The defendant Mettgenberg is guilty of committing War Crimes under the law as hereinabove set out.
The offenses are sufficiently alleged in Count II, Paragraphs 8, 9, 10, 11, and 12.
Von Ammon The facts in this case show that in addition to the trial of Nacht und Nebel prisoners at the Special Courts designated in Exhibit 308,139 hundreds of Nacht und Nebel prisoners were tried by the People's Court140 for High Treason and preparation for High Treason.
As an international lawyer of note, the defendant must be held to have known that no duty of allegiance could factually exist upon which to predicate the charge. Therefore, he affirmatively knew that the alleged duty of allegiance was fictitious and convictions, therefore, were unlawful and criminal at international law.
There can be no reasonable doubt that the acts done and performed in connection with the Nacht und Nebel program also constitute the taking of a consenting part in, and being connected with, a plan and enterprise to force foreign nationals who factually owed the German Reich no allegiance, to submit to illegal indictment, trials, sentences and executions for High Treason and attempted High Treason.
The defendant von Ammon is guilty of committing War Crimes under the law as hereinabove set out.
The offense is sufficiently alleged in Count II, paragraphs 8, 9, 10, 11 and 12.
MR. BUCHTHAL: Mr. Lafollette will now continue to read.
MR. LAFOLLETTE: Joel.
The defendant Joel's attitude toward foreign nationals, many of whom he sent to their death, we have already pointed out in connection 139.
140. Ex. 320, NG 256, VI 91; Ex. 330, NG 240, VI 119.
with the law against Poles and Jews and Nacht und Nebel. We shall not review those facts against here, but we call the courts attention to the part Joel took in the Elias case,141 and to the Mettgenberg letter addressed to Joel requesting that relatives of non-Germans whould not be notified of executions.142 There can be no doubt that Joel took a leading role in cases involving foreign nationals and that he did so with a full knowledge of their status.
HIGH TREASON - Barnickel The Prosecution, in discussing the defendant's guilt under the Decree against Poles and Jews, has cited Exhibit 136, NG-595, III B 28, a People's Court case of preparation for High Treason and of violation of the Decree against Poles and Jews.
The same facts make the defendant guilty of a War Crime by unlawfully and criminally prosecuting a case of preparation for High Treason against the defendant Bratek, a Pole.
The defendant is a legal scholar, having studied in England as well as in Germany. He must be held to have known at the time he ordered the case prepared and tried that there was no factual basis for charging a Pole with a duty of allegiance to the German Reich. Nevertheless, he did -- Bratek was sentenced to death and was executed.
Also in the case against Mazur, Kubisz and Nowakowski, these defendants, all Poles, were sentenced to death because "in a treasonable was they helped the enemy" and also "prepared for High Treason."143 They were charged with trying to join the Polish Legion in August 1941 via the Swiss border. They had "been sent", not "invited", and going of their own free will, to work in the soda works of the Solvay company in Buchenau in Thuringia. They were tried and convicted in September 1942 as charged, and the Decree of 4 December 1941 was also 141.
Pros. Exs. 374, 375, and 480.
142. Pros. Ex. 299.
143. Ex. 129, NG 352.
applied to their acts done in august 1941. The defendant Lautz, through his Exhibit 199, has obligingly produced the evidence which shows that the defendant Barnickel is responsible for this crime.
The defendant offers the same defense for trying Poles on the fictitious charge of preparation for High Treason and treason as he did to his acts under the Decree of 4 December 1941.
These defenses are in his diary and his good intentions. Mazur, Kubisz and Nowakowski are dead; judicially murdered. It seems that the executioner's court yard, like Hell, is paved with good intentions.
The offense is adequately alleged in Count II, paragraphs 8, 9, 10, 11 and 12.
TREASON AND HIGH TREASON - Petersen STATEMENT OF FACTS.
The defendant Petersen, who was indicted in this case because of his activities as a lay judge on the People's Court, became a member of the Nazi Party on 1 April 1925. Even before the seizure of power, he was active in Party affairs, being appointed honorary delegate for the Military Political Bureau of the NSDAP in Swabia in 1932. On 1 January 1933 he joined the SA.
It is proper here to note the findings of IMT on the SA.
"Up until the purge beginning of 30 June 1934, the SA was a group composed in a large part of ruffians and bullies who participated in the Nazi outrages of that period....." (Extract from IMT Judgment on SA, p. 16962 Mimeographed ed.)
It was not long before his "abilities" were recognized since in 1935-36 he served as department chief in the SA Reich Leader School in Munich. From 15 January 1936 to 30 September 1940 he was Leader of the SA Brigade 39 in Dessau; from 10 October 1940 to 30 November 1941 he was Deputy Fuehrer of the SA group Thuringia, stationed in Weimar. In January 1942 he became an SA Gruppenfuehrer and was appointed Chief of the Main Personnel Department in the Supreme Command of the SA in Munich. He was promoted to Obergruppenfuehrer of the SA in January 1944.
In addition to the above, it is interesting to note that Petersen was so highly regarded by the Party that in 1933-1934 he held the office of honorary second Burgomeister of Immenstadt and from 1937 to 1940 he was Honorary State Councillor in Anhalt. In the latter position he was legally Prime Minister of Anhalt. Other indications of his importance in the Party appear from the fact that he was made a member of the Reichstag in 1942, and during the winter 1941-1942 was appointed an honorary member of the People's Court. He remained a member of the People's Court until the collapse serving, except for a short time, as a member of the Special Senate.
As a reward for and in recognition of all these services Petersen received the Golden Party Badge, as well as NSDAP Service Decorations in gold, silver and bronze.
144 With this background in mind, let us now look at the activities of the People's Court - particularly the Special Senate thereof - and Petersen's participation therein.
As has been pointed out time and again the People's Court was a political court organized and functioning not for the purpose of punishing criminals, but for punishment of people with different political convictions in order to set a warning example.145 Looking at Ex. 248146 we find that during the year 1943 there were 5,336 death sentences handed down by courts coming under the jurisdic tion of the Reich Justice Ministry.
Of these, "1,747 concerned political offenses of German citizens, 526 plitical offenses of foreign nationals", and let us not forget that political cases were tried by the People's Court.
Although, for the most part, Petersen served as a member of the Special Senate, he has also served as a lay member of both the 1st and the 2nd Senates. In July 1941 an indictment was filed against one Friedrichs, a stateless person whose last residence was in Antwerp, for preparation to commit high treason at home and abroad (Germany, Czechoslovakia and Belgium). The crime charged was alleged to have been committed during the years 1936-1939 in that he collected funds and attempted to organize communist groups. Friedrichs was tried by the 2nd Senate of the People's Court, with Petersen sitting as one of the lay judges, on 25 September 1941, and the verdict was rendered the same day. The sentence was five years hard labor and forfeiture of civic rights. How 144 - EXH.
15, NG-691, IA, 39; EX. 176, NG-396; III E, 84.
145 - Exh. 175, NG-384, III e, 82.
146 - OSS report for Judicial Notice, Tr. p. 2247.
ever, one year was deducted for time spent in pre-trial detention.147 On March 24, 1942, the 1st Senate of the People's Court, the defendant Petersen being a member at that time, tried two Czechs, both citizens of the Protectorate, for preparation of high treason and other offenses.
It was charged that the defendants in this case attempted to establish and maintain a group for preparation of high treason (collecting money and recruiting men for the Czech Legion), and attempted to join the Czech Legion. The 1st Senate sentenced the two Czechs to five and eight years of penal servitude but allowed the deduction of two years from each sentence because of time spent in pretrial detention. The decision of the Court stated that "The defendants, as citizens of the Protectorate, have seriously failed in their duty of allegiance towards the Reich........"148 We also find him making recommendations to Thierack himself of "safe" SA leaders for the People's Courts at Vienna, Graz and Innsbruck.
This is to meet the requirements of the Gauleiters of those Gaue, The Gauleiter of Vienna, von Schirach, was convicted for his activities by IMT. Petersen was eager to render assistance and to take part in those activities.149 Coming now to Petersen's activities, with the Special Senate, of the People's Court, we find that this Senate dealt only with cases in which an extraordinary appeal had been taken against the original sentence.
Such extraordinary appeals were filed, as a rule, for the purpose of obtaining a more severe sentence, which purpose was known to the judges of the Special Senate. During the year 1944 death sentences were handed down in approximately 70% of the cases handled by the Special Senate.150 147 - Exh.
490, NG-877, IIIB Supp. 7.
148 - Exh. 514, NG-1473, IIIB Supp.
149 - Exh. 487, NG-821, IIIA Supp. 9 150 - Exh.
175, NG-384, IIIE, 82.
Petersen himself makes the following statements in his affidavit as to his activities in office and the purposes of the people's Court:
"The sentences of the Peoples' Court can be understood only if one keeps in mind the intent underlying the penalties. This was not primarily that of imposing punishment in accordance with normal 'bourgeois' conceptions of crime and punishment, but rather of annihilating an opposition which could become detrimental to the German aims. This was our duty. Hence, after a defendant had been brought before the People's Court because of some act or utterance, his actual deed was of no particular importance in the determination of the punishment within the framework of the law. The important thing was whether the man had to be exterminated from the community of the people as a 'public enemy' because of his personal attitudes and his social or anti-social tendencies." 151 As specific examples of cases tried by the Special Senate of the People's Court, with Petersen as one of the lay judges, we have in evidence three cases.
The first of these is a case against Zelezny, a Czech citizen of the Protectorate. Zelzny and another Czech had been previously tried by the 1st Senate of the People's Court for preparation of high treason (attempting to cross the border and reach Turkey for the purpose of enlisting in the"Czech Legion"). Zelezny was sentenced to one year imprisonment for violation of pass regulations, which sentence was served by his pre-trial detention. Lautz filed an extraordinary appeal against the sentence and Zelezny was re-tried by the Special Senate on 4 August 1943. As a result of this re-trial Zelezny was sentenced to five years penal servitude."152 The record concerning the second specific case in which Petersen participated as a lay member of the Special Senate is incomplete.
However, the evidence shows that Chalupa, a Czech, was indicted in January 1944 for preparation of high treason and aiding and abetting enemies of the Reich in time of war. Neither the original sentence, nor the sentence of the Special Senate against Chalupa is shown, however, the record shows 151 - Affidavit Petersen, NG-396, Ex. 176, introduced 27 March 1947.
Document Book IIIE, p. 84.
152 - Ex. 512, NG-1471, IIIB Supp.
a summons issued in the case for hearing before the Special Senate on 21 September 1944.153 The affiant, Dr. Arno Weimann, stated in his affidavit that he was defense counsel in a case against the lawyer Dr. Will who was indicted and tried in 1944 for making remarks admitting defeat.
The 1st Senate sentenced Will to death and confiscated his property with the exception of RM 100,000. Thereafter, on June 28, 1944, the matter was re-tried by the Special Senate, of which Petersen was a member. The re-trial again resulted in a death sentence for Dr. Will, but this time his entire property was consficated.154 The primary facts on Petersen show:
That he is an SA bully, high in the SA, in fact, in charge of its Personnel Office at its highest headquarters; and, that he was continuously a member of the People's Court from 1942 until the end of the war, the last three years of which time he was on the Special Senate, which Special Senate had a record of seventy percent death sentences. This is not surprising when we remember the defendant's statement of the malicious purpose to "exterminate" other human beings with which he conducted his judicial function and by which standard he measured the "judicial" function of the People's Court.
We also have in the record, Ex. 51, NG-184, IB, p. 153, listing honorary judges of the People's Court, which shows the caliber of the defendant's associate, Karl Hermann Frank, SS Obergruppenfuehrer, State Minister of Czechoslovakia, convicted and hung by the Czechs and General Hermann Reinecke in charge of P.W.'s awaiting trial in the Nurnberg jail.
153 - Ex. 513, NG-1472, IIIB Supp.
154 - To assist the Court to recall the methods of operations and the purpose to exterminate of the People's Court, we refer the Court to the following exhibits: Exh. 146, NG-403, IIIC 10. Exh. 283, NG-535, VIIA 74.
We have in this record evidence of conviction for high treason and preparations for high treason of Czech nationals, whose alleged duty of allegiance is a factual fiction and a legal enormity. We also have evidence that in 1943 the Special Senate passed 1662 death sentences.155 We have therefore, evidence of personal malicious intent and lawless exercise of jurisdiction over the persons of Czech nationality resulting in imprisonment.
This constitutes guilt.
The alleged defense of ignorance of law is more properly a matter of aggravation of guilt than a defense. Here a man who finds satisfaction in exterminating others, without any knowledge of the law, fervently seeks and enthusiastically holds a position wherein he passes upon the right to live and the right to freedom of other men. This is such a wanton disregard for the consequences of one act as to create criminal responsibility.
It is an odd comment that men all over the world arrogate to themselves the right to pass on legal matters where they would not do so in other specialized and professional fields. If this defendant had insisted on being allowed to perform two hundred abdominal operations without any medical knowledge no one would think of offering his ignorance as a defense, yet we see the defendant asking this Court to free him under exactly the same reasoning.
The defendant is guilty of taking a consenting part in War Crimes as alleged in Count II, paragraphs 8, 9, 10 and 11.
The acts of the defendant which did not constitute War Crimes did constitute Crimes against Humanity as charged in Count III, paragraphs 20, 21, 22, 23 of the Indictment. We incorporate by reference under our discussion of those crimes that which we have said here.
155 - Exh. 124, NG-160, IIIA, 69.
HIGH TREASON - Nebelung The defendant Nebelung, although often described as one of the more lenient People's Court judges, had a career as a Party Member which would indicate that he lived up to all the Party slogans and carried out the Party aims and purposes.
He joined the Party in 1928 five years before the seizure of power -- and was a leading figure in both the Party and the National Socialist Jurists League. At least during the periods of 1929-30 and 1933-39 he was a member of the leadership corps. In 1934 he joined the SA where he took an active part as legal adviser. He was also a member of other Nazi organizations as well as the recipient of the Golden Party Badge, the SA Sport Badge and the Party Service Badge.156 Nebelung's first appointment as a high judical official, President of a Senate of the Court of Appeals in Brunswick, came on 15 July 1934, shortly after the Party's rise to power.
Only five and a half months later, on 1 January 1935, he received his appointment as President of the Court of Appeals of Brunswick. Although he served in the Army during 1939-40 and 1941-43 he retained his office with the Brunswick Court of Appeals and served there as "indispensable" from the end of 1940 to July 31, 1941, and again after February 1943. In July 1944 he was appointed to the People's Court in Berlin where he was President of the Fourth Senate until the end of the war.157 Nebelung's personnel file158 shows that he received his first appointment in Brunswick since he was an old Party Member, a member of the Association of NS Jurists, and since he was "capable of shaping the 156 - Exh.
409, NG-600; Bk IX, p. 71. Exh. 13, NG-694, Bk IA, p. 35.
157 - Exh. 13, NG-694, Bk IA, p. 35.
158 - Exh. 409, NG-600, Bk IX A, p. 71.
administration of Justice in a National Socialist spirit." There is no room for doubt that his rapid promotion was made for the same reasons.
1. People's Court.
We know from many documents, as well as testimony of witnesses, that the Poeple's Court was a political court organized and functioning, not for the purpose of punishing criminals, but for punishment of people with different political convictions in order to set a warning example.159 In fact, it has been pointed out that the "duty" of the People's Court "was not primarily that of imposing punishment in accordance with normal 'bourgeois' conceptions of crime and punishment, but rather of annihilating an opposition which could become detrimental to the German aims" and that a defendant's "actual deed was of no particular importance in the determination of the punishment within the framework of the law" but that, "the important thing was whether the man had to be exterminated from the community of the people as a 'public enemy' because of his personal attitudes and his social or anti-social tendencies."160 It is also known that People's Court judges received Thierack's "Judges letters", that extraordinary appeals were filed against sentences which were too lenient, and that defense attorneys could not represent their clients tooo aggressively.161 Before discussing specific activities of the Fourth Senate, of which Nebelung was President, it should be pointed out that active Party membership was a qualification for nomination as a 159 - Ex. 175, NG-384, Bk III E, p. 82 160 - Ex. 176, NG-396, Bk III E, p. 84 161 - Ex. 177, NG-333, Bk III E, p. 87 People's Court judge162 and that The rack had instructed Freisler that only such judges as mastered the material involved along political lines and convinced those present of the correctness of a sentence should preside in important cases.
163 According to164 Exhibit 340 in 1944 the Fourth Senate handled cases of (1) "high treason in favor of all countries of the world except USSR and Poland; (2) damaging of means of defense; (3) punishable offenses of Germans from Lorraine and punishable offenses in Lorraine; and (4) punishable offenses of foreigners from Moravia, in case they were committed after the establishment of the Protectorate; however, not High Treason in favor of the USSR or Poland."
We find that in 1942 the Fourth Senate pronounced 137 sentences against 183 persons, and in 1943 it pronounced 189 sentences against 259 persons.165 The number must have increased in the second half of 1944. An assumption that there was no decrease in the number of cases handled and the number of persons sentenced during Nebelung's term of office as President of the Fourth Senate would, therefore, not be out of order even though only one case record was introduced in evidence. This record166 was a case against the Czech National Nohavicka. He was indicted for preparation of high treason and aiding enemies of the Reich, for spreading inflammatory news from the London radio, aiding Czechs who were actively hostile to the Reich and passing on inflammatory pamplets. He was convicted only on the charge of aiding the enemy but was sentenced to death.
162. Ex. 486, NG 817, III A, Sup. 126 163.
Ex. 103, NG 157, Bk. I B, p. 177 164.
Ex. 186, Bk. V A p. 29 165.
Ex. 124, NG 166, Bk. III A, p. 49 166.
Ex. 567, NG 1904, loose document.
as "the numerous reminders and warnings to the Czech people arc of value only if emphasized by imposition of the most severe punishments against those who cannot be taught." Clemency was denied and the Czech was executed on 24 January 1945.
In addition to this case record, however, we have references in exhibits and testimony concerning Nebelung's participation in other trials before the People's Court, especially the trials with respect to the July 20 attempt on Hitler's life. The People's Court film,167 shows the defendant Nebelung sitting with Freisler during the trial of some of the participants in the plot. It is obvious from this film that Nebelung did nothing to assist the defendants during this trial and interfered in no way with Freisler's shameful conduct thereof.
The defendant Nebelung was President of the 4th Senate of the People's Court. At the very time when Germany's needs for soldiers were the highest, he was found needed to murder, exterminate, enslave, imprison, and persecute at the home front, to wit, to serve at the People's Court. This is competent evidence by which to measure the way in which his services were most highly valued. He was a better exterminator with the gavel and the Reichsgesetsblatt than he was with a schuetzeingewehr at the front.
His legal ability is established by his own affidavit and his own documentary evidence. He must be held to have known that the alleged duty of allegiance of Czechs upon which to predicate a conviction for high treason or preparations for high treason was a factor arising out of Nazi racial arrogance and hatred, which his personal records shows he believes in whole heartedly, designed to exterminate 167.
Ex. 192, NG 1019 those who would eject an international forceful enterer and detainer, and international burglar, from their land, as they had a right to do.
He is guilty under the evidence of committing War Crimes as alleged in Count II, paragraphs 8 and 9 of the Indictment.
Nohovicka, a Czech, is dead. Murdered through an unlawful, judicial fiction wielded by the defendant Nebelung.
The acts of the defendant which do not constitute War Crimes, constitute Crimes against Humanity. He incorporate by reference what we have said here, under our discussion of those crimes.
We cannot close without pointing out to the Court the evidence of the defendants, Lautz and Rothaug, that they never heard of an official of the Ministry or a judge being sent to a concentration camp for failing or refusing to convict and also to Prosecution Exhibit 670, NG-2163, in Rebuttal, the record of People's Court Judge Springman. Springman could not continue to commit murder through perverted justice. He was first permitted by Freisler and Thierack to take a Civil Senate at the Reich Supreme Court and later to resign completely. He was neither sent to a concentration camp nor killed. Also the defendant Schlegelberge testified that he resigned.
Coercion to do a wrongful act is an affirmative matter which the prosecution does not have to overcome to make its case. But we do point out that there is no credible evidence in this record which shows that this defendant or any other defendant was coerced into staying in office or rendering a judgement of guilty or of rendering a death sentence. The defendant Schlegelberger testified that the judge was bound only by the law and his conscience.
168 There is testimony to the same effect in the testimony of the witness Jahreiss169 when he referred to the action of all the judges of the Reich Supreme Court of 8 January 1924.170 There is no evidence in this case that any defendant was coerced into doing any act for which he is criminally charged.
ALLIED FLIERS.
The Defendant Klemm is guilty of taking a consenting part and being connected with, the plan of the Reich Government to murder allied fliers who were forced down in Germany during air raids, in violation of Articles 4 to 7, inclusive, of the Hague Convention.171 The documentary evidence in this case consists of Exhibits 108, 109 and 110.172 Also, Exhibit 417, 1676-PS IA end which is the speech of Goebbels, made in the later Spring of 1944, is calculated to incite Germans to murder Allied Fliers.
168. Tr. 4421.
169. Tr. 4261 170.
8 January 1924. All of the judges of the Reich Supreme Court passed a resolution without a dissent, stating in substance that the idea of faith and good morals is outside and beyond the provision of positive law, and no system of of law which deserve the name of being a system of law can exist without this principle being part of it.
This resolution was passed as a result of a rumor which was then prevalent that the Reichstag would pass a law denying to German courts any power to make a revaluation of property lost as a result of theinflation.
See also Lautz Ex. 93, Bk III A, p. 20, Doc. 278.
171. Ex. 380 for Judicial Notice (Tr. 2584) 172.
NG-364, BK I E 54; 635-PS, Bk I E 56; NG-149 Bk I-E 57, respectively.
The record reveals that this plan and enterprise was determined upon in a desperate attempt by the German Government, which had initiated the bombing of defenseless cities - London, and especially Rotterdam and Belgrade being outstanding examples - to avoid the results of their own initial wrongdoing, terrorizing Allied Fliers and dissuading the Allied governments from continuing their bombing through threats to turn the civilian population against Allied fliers as lynch-mobs without any restraining action on the part of the Reich Government. In fact, the purpose of the government, through the instrumentality of Goebbels, Propaganda Minister, was to incite the population to act. The documents reveal a long series of discussions in which we find some reluctance on the part of Goering in the first instance, because he professed to fear retaliation; and also the same clever device appearing under the guise of legality, to observe laws and customs of war without so doing, is evidenced by Goering's sly statement that until the fliers got into the hands of the Army officially, the Army could not be responsible for what the civilian population did. Assuming that this is correct, it overlooks the fact that the documentary evidence clearly discloses that the incitment of the civilian population was part of the program. A material part of the program was the assurance that there would be no prosecutions by the Reich Justice Administration against Germans if they lynched and otherwise killed these downed Allied Fliers. The success of this program, and the death of fliers pursuant to it is adequately presented by the testimony of the witness, Col. McLendon, who testified that up to May 13, 1947, 57 cases had been tried at Dachau involving the assault and lynch-murder of more than 100 American fliers alone. This figure does not include Canadian and British flier 174 defendants were tried, of whom 24 were acquitted, and the cases against 5 nolle processed; which left 145 convictions, including 48 death sentences.
The documents show that Bormann circulated a decree to party circles advising them to notify the people that there would be no prosecutions if they decided to lynch-murder allied fliers who were soldiers in uniform, contrary to the Hague Convention.
The Minister of Justice, Thierack, received notice of this program, initialed the circular from Bormann's headquarters dated 30 May 1944, and also initialed a circular from Dr. Lammers of 4 June 1944 which accompanied the Bormann circular. Thierack directed that the Bormann circular should be sent to Department IV and circulated to all Ministry of Justice officials concerned in the Reich.
The Bormann circular, which is Exhibit 108, reads as follows:
"Re: The People's Judgment of Anglo-American Murderers.
"During the past weeks English and North American fliers have repeatedly shot at children playing on play-grounds, at women and children working in the fields, at ploughing peasants, at vehicles on the highway, at trains, etc., from a low height, thus murdering in the meanest manner defenseless civilians - especially women and children.
"It has happened several times that members of the crew of such air craft who had jumped out or made a forced landing, were lynched on the spot by the highly indignant population immediately after their arrest.
"No police or criminal proceedings have been taken against citizens who have taken part therein.
"Distribution: (s) M. BORMANN" Reichsleiter Gauleiter Verbaendefuehrer Kreisleiter It also contained a notation to the Gauleiters and Kreis leiters indicating that the participants knew that they were acting in violation of International Law because it was ordered that Ortsgruppenleiters should only be informed verbally of the contents of the circular.
It is obvious that to circulate the foregoing instructions to this many people would leave written evidence which could not possibly be destroyed. This instruction reads as follows:
"30 May 1944 "To All Gauleiters and Kreisleiters!"Re: Circular 125/44 g. (initials) The.
"The Chief of the Party Chancellery requests that the Kreisleitersminform the Ortsgruppenleiters only verbally of the contents of this circular."
(It is this second, page of the Bormann circular that Thierack initialed.)
The Lammers letter, which is addressed to Thierack, is verbatim as follows:
"The Reich Minister and Chief of the Reich Chancellery "R.K. 681 Berlin W 8 4th June 1944 "To the Reich Minister of Justice Dr. Thierack.
"Regards: Peoples Justice against AngloAmerican murderers.
(Initial) K1 (Klemm)
(Handwritten note: IV, circular with the addition that such cases are to be submitted to me when they arise, for an examination of the question of quashing. (Initial) TH (Thierack) "Most revered Dr. Thierack, "The Chief of the Party Chancellery informed me about the enclosed transcript of a secret circular letter and requested me likewise to inform you.
"I herewith comply with this and beg you to consider how far you want to instruct the Courts and district attorneys with it, "The Reich's leader and chief of the German Police has, as I was further told by executive leader Bormann, so instructed his police-leaders.
Heil Hitler!
Your very devoted Dr. LAMMERS".Initialed Klemm; hand written notation or circled with the additional notation, "are to be submitted to me when they arise";Thierack wants to examine the .question of quashing.
At this point of the record, it is valuable to note that the witness Hartmann, who was Klemm's personal adjutant testified that he and Klemm saw this letter from Lammers to Thierack after Thierack had put his notations on it, and discussed the letter and Thierack's notation together.
The witness Hartmann also obligingly advises us that the Bormann letter was to be circulated by Department IV among the proper authorities, This is obviously, at least to the Oberlandesgericht Presidents, who would in turn advise their courts, including the Special Courts and the Senior Public Prosecutors attached to the various courts in the same districts. Hartmann obligingly corroborates the affidavit of Hans Bejlovec173 who testified that while at Stuttgart he received one of these circulars.
The record now proves that the purpose of this program was to incite the German population, through Goebbels, to lynch Allied fliers and to assure them, through Bormann, with Thierack's cooperation, that there would, be no criminal action, and that Thierack agreed to cooperate and informed Klemm of this decision.
173. Ex. 440, NG-1306, III B Sup., The evidence which we have reviewed also shows, through the witness McLendon, that Allied fliers were in fact murdered.
Now, then, we come to the part played by the Ministry of Justice. The defendant Klemm in his testimony attempted to make much of the fact that he interfered in a case in Duesseldoff and required the prosecution of an SA leader who had shot two Canadian fliers in September 1944. The SA leader was named Kluetgen. The Klemm witness, Hans Hagemann, a Chief Public Prosecutor at Duesseldorf, testified for at least forty minutes on this matter about which Klemm had boasted, and his testimony can be summarized as follows: That when the SA leader, Kluetgen, shot down the two Canadian fliers while they were being marched to a place of internment by members of the Land Police in time presence of the Kreisleiter of Kleve, a man named Hartmann; Hagemann never prosecuted Kluetgen who was finally tried and sentenced to death at Dachau in late 1946 or 1947. Hagemann presented the most disgusting evidence of complete lack of Nazi morality and the most revealing statement of the character of Nazi administration of justice which was produced on the witness stand in this case. The Prosecution is obliged to the defendant Klemm for producing him.
His story was that he did not want to prosecute Kluetgen, who committed his murder in the presence of the Land Police, until he had interviewed the Kreisleiter, but under the rules prevailing, he could not interview the Kreisleiter until the Gauleiter gave his consent. The record will show that he never rationalized or gave any explanation for failing to prosecute Kluetgen without prosecuting the Kreisleiter. He even had Kluetgen in his home to have dinner with him one night, and Kluetgen explained that he had lost five relatives in an air raid, and still had three more Allied fliers to kill.