Q. Did a person who had been handed over to the police or who was sent to a concentration camp, including Poles and other foreigners, have any recourse to the law as administered in the Reich, for his protection?
A. Well, if these people were in tho hands of tho police, we could not extend that protection to them. As long as those people were in a concentration camp, and to the extent that we had any jurisdiction over concentration camps -- to that extent we always intervened, if somehow or other we could find out that there had been some abuse; but later on, from 1939 on, these matters came under the special SS jurisdiction and we were no longer in a position to interfere.
Q. After that these people had no recourse to the law as administered in the Reich?
A. We could not give them any legal recourse; we of the Ministry of Justice could not extend legal protection to them.
Q. Did they have any legal protection?
A. Well, I would like to say there was a jurisdiction over the inmates of the concentration camp and this was in the jurisdiction of the SS counts. That SS jurisdiction in accordance with its duty, could intervene in the same manner as we if anything had happened, that was the legal protection afforded to them.
Q. That was the only legal protection they had?
A. Yes; I could not name any other.
Q. Now, by what laws, orders or decrees were these people left to the sole jurisdiction of the SS and the police?
A. Well, the Poles and Jews, NN prisoners wore only handed over to the police after my time in office. As long as I was in office this did not happen.
Q. I mean, by what order or decree -- you speak of a time when the SS had their own courts -- by what order or decree-
A (Interposing) The SS got a special jurisdiction through a law of 1939. The handing over of Poles and Jews, of tho NN prisoners and other people, took place through measures of the year 1943, I believe.
However, I do not want to make this statement with certainty, because it was after I had resigned.
Q. After this order setting up special jurisdiction for the SS the Ministry of Justice could not prosecute them, isn't that correct -or try them?
A. No, it couldn't.
Q. Now, I have here this decree which is found in Volume 2, one on page 55, decree of 17th of October, 1939, relative to the special courts for the SS. Are you familiar with that?
A. Yes.
Q. After that the Ministry of Justice could not try these people for abuse or murder of persons in their hands, is that correct?
A. Yes, I assume so. Please take into consideration when considering my answers that these matters were apart from my official activity. Therefore I can rather give an expert opinion than a testimony as a witness.
Q. Well, the effect of this decree was to deprive the people in the hands of the police of all legal recourse, is that not correct?
A. The effect was in any case that they had no recourse to the ordinary moans of administration of justice. But the SS jurisdiction in my opinion had the same duties, because the same possibilities for their people as we had.
Q. The only recourse, then, was to the SS administration of justice -- now, on page 56 there is this decree which is signed by you, implementing that order, which places the police beyond the administration of justice.
A. I didn't quite understand.
Q. I have here on page 56 of Volume 3 an order concerning the jurisdiction of SS courts and police courts in the Protectorate Bohemia and Moravia which implements to some extent the preceding decree which I called to your attention.
This decree is signed by you, which sets up special courts for the police, that is. takes them out from under the administration of justice. Now, this is signed by you. Do you have any explanation of that?
A. May I ask you to state the date again, just the date?
Q. July 15, 1942.
A. Is that an order which was co-signed by Keitel?
(Document handed to the witness.)
Yes. This decree, however, I believe, has nothing to do with the matters we have discussed so far. This decree as far as I remember, was connected with a decree of January of the same year. In this decree of January, in the Protectorate, military jurisdiction -- that is, military jurisdiction -- was rescinded, and only for certain cases the commander-in-chief of the Wehrmacht was granted the right, in the matter of attacks against the Wehrmacht, to found the competency of Wehrmacht courts. The text of this decree which concerns itself with the police is almost literally the same one as that of the decree of January, 1942, regarding the Wehrmacht. And here in this decree for the police they were concerned with certain courts for the SS, but for the Wehrmacht parts, for the SS parts, which were considered a special group of the Wehrmacht and wore supposed to be treated in the same way as the Wehrmacht. Therefore after a discussion between Keitel and the commander of the SS part of the Wehrmacht, the possibility just as it was given to the Wehrmacht, was given to the SS as a fighting troop , to found such courts. But this has nothing to do with the question of SS jurisdiction, which is another question.
Q. Were there any other orders or decrees issued whereby prosecution of SS and similar units was taken out from under the administration of justice and if so what were they?
A. Yes, there was a special law about SS jurisdiction. At the moment I cannot tell you the date, but it was from 1939. That is the civilian SS.
But this decree refers to the SS as part of the Wehrmacht.
Q. Well, is that the decree of September 17, 1939, that I called your attention to?
A. The decree which you were kind enough to show to me just now.
MR. LAFOLLETTE: Will your Honor permit me? It is October. Your Honor said September.
JUDGE HARDING: It is October, yes.
A (Continuing) Yes, 17th of October, 1939. That is the decree about the SS jurisdiction.
Q. After that decree did the Ministry of Justice have any means whereby they could protect a person in the hands of the police in any way whatsoever?
A. In my opinion, not; and that is why I tried to keep all these people away from the police. That is why I wanted to keep all these people within the sphere of the administration of justice, so that I could protect them.
Q. Then these foreigners and Poles and Jews in the hands of the police were beyond any recourse of law in Germany, is that correct.
A. Not in my opinion.
Q. What recourse did they have?
A. Well, they probably had to turn to the higher SS office and to ask for help.
Q. Wag that recourse in law or is that merely administrative?
A. Yes, that was more administrative.
JUDGE HARDING: That's all. That answers my question.
THE PRESIDENT: Is the cross examination completed?
MR. LAFOLLETTE: Yes.
THE PRESIDENT: You may proceed.
REDIRECT EXAMINATION BY DR. KUBOSCHOK:My questions are for the clarification of facts that have arisen out of the cross examination.
Q I go back to the document which was submitted today by the Prosecutor as the first one, NG 1029, exhibit 517, this is your letter to tho Reichwehrninister and Reichsluftfahrtminister in which you described the distribution of the individual members of the People's Court to the different Senates. Can you explain in detail why this distribution of business among the different Senates was reported to the Reichwehrminister and the Reichminister of Aviation; why they were interested in the distribution of the individual judges in the Senate?
A I believe that these ministers had to know whey they could dispose of their own people and when not, and, therefore, they had an urgent interest in finding out whether the individual lay judges who belonged to their field were used by the courts.
Q A fanal question about document 1061. Your letter to Lammers of 4 December 1941, about the extermination of remarks in the penal register. Your answer was not formulated quite clearly. I ask you to explain again what was the state, when the question, perhaps, was that the amnesty which allowed the persons concerned freedom from punishment should again be abolished or, that is to say, that the penalty was again to be imposed or revived or whether it was only that in tho files of the penalty wore the registration of the penalty had been eliminated, that the penalty was to be recorded again; whether it was merely a correction of the register, in other words?
A The latter suggestion is correct. There was no question about rescinding the effect of the amnesty, but it was only supposed to be made certain that from the files it would be advisable: this man has been previously punished because of treason.
DR. KUBUSCHOK: That concludes my redirect examination.
THE PRESIDENT: Will you remain just a moment.
BY THE PRESIDENT:
Q I overlooked one question. Dr. Schlegenberger, you explained quite fully with reference to the circumstances of your resignation. Would you venture a statement as to your conclusion; did you reign voluntarily?
A Yes, I quite conscientiously brought it to a break, and voluntarily resigned.
THE PRESIDENT: That is all, thank you.
MR. LAFOLLETTE: Your Honor, may I be permitted a redirect following these last two questions?
THE PRESIDENT: I think you have exhausted your privilege of cross examination.
The witness is excused.
(Thereupon the witness returned to the defendants dock.)
Call your next witness.
DR. KUBOSCHOK: I ask to have the witness Dr. Rosenau called.
Dr. Rosenau, a witness, took the stand and testified as follows:
BY JUDGE BLAIR:
Q Hold up your right hand, and repeat this oath after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth, and Till withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may sit down REDIRECT EXAMINATION BY DR. KUBOSCH0K:
Q Witness, please state your last name and your first name.
A Dr. Rosenau, Wilhelm.
Q What profession do you have and what official position do you hold at the moment?
A I am a physician, and a specialist in Psychiatrics, and at the present time I am the official chief physician of the Health Office in Diez on Lahn.
Q Were you once also working in an insane asylum?
A I was a physician at the Bunzlau Mental institution and later on I was director of the Mental Institution Sein of the Reich Association of the Jews in Germany.
Q Please explain the significance of this last Asylum at Sein/ Rhine?
A The institution was first a large Jewish private sanatorium. In 1939 the Reich Association of Jews was ordered for all Jews in Germany who were insane or had nervous diseases, to establish an institution which would be able gradually to take all these Jews into one single institution. From a number of physicians who were considered to be in charge of this institution, I in the beginning of 1940, was put in charge of this institution.
Q Can one, therefore, say that during the time when you were in charge of this institution all Jews who had nervous diseases, from all of Germany, were concentrated in that institution?
AAs far as these Jews had to be accepted in a closed asylum, they had to be brought into our asylum; partly, myself, on trips I made the necessary expert statements in Jewish hospitals.
Q Witness, in the meaning of the Nurnberg Laws, are you, yourself, a full Jew?
A Yes.
Q Was the number of the inmates in the asylum very large?
AAt the beginning there were about 200, and in the end it had risen to considerably more than 400, and you have to consider that we have a large number of losses, dead people, and had also dismissed a large number of cured people.
Q Of the inmates of the institution, was sterilization carried out on them on the basis of law for the prevention of progeny of people inflicted with hereditary diseases?
A When I took over the institution, the then owners and directors of the institution, the brothers Jacobi, told me that the inmates of the institution, as all other German citizens, were subject to the hereditary health laws; that the necessary reports had to be made by the director of the institution; that the trials of the hereditary health court would take place in the hospital, itself. At the beginning this touched me in a very unpleasant way, especially to take part in the trials in the institution itself. However, they calmed me down, I was told that the trials were absolutely technical and conducted in a technical and decent manner.
Q Then, during your activities, did you have the experience that these trials were conducted actually fair and absolutely in accordance with the legal regulations?
A They were conducted absolutely fair and in accordance with the laws; and, in all doubtful cases, the court adopted an attitude, which went far beyond what I had expected, in doubtful cases in particular it was pointed out to us that we had the possibility to make a statement in favor of the defendant; for example, in all cases of Epilepsy if there were any kinds of doubt, even the slightest doubt existed whether it was a genuine Epilepsy or in all questionable cases of Schizophrenia.
Q Was this tendency of a fair and conscientious conduct of a trial in the hereditary health court, the same as the competent chief hereditary health court, the Erbgesundheits-Obergericht, the second instance held?
A With the second instance I experienced only a few sentences because most of our patients, if not they, themselves, their competent relatives were satisfied with the decisions.
A few of my many maniac depressive patients were relieved that the reproduction which they feared would now no longer be expected, therefore, only a few cases came up to the second instance. In the second authority the treatment was the same and perhaps even more cautious than in the first. I would like to remark that I can speak only about this hereditary and health court with whom I worked personally, and about which I got statements through direct contact with the doctors concerned.
Q During your entire practice of medicine, did you find out about any single case in which you had tho slightest impression that the hereditary health court of the first instance or the chief hereditary health court of the second instance; for political or racial reasons made its decisions?
A. I did not have such an experience. I also do not believe that this method would have been chosen for Jews if they were supposed -Hb have been harmed. The competent Party officers, the Gestapo and the Ortsgruppenleiter, the local group leaders, did that by much more direct methods.
G. On the basis of your position in this Jewish Institution, did other colleagues in other localities also tell you their experiences about the conduct of Herititary Court trials?
A. I worked together, closely, with the Jewish Asylum in Cologne and with the Frankfurt Hospital in the Daganstrasse. The physicians there never told me about complaints of that type. Most of those trials were conducted only when the patients had already been received in our institution because they had to be taken to a closed asylum.
Q. Witness, you are now Kreisarzt in Diez in charge of the health office there. As far as I know, the health offices keep the files of the trials conducted before the Hereditary Health Courts. Just a moment, now; after you took your position as Kreis Physician in Diez, did you see files of that type, and thus in another way find out something about the practice followed by the Hereditary Health Court in Limburg which is competent for the District of Diez?
A. I have such files with me. All files about hereditarily afflicted people have been carried on very carefully and kept. Every Hereditary Health Court has a carefully kept file system about this.
Q. From the files or by other methods, did you gain the impression that people who were close to the Party were favored in these Hereditary Health Trials?
A. Through pure accident such files of that kind about party members were submitted to me. A woman came to me and asked me for a certificate about the fact that her husband who had been in the SS had been sterilized by the Hereditary Health Court because he was feebleminded. Thus she wanted to have some evidence in favor of her husband in his trial. The files are here. From the files it is apparent, without doubt , that the SS started the trial before the Hereditary Health Court against a member of their own organization.
In other cases, feeble-minded persons took the means to have the trial postponed by going to Party Offices and getting certificates that they were eager members of the Party and that the Party did not know anything about their feeble--mindedness. In spite of that, these trials were conducted and they ended in sterilization. The files I had were about three brothers and sisters, Kriselius.
Q. Witness, a witness, Rudolf Klees from Diez, was examined before this Court, against whom before the Heriditary Health Court in Limburg, and in the second instance, before the Chief Hereditary Health Court in Frankfurt on the Main, a sterilization trial was pending. Do you know about that case, and do you know about the file?
A. The case I know. The files, I have here. I also have with me all papers which refer to the achievements in school which Rudolf Klees had. They are dated from a time long before 1933.
Q. Can you describe, briefly, to the court the opinion of these agencies?
A. I would like to refer to the efficiency report from the school which was made about Klees on 4 July 1933. The copy was made on 4 July 1933, however, it dates from the year 1928. This shows that in the main subjects that were taught at the school, German, mathematics, history and geography, he was considered absolutely deficient. He was dismissed from lower class. Only because there was lack of space and so that he would not have to be together with the little children, he was promoted to the next class.
Q. In the Court files, is there a so-called I.G. Questionairre?
A. This prescribed L.Q. Questionairre in the file is in its original form. It is not in accordance with what would be described as a good intelligent examination , but nevertheless, in my opinion, it shows without doubt that he was at least on the borderline of what is called weak-mindedness and what could be described as physiological stupidity.
In consideration of his other social behavior, too, I would reach the conclusion that Klees is debilitated. My own experience with Klees confirms that after he was examined as a witness.
Q. Perhaps you know a few but very characteristic questions from the questionairre which you can tell to the court so they can see what type of questions were asked. Do not tell us all of the numerous questions, but tell us just a few.
A. I do not believe that would be very instructive. I said already that this questionairre was prepared for mass use and for very delicate decisions, it was not suitable. Nevertheless, it says a great deal if someone says Christmas is celebrated in September and if given three words like, hare, hunter and field , he cannot form a simple sentence.
Q. In the files, you also have the decision of the Chief of the Hereditary Health Court in Frankfurt?
A. Yes.
Q. Please make some remarks about this Chief Hereditary Health Court.
A. Since I did not make a personal examination of the persons concerned, I cannot give a personal opinion very well. I know Klees only from a short discussion with him, and from the statements of third persons. I, myself, did not examine him. I do not want to reject entirely what is said in the opinion of the Court. May I read it?
Q. Yes. Go ahead.
A. "From investigations and from the personal examination of the interrogation of Rudolf Klees before the Chief Hereditary Court, the results certainly excluded any doubts that Rudolf Klees is suffering from hereditary feeble-mindedness. He has apparently considerable skill in the contact with other people, which deceives in regard to his mental defects. He has acquired the knowledge necessary for his profession. However, he fails immediately when he is asked questions which go beyond the most primitive facts of daily life and which require any higher combinations.
It is in accordance with those facts, that he was a bad student in school, too. On the other hand, it does not speak against his feeble-mindedness that in his profession, he is an efficient and valuable worker."
Q. Does your personal impression of Klees and what you know about him through his files, agree on the whole with the judgment of the Hereditary Health Court?
A.- The impression on the whole is too short. Nevertheless, I do not see any very considerable deviations in my opinion from those of the Chief Hereditary Health Court.
Q.- Witness, the witness Klees, here in Court, stated that during the trial before the Hereditary Health Court in Frankfurt the decision of the Court was not told to him, that he was told he would receive written information, and that this information came to him ten days later.
Witness, please look at the files, especially the yellow sheet which contains the decision of the Chief Hereditary Health Court.
A.- The Chief Hereditary Health Court?
Q.- Yes, the one in Frankfurt. Not tho white sheet, the yellow one.
A.- The files are not complete; someone else had them in their hands Yes.
Q.- Witness, please look at the back of this opinion -- the remark which is there.
A.- Yes.
Q.- Please read it aloud.
A.- "One copy given to Rudolf Klees on 10 September 1934."
Q.- Please find out, on the first page, when the trial before the Chief Hereditary Health Court took place.
A.- On 10 September 1934; the dates agree.
Q.- Therefore it is apparent, from the document, that on the very day when the trial before the Chief Hereditary Health Court took place, Klees received a copy of the decision together with the opinion. Is that correct?
A.- Yes.
Q.- As a psychiatrist, on the basis of your knowledge of the files and of your personal impression, do you think the possibility exists that, in the memory of the witness Klees, desires, or imaginations caused by desires, caused him to have a wrong idea in his memory?
A.- I believe that this characteristic of Klees to realize his wish Court No. III, Case III dreams plays a considerable role.
Q.- Witness, did you ever have a case in your medical practice in which the intelligence question before the Hereditary Health Court limited itself to the question of the birth date of Hitler, Goering, and Goebbels?
A.- The question as to Hitler's birth date was, so to speak, the last recourse when we wanted to press something out of a person, because, thanks to Nazi propaganda, it was a date which actually was generally known. On the other hand, I never heard that in examinations before Hereditary Health Courts persons were asked about the other birth dates.
Dr. KUBUSHOK: Thank you; I have concluded.
THE PRESIDENT: Do any of the other defense counsel desire to make him their witness?
(No response.)
You may cross-examine.
CROSS-EXAMINATION BY Mr. LaFOLLETTE:
Q.- Doctor, were you in Germany throughout the war?
A.- Yes.
Q.- Were you at your hospital during all this time?
A.- No.
Q.- When did you leave your hospital?
A.- In 1942, after all inmates of our hospital, together with almost the entire personnel, except for four of us, had been deported to Poland -
Q.- I have slipped off the English; I am sorry, you will have to give me the answer again. Give me the English again, will you, please? Clear the English channel. Now I have it. I am sorry, will you give me your answer to that question again? The phone slipped off the English.
A.- In 1942, the institution was dissolved. All of the inmates ajad all of the employees, except for four, among whom I was, were deported to Poland. We never heard anything about these people again. I myself was employed as heater, and night-watchman in the institution. After many hearings before the Gestapo, my life was saved because the frequent attacks of the Allied Air Force did not give an opportunity to the Party officers -- who interested themselves in me in a negative way -- to carry out their intentions.
Q.- Yes. Do you know Herr Dannhauser, who is the present Landrat in Limburg?
A.- No.
Q.- You have your records there. Do they show who was the President of the first court at Limburg?
A.- Yes.
Q.- Landrat Dannhauser?
A.- I don't know whether he was 'Landrat, 'but there was a Mr. Dannhauser.
Q.- Dannhauser, yes.
A.- Yes.
Q.- Do you know whether -- today he is the Landrat in Limburg. Do you know that?
A.- I don't know the gentlemen in Limburg.
Q.- How far are you from Limburg?
A.- Only four kilometers, but the zonal border is between the two places.
Q.- Which zonal border is that?
A.- Between the French and American zones.
Q.- Is Limburg in the -- waht, French zone?
A.- It is in the American zone. Diez is in the French zone.
Q.- Do the records that you have of the proceedings at Limburg show any individual who instituted the proceedings? Is there a complaint in letters asking that proceedings be instituted?
A.- Yes. The trial was initiated by the fact that Klees asked for a driver's license. For that he had to get a certificate from the officiating physician, that is, the Kreis physician that his physical and mental abilities were not inadequate to have a driver's license given to him. During this examination as to his physical and mental suitability for driving a vehicle, the examining Kreis physician discovered the e examining Kreis physician discovered the feeble mindedness of Klees.
Q.- When was this, in 1934?
A.- In 1934, yes.
Q.- Yes. From your experience in Germany at that time, wore there very many anti-Nazis liable to be Kreis physicians at that time?
A.- In 1934 the great cleansing of the positions of Kreis physicians and other civil servant positions had not been carried out, if alone for the reason that the old officials could not yet be replaced.
Q.- Some of them had by that time, had they not?
A.- I cannot judge that. In my district, where I have experience, the old civil servants, still held their posts. And even if, in the meantime, they had adopted certain principles of National Socialism, many of them were very far from recognizing what the Party later revealed itself to be.
Q.- Now, as to the answers to what we call the IQ questionnaire, are they written by the person who is examined, or are they written by the examining officer.
A.- By the person who makes the examination.
Q.- Yes. They are not written by the subject?
4.- No. Many subjects are not in a position at all to fill out such a questionnaire in handwriting. If one wants to have something written by them in handwriting, one asks them to copy down a little story in handwriting.
Q.- Yes; the answers are written by the man who conducts the examination A.- Yes.
Q.- Did the first court at Limburg refuse sterilization pleas -did they not?
A.- I did not understand.
Q.- I say, the original health court at Limburg refused sterilization, is that not correct?
A.- Yes.
Q.- And how long after that was the trial held at Frankfurt?
A.- It can be seen from the date -- the trial before this court was in September 1934.
THE PRESIDENT: Mr. LaFollette, it is necessary for us to recess at this time.
Mr. LaFOLLETTE: Yes, I understand.
THE PRESIDENT: A 15-minute recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY MR. LAFOLLETTE:
Q: Doctor, will you turn to the proceedings at Limburg.
A: I didn't understand.
Q: Will you turn in your file to the proceedings of Limburg, the first proceedings at Limburg. Do you have that in your file?
A: Yes.
Q: Do you find a place headed "Opinion?"
A: Opinion?
Q: Opinion, in Limburg.
A: Yes, opinion.
Q: As I read the English translation, it reads this way: Rudolf Klees belonged to the hackward pupils. However, as results from certificates he presented, he accomplished his job to satisfaction. He also was able to answer the questions concerning his field of activity, particularly as to the legal nature of bills of exchange and checks, though naturally in simple terms in the correct way. Therefore, no feeblemindedness, as stipulated by the law, can be ascertained in his case. Is that what your file shows?
A: Yes.
Q: Now, turning to the proceedings at Frankfurt.
A: Yes.
Q: Do you find that any such questions were asked of Klees at Frankfurt -- at least as far as the files show?
A: Of what nature these questions were put to him in Frankfurt cannot be seen from the files. As a rule that was not put into the files. The opinion of the Chief Hereditary Health Court usually was based upon a free conversation, with the person in question.
Q: Yes, so that if Klees says now that no questions of that character were asked him at Frankfurt, you will find nothing in the file to indicate he is not telling the truth, do you?
A: I didn't quite understand the question, in what way was he not supposed to have told the truth.
Q: I am just saying that Klees in this court testified that no questions were asked of him with reference to his knowledge of bills of exchange or other matters when he was at Frankfurt. There is nothing in the Frankfurt files to refute the correctness of his statement, is there?
A: No. The correctness of this statement by Klees is not refuted by the Frankfurt files. If I am supposed to speak about Klees, I can only do that on the basis on analyzing his person such as I experienced it.
Q: When did you sec Klees yourself?
A: I heard about Klees on the basis of an announcement that appeared in the newspapers that Klees as a main witness so to speak, on the question of the Hereditary Health had testified in Nurnberg. I did. not know him at that time. From various sides he was described to me as a phychopathic, very irritable, and easily influenced. I met him when one day he appeared at my Hereditary Health Office; he introduced himself with the words, very proudly, I am the man Klees; I was in Nurnberg. Now, after all somebody will have to deal with the question as to how identification can be made to me. Of course, literally I cannot give you all that. I told him, incidentally, that I knew him already from the articles that appeared in the newspapers, and he was very flattered; but, when I said, Mr. Klees, personally I haven't met you before, and I would first have to see what is put down in the files which we have about you, then he shouted in fury about the following: These files have to be burned; that is a nasty business; you, yourself, are a Nazil and the entire Hereditary Health Office has to be dismissed. It has to be stated in this connection that all those officials of the Hereditary Health Office who were there at that time have long since been dismissed; that quite new people arc there now, but that the investigation of the old officials before the Spruchkammer (Denazification Court) has shown in part that they have not been guilty.