In the fact of such firm conviction on the part of General Lehmann, which as he was testified was discussed from every angle, first with Freisler and later with the defendant Schlogelberger, the Reich Justice Ministry voluntarily assumed the responsibility for trying the Nacht and Nebel cases with all the hideous conditions which Hitler insisted upon in the original decree.
Throughout hundreds of pages of testimony on this matter in this cause there is not one iota of proof, or even an assertion, that any member of the Reich Justice Ministry, or the Chief Prosecutor of the Peopled Court, who were charged with the responsibility for carrying out the program, over inquired into the question whether the abductions were in fact required by "military necessity" in the occupied countries. The fact is, as we shall show in discussing the individual responsibility of the accused, either that they had serious misgivings that the program was in violation of international law, or, as stated by the defendant Lautz on direct examination, that it was no concern of his whether the Hague Conventions or the Geneva Convention were observed once the Nacht und Nebel prisoners wore inside Germany and had been delivered into his jurisdiction.58 The evidence shows that the defendant Schlegelberger, as the Acting Minister of Justice, was the only person who could consent to the taking over of Nacht und Nebel cases by the Ministry of Justice.
It also shows that although Freisler conducted the original discussions, Schlegelberger had knowledge of the original secret order five days after it was made, and that he, in fact, signed the decree.59 The Evidence further discloses that that Schlogelborger issued the original decree covering the procedure to be followed by the Special Courts and the Reich Ministry of Justice, and signed it on the 7 February 1942. Von Ammon and Mettgenberg, in their affidavits, report that they had serious doubts at the time of the legality of this Decree, so that the defendant Schlegelberger must be held to have knowledge that it violated International Law, and the procedure outlined were also in violation, as set out in the statement of this crime herein before.
53. Tr. p. 6042-43.
39. Pros. Exh. 337, NG 486, Book VI 159; Pros. Exh. 338, NG 229, Book V A; and the testimony of the witness Lehmann (Tr. p. 2387, ot. seq.)
But more than that, the defendant Schlegelberger testified on this subject that he know that he had denied defendants in trials rights which they were entitled to receive under International Law, Among these, of course, because of the secrecy invoked, was the denial of an opportunity to have witnesses hoard in their behalf from their own country, the denial of adequate interpreters, and the fact that they could not have defense counsel of their own choosing, and that they wore charged until they were brought to trial. All of this appears by the record and particularly by Appendix It is true that the first sentences under this decree took place at or about the time that the defendant left office, 60 but the indictments wore undoubtedly filed before that time, and in Exhibit 311, dated 20 August 1%2, the defendant von Ammon reported ghoulish-like, that three death sentences out of tho first five to be tried at Kiel were to be inspected. (This is a revealing sentence showing that pretrial conferences between prosecutors and judges were not inoffensive Kaffeeklatsch as all of the defense testimony would lead one to believe.) Tho judges wore men 'who were appointed during the defendant's regime and who had to be reappointed annually if not satisfactory. There can be no reason to argue in law that the defendant was not responsible for these death sentences and executions. We also call the Court's attention to the fact that much was made in the testimony that it was not until the time of Thierack that defendants were turned over to the Gestapo. Tho inference being that they were kept under the custody and control of the Ministry of Justice before and after sentence and time of acquittal until the time of Thierack, but Exhibit 310, 2$21-PS, Bk. VI 31, discloses that on August an effective order was made directing Nacht und Nebel prisoners be sent to certain concentration camps, including Mauthausen, Auschwitz, Flossenbucrg, Dachau and Buchenwald, if for any reason they could not be turned over to Special Courts for trial. This fact must have been known to this defendant. And certainly was done pursuant to the agreement which the defendant had made with the Wehrmacht and other Reich authorities. Ac call the Court's attention to Pros. Exhibits 60.
Pros. Exh. 311, NG-250, Bk. VI 44; Exh. 312, NG-228, Bk. V 48.
412 and 413, given under judicial notice which are an OSS Report on the death rate in these concentration camps and other descriptions of the horrors that took place.
Also during the defendant's regime, arrangements were made to establish the jurisdiction of Special Courts at Cologne, Essen and Kiel.61 Under the evidence so submitted, the law requires a finding beyond a reasonable doubt that the defendant Schlogelberger was a principal, an instigator and took a consenting part in and was connected with a plan and enterprises to commit the war crime here in above defined, knowingly and willingly, and that he must be held responsible in law for the illegal death sentences or murder, and the illegal prison sentences of imprisonment which follow from his actions, and his administration of the Ministry of Justice.
Ac see further that again in law the defendant was bound to know that as a result of the Decree which he sot up and the provisions which he established for the trial of Nacht und Nobel prisoners, a foreseeable conclusion therefrom, which any reasonable man would have drawn, was that other Nacht und Nebel prisoners would bo brought to trial and receive death sentences and imprisonment, torture and abuse under this decree long after he left office. Just as we said in discussing the crimes against Poles and Jews, the intervention of Thierack was not an unforeseeable independent cause. He, Schlogelberger, knew that no loss severe administration of these laws would follow his termination of office. We do not contend that Thierack's turning over of Nacht und Nebel prisoners after acquittal to the Gestapo was a foreseeable event beyond a reasonable doubt. But this is a matter of minor consequence and as we have previously pointed out, Exh. 310 discloses that this was not a great innovation which the defendant claimed it to be.
There is no defense in law offered against the commission of this crime. There is an attempt to make a superior order defense, which if valid under any system of law where murder is involved, is expressly eliminated by Law 10.
61. Exh. 308, NG 232, Bk VI 20, and Exh. 312, previously cited, shows that on 1 September 1942, 262 cases wore pending in Kiel from Norway, 863 cases at Essen from Belgium and Franco, and 331 cases at Cologne from France.
But we are entitled to examine his defense in tho light of tho very revealing findings and judgment of Military Tribunal I in the Medical case62 in which it was hold that a doctor who received a human being upon whom ho intended to conduct medical experimentation was under a duty at law to determine tho conditions under which tho human being was delivered to him, in that instance, namely, whether he came voluntarily, whether he know the character and tho nature of tho experiment to be performed upon him, and the conditions generally upon which his alleged consent was given. The underlying principle of law, of course, is based upon classification 2 of tho classification of murder discussed on pages 3 and 4 of Appendix 3, namely, that when a defendant takes tho life of another human being, or acts in a manner in which the death of that human being, or serious bodily injury, is a reasonably inferrable ultimate result, he is liable for murder if ho acts so negligently as to evidence a total disregard of tho result, and with a total disregard of the facts present which reasonable men would know, or arc held to know, would result in death, or serious bodily injury.
Applying this rule to the facts presented by Nacht und Nebel cases, tho defendant Schlegelberger and all of the defendants in this Dock charged with taking a consenting part in or being connected with the Nacht und Nebel program can not bo relieved from responsibility by merely saying that they did not know the circumstances under which these prisoners were taken, and that therefore they relied upon the validity of their arrest by the Wehrmacht under then prevailing international law. But on further analysis, wo point out that this fact is not an element of the gravamen of the offense charged against those defendants. The gravamen of the offense is the assuming tho Nacht und Nebel prisoners could have been originally legally arrested under 62.
Closing Statement, p. 21, Tr. p. 10740. Judgment p. 41-43 Tr. p.
international law, that thereafter all provisions of international law with reference to the circumstances under which they were to be tried, were flagrantly violated. The law,itself, therefore, denies the defense used by the defendant Lautz (hereinafter set out) and others, namely, "once these men were delivered into our hands we were not obliged to concern ourselves with the circumstances under which they were captured." Regardless of how they were captured, being civilians of overrun countries, international low demanded that they received a fair trial under rules definitely laid down. The Nacht und Nebel program of trial not only is unlawful because it denied every semblance of fair trial, but it is unlawful per se because it was contrary to the provisions of international law which were binding on these defendants.
This offense is sufficiently alleged in Count II, paragraphs 8, 9 and 13.
MR. KING: Miss Arbuthnot will continue with the reading.
MISS ARBUTHNOT: Before taking to reading the article, I would like to make a correction on page 33 and page 34. At the bottom '-f page 33 the word or name "Kessing", footnote 45, should be deleted, the sentence appearing on page 34 at the top of the page which reads, "Described in the Kern affidavit, upon which Kern was extensively cross examined as well as in the Kessing affidavit." That footnote which previously appeared on Rage 33, now appearing on page 34. Now continuing with the arguments The defendant Klemm must be held to have knowledge of the illegal character of the Nacht und Nebel order of 7 Dec.
1941, and of the Illegal character of the Schlegelberger order of 7 Feb. 1942, which latter order laid down the infamous procedures for trying the cases of NN prisoners. He must also he held to have knowledge, when he came into the ministry, of the fact that Thierack in February 1943 had directed that defendants, when convicted for a term of years and even when acquitted, were to be turned over to the Gestapo. This is true for the reason that, as Thierack's State Secretary, it is reasonable inference that Thierack informed Klemm of the methods of handling Nacht und Nobel cases.
Be that as it be, on the 21 Jan. 1944, within 3 weeks after Klemm came to tho ministry, this method of disposing of NN prisoners was made more extensive in its operation throughout tho Reich. Furthermore on the 18th and 19th of Feb. 1944, the defendant von Ammon attended a conference of the Public Prosecutors in Breslau and Kattowitz, concerning Nacht und Nebel prisoners, their housing and the transferring of those cases from the Netherlands, Belgium and Northern France, and reported tho results of this conference in an extensive report which was called to tho attention among others of tho defendant Klemm.63 Again, the defendant von Ammon, on the 24 April 1944, having made a trip to Paris on Nacht und Nobel matters, reported the details of his trip and tho methods of trying these prisoners from France in the Breslau Special Court, all of which was reported to tho defendant Klemm.
It follows, therefore, that tho document Klemm had full knowledge after he came into tho ministry.....
THE PRESIDENT: Pardon mo, you intended to say "before ho came into the ministry" while the text shows "After he came into tho ministry."
MISS ARBUTHNOT: "After ho came into tho ministry."
THE PRESIDENT: "After" is correct.
MISS ARBUTHNOT: After he came into the ministry of tho illegal character of the so-called judicial processes, made available to Nacht und Nobel prisoners under tho program. He not only took a consenting part in and was connected with this crime and the methods of its operation. But we find also that, in his capacity as State Secretary, with full knowledge of these facts ho denied clemency to NN prisoners and approved death sentences in at least ton cases .64 Wo would only be frank to say that we do not charge tho defendant Rothenberger with being a principal in carrying out the Nacht und 63.
Ex. 504. NG 1046. Bk. VI Suppl.
64. Ex. 252, NG 414, Page 71, 2 Aug 1944 (2 cases) Page 91, 21 Jan 1944 (4 cases) Page 104, 31 May 1944 (4 cases) Nebel program.
We do say, however, that he was informed about intimate details of the program shortly after he assumed the Office of Undersecretary and that he was kept informed thereafter by letters, reports of conferences and by other matters pertaining to the program which went across his desk. Further than that, Rothenberger introduced Joel to his position as General Prosecutor at Hamm in August 1943. It is totally inconceivable that these two, men,one the Under-Secretary in the Reich Justice Ministry and the other, about to assume charge of the courts which u p to that time had tried more Nacht und Nebel cases than any other in Germany, would not have discussed the subject.
The only conclusion which we draw from these facts is that Rothenberger, knowing the international lawlessness being committed by continued operation of the program, did nothing , so far as the record shows, to object to it or to point out to others with authority the unlawful character of the program.
Rothenberger received, in September 1942, a report from von Ammon as to the number of Nacht und Nebel prisoners transported to Germany, and a further breakdown of data as to the status of the cases. Various other memoranda, came to his attention, and in November 1943, he received a report signed by von Ammon and Mettgenberg with a detailed explanation of the operation of the Nacht and Nebel program in the Netherlands, and that Nacht und Nebel prisoners were being held in concentration camps in various places throughout Germany.65 We think these facts show clearly that Rothenberger had knowledge, and we adduce from the further fact that he took no steps to correct the injustices , that he is, at least, guilty of taking a consenting part in the Nacht und Nebel program.
We call the Court's attention to Pros. Ex., 450, which is a list of death sentences approved by Rothenberger, in which appears dozens of Belgium, Dutch and French names.66 It is incumbent upon the defendant to come forward with evidence that these foreign nationals were not Nacht und Nebel victims.
We have seen no such proof.
65. Pros. Ex. 312, 324.
66. See also Pros. Ex. 286, P . 4 Nacht und Nebel cases were first brought before the People's Court after its competence to try them was established in October 1942, following by a few months the precedent of certain Special Courts in this matter.
Lautz, as he has testified, was "not very happy with this new task."68 The misery of the victims was all too apparent. He was even touched to the extent that ho went to see General Lehmann about the conditions under which Nacht und Nebel prisoners were held. General Lehmann too was conscience stricken by appeals from the Red Cross and from relatives seeking the slightest word of loved ones which came to him in the course of a day's business. And so Lautz returned to his grim assignment.
The mechanical operation of the Nacht und Nebel program under Lautz ran as smoothly and was not greatly different than under the Special Courts. He picked his best prosecutor and deputy, Parrisius, to be in charge of the Nacht und Nebel action. The defendants were charged, pursuant to section 91b of the Penal Code. All the defendants were foreign nationals. They were held completely incommunicado. They could not select their own defense counsel. The trials were secret. In most of the Nacht und Nebel cases selected for trial; Lautz asked for the death penalty.69 The Reich Justice Minister received a copy of all the indictments. The prisoners, who for any reason were not indicted or upon trial had been acquitted, were turned over by Lautz to the custody of the Gestapo. 70 On the legal level too there were no strikingly unusual facts in the procedure for Nacht und Nebel cases before the People's Court.
Lautz, had nearly a year before; provided an interpretation of the Criminal Code at the request of Himmler that permitted the trial of foreign nationals under German law for crimes committed abroad.
67. Pros. Ex. 313 68.
Tr. P. 5926.
69. Tr. P. 5926, 5930.
70. Pros. Ex. 313.
Further than that, Lautz saw no need to examine the international law of the Geneva Convention or the Hague Conventions. The only test which concerned him was whether the People's Court had jurisdiction of the prisoners.
9664 (A) The defendant Lautz thus took not only a consenting part, but was a principal in the violation of international law by the Nacht und Nebel program.
As such, he was guilty to a high degree of this war crime.
Mettgenberg, the s elf-styled intellectual, studied and dealt in international law for decades71 the better to violate its elementary precepts. Not in the Party but in his every professional act of it72, he has been identified primarily with the Night and Fog ("Nacht und Nebel") program. History's most heinous example for a national policy to kidnap with intent to kill, and the murders and international abuses foreseeably resulting from his enforcement of that policy, have tended to obscure Mettgenberg's role in other Hitler policies that worked as well toward insensate death and persecution throughout Europe. He not only helped promulgate73 and enforce74racial discrimination concerning legal affairs, but also personally reprimanded subordinate Judges and prosecutors throughout the Reich who did not stringently observe the program.75 With advance secret official knowledge that Germany contemplated war,76 he later helped to consolidate 71.
Tr. p. 6236-8; Pros. Ex. No. 4 (IA) 72.
Tr. 6318-20; Pros. Ex. No. 539- For example, from correspondence Thierack, Messner and Lammers in October 1942 it developed that the Party Gauleiters did thrust forth by consulting Division Department IV (i.e. Mettgenberg) on all clemency appeals. Pros. Ex. 359 V B, 153. As this arrangement worked out, clemency was usually rejected by the Gauleiters and the Ministry of Justice did not contest this. Pros. Ex. 441, p. 4, I Sup. 71.
73. Pros. Ex. No. 540.
74. Pros. Ex. 299, VII B 46; On 19 July 1944 Mettgenberg issued a Ministry Directive to all prosecution offices throughout the Altreich stringently limiting execution notifications to relatives, and forbidding any information at all if the condemned persons were not German nationals. See Tr. 6245; also Pros. Ex. 298, VII B 45.
75. Pros. Ex. No. 198, III H 16.
76. Pros. Ex. No. 102, I E 73.
the unlawful territorial gains of that war by the promulgation and enforcement of Nazi criminal laws in occupied countries.77 Both foreigners and Germans, once sentenced to death by the People's Court and Special Courts, were formally sent to the rope and guillotine by his execution orders78 which he himself described as "absolutely essential" items in this march of death79. As agent of the People's Court in a typical case, Hettgenberg ordered the defendant Lautz' office to execute the Pole Zinser, sentenced to death for undermining the German fighting morale by defeatistic remarks to fellow workers.60 Zinser had been a Pole by birth and resided in Poland until the German invasion. To such a man, the People's Court said:81 "To him (Zinser) nothing was sacred, neither the glory of a Field Marshal Rommel nor the honor of a German soldier.
He who, like the defendant, undermines the home front in 1943, at a time when the 77.
Pros. Ex. No. 252, III L I; 376 Bk. V D 323; 455 Bk. V Sup. 1; 469 Bk. III A Sup. 20; 547.
78. Pros. Ex. No. 244 - III D 115; 449 - VII Sup. 1; 493 - III B Sup.32; 548.
79. Tr. 6324.
80. Pros. Ex. 140, III C 88.
81. Ibid.
9665 (A) German nation is fighting a severe battle for its existence, deserves death."
It was for such victims that Mettgenberg issued his "absolutely essential "execution orders. Such orders of his, particularly affecting foreign nationals, implemented the indefensible practice of double jeopardy.82 Nor did his authority stop there. He toured prisons and execution points from Berlin to Frankfurt am main inspecting and arranging guillotines and gallows to effectuate the decisions of the Courts. Apparently to learn how Himmler managed such things, he with the much-maligned Vollmer inspected infamous Mauthausen Concentration Camp in 1942-43. Despite his denials from the stand that he had even heard of the place, his visit and activities there have been flatly affirmed by documentary84 and testimonial85 evidence. As early as 1937, incident to the institution of "the closest possible collaboration" between the Prosecution and the Gestapo, he handled reports to the Ministry concerning "executions when escaping from concentration camps, suicides in concentration camps upon arrival, etc.86 His trip to mauthausen was no isolated junket, for Ex. 310, 2571 PS, VI 31 shows that in August 1942 it was designated as a receiving point for Nacht und Nebel prisoners. His protests here of complete ignorance are 82.
Pros. Ex. No. 541/542.
83. Pros. Ex. No. 252 - III L 1; 286 - VIII A 102; 289 - VII A 142; 294 - VII B 37; 295 - VII B 39; 366 - VC 207.
84. Pros. Ex. No. 543: "Upon returning from his inspection of Mauthausen Concentration Camp, Mettgenberg described to Suchomel in detail what he had seen , e.g. The was told that prisoners had to work very hard - - - and that when good work was performed they were not beaten.'" 85.
Tr. 7768.
86. Pros. Ex. No. 32, I B 41.
themselves revealing of the horrors therein described by witnesses here,87 yet reports of which excited Mettgerberg to no move by the Justice Administration to stop them. Every fact in this record leads to the inference that mettgenberg made a trip to Mauthausen in line of duty. Dr. Suchomel did not lie.
His uniquely exclusive responsibility, together with the defendant von Ammon, for the internationally reprehensible Nacht und Nebel program, is obvious from the overwhelming evidence appended hereto by brief.88 From it, and the foregoing recital of Mettgenberg's official activities, his status is plain: no mere civil service hireling who routinely practiced the decisions of others, but the deputy director of criminal procedure on a Ministry level throughout German's conception 87.
E.G. Testimony of the witness Hach, Tr. 2643-50.
88. See Appendix No. 5 9666 (A) of her territory, and who prefaced his enforcement of Nazi policies by an important role in their promulgation.
89 89.
Pros. Ex. No. 510, I Sup. See particularly pages 16-18.
Von Ammon, the arms and legs of the Nacht und Nebel program risked treason to force the Nazis into power. Testifying on his own behalf he characterized his political career thus:90 "Before 1933 I was not a member of any political party.
As a high school student and university student I belonged to patriotic youth organizations and Nationalist fraternities. After this time, since about 1924, I was no longer active politically."
But under cross-examination it emerged that he stood by with a gun, on November 9, 1925, when Hitler sought to govern via a Munich beer hall, 91 and he has polished the Nazi apple ever since.
THE PRESIDENT: Pardon me. We were trying to follow you. What page are you?
MISS ARBUTHNOT: I am sorry but there is one page missing from the mimeographed -
THE PRESIDENT: Will you supply It later?
MISS ARBUTHNOT: Yes, we will do that, your Honor.
An officially commended follower of the Nazi Party and member of the SA and Nazi Jurists League from the beginning,92 von Ammon proved to be Hitler's willing tool in the Reich Ministry of Justice. After Hitler, on 7 December 1941, conceived the Nacht und Nebel policy,93 von Ammon describes his career thus:94 "From 1942 on I dealt mainly with Nacht und Nebel cases in the occupied territories.
In my capacity as consultant for nacht und Nebel cases I made several duty trips to the occupied territories and took part in discussions in Paris and Holland which dealt with Nacht und Nebel proceedings."
At least 25 documents and testimony of several witnesses, all presently in evidence, specifically show just what that Nacht und Nebel career entailed. Every facet of this 90.
Tr. 6377.
91. Tr. 6440-3, 6469; Bros. Ex. No. 544.
92. Pros. Ex. No. 544, supra. To von Ammon's denials, Tr. 6378, see cross-examination, Tr. 6443-3.
93. Pros. Ex. No. 303, IV 1.
94. Pros. Ex. No. 55.
monstrous war crime, for which von Ammon shares undenied responsibility only with Mettgenberg, is set forth in a brief appended hereto. 95 It is only necessary here to emphasize the magnitude of this war crime, in terms of numbers of foreign nationals abducted to Germany and murdered pursuant thereto. Captured records are fragmentary, out we do know, for example, that during one 12 months period from January 1944 to January 1945, von Ammon personally reported 161 Nacht und Nebel death 96 It sentences to either Thierack or the defendant Klemm. It was undoubtedly with these and greater figures in mind that von Ammon wrote the Munich Prosecution, in late 1944 after the NN program terminated, that "execution of NN prisoners in large numbers can no longer be expected." 97 Despite his preoccupation with making the Nacht und Nebel program work during the war years, von Ammon had time for other projects involving foreign nationals that are reached by the indictment.
After the unlawful annexation of Austria in 1938, 98 he was described by Mettgenberg as an "indispensable" official 99 in charge of criminal procedure concerning Austrians, and his handling of the Loewenstein case illustrates how this unlawful extension of German criminal procedure to occupied countries actually 95.
Appendix No. 5.
96. Pros. Ex. No. 252- III L 1, the total figure being compiled from 91, entries therein on pp. 32, 44, 53, 56, 64, 79, 84, 94, 105, 108-9, 112, 117, 126, 130 139-40, 145, 148, 153, and 160. See also Pros. Ex. 280 -VII A 12, for additional 17 NN death sentences reported by von Ammon.
97. Pros. Ex. No. 546.
98. IMT Final Judgment, p. 16831-32.
99. Pros. Ex. 544, supra; Tr. 6443-4.
worked out.100 Foreign laborers within the Reich also claimed his attention; in a conference attended by him and Mettgenberg together with representatives of Sauckel, the slave labor Czar, Himmler, Kaltenbrunner and others in October 1943, he carefully wrote up notes of their collective decisions creating discriminatory criminal procedures against such foreigners, with particular emphasis on death sentences.101 Von Ammon, like Mettgenberg, was no more Ministerial paper-schuffler obscurely passing on the decisions of others.
Save for official subordination to Mettgenberg, he was the sole legal official in charge of the who, when and how concerning Nacht und Nebel abductions which spread from Norway to France. As sole fulltime leg man for these wholesame kidnappings with intent to murder he travelled, conferred, inspected, decided and directed, to his everlasting international dishonor.
The defendant Joel as Chief Prosecutor for the Court of Appeal in Hamm covering all of Westphalia and the District of Essen took office on 17 August 1943, which ho continued to hold until the end of the war. In this position he was in charge of the Nacht und Nebel Program for the special Courts in Hamm and Essen until March 15, 1944, when these courts were transferred further east to Opelln in the Kattowitz District. The defendant Joel would have us believe that the letters which he signed, the reports which he made and the conferences which he attended both in Hamm and in Belgium on Nacht und Nebel matters rendered him in no way responsible for carrying out the program. We are even told that at no time during the period did the defendant Joel 100.
Tr. 6444-5.
101. Pros. Ex. No, 545; Tr. 6445-50.
over turn a Nacht und Nebel prisoner over to the Gestapo, that he never prosecuted a case nor attended a Nacht und Nebel trial.
Let us examine the kind of position which this defendant held during the six-months period in question. The district for which he was the highest and therefore most responsible prosecuting authority is by area and population one of the largest in Germany. He had under his supervision the Senior Public Prosecutors and their staffs at the Special Court in Essen. It was his task to supervise the work of these men. One will search the record in vain to find a complaint from the Reich Justice Ministry or from any other source that Joel neglected this assignment. In fact the Gauleiter of Westphalia pointed out in a letter which is in evidence before this Court that Joel's work had been praiseworthy and he requested that he be deferred from military service. Neither would one get the impression that Joel was not equal to his task from the introduction into office which was delivered by his co-defendant Rothenberger.
The Special Court in Essen tried more Nacht and Nebel cases than the combined total of the other Special Courts and the People's Courts. We submit that the defendant Joel cannot be heard to say that of these he had no responsibility. Examination of certain of the exhibits will make it clear that such a statement is not borne out by the evidence.
On 21 January 1944, a letter was addressed to Joel stating that in the future all Nacht und Nebel prisoners who were up on trial acquitted or who had served their sentences must be turned over for custody to the Gestapo. 102 On 26 January 1944, Joel wrote to the Reich Justice Ministry and complained about the slowness with which the defendant Lautz, 102.
Pros. Ex. 328.
Chief Prosecutor for the People's Court, returned files. Joel pointed out that there were 84 Nacht und Nebel prisoners who had been held near Hamm from October 1941, a period of nearly two years and a half, even ante-dating the effective date of the Nacht und Nebel decree itself. In mid November 1945 the defendants von Ammon and Mettgenberg came to Hamm enroute back to Berlin from a conference in Holland to determine whether space was available for keeping additional Nacht und Nebel prisoners to be brought from the Netherlands. Joel gave assurances that more prisoners could be accomodated and even opposed the views on the matter by his Oberlandesgericht President who also attended the conference. In late December 1945, Joel attended a conference in Brussels, which he reported in detail after his return to Hamm, on matters pertaining to Nacht und Nebel prisoners from Belgium. Then there is in evidence a number of other documents either addressed to Joel or written by him which show the responsibility which the Reich Justice Ministry delegated to him and which he, in his high position, accepted. Even the assertion, if it is true, that Joel actually tried no Nacht und Nebel cases himself is of no significance because it is clear that he supervised the men who did try them. There is no validity in the argument that the director of a murder is less guilty than the trigger man. Ye believe it is impossible to analyze the evidence in this case without reaching the conclusion that Joel bears a tremendous responsibility for the trial of Nacht und Nebel prisoners which were conducted in Hamm and Essen no less brutally and no less violative of international law than in other Nacht and Nobel courts throughout German.
Despite the fact that we have been told by his counsel that Joel is not a great legal scholar, he could not have been without knowledge that the Nacht und Nebel Program literally from the beginning to the end violated every precept of international law, We submit that the defendant Joel is guilty beyond any reasonable doubt of taking a principle part in the unholy nightmare that was Nacht und Nebel.
The defendant Altstoetter came into the Minister of Justice in January 1945. Although he stated in his testimony that his appointment came from Thierack, no one can doubt from the reading of the record that he was Himmler's candidate for a position in the Reich Ministry of Justice, and that he was in fact Himmler's man in that ministry. Before he came in,103 numerous concentration camps including Mauthausen, Auschwitz, Flossenburg, Dachau, and Buchenwald, had been established as receiving points for Nacht und Nebel prisoners, removed from other countries to Germany. That order was made in August 1942.
The secrecy connected with Nacht und Nebel matters which, in itself is the gravamen of the offense, required that even deaths and births and wills and testimonial dispositions should be kept secret. For this reason the Reich Ministry of Justice circulated instructions to Divisions III, V, VI and IV as to the precautions which should be taken in these cases. This draft 104 dated 6 March 1943 shows on its fact that it refers to;
"criminal procedures on account of punishable offenses against the Reich . . . in the occupied areas (socalled Nacht und Nebel cases). I request observance of the following directives in order not to endanger the necessary top-secrecy of the procedure, particularly regarding the executions of death sentences and other cases of death among prisoners."
This draft of instructions, circulated to the defendant Alstoetter's Department VI, and he testified that he had 103.
Ex. 310, 2521 PS, VI p. 31.
104. Ex. 319, NG 269, VI 88.