reich Ministry of the Interior and that this was not a telephone service in Department V, but rather in the Reich Ministry of Justice?
MR. LAFOLLETTE: Just a moment, please.
I am sorry; I must be terribly stupid. I object to this question because I find it completely unintelligible. I don't know what it is that the witness is asked; or perhaps it can be repeated.
Court No. III, Case No. 3.
I don't believe the witness can answer the question, because it is so involved that I can't understand what is asked of the witness.
Furthermore, I call the Court's attention to the fact that the counsel is of counsel for the defendant Engert, and while of course he must be entitled to pursue his cross-examination as he sees fit, I find nothing in this line of questioning which is calculated to in any way conflict with the witness' testimony or that the witness' testimony in direct involved the defendant Engert. Therefore, this cross-examination seems to partake of a second cross-examination on behalf of at least other defendants than the defendant Engert. For that reason, I object to cross-examination which is not calculated to elicit some answers from the witness which are pertinent to the defense of counsel's particular defendant.
DR. LINK: If Your Honor please, I will try to clarify this matter.
BY DR. LINK:
Q Witness, you have testified that as an expert reporter, or acting expert reporter, you had to receive telephone calls about the 30th of January. Did you make these telephone calls on that particular night because you were assigned to that service? And is it an accident that you, as an official in Department V, received these phone calls and answered them after you took information from the Minister of Justice? Or did it belong to your tasks in Department V to be reporter on duty? In other words, in the Reich Ministry of Justice was there a telephone service in every department, or were you the man who, during that night in the Reich Ministry of Justice, had to receive all phone calls which arrived?
MR. LAFOLLETTE: The last part of that I can understand.
A During the last months I constantly lived in the Ministry, and, therefore, I could be found very easily every night. Normally, as far as the assignment was concerned, there was one expert reporter for every night, and he was not in charge of a special depart Court No. III, Case No. 3.ment, but for the whole house.
The phone calls of that particular night I could only conduct myself, because the official of another department, it is true, could have called up the Minister, but he could not have conducted the further phone conversations.
BY DR. LINK:
Q Well, witness, that does not answer my question. You testified here under oath that you made these phone calls as reporter on duty. Is that true, or were you called because you were in Department V?
MR. LAFOLLETTE: I thought the witness answered that.
DR. LINK: No, I don't see that he has answered it. A "yes" or a "no" is sufficient; half a sentence.
BY DR. LINK:
Q Haven't you understood? Will you tell me how it was?
A Well, the situation was the following. The chief of the department, of course, tried to get somebody from Department V, and then he reached me during the night.
Q Well, then, you did not conduct the conversation, as you said in your affidavit, as Referent on duty?
A Well, the difference is that at the same time I was reporter on duty and an official of Department V; I took the phone call in both capacities.
DR. LINK: I have no further questions on that matter, Your Honor.
MR. LA FOLLETTE: Excuse me just a minute. I only ask to clear up the interpretation. This man is not saying that he was a reporter; he is saying that he was an official. I think it would at least help me to understand if the interpreter understands that the word is translated "official" on duty, and not "reporter". I don't know what a reporter is.
THE PRESIDENT: Well, he said he took it in both capacities, and that certainly ought to be pretty nearly final.
MR. LAFOLLETTE: He was an official, he wasn't a reporter in the sense of making a report.
BY DR. LINK:
Q One further question, witness. Why did you see no reason to inform your department chiefs of this phone call, and you approached, rather, the general public prosecutor and then the Reich Minister of Justice on your own initiative?
A I did that because the department chief was not present in Berlin at that time. The decision had to be made immediately, and the chief of the department was not in Berlin.
THE PRESIDENT: One moment, please. Entirely aside from the character of this cross-examination, there is another matter that I think we should take up at this time. I can see no reason why the cross-examination of this witness on this particular line could not have been postponed as well as the further examination on the part of Dr. Schilf. It was the suggestion of the Prosecution counsel to let this go on, but I want to say now that we will be adjourning at an earlier hour this afternoon, and if you want to dispose of the other witness and get through with him, you had better take that into account now.
Does the Prosecution have any wish about this matter?
MR. LAFOLETTE: I appreciate it; Your Honor is quite right. I had thought, or I could see for myself no reason why this examination should be extensive, because I could not see that counsel's defendant was directly involved. Dr. Link can help me a little. If he contemplates that it is necessary for him to continue for some period of time, I would then ask the Court to permit this cross-examination of this witness on any matter be held until after we have heard the witness Eggensperger.
THE PRESIDENT: Until after the other witness has been disposed of.
MR. LAFOLETTE: I did not hear what Dr. Link said through the translator.
THE PRESIDENT: We didn't hear it either.
DR. LINK: I will be through in just a minute, if Your Honor please.
BY DR. LINK:
Q You told us, witness, that this case Sonnenberg, as far as the tasks of Department V were concerned, within the framework of the directive on the transfer of prisons, was not connected with Department V in this connection. I think that is what you told us, isn't it? Then I have to ask you whether your department chief was competent in some manner, as far as you saw it.
A No, he was not competent for this individual case.
Q In conclusion, I want to ask you this. During these conferences which took place at Hamburg or Western Germany, concerning these hints in the directives, was the question dealt with at any time that not all inmates of prisons were to be transferred, or would be transferred, or could be transferred? Or did your department consider it self-evident that the total number of inmates - with everything that belonged to that - were to be transferred?
A The directives provided only for the transfer of certain groups of the inmates. Not all the inmates were to be transferred. There were prisoners with shorter terms who were to be released, or whose transfer was not considered necessary. Only prisoners who had longer prison terms, or who were otherwise dangerous, were to be transferred. The others were to remain on the spot. And, as far as possible, there was to be a transfer if there was an immediate danger. In most of the cases it was possible to execute these directives.
I didn't hear anything at that time. Of course, there were some difficulties; for instance, in cases when a timely transfer met with resistance from the Reich Commissioner for Defense.
Q. Witness, what were the directives that you were just referring to?
A. I was referring to the general directives pertaining to the evacuation of areas in cases of endangerment by the enemy.
Q. You were not speaking of the directives which had been shown to you this morning and which you don't know?
A. No. I am not referring to those directives. The directives which were shown to me this morning were not issued by me in this form. They somehow partly correspond with what came out of these conferences which have been discussed here.
Q. How can you say that, witness, that partly they corresponded to the subject matters of the conferences?
A. Because these directives have been submitted to me at one time, but only now.
Q. You testified this morning that all foreigners who had come from abroad and also apart of the Germans were then, as far as you heard transferred. Did you say that, for instance, foreigners stayed at Sonnenburg?
A. No. As far as I know, the foreigners had already been transferred previously.
Q. You have not alleged, and you cannot allege that Poles or other foreigners were in the group of those who remained at Sonnenburg?
A. No. I only know that Poles, together with their warden, had gone away because that was an institute which had been added to the penitentiary later on.
Q. And you know that from Mr. Eggensberger, or from whom?
A. No, that I heard of through a telephone call which came later on.
Q. Thank you.
MR. LA FOLLETTE: If Your Honor please, I would like to ascertain whether there will be any more cross examination of this witness on his testimony today later and not at this time, or further cross examination will be on the subject of Nacht and Nebel--that is, if we can.
THE PRESIDENT: May we inquire whether any of the defense counsel desire at any time to cross examine this witness on the same subjects which had already been inquired of? (No reply) Apparently no; so this witness may temporarily stand aside, if you wish.
MR. LA FOLLETTE: Thank you, Your Honor; and I'd like to have the witness Eggensberger called. The witness will testify in German.
EUGEN EGGENSBERGER, a witness, took the stand and testified as follows:
JUDGE BRAND: Hold up your right hand and repeat after me the following:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath).
JUDGE BRAND: You may be seated.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q. Will you state your name and the work at which you are presently occupied, please.
A. Eugen Eggensberger; at present I am an official with the District Director's office at Tuebingen.
Q. You recall being on night duty in the Ministry of Justice late in January or early in February 1945 at which time you received a phone call with reference to the evacuation of the Sonnenburg prison?
A. Yes, I remember that.
Q. At that time, what was your position in the Ministry of Justice?
A. I was an official in the penal execution department. During this phone call, however I was the official on duty; that is, I had night duty from this one evening to the next morning and I was the official to whom all important phone calls had to be channeled.
Q. Do you remember the general subject matter of the phone call that came to you with reference to Sonnenburg prison?
A. Well, the question was the evacuation of the Sonnenburg penitentiary. The general public prosecutor Hansen, called me up during that night and told me, in the course of this telephone conversation, that he had to inform me of something concerning the Sonnenburg penitentiary. He told me that during that particular night, the prisoners of the Sonnenburg penitentiary would be handed over to the Gestapo, that a detachment of the Gestapo had already arrived at Sonnenburg, and that the action was under way; the prisoners were being handed over to the gestapo. This information came as quite a surprise to me. It is true that I knew from the previous days that the evacuation of Sonnenburg was discussed. Hansen told me that this evacuation or rather this transfer of the prisoners being carried out was because the enemy constituted an immediate danger to the prison. I asked the General Public Prosecutor Hansen from whom this directive had originated about this matter, and Hansen answered, that it had originated from an order of the Reich Defense Commissioner and Gauleiter.
Q. Did he say whether or not it had been approved by any one in the Ministry of Justice to his knowledge?
A. I had asked him that and I said, "Does the Ministry know anything of this directive?" And to that Hansen answered, "Yes, this matter has been discussed with the Under Secretary of State Klemm." And from his remarks I gained the impression that conversations had taken place, at least that is the form in which he told me that, and that Klemm and not the Minister--that Klemm had requested and bad said that he approved the matter and that the matter had his approval.
Q. Now, I ask you whether or not you made any notation of this conversation at any time while you were on night duty?
A. Well, this information was one of the customary ---I mean not as far as its contents are concerned-but the fact that such information was given was quite customary. After the telephone conversation, it is true I took some notes with a pencil, but only in the morning when I started the day duty, I made a few notes concerning this matter; that is, a telephone note. And this was to be submitted to the competent official.
Q. Did you discuss it with any one that morning then? That is, particularly the notation that you made and the conversation?
A. Well, for the reception of this note, the official was competent, and in this particular case it was the president Hecker. From a conversation, a case identical a few days before with Hecker, I knew that there had been a night telephone call concerning this Sonnenburg matter, but I also knew that at least officially he was competent and therefore I submitted this file notice to him.
That was the standard procedure.
Q. Did you discuss the matter of whether or not State Secretary Klemm knew it or had participated in it or had approved it with Mr. Hecker? Was there any conversation about that between you and Mr. Hecker?
A. Well, I was deeply impressed by this information which I had received during the night, and therefore, when I submitted this file notice to Hecker in the morning--that is Hecker read it in my presence and then I told him, "Tell me, Mr. Hecker, is it true that the Under Secretary of State Klemm knows of this matter and approves it?"
Q. And what did he say, if you recall?
A. Hecker shrugged his shoulders. He looked at me and said, "Well, Hansen has..." Well, I can only give you the sense of what he says, that Hansen has fooled this Under-Secretary of State and he has got around him or he impressed him. I think he said, "Hansen has convinced the Under Secretary of State Klemm to approve it." Well, I think that is all Hecker said and I didn't ask him any further question either.
I asked him this question because I supposed that this whole story of the negotiations was known to him, and that I could obtain some sort of detailed information from him because I was rather worried by the matter, and that Hecker expressed himself in the manner I just now described to you.
Q. Yes. First you heard it from Hansen that Under Secretary of State Klemm had approved it; then you wanted to ask Mr. Hecker about it too; is that correct?
A. Yes; what I mean is, I asked General Public Prosecutor Hansen whether the Ministry or the Minister were familiar with this matter, and he answered this in the affirmative and told me that the Under Secretary of State Klemm knew about it, and I had put that down in my file note, and when I submitted the file note to Hecker, I asked him in a tone implying my doubts, I asked him whether this was correct as far as his knowledge was concerned.
Q. And then he gave you the answer that you just described; is that right?
A. Yes, he expressed himself in that sense.
Q. I will ask you furthermore, Dr. Eggensperger, do you know anything about the party relationships and the personal relationships between Hansen and Klemm?
A. I couldn't give you any details on that; I repeatedly noticed in official negotiations with the General Public Prosecutor Hansen that toward me, when I didn't do exactly what he wanted, he supported himself to a very large extent on the opinion of the Under Secretary of State, Klemm, and I saw that from that he had a certain support from Klemm, but these were matters which could not be doubted; and I only noticed that quite often toward me he referred to the support he had from the Under Secretary of State Klemm.
Q. Now, I think you stated -- I would like to ask you again: Will you fix the approximate time, the month and the year which you recall you had, you received this telephone conversation, and you had this conversation with Hecker?
If you did answer it, please answer it again; I have forgotten whether I asked it.
A. Well, of course, I can only judge that by the situation of the war. If I recall, that must have been during the last days of January or the first days of February, 1945.
MR. LaFOLLETTE: No further examination.
CROSS EXAMINATION BY DR. SCHILF: (Attorney for Defendants Mettgenberg and Klemm)
THE PRESIDENT: Proceed.
Q. Witness, the last question of the Prosecutor was when the telephone conversation took place, and you answered that it must have been towards the end of January or the beginning of February. On the strength of some memory which you might have, could you perhaps establish the time a little closer?
A. Well, I couldn't give you the exact day. As far as the situation of the war was concerned there were two different situations. As far as I am personally concerned, one morning Hecker came to see me and told me the enemy had come quite close and that was quite a surprise because I didn't know that part of the army had come so far already. Between this information and this phone call several days passed, I recall; I think the first occurrence was about at the 30th of January or somewhere around that day when Hecker told me of this night phone call; my personal experience was that it was a few days later.
Q. Well, you say a few days; could you tell us whether it was five, eight or ten days?
A. Well, I wouldn't say so much -- five or six days perhaps.
Q. You have already stated in what department of the Ministry of Justice you were working at that time.
A. Yes.
Q. In order to clarify this matter, it was in Department Five?
A. Yes.
Q. In this Department Five, at that time were you constantly on duty?
A. Yes, I was on duty in Berlin; the department itself had already been evacuated for a year and a half or two years; I myself was the liaison man between the department and the offices of the Wilhelmstrasse in Berlin. When the situation became critical, as far as evacuations were concerned, and that must have been in the fall of 1944 -- I couldn't give you any exact date -- then Hecker, who until that moment had always been in the field, at one of the places of evacuation, was recalled to Berlin in order to organize these evacuations and direct them from Berlin.
Q. Where was Department Five evacuated to, as a whole?
A. It was divided -- one part was in Siedenick, and the other in Wetzlar.
Q. Did you, as liaison man who remained at Berlin, in Department Five, report repeatedly to the defendant Klemm in his capacity as Under Secretary of State?
A. Yes.
Q. And what matters were you concerned with?
A. Again and again there were current matters which had to be discussed between the department and the Under Secretary of State who wanted some information, and some information I gave to him myself. In more complicated cases I asked the officials in charge to come in.
Q. In other words, you had a picture of the personality of Klemm himself. May I ask you to make a short interval between the question and your answer; this is necessary.
A. Yes.
Q. That apparently is the reason why you were surprised when Hansen, during the telephone call you referred to, explained the matter to you in a way that during the evacuation of Sonnenburg, Klemm was the man who originated it?
A. Yes, in a way I knew the Under Secretary of State Klemm, I was quite surprised.
Q. Do you mean to say you didn't believe he could do that?
A. Yes, I was quite surprised that the General Public Prosecutor Hansen referred to the name of the Under Secretary of State Klemm. If I hadn't been surprised, then I wouldn't have asked Hecker on the morning, Hecker who I thought was better informed; I would have seen quite clearly and I wouldn't have asked Hecker.
Q. In other words, you answered my question in the affirmative. From your personal knowledge, you wouldn't have thought that Klemm would approve such a matter?
A. No.
Q. On the other hand, did you have knowledge of the personality of Hansen in such a manner that there again you can have a personal insight in his character?
A. Well, I had repeated dealings with Hansen, who was General Public Prosecutor in Berlin, and I knew him quite well. I didn't like him because he had stressed severity in all his declarations and measures, and -- as I imagined it -- there was constantly great tension between us. I wouldn't quite say that, but I had only very formal official dealings with him.
Q. According to my information, Hansen was considered an especially brutal and a fanatic Nazi; can you confirm that?
MR. LaFOLLETTE: I object to this question, Your Honors, for the reason that it assumes existence of a fact and asks that the witness assume the existence of a fact about which we know nothing, of which there has been no testimony concerning this on direct examination of this witness. Certainly it is arguing, preliminary question to argue with the witness as to something about which can be brought into evidence at the proper time.
THE PRESIDENT: We sustain the objection.
BY DR. SCHILF:
Q. You have told us that you, yourself, had tensions in your relations with Hansen.
A. Yes. I only had official conversations with him, and I was very cautious in my dealings with him because of his domineering methods which were not very pleasant.
Q. Concerning this conversation, you told us already that you made a file note of the telephone conversation.
A. Yes, that was my duty.
Q. May I ask you what was the extent of this file note, as far as volume is concerned.
A. Well, I would say it was half a typewritten page.
Q. In this file note does the name of Klemm appear in connection with the fact that Hansen had referred to him as the originator?
A. Yes.
Q. Neither you or anybody you talked to, talked to Klemm himself, and discussed this matter with him?
A. I never discussed this matter with the Under Secretary of State Klemm, and how Mr. Hecker has taken action in that matter I don't know.
Q. During the two conversations you had, the first about the 30th of January, and the second about five or six days later, did Hecker then tell you anything of his having talked with Klemm?
A. During the first occurrence, Hecker only told me of a night telephone call with the Minister; nothing was said about the Under Secretary of State Klemm; the second conversation with Hecker concerning this matter took place at that morning and I already stated what Hecker answered to my urgent question whether this was quite correct, and he answered that question.
Q You already gave us a brief description of the contents of the telephone call with Hansen and, if I understand you correctly, you said that Hansen talked of an order issued by the Gauleiter and Reich Defense Commissioner. I think that was Sturz; and that he talked of this order. Is that right?
A Yes.
Q Did Hansen speak about an agreement? Did he use the word "agreement?"
A Concerning the exact wording, of course, I can not give you any information. Hansen, if I remember correctly - I mean, the matter is two years back, after all felt doubts arising out of my question, and he wanted to dissipate those doubts and to tell me that this matter had already been discussed and approved, and was all right.
Q Well, what then was the reason why Hansen -
A He reported to me the execution of a directive which had been issued.
Q Did Hansen tell you during the conversation that he, himself, asked if the General Public Prosecutor had reached an agreement with the Gauleiter Sturz?
A The word "agreement" would not be the right word if one speaks of conversations between Hansen and the Gauleiter. He told me himself that the Gauleiter and Reich Defense Counsel had ordered this measure to be carried out.
Q If I understand you correctly, that was what they called a report on the execution of a measure made by a General Public Prosecutor, who normally was under the authority of Department 5 of the Reich Ministry of Justice, a report on a directive by the Reich Defense Commissioner.
A If you ask me concerning the execution, it was the report of a General Public Prosecutor concerning an important occurrence in a penitentiary.
I would formulate it like that. It was his duty to report this matter.
Q And as you describe it to us the name of Klemm was only referred to by Hansen because, from your attitude during the conversation, he noticed that you had some doubts and didn't quite believe him.
A I certainly didn't ask him whether the Under Secretary of State had a report on that matter. I certainly asked him that the Minister knew about it, and therefore it was striking that he did not refer to the Minister himself but rather to Klemm.
Q On the strength of the circumstances of the conversation, as well as you, yourself were concerned, and Hansen was concerned, do you believe it possible that Hansen would refer to Klemm in contradiction with the truth in order to cover up for himself?
MR. LA FOLLETTE: I object, Your Honors, to that. I object for the reason that he has asked the witness to testify to some conclusion that might be in the mind of the man Hansen. That is not proper cross-examination.
THE PRESIDENT: He would have to be a mind-reader, it seems to me, to answer the question. I sustain the question.
BY DR. SCHILF:
Q A while ago, during the direct examination by the Prosecutor, you gave him an account of your telephone call with Hecker, where you doubted the correctness. You then told the Court that Hecker said something to the effect that Hansen probably had got Klemm around..." This remark of Hecker and that what you yourself seem to have felt during your conversation with Hansen, these circumstances gave you a reason to believe and to ask you that question yourself. Did you ask yourself whether Klemm really support Hecker -
INTERPRETER: Correction by the interpreter: Did you yourself -
MR. LA FOLLETTE: Your Honor, I object; this does not make -
THE PRESIDENT: Objection sustained.
MR. LA FOLLETTE: I object to the question but I certainly object to the form of the answer. I can't get anything out of this.
DR. SCHILF: "I asked the witness about the fact, the fact after his phone call with Hansen and his conversation with Hecker, he himself asked himself whether or not and this is the mere fact and not a question of appreciation
THR PRESIDENT: Objection to that question has been sustained.
BY DR. SCHILF:
Q Witness, I have to ask you another question. You were an official in the Department V, and therefore you were in constant contact with the field office. Did you have a report that the Sonnenberg penitentiary since approximately the turn of '44 to '45 occupied a special position on the strength of an order by Himmler. In order to refresh your memory, may I tell you the following. At that time Himmler was the commander of the socalled Weichsel Army (Wisla Army) and in his area of command to which Sonnenberg also belonged, he had issued an order for that area according to which, without his approval no civilian authority could execute evacuation measures. Furthermore, towards Thierack, he made a statement that the prisoners of the Sonnenberg penitentiary should be called upon to carry out fortification work, and placed under his immediate command.
Concerning this fact, the issuing of this order, and the fact that the Sonnenberg penitentiary at the latest, since the middle of January 1945, had a special position, do you know anything about that?
A No, not in that form.
Q Well, you say not in this form
A Well, the special position of the penitentiary was that it was built near to the operation area, but I don't know anything of an order by Himmler, of any order, which referred to that penitentiary, or to the location of the penitentiary.
Q Have you any knowledge of the fact that Thierack is alleged to have ordered that Sonnenberg penitentiary, if the enemy came near, should defend itself militarily?
A Yes, Herr Thierack had told me that a few days before, as a result of the night telephone calls. One morning Hecker told me that he had a very violent night because the penitentiary was threatened directly, that he had called up the Minister in his private apartment, and had asked him for directives on how to act. And the Minister had ordered that the penitentiary was to be defended.
Q Wasn't that something extraordinary that a penitentiary should defend itself militarily?
A Well, I couldn't quite see what it was, but as Hecker told me in a night telephone call, this was quite a mess in which such an order could have been given.
Q You, yourself, didn't ask yourself whether that might have been an error?
A No. Hecker told me that the military commanders had asked the Minister what was to be done in Sonnenberg after they had seen Russian armored cars near the penitentiary.