THE DEFENDANT LAUTZ

“I do not intend to approach the economic advisor of the Gau for the time being, seeing from the documents that the ultimate beneficiary of the claim, the son of the plaintiff, emigrated inthe year 1938 and his property, therefore, surely being confiscated. I fail to understand why the court grantedforma pauperisrights to the assignee, a Jew, without first consulting the authority for sequestration of property.”

A note dated 24 February shows that Rothenberger had issued a directive to two judges of his district to the effect that every case involving the claim of the right of Jews to proceed informa pauperismust first be submitted to him. On 5 March 1942 a directive was issued from the Reich Ministry of Justice in substantial conformity with the recommendation of the defendant Rothenberger. It provided:

“In future the granting of rights offorma pauperisto Jews can only come into consideration if the carrying-out of the lawsuit is in the common interest, viz, in disputes concerning family rights (divorce in cases of mixed marriages, establishing the descent).”

After the enactment of the foregoing ordinance, and on 7 May 1942, a courageous president of the district court at Hamburg wrote to Rothenberger stating that in his opinion the right of Jews to proceed informa pauperiswould have to be granted. He added:

“I am convinced that it is in the common interest that an Aryan cannot evade without further ado a just claim against him merely for the reason that the court denies theforma pauperisright to Jews.”

Notwithstanding this protest, and on 22 May 1942, the defendant Rothenberger, in reliance upon the ordinance which was based upon his recommendation, wrote to the president of the district court of Hamburg that he considered it “adequate that theforma pauperisright granted to the plaintiff Prenzlau be canceled. Please have this taken into consideration by the court in a form which you deem appropriate.”

The foregoing narrative takes on additional significance when summarized. First, Rothenberger recommends to the Minister of Justice that it is desirable to deny to Jews the right to proceed informa pauperis, but that such denial is inadmissible because there is no law to justify it. He recommends the passage of such a law. About 3 weeks later, no law having been passed, he recommends that the judges take a uniform line depriving the Jew of the right to proceed informa pauperis. A specific case now arises in which the right was granted to a Jew, and the defendant Rothenberger receives veiled suggestions from the Gau economic advisor to the effect that defendants should not be allowed to compromise a case brought against them by a Jewish plaintiff because the courtshould decide against the Jew in any event on political grounds. Concerning this suggestion Rothenberger ventures no comment. The defendant in the Prenzlau case takes his cue from the advice of the economic advisor and denies liability; the court grants to the Jew the right to proceed informa pauperis. Rothenberger criticizes this action, although the lower court had acted in strict conformity with the law. In March the awaited law excluding the Jew from the benefit of the poor-law is passed. In May, Rothenberger overrules the protest of a judge and directs the canceling of the order which was made by the lower court. This dictation by the defendant Rothenberger to other courts and judges of his district was not done in the course of a legal appeal from the lower court to the court over which he presided. It was done after the manner of a dictator directing an administrative inferior how to proceed.

Rothenberger not only participated in securing the enactment of a discriminatory law against Jews; he enforced it when enacted and, in the meantime, before its enactment, upon his own initiative he acted without authority of any law in denying to Jewish paupers the aid of the courts.

It is true that the denial to Jews of the right to proceed in civil litigation without advancement of costs appears to be a small matter compared to the extermination of Jews by the millions under other procedures. It is nevertheless a part of the government-organized plan for the persecution of the Jews, not only by murder and imprisonment but by depriving them of the means of livelihood and of equal rights in the courts of law.

The defendant Rothenberger testified that various judges reported to him “that they had heard rumors to the effect that everything was not quite all right in the concentration camps” and that they wished to inspect one. Accordingly, Rothenberger and the other judges visited the concentration camp at Neuengamme. He testified that they inquired about food conditions, accommodations, and the methods of work, and spoke to some inmates, and he asserts that they did not discover any abuses. This was in 1941. Again in 1942, according to his own testimony, the defendant visited Mauthausen concentration camp in company with Kaltenbrunner, who was later in charge of all concentration camps in Germany and has since suffered death by hanging. At Mauthausen concentration camp the defendant Rothenberger again inspected installations, conferred with inmates, and inquired as to the cause of detention of the inmates with whom he had talked. He states that from his spot checks he “could not find out that there was any case of a sentence being ‘corrected.’”Upon inquiry as to what the defendant meant by the “correction of sentences,” he answered:

“By correcting of a sentence we mean that when the court had pronounced a sentence, for example, had condemned somebody to be imprisoned for a term of 5 years—if the police now, after these 5 years had been served, if the police arrested this man and put him into a concentration camp—this is only an example of a correction. Or even if, and this is clearer, it happened that a person was acquitted by a court, and in spite of that the police put this man into a concentration camp. These are examples of correction of sentences.”

The defendant stated that he did not observe and could not discover any abuse at Mauthausen. In this connection the testimony of defense witness Hartmann is of interest. Hartmann accompanied Dr. Rothenberger on his visit to Mauthausen concentration camp. He testified that rumors were current in Germany to the effect that conditions were not what they should be in the concentration camps. Hartmann testifies that they went about the camp freely and observed everything closely. On cross-examination by the Tribunal, Hartmann testified as follows:[670]

“Q. * * * When you visited Mauthausen concentration camp, you knew, did you not, that the courts in the Ministry of Justice never sentenced convicted criminals to a concentration camp? * * *“A. Yes.“Q. Did Dr. Rothenberger know it?“A. Yes.“Q. Then you knew that these ten people that he talked with, and the one or two that you talked with, were not there by reason of any action on the part of the Ministry of Justice or the court, but were there only by reason of action by the police or by the Party, did you not?“A. Yes. That was preventive custody undertaken by the police.”

“Q. * * * When you visited Mauthausen concentration camp, you knew, did you not, that the courts in the Ministry of Justice never sentenced convicted criminals to a concentration camp? * * *

“A. Yes.

“Q. Did Dr. Rothenberger know it?

“A. Yes.

“Q. Then you knew that these ten people that he talked with, and the one or two that you talked with, were not there by reason of any action on the part of the Ministry of Justice or the court, but were there only by reason of action by the police or by the Party, did you not?

“A. Yes. That was preventive custody undertaken by the police.”

The witness Hartmann testified further:

“Q. And they had already served their sentences as imposed by court before they were taken into this custody of the police, is that right?“A. Yes. That is how I see it.“Q. And at that time, these twelve people who had served their sentences and had been taken over by the police—that met with the approval of the defendant Dr. Rothenberger, as I understand you?“A. Well [we] did not approve the concentration camp as an institution altogether, but first of all we wanted to achieve this—that it would no longer happen that a defendant was acquitted and then after acquittal the Gestapo arrested (him) in front of the courtroom. * * * In those cases, too, he did not approve the fact that these people were in a concentration camp because we were of the opinion that only the administration of justice should decide these questions of criminal law and nobody else. But according to the power conditions within the State, as they happened to exist, our interest was first of all to remove the worst evils.”

“Q. And they had already served their sentences as imposed by court before they were taken into this custody of the police, is that right?

“A. Yes. That is how I see it.

“Q. And at that time, these twelve people who had served their sentences and had been taken over by the police—that met with the approval of the defendant Dr. Rothenberger, as I understand you?

“A. Well [we] did not approve the concentration camp as an institution altogether, but first of all we wanted to achieve this—that it would no longer happen that a defendant was acquitted and then after acquittal the Gestapo arrested (him) in front of the courtroom. * * * In those cases, too, he did not approve the fact that these people were in a concentration camp because we were of the opinion that only the administration of justice should decide these questions of criminal law and nobody else. But according to the power conditions within the State, as they happened to exist, our interest was first of all to remove the worst evils.”

Upon redirect examination by counsel for the defendant Rothenberger, defense witness Hartmann testified as follows:

“Q. Therefore, sometimes was the situation for you and Dr. Rothenberger like this: that apparently you affirmed something with a smiling face, something which as a human being you had to disapprove of and reject?”

To this question the witness answered that Dr. Rothenberger “for reasons of power politics” had to accept the conditions though he did not approve them. After his inspection of Mauthausen concentration camp, Dr. Rothenberger took no action whatsoever with regard to the information which he had received.

It follows that the defendant Rothenberger, contrary to his sworn testimony, must have known that the inmates of the Mauthausen concentration camp were there by reason of the “correction of sentences” by the police, for the inmates were in the camp either without trial, or after acquittal, or after the expiration of their term of imprisonment.

It must be borne in mind that this inspection by the defendant Rothenberger was made at Mauthausen concentration camp, an institution which will go down in history as a human slaughter house and was made in company with the man who became the chief butcher.

We are compelled to conclude that Rothenberger was not candid in his testimony and that in denying knowledge of the institution of protective custody in its relationship with the concentration camps he classified himself as either a dupe or a knave. Nor can we believe that his trips to the camps were merely for pleasure or for general education. He also advised other judges to make like investigations. We concede that the concentration camps werenot under the direct jurisdiction of the Reich Minister of Justice, but are unable to believe that an Under Secretary in the Ministry, who makes an official tour of inspection, is so feeble a person that he could not even raise his voice against the evil of which he certainly knew.

If the defendant Rothenberger disapproved of protective custody and the consequent employment of concentration camps, it must be because of a change in heart concerning which we have had no evidence. On 13 June 1941 Rothenberger wrote Secretary Freisler suggesting that many small cases were being tried by the Special Court and that this was not compatible with the importance of the court. He referred to minor offenses which came under the public enemy decree, “in which, however, protective custody will be requested by virtue of the offender’s past life and his character.” Again, he speaks of cases in which motion is made for the offender to be taken into protective custody.

On 5 January 1942 the defendant Rothenberger addressed a report on the general situation in the Hamburg area to the Reich Minister of Justice. From this document his attitude concerning the institution of protective custody may be ascertained. Concerning the “transfer to the public prosecutors of the right to decide about the duration of protective custody,” he said:

“In a certain connection with this problem is the transfer to the public prosecutor’s office of the right to decide about the duration of the protective custody. I regret that it is obvious that the courts are more cautious and reserved than they were previously in regard to the order of protective custody, because the duration of the protective custody is not any more within their control. This attitude of the courts cannot be approved, but it is psychologically understandable; I am afraid, that the reform effected the opposite of the intended more vigorous practice in regard to protective custody.”

In February 1939 the defendant Rothenberger and the Chief Public Prosecutor reported to the Hamburg judges upon a conference which had been held in Berlin. The record of the joint report in which Rothenberger participated is as follows (NG-629, Pros. Ex. 28):

“A report was then made on the discussions on protective custody. The ministry is of the opinion—also held here—that no objection can be raised to protective custody as long as it is purely protective, but that corrective measures, such as became known in certain cases, must not become a habit.”

In conclusion, the evidence discloses a personality full of complexities, contradictions, and inner conflict. He was kind to manyhalf-Jews, and occasionally publicly aided them, yet he was instrumental in denying them the rights to which every litigant is entitled. He fulminated publicly against the “Schwarze Korps” for attacking the courts, yet he reproached judges for administering justice against Party officials and unquestionably used his influence toward achieving discriminatory action favorable to high Party officials and unfavorable to Poles and Jews. He wrote learnedly in favor of an independent judiciary, yet he ruled the judges of Hamburg with an iron hand. He protested vehemently against the practice of Party officials and Gestapo officers who interfered with the judges in pending cases, but he made arrangements with the Gestapo, the SS, and the SD whereby they were to come to him with their political affairs and then he instituted “preview and review” of sentences with the judges who were his inferiors. He thought concentration camps wrong but concluded that they were not objectionable if third degree methods did not become a habit.

Rothenberger was not happy with his work in Berlin. In his farewell speech on leaving Hamburg, he exuberantly exclaimed that he had been “an uncrowned king” in Hamburg, but he would have us believe that he received a crown of thorns in Berlin. Soon he learned of the utter brutality of the Nazi system and the cynical wickedness of Thierack and Himmler, whom he considered his personal enemies. He could not stomach what he saw, and they could not stomach him. The evidence satisfies us that Rothenberger was deceived and abused by his superiors; that evidence was “framed” against him; and that he was ultimately removed, in part at least, because he was not sufficiently brutal to satisfy the demands of the hour. He was retired to the apparently quiet life of a notary in Hamburg, but even then we find that he was receiving some pay as an Under Secretary and was assisting Gauleiter Kauffmann in political matters in that city.

The defendant Rothenberger is guilty of taking a minor but consenting part in the Night and Fog program. He aided and abetted in the program of racial persecution, and notwithstanding his many protestations to the contrary he materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system. The defendant Rothenberger is guilty under counts two and three of the indictment.

The defendant Lautz from 20 September 1939 until the end of the war served as Chief Public Prosecutor at the People’s Court inBerlin. He joined the NSDAP in May 1933. During the period of his service the “higher officials” under his supervision increased from 25 to about 70. The office originally consisted of four departments which were later increased to five to correspond with the number of senates of the People’s Court. After the enlargement of the department there were five public prosecutors and one senior public prosecutor in each department. The defendants Barnickel and Rothaug were among the senior public prosecutors under the general supervision of the defendant Lautz. The crimes with which his office dealt were those over which the People’s Court had jurisdiction. Of particular interest here were the prosecutions for undermining the German defensive strength, high treason and treason, cases of attempted escape from the Reich by Poles and other foreigners, and NN cases.

A great number of prosecutions were brought under the decree of 17 August 1938 which provides that “Whoever * * * openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms” should be punished by death. This was the law which effectively destroyed the right of free speech in Germany. The prosecutor’s office was required to handle approximately 1,500 cases a month involving charges of this type. Under supervision of the defendant Lautz all of these charges had to be examined and assigned for trial to the People’s Court in serious cases, or to other courts. In the cases which were assigned to the People’s Court for trial “there was always the possibility that the death sentence would be pronounced.”

The defendant Lautz instructed his subordinates that only those cases were to be retained for trial before the People’s Court in which it was “possible to assume full responsibility if the People’s Court senate pronounces the death sentence.”

Lautz did not shirk responsibility for the acts of his deputies. He testified that the signature of his deputy “meant, of course, that I assumed responsibility for that matter.”

In connection with the work of his department it was the duty of the defendant Lautz to sign all indictments, all suspensions of proceedings, and all reports to his superior, the Minister of Justice. This work assumed such proportions that it became necessary to delegate parts thereof to his subordinates, but the defendant Lautz required that important matters be reported directly to him. In partial explanation of his activities and motives in connection with his enforcement of the law against undermining the military efficiency of the nation, Lautz stated:

“Just as I think it is a good thing that no one today can claim that this war was lost only through treason, I must alsosay that I regret that because of this war and through these death sentences many people, who were otherwise all right, had to lose their lives.”

As an illustration of the type of case which was prosecuted under this law, we cite the case of the defendant who said to a woman: “Don’t you know that a woman who takes on work sends another German soldier to his death?” This offense was described by Lautz and Rothaug as a serious case of undermining the military efficiency of the nation. The office of the Chief Public Prosecutor of the People’s Court was vested with a wide discretion in connection with the assignment of cases to the various courts for trial. It will be recalled that the malicious acts law of 20 December 1934 provided for punishment of persons who made false or treacherous statements “fit to injure the welfare or prestige of the government and of the Reich”, etc. Under this law moderate punishments by imprisonment were authorized, whereas, under the law against undermining the defensive strength of the nation, the death penalty was mandatory. If the prosecutor sent the case for trial to the People’s Court on the charge of undermining, instead of sending it to a lower court for trial under the malicious acts law, he determined for all practical purposes the character of the punishment to be inflicted, and yet the evidence satisfies us that there was no rule by which the cases were classified and that the fate of the victims depended merely on the opinion of the prosecutor as to the seriousness of the words spoken.

The connection of the defendant Lautz with the illegal Nacht und Nebel procedure is established beyond question. The People’s Court acquired jurisdiction of NN cases under the decree of the Reich Minister of Justice of 14 October 1942. Lautz estimated that the total number of NN cases examined by his department was approximately one thousand, of which about two hundred were assigned to the People’s Court for trial, but he added that each case could concern several defendants. No good purpose will be served by a second review of the testimony concerning the Nacht und Nebel decree. In harmony with the decision in the case of the United States [et al.]vs.Goering, et al., this Tribunal finds that the secret procedure which was instituted and enforced through the Ministry of Justice constituted a war crime and a crime against humanity. The Chief Public Prosecutor of the People’s Court zealously enforced the provisions of this decree, and his conduct in so doing violated the laws and customs of war and the provisions of C. C. Law 10.

Lautz estimated that from 150 to 200 persons were prosecuted for leaving their places of work and attempting to escape fromGermany by crossing the border into Switzerland. These cases were prosecuted under the provisions of penal code concerning treason and high treason.

On 24 February 1942 an indictment against the Pole Ledwon was filed by Parrisius as deputy for the defendant Lautz. The indictment was marked “Secret Treason Case”, and bore the stamp of the Chief Public Prosecutor at the People’s Court. A letter signed by Lautz bearing the same date was addressed to the presidents of the Second Senate of the People’s Court and advises them that he is sending to the court the indictment in the case Ledwon. The indictment alleges that on 28 July 1941 the accused left his place of work in Bavaria and attempted to escape by crossing the Reich border, and that he was stopped by a customs official whom he struck with his fist while evading the arrest. The indictment states that the reason given by the defendant Ledwon for his attempt to escape from Germany “does not deserve credence; it may rather be assumed that he intended to join the Polish Legion organized on the side of the hostile powers”. The indictment states that the defendant knew that the aim of the Polish Legion was to restore a Polish state. On the basis of the foregoing specific allegations, the indictment charges that the defendant prepared within Germany “(1) the highly treasonable enterprise to separate from the Reich by force a territory belonging to the Reich; (2) to have aided and abetted the enemy inside Germany during a war against the Reich, and thus, as a Pole, not to have behaved according to the German laws and to the directives of the German authorities; and (3) to have committed a violent attempt on a German official. * * *.” The indictment was brought under the provisions of sections 80, 83, and 91b of the penal code, and under the provisions of the law against Poles and Jews. Section 80 provides for the imposition of the death penalty upon anyone attempting by violence or threat of violence to detach from the Reich territory belonging to the Reich. Section 83 provides for the punishment of any person who solicits and incites an undertaking of high treason. Section 91b provides for imprisonment or death for any person who undertakes acts in favor of the enemy powers or causes a detriment against the armed forces of the Reich. On 10 August 1942 the case was tried. The court found the following facts: defendant was a Pole who lived in Poland on 1 September 1939. (See: Law against Poles and Jews.) After the Polish campaign the defendant reported “voluntarily” for work in Germany and then tried to leave the country. The court states further that “the prosecution charges the defendant with the intention of going to Switzerland in order to join the Polish Legion there.” It adds that the Polish Legionwas interned in Switzerland and that many Poles had been caught at the frontier, some of whom could be convicted of planning to join the Polish Legion in Switzerland. The court, with unwanted candor, states that “the trial did not show any concrete evidence that the defendant * * * had any knowledge of a Polish Legion in Switzerland.” It held that due to lack of evidence “the defendant could not be convicted of the crime of preparation for treason and of treasonably aiding the enemy.” The opinion of the People’s Court continues (NG-355, Pros. Ex. 128):

“The defendant is, however, guilty according to the result of the trial, of an offense under the ordinance relating to the administration of penal law for Poles, of 4 December 1941. The general conditions of this ordinance are fulfilled, as the defendant is, by origin, education, and sentiment, a racial Pole and was on 1 September 1939 resident in the former Polish State. In leaving his place of work as an agricultural laborer, of his own accord, at the end of July, i. e., during the harvest, he disturbed the orderly procedure of the harvest work of his employer to the detriment of the harvest. His action moreover was detrimental to the whole of the German people, for in leaving his place of work in order to go abroad he deprived the German people forever of his labor. Germany, in order to cover her war needs and to ensure food supplies for the front as well as for home, however, needs all persons employed, including foreigners. Every worker who by escape abroad deprives the German war economy for good of his labor, reduces the number of badly needed manpower, and thus endangers the interest of the German people.”

The court held that it was irrelevant whether the Pole knocked the customs official down, because in any event he used force sufficient to prevent his arrest at the time. It observed that under the law against Poles and Jews “the only possible penalty is the death sentence, unless a less serious case can be made out in the defendant’s favor. The senate was not able to recognize such case.”

The opinion concludes as follows:

“But by using violence against the customs officer who was going to arrest him and thus resisting the legal German authority, he has proved himself such a fanatical and violent Pole that he has forfeited any right for leniency. In view of the heavy responsibility of the Polish nation for the bloodshed caused during the weeks of August and September 1939, it is the duty of every member of this nation to obey willingly the rules of the German authorities. A Pole who, on the contrary,uses violence against a German official can only be punished sufficiently by the highest degree of punishment. Accordingly, this has been imposed on the defendant.”

The Pole was sentenced to death.

We are not here to retry the case. We may, therefore, ignore the ridiculous charge that the defendant desired to join an interned legion and the allegation that he came to the Reich “voluntarily” after the invasion of Poland. We have already discussed the essential evil in the practice of prosecutors whereby they charged that Poles were guilty of high treason by attempting to separate from the Reich territory which had never been legally annexed to the Reich. In the Ledwon case the sinister subtlety of the Nazi procedure is laid bare. If the case had been brought only under the law against Poles and Jews, the People’s Court would not have had jurisdiction, so the defendant was charged with high treason for attempting to separate from the Reich, territory which did not belong to it. The proof of high treason failed. There remained only the charge that in attempting to escape from Germany and from forced labor there, the defendant assaulted a customs officer with his fist and that what he did was done as a Pole in violation of the law against Poles and Jews. It was under that discriminatory law that Ledwon was sentenced to death and executed. The defendant Lautz is guilty of participating in the national program of racial extermination of Poles by means of the perversion of the law of high treason.

In a similar case, upon an indictment signed by Parrisius and filed by authority of the defendant Lautz, the People’s Court sentenced three Poles to death upon a charge of preparation of high treason “because they, as Poles, harmed the welfare of the German people, and because in a treasonable way they helped the enemy and also prepared for high treason.” The specific facts found by the court were that the defendant Mazur and others attempted to cross the border into Switzerland for the purpose of joining the Polish Legion. By such conduct and by depriving the German Reich of the benefit of their labor, it was held that the efforts of the defendants aimed “at forcibly detaching the eastern regions incorporated in the Reich * * * from the German Reich.” The opinion contains an illuminating passage concerning treason committed by attempting to join an interned legion. We quote (NG-352, Pros. Ex. 129):

“After the defeat of France in the present war, as is known to the senate (court) from other proceedings, detachments of the Polish Legion crossed the border into Switzerland and were interned in camps. The legion continues under the command ofPolish officers and is kept in readiness for military action against the Reich on the side of the enemy in the event of German troops invading Switzerland.”

The evidence of intent to join the interned legion is paltry, but as before we will not attempt to retry the case on the facts. The court held that according to the law against Poles, the death sentence must be imposed. We quote:

“They wanted to deprive the German nation forever of their labor. Thus, they have damaged the welfare of the German nation. This is an offense under the ordinance on the administration of penal law against Poles. * * *“The precept of the Regulation of Penal law against Poles applies to the defendant’s offense, although it was committed before the regulation came into force for, according to article I of the Supplementary Regulation of 31 January 1942, the Regulation of Penal Law against Poles can be applied to offenses committed before the regulation was in force with the approval of the prosecutor. This approval has been given by the Reich Chief Prosecutor.”

“The precept of the Regulation of Penal law against Poles applies to the defendant’s offense, although it was committed before the regulation came into force for, according to article I of the Supplementary Regulation of 31 January 1942, the Regulation of Penal Law against Poles can be applied to offenses committed before the regulation was in force with the approval of the prosecutor. This approval has been given by the Reich Chief Prosecutor.”

In another, the Kalicki case, the record of which is marked “Secret,” three Poles were sentenced to death for preparation of high treason upon the same grounds as in the previous case. The court held that “the sentence to be pronounced has to be based on the ordinance concerning the administration of penal law against Poles, since this ordinance provides the heaviest penalty of all laws applicable to the case.” The evidence does not disclose that the defendant Lautz personally signed the indictment, but it was certainly filed under his authority. The question of clemency in the Kalicki case was presented to the defendant Rothenberger. On 28 July 1943 he wrote:

“ * * * I have decided upon authorization by the Fuehrer not to exercise my right of pardon but to let justice take its course.”

The defendant Lautz filed an indictment against the Pole, Bratek. The specific charge was leaving his work in Germany and attempting to cross the border into Switzerland to join the Polish Legion. The general charge was the treasonable attempt to separate from the Reich an area belonging to the Reich and the violation of the law against Poles and Jews. The court said (NG-595, Pros. Ex. 136):

“At the same time he has made himself guilty of a crime according to Article I, paragraph 3, last half sentence, of the Ordinance on the Administration of Penal Law Against Poles, issued 4 December 1941. Because, being a Pole, he has intentionallyinflicted damage to the interests of the German people by malevolently leaving his important agricultural job, above all during harvest time, in September 1942, and by planning to rob the German people forever of his own labor by escaping abroad. * * *“According to article 73, Penal Code, the penalty must be based on the ordinance concerning the administration of penal law against Poles whichloc. cit.demands exclusively the death penalty as a rule, this being the most severe penal law applicable here.”

“According to article 73, Penal Code, the penalty must be based on the ordinance concerning the administration of penal law against Poles whichloc. cit.demands exclusively the death penalty as a rule, this being the most severe penal law applicable here.”

A secret communication by the defendant Lautz to the Reich Minister of Justice is of especial interest. The proposal under consideration as for the prosecution of certain Poles upon the charge of high treason on account of acts done in Poland before the war. In his discussion Lautz quotes from Himmler, the Foreign Office, and the president of the People’s Court. The facts on the basis of which opinions were expressed may be illustrated thus: Within Poland and before the war, a Pole institutes proceedings against a Polish citizen of German blood, charging the racial German with fifth column activities directed against Poland. During the war the Pole who instituted the prosecution against the racial German is captured. The question was: Can the Pole be prosecuted in a German court on a charge of high treason against the Reich, basing the charge on the fact that he had prosecuted the racial German in Poland? The German penal statute involved was section 91, paragraph 2, which provides that “whoever with the intention of causing a serious detriment to a national of the Reich, enters into relations as described in paragraph I shall be punished,” in especially serious cases by death. Himmler, as quoted by Lautz, discusses the basis for punishment by German courts of “an offender who has caused racial Germans to be punished or otherwise prosecuted by Polish authorities.” Himmler asserts that foreign police used methods against racial Germans which were contrary to international law and “the laws of minorities” and that such offenders deserve heavy punishment, but he also states that as far as racial Germans are concerned, section 91, paragraph 2, of the German Penal Code “is not directly applicable, as racial Germans, according to formal national laws were not German, but Polish, citizens. I can only express my opinion in the form of a suggestion, that in case of the betrayal of a racial German by the foreign Poles * * * section 91, paragraph 2, of the German Penal Code is to be applied * * *.” (Citing decisions of the People’s Court.) Himmler directly states that the provisions of section 91, paragraph 2, are “nonapplicable”. We emphasize the fact that the question under discussion related to the proposed prosecution ofa Pole for acts committed before the war while Poland was in the exercise of its sovereign powers throughout its territory. The question could not well have related to acts done after Poland had been overrun and part of it purportedly annexed, for, at that time Polish authorities would have been in no position to prosecute racial Germans. Furthermore, in discussing the problem, Lautz mentions a case against the Pole Golek which had recently come into his hands on preliminary proceedings. He states that Golek in the years 1938 and 1939 in Poland had turned over to the police authorities a racial German of Polish nationality and had accused him of high treason committed in favor of the Reich.

Himmler, as quoted by Lautz, expressed the view that considerations of foreign policy would be opposed to the enactment of any German statute under which a Pole could be prosecuted by German authorities on account of acts of the kind indicated, but he added:

“I see here a task for the courts, an opportunity to fill a gap in the law, a gap caused by political reasons of state by creating a law in the appropriate cases.”

Himmler quoted from an opinion by the People’s Court in which it was said that the National Socialist State “feels it incumbent on itself, even in case of a conspiracy by a foreign government against one single Reich citizen, to give the threatened person its protection in accordance with penal law as far as this is possible from the home country.” It will be observed that this quotation relates to the protection of Reich citizens, not Polish citizens, who are only racial Germans. Himmler continued, however:

“The Reich made no secret of the fact that with regard to the protection of Germans, it does not only claim the right to protect Reich Germans but also racial Germans living on its borders.”

The defendant Lautz frankly expressed the view that the German statute defining treason did not cover the case under discussion. In this he was clearly correct. The German statute on treason had been extended to provide that “whoever with the intention of causing * * * any other serious detriment to the Reich, establishes relations with a foreign government, shall be punished by death.” This section was not applicable to the case under discussion because the charge to be preferred against the Pole was one of treason against an individual and not against the Reich. By the law of 24 April 1934 the concept of treason was also expanded to cover certain cases of causing serious detriment to a German national, but that law also was inapplicable to the case under discussion because the serious detriment had not beencaused to a German national but only to a racial German. Insofar as the German statutes required punishment of acts done with the intention of causing serious detriment to a national of the Reich, they extended the concept of treason in a manner unknown to the criminal law of any civilized state, and this law was made applicable in occupied and purportedly annexed territory. Notwithstanding the extremes to which the German laws of treason were extended, the defendant Lautz stated that he agreed with the Reich Leader SS and the president of the People’s Court that a direct application of the German law of treason protects only German nationals and does not apply to racial Germans. He then stated:

“Furthermore, I concur with the conception that the general political development which has meanwhile come about, particularly during the last years, which has enabled the Reich largely to protect its racial members of foreign nationality to a greater extent than it has been possible hitherto, must be borne in mind in this particular instance. Therefore, I find it necessary, on principle, to protect by means of the German penal code those racial Germans who have seriously suffered through action such as mentioned in paragraph 92, subparagraph 2, of the Penal Code, provided that action deserves punishment in accordance with sound German sentiment, but where such punishment, considering the elements of wrongdoing of that particular case, cannot be brought home on the strength of any other directly applicable penal regulation.”

In conclusion the defendant Lautz stated that in the majority of cases which have been committed by foreign nationals abroad against racial Germans he would “have to report in each individual case.”

Stated in plain language, Lautz proposed that the courts should try and convict Poles for acts which violated no statute of any kind, if they deserved punishment according to sound German sentiment. This proposal violates every concept of justice and fair play wherever enforced, but when applied against a Pole for an act done in his own country in time of peace, the proposition becomes a monument to Nazi arrogance and criminality. Such a Pole owed no duty of loyalty to any state except Poland and was subject to the criminal jurisdiction of no state but Poland. The prosecution of the Pole Golek would constitute a palpable violation of the laws of war (see: citations to the Hague Convention,supra), and any official participating in such a proceeding would be guilty of a war crime under C. C. Law 10. The document discloses that cases similar to that of Golek had been tried by the People’s Court and that more prosecutions were expected in the future. As awitness, the defendant Lautz testified that “in several individual cases a decision had to be obtained from the minister.” We are justified in believing that Lautz’ expectations were fulfilled and that he participated in the prosecution of Golek and in similar cases.

We have cited a few cases which are typical of the activities of the prosecution before the People’s Court in innumerable cases. The captured documents which are in evidence establish that the defendant Lautz was criminally implicated in enforcing the law against Poles and Jews which we deem to be a part of the established governmental plan for the extermination of those races. He was an accessory to, and took a consenting part in, the crime of genocide.

He is likewise guilty of a violation of the laws and customs of war in connection with prosecutions under the Nacht und Nebel decree, and he participated in the perversion of the laws relating to treason and high treason under which Poles guilty of petty offenses were executed. The proof of his guilt is not, however, dependent solely on captured documents or the testimony of prosecution witnesses. He is convicted on the basis of his own sworn statements. Defendant is entitled to respect for his honesty, but we cannot disregard his incriminating admissions merely because we respect him for making them.

There is much to be said in mitigation of punishment. Lautz was not active in Party matters. He resisted all efforts of Party officials to influence his conduct but yielded to influence and guidance from Hitler through the Reich Ministry of Justice, believing that to be required under German law. He was a stern man and a relentless prosecutor, but it may be said in his favor that if German law were a defense, which it is not, many of his acts would be excusable.

We find the defendant Lautz guilty as charged upon counts two and three of the indictment.

By his own sworn statement the defendant Wolfgang Mettgenberg frankly and fully admits his connection with the Hitler Night and Fog decree. His statements show that he exercised wide discretion and had extensive authority over the entire plan from the time the Night and Fog prisoner was arrested in occupied territory and continuously after his transfer to Germany, his trial, and execution or imprisonment.

We will not reiterate the statements made by him in his sworn statement and hereinabove quoted. Suffice it to say that Mettgenberg held the position of Ministerialdirigent in Departments IIIand IV of the Reich Ministry of Justice. In Department III, for penal legislation, he dealt with international law, formulating secret, general, and circular directives. He was regarded as an eminent authority on international law. He handled Night and Fog cases and knew the purpose and procedure in such cases. He knew that the decree was based upon the Fuehrer’s order of 7 December 1941 to the OKW. He knew that an agreement existed between the Gestapo, the Reich Ministry of Justice, the Party Chancellery, and the OKW with respect to the purposes of the Night and Fog decree and the manner in which such matters were to be handled.

The defendant von Ammon was Ministerial Councillor in Mettgenberg’s subdivision and was in charge of the Night and Fog section as shown in this judgment. The two acted together on doubtful matters and referred difficult questions to competent officials in the Reich Ministry of Justice and the Party Chancellery, since both of these offices had to give their “agreement” in cases of malicious attacks upon the Reich or Nazi Party or in the Night and Fog cases. The NN cases came from the Wehrmacht but in some cases directly from the Gestapo. These cases were assigned to Special Courts at several places in Germany and to the People’s Court at Berlin by defendant von Ammon. Mettgenberg and von Ammon were sent to the Netherlands occupied territory because some German courts set up there were receiving Night and Fog cases in violation of the decree that they should be transferred to Germany. They held a conference at The Hague with the highest military justice authority and the heads of the German courts in the Netherlands, which resulted in a reference of the matter to the OKW at Berlin which agreed with Mettgenberg and von Ammon that “the same procedure should be used in the Netherlands as in other occupied territories, that is, that all Night and Fog matters should be transferred to Germany.”

In Department IV for penal administration, Mettgenberg’s work consisted of inspecting execution equipment. He witnessed one execution in 1944. He was entrusted with speeding up clemency applications because prisoners were escaping during air raids. Reich Minister Thierack called the defendant, Rothenberger, Under State Secretary, by telephone at Berlin and instructed him to make decisions concerning the clemency in death sentence cases presented by defendant Mettgenberg who made “reports lasting hours,” and then Rothenberger made the decisions.

The evidence does not positively show that clemency cases presented by Mettgenberg and passed upon by Rothenberger were NN cases. We think, however, that the only conclusion that can be reached from Mettgenberg’s testimony during the trial is that Rothenberger passed upon all clemency matters presented to himby Mettgenberg which included NN cases. Mettgenberg stated that he was appointed to speed up clemency matters due to air raids and that he took the matter up with the Reich Minister of Justice, Thierack, who at the time called Rothenberger on the telephone and told him to receive and pass upon the clemency matters submitted. Mettgenberg testified that he did present clemency matters to Rothenberger by telephone conversations which lasted for several hours and that Rothenberger then made the decisions.

The defendant Mettgenberg assumed the burden of defending the illegality of the Night and Fog proceedings under the Ministry of Justice not only for himself but for all defendants connected therewith. He prefaced this defense with the following statement:

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