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MR. COUNSELLOR SMIRNOV: Sir, a few days ago the Tribunal issued instructions concerning the expedience of reading into the record the official British report on the responsibility for the slaying of 50 officers of the Royal Air Force coincidentally, as far as possible, with the proposed interrogatory of General Westhoff and the senior criminal counsel, Wielen. May I read into the record some of the more essential passages from this report of the British Government? I shall read into the record those parts of the document which, on the one hand, testify to the general character of this criminal act and, on the other hand, establish the responsibility for the crime.
THE PRESIDENT: Colonel Smirnov, you are offering the document, are you, as evidence? You are seeking to put the document in evidence?
MR. COUNSELLOR SMIRNOV: This document has already been presented in evidence and has already been accepted by the Tribunal. I wished only to read into the record certain extracts from this document. It has been submitted as Exhibit Number USSR-413 (Document Number UK-48).
THE PRESIDENT: Very well.
MR. COUNSELLOR SMIRNOV: I am quoting Paragraph 1 of the official British report:
"1. On the night of 24-25 March 1944, 76 R.A.F. officers escaped from Stalag Luft III at Sagan in Silesia, where they had been confined as prisoners of war. Of these, 15 were recaptured and returned to the camp, 3 escaped altogether, 8 were detained by the Gestapo after recapture. Of the fate of the remaining 50 officers the following information was given by the German authorities:
"(a) On 6th April 1944, at Sagan, the acting commandant of Stalag Luft III (Oberstleutnant Cordes) read to the senior British officer (Group Captain Massey) an official communication of the German High Command that 41 officers (unnamed) had been shot, 'some of them having offered resistance on being arrested, others having tried to escape on the transport back to their camp.'
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"(b)On 15th April l914, at Sagan, a member of the German camp staff (Hauptmann Pieber) produced to the new senior British officer (Group Captain Wilson) a list of 47 names of the officers who had been shot.
"(c) On 18th May 1944, at Sagan, the senior British officer was given three additional names, making a total of 50.
"(d) On or about 12th June 1944, the Swiss Minister in Berlin received from the German Foreign Office, in reply to his enquiry into the affair, a note to the effect that 37 prisoners of British nationality and 13 prisoners of non-British nationality were shot when offering resistance when found or attempting to re-escape after capture. This note also referred to the return of urns containing the ashes of the dead to Sagan for burial."
The official German version -- the official version of the German authorities -- indicated that these officers were shot allegedly while attempting to escape. As a matter of fact, as definitely proved by the documentation of the investigation carried out by the British authorities, the officers were murdered -- and murdered by members of the Gestapo on direct orders from Keitel and with the full knowledge of Goering.
I shall, with your permission, read into the record in confirmation of this fact two paragraphs -- or rather two points -- from the official British report, that is, Point 7 and Point 8:
"7. General Major Westhoff at the time of the escape was in charge of the general department relating to prisoners of war, and on 15th June 1945 he made a statement in the course of which he said that he and General Von Graevenitz, the inspector of the German POW organization, were summoned to Berlin a few days after the escape and there interviewed by Keitel. The latter told them that he had been blamed by Goering in the presence of Himmler for having let the prisoners of war escape.
"Keitel said, 'Gentlemen, these escapes must stop. We must set an example. We shall take very severe measures. I can only tell you that the officers who have escaped will be shot; probably the majority of them are dead already.' When Von Graevenitz objected, Keitel said, 'I do not care a damn; we discussed it in the Fuehrer's presence and it cannot be altered.'"
Point 8: I begin the quotation of the official British report:
"Max Ernst Gustav Friedrich Wielen was then the officer in charge of the Criminal Police (Kripo) at Breslau, and he also made a statement, dated 26th August 1945, in the course of which he said that as soon as practically all the escaped R.A.F. Officers had been recaptured he was summoned to Berlin
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where he saw Arthur Nebe, the Chief of the Kripo head office, who showed him a teleprint order signed by Kaltenbrunner, which was to the effect that on the express order of the Fuehrer over half of the officers who had escaped from Sagan were to be shot after their recapture. It was stated that Muller had received corresponding orders and would give instructions to the Gestapo. According to Wielen the Kripo, who were responsible for collecting and holding all the recaptured prisoners, handed over to the Gestapo the prisoners who were to be shot, having previously provided the Gestapo with a list of the prisoners regarded by the camp authorities as 'troublesome.' "
I would also ask the Tribunal's permission to read into the record that part of the text of the official report of the British Government which deals with the methods of investigation in regard to individual officers. This documentation has been systematized and divided into three parts. I take the liberty of reading into the record the data of the findings referring to the three separate parts. I quote Page 3 of the Russian text, beginning from Paragraph 2:
"Flight Lieutenants Wernham, Kiewnarski, Pawluk, and Skanziklas.
"On or about 26th March 1944...
THE PRESIDENT: Colonel Smirnov, are you going to read now some of the evidence upon which the report is based?
MR. COUNSELLOR SMIRNOV: Mr. President, I should like to read out only from the text proper and particularly those parts of the report which testify to the methods of investigation applied in the case of individual officers. I should like to begin reading from the paragraph dealing with the three groups of officers.
THE PRESIDENT: Paragraph 4?
MR. COUNSELLOR SMIRNOV: Yes.
THE PRESIDENT: Very well.
MR. COUNSELLOR SMIRNOV:
"On or about the 26th of March 1944 these officers were interrogated at the police station in Hirschberg and were then moved to the civil gaol in that town. On the morning of 29th March Pawluk and Kiewnarski were taken away and later in the day Skanziklas and Wernham left. Both parties were escorted, but their destination was unknown. They have not been seen since and the urns later received at the Stalag showing their names bear the date 30th March 1944."
And now the next group of British officers:
"Squadron Leader Cross, Flight Lieutenants Casey, Wiley, and Leigh, and Flight Officers Pohe and Hake.
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"Between 26th and 30th March 1944 these officers were interrogated at the Kripo headquarters in Gorlitz and then returned to the gaol there. During the interrogation Casey was told that 'he would lose his head,' Wiley that 'he would be shot,' and Leigh that 'he would be shot.' Hake was suffering from badly frostbitten feet and was incapable of traveling for any distance on foot. On 30th March the officers left Gorlitz in three motor cars accompanied by 10 German civilians of the Gestapo type. The urns later received at the Stalag bear their names and show them to have been cremated at Gorlitz on 31st March 1944.
"Flight Lieutenants Humpreys, McGill, Swain, Hall, Langford, and Evans; Flight Officers Valenta, Kolanowski, Stewart, and Birkland.
"These officers were interrogated at the Kripo headquarters in Gorlitz between 26th and 30th March. Swain was told that 'he would be shot,' Valenta was threatened and told that 'he would never escape again.' Kolanowski was very depressed after his interview. On 31st March these officers were collected by a party of German civilians, at least one of whom was in the party which had come on the previous day. The urns later received at the Stalag bore their names and show them to have been cremated at Liegnitz on a date unspecified."
I wish to draw the attention of the Tribunal to the fact that similar data also relate to different groups of British officers slain by the Germans in Stalag Luft III.
The following page of the text includes identical data relating to Flight Lieutenants Grisman, Gunn, Williams, and Milford, Flight Officer Street and Lieutenant McGarr. Similar information is given concerning Flight Lieutenant Long, Squadron Leader J. E. Williams, Flight Lieutenants Bull and Mondschein, and Flight Officer Kierath. The same information is given with reference to Flight Officer Stower, Flight Lieutenant Tobolski, Flight Officer Krol, Flight Lieutenants Wallen, Marcinkus, and Brettell, Flight Officer Picard and Lieutenants Gouws and Stevens, Squadron Leader Bushell and Lieutenant Scheidhauer, Flight Officer Cochran, Lieutenants Espelid and Fugelsang, Squadron Leader Kirby-Green and Flight Officer Kidder, Squadron Leader Catanach and Flight Officer Christensen, and Flight Lieutenant Hayter.
I shall, with your permission, read into the record one more paragraph from this official report. I refer to Paragraph 6 of the official British report and also to Paragraph 5, because it is of essential importance.
THE PRESIDENT: I was going to suggest you should read Paragraph 5.
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MR. COUNSELLOR SMIRNOV: I am going to read Paragraph 5 of the British text:
"According to the evidence of the survivors there was no question of any officers having resisted arrest or of the recaptured officers having attempted a second escape. All were agreed that the weather conditions were against them and that such an attempt would be madness. They were anxious to be returned to the Stalag, take their punishment, and try their luck at escaping another time.
"6. The Swiss representative (M. Gabriel Naville) pointed out on 9th June 1944 in his report on his visit to Sagan that the cremation of deceased prisoners of war was most unusual (the normal custom being to bury them in a coffin with military honors) and that was the first case known to him where the bodies of deceased prisoners had been cremated. Further it may be noted that if, as the Germans alleged, these 50 officers who were recaptured in widely scattered parts of Germany had resisted arrest or attempted a second escape, it is probable that some would have been wounded and most improbable that all would have been killed. In this connection it is significant that the German Foreign Office refused to give to the protecting power the customary details of the circumstances in which each officer lost his life."
Those are the parts of the official report of the British Government which I had the honor to communicate to the Court.
THE PRESIDENT: I think it would perhaps be better if you also read the appendix so as to show the summary of the evidence upon which the report proceeded, Paragraph 9.
MR. COUNSELLOR SMIRNOV: I refrained from reading the appendix because it had already been read in due course by Sir David Maxwell-Fyfe. I shall read it once more with pleasure:
"9. The appendix attached hereto gives a list of the material upon which this report is based. The documents referred to are annexed to this report.
"Material upon which the foregoing report is based:
"(1) Proceedings of court of inquiry held at Sagan by order of the senior British officer in Stalag Luft III and forwarded by the protecting power.
"(2) Statements of the following Allied witnesses: (a) Wing Commander Day, (b) Flight Lieutenant Tonder, (c) Flight Lieutenant Dowse, (d) Flight Lieutenant Van Wymeersch, (e) Flight Lieutenant Green, (f) Flight Lieutenant Marshall,
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(g)Flight Lieutenant Nelson, (h) Flight Lieutenant Churchill, (i) Lieutenant Neely, (k) P. S. M. Hicks.
"(3) Statements taken from the following Germans: (a) Major General Westhoff, (b) Oberregierungsrat und Kriminalrat Wielen (two statements), (c) Oberst Von Lindeiner.
"(4) Photostat copy of the official list of dead transmitted by the German Foreign Office to the Swiss Legation in Berlin on or about 15 June 1944.
"(5) Report of the representative of the protecting power on his visit to Stalag Luft III on 5 June 1944."
THE PRESIDENT: Then, for the purposes of the record, you had better read in the signature and the department at the bottom.
MR. COUNSELLOR SMIRNOV: The document is signed by H. Shapcott, Brigadier, Military Deputy, and is certified by the Military Department, Judge Advocate General's Office, London, 25 September 1945.
THE PRESIDENT: Colonel Smirnov, so far as the Russian Chief Prosecutor is concerned, does that conclude the case for the Prosecution?
MR. COUNSELLOR SMIRNOV: Yes.
THE PRESIDENT: Thank you.
DR. NELTE: Mr. President, Paragraph 9 of the report which has just been read by the Prosecution mentions the documents which served as a basis for it and says that they are attached to the report. The individual documents on which the report is based are listed in the appendix. I ask the Tribunal to decide whether Document USSR-413 satisfies the requirements of Article 21 of the Charter, since the material on which it was based, and which is expressly mentioned in the report, has not been produced along with it. I request that the Prosecution be asked to make the appendix available to the Defense as well.
THE PRESIDENT: Dr. Nelte, do you mean that you have only had the report made by the Brigadier and have not seen any part of the other evidence upon which the report proceeds?
DR. NELTE: Mr. President, the Tribunal decided during an earlier phase of this Trial...
THE PRESIDENT: [Interposing.] Yes, but I did not ask you what we had decided. I asked what you had received. Have you received from the Prosecution the whole of this document or only the report made by the Brigadier?
DR. NELTE: Only the report, without the appendix.
THE PRESIDENT: Well, the Tribunal certainly intended that the whole of the document should be furnished to defendant's
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counsel, and that must be done so that you may have all the documents before you.
DR. NELTE: But that has obviously not been done. The appendix expressly mentions statements made by Major General Westhoff and by Oberregierungsrat Wielen. I am not acquainted with either of these statements. They were not attached to the report.
THE PRESIDENT: You must have them. The Prosecution must see that the whole of this document is furnished to the Defense Counsel.
SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I do not think the whole of it has been copied, but if Dr. Nelte will let us know if he wants the whole of it, or a part, we will co-operate the best way we can. The last thing we desire is that he should not have it. We want him to have everything he wants.
THE PRESIDENT: Well, Sir David, will you inform the Tribunal whether the Prosecution have now concluded their case.
SIR DAVID MAXWELL-FYETE: Yes, My Lord. That is the conclusion of the case for the Prosecution.
DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): The Defendant Kaltenbrunner wishes to call a number of witnesses whom I will name now. First, Professor Dr. Burckhardt.
SIR DAVID MAXWELL-FYFE: My Lord, if the Tribunal approves, we will adopt the same procedure as was done on the first four defendants.
With regard to the three Swiss witnesses, Burckhardt, Brachmann, and Meyer, the interrogatories were granted on the 15th of December and submitted on the 28th of January. The Prosecution considered that the interrogatories were rather on the vague side and suggested that they might be made more precise. The Prosecution have no objection to interrogatories in principle, and I am sure that there would not be much difference between Dr. Kauffmann and the Prosecution as to the form. That applies to the first three witnesses.
THE PRESIDENT: We are informed that none of these three witnesses has been located yet.
SIR DAVID MAXWELL-FYFE: Well, I respectfully agree, My Lord. That is the position of the Prosecution, that we have no objection in principle to these interrogatories, and if we can help the Court in any way to locate the witnesses, we should be glad to do so.
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THE PRESIDENT: When were the interrogatories furnished to the Prosecution?
SIR DAVID MAXWELL-FYFE: The 28th of January, My Lord.
THE PRESIDENT: And were the Prosecution's objections communicated to the Defense Counsel shortly afterwards, or when?
SIR DAVID MAXWELL-FYFE: I am sorry, I am afraid I have not got that date, My Lord.
THE PRESIDENT: Wouldn't the most sensible course be for the Prosecution to try to agree upon a suitable form of interrogatory whilst the General Secretary is continuing his inquiries to find the witnesses?
SIR DAVID MAXWELL-FYFE: Yes. Well, if Dr. Kauffmann will communicate with me, I have no doubt that we could agree on a form that would be mutually acceptable.
THE PRESIDENT: Very well.
DR. KAUFFMANN: Mr. President, I think there is no need for me to repeat the individual questions which I have listed in the interrogatory. There are 19 of them. I do not think that I need repeat them now.
THE PRESIDENT: No, certainly not.
DR.KAUFFMANN: The fourth witness is the former German Minister in Belgrade, Neubacher. At present he is in the internment camp Oberursel near Frankfurt, in American custody.
SIR DAVID MAXWELL-FYFE: No objection to this witness.
DR.KAUFFMANN: Does the Tribunal want me to specify the evidence?
THE PRESIDENT: Yes, if you would.
DR. KAUFFMANN: Neubacher will, in the opinion of the Defendant Kaltenbrunner, be able to testify that the order given by Hitler in October 1944 to stop the persecution of the Jews was really given at Kaltenbrunner's suggestion.
Furthermore, in the opinion of the defendant, he will be able to testify that when Himmler was appointed Chief of the Reichssicherheitshauptamt he put the defendant in charge of Amt III and VI. This seems to me to be important, since so far the Indictment has always been based on the defendant's definite connection with Amt IV, which is, indeed, borne out to a certain extent by the evidence. Neubacher is expected to be able to testify to this.
THE PRESIDENT: Dr. Kauffmann, if those are the questions which it is desired to interrogate Neubacher on, couldn't they be dealt with by interrogatories?
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DR. KAUFFMANN: According to the information given to me by Kaltenbrunner, Kaltenbrunner attaches importance to the personal appearance of this witness for reasons which are easy to understand. I believe that Kaltenbrunner considers this witness one of the most important witnesses, and he would like to see this witness called.
THE PRESIDENT: Well, the Tribunal will consider that.
DR. KAUFFMANN: The next witness is Number 5, Wanneck, at present in American custody in Heidelberg.
SIR DAVID MAXWELL-FYFE: The Prosecution that the witness Wanneck is cumulative. According to Dr. Kauffmann's application, he is going to deal with the point that the Defendant Kaltenbrunner was actually occupied mainly with the task of the intelligence service and that he objected to persecution of the Jews. That is already covered by Neubacher, and it is also covered by the cross-examination of the Prosecution's witness Schellenberg, who was the chief of Amt VI, which Dr. Kauffmann has set out in his note on the witness Neubacher, Number 4, as being one of the Intelligence Amter.
DR. KAUFFMANN: I leave it to the Tribunal to decide whether this witness could be dealt with by means of an interrogatory. But I do consider the evidence material relevant in the case of Wanneck as well. In a certain sense it is cumulative, but some points in it go further. But I agree to an interrogatory.
The sixth witness is Scheidler.
THE PRESIDENT: Sir David, do you think it would be unreasonable to administer an interrogatory?
SIR DAVID MAXWELL-FYFE: No, My Lord. Generally I make no objection to interrogatories at all.
With regard to Scheidler, he was, as I understand the application, the Defendant Kaltenbrunner's adjutant, and as such the Prosecution would not make any objection. But I think it would be convenient if I were to draw the attention of the Tribunal to the fact that the next six witnesses, Numbers 6 to 11 inclusive, all deal with concentration camps, and numbers 6, 8, 9, and 11 deal with Mauthausen. I want to give Dr. Kauffmann warning that I shall ask for some selectivity among these six witnesses.
The Prosecution feel that the application for an adjutant is a reasonable one, but it will be reflected in objections to later witnesses.
DR. KAUFFMANN: The defendant naturally considers it important that the adjutant who served him for many years and who accompanied him on every single trip, as Kaltenbrunner told me himself, be called. He knows also, for instance, that the wireless
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message to Fegelein, which is part of the accusation, did not come from Kaltenbrunner and that his radiogram was never sent. He also knows that Kaltenbrunner had made all preparations for the Theresienstadt camp to be made accessible to the Red Cross. These are things which have not been mentioned by previous witnesses, but which shed some light on the person of the defendant.
THE PRESIDENT: You are speaking now of Scheidler?
DR. KAUFMANN: Yes.
THE PRESIDENT: Sir David, the Tribunal would like you to deal with the whole of that group together, and then Dr. Kauffmann can answer what you say.
SIR DAVID MAXWELL-FYEE: With pleasure, My Lord.
The next witness is Ohlendorf, who was called as a witness for the Prosecution. The situation as I have found it is that Dr. Kauffmann did cross-examine the witness Ohlendorf on the Defendant Kaltenbrunner's responsibility on concentration camps on the 3rd of January of this year, at Page 2034 of the transcript (Volume IV, Page 335).
The witness Wisliceny, Number 12, who has not been cross-examined on behalf of Kaltenbrunner by Dr. Kauffmann, would be the natural person to deal with that point. But, of course, if Dr. Kauffmann has any special point for the recalling of Ohlendorf, he will tell the Tribunal.
That is the position.
THE PRESIDENT: Dr. Kauffmann, if you had the opportunity of cross-examining General Ohlendorf and actually availed yourself of the opportunity wasn't that the appropriate time for you to put any questions which you had on behalf of the Defendant Kaltenbrunner?
DR. KAUFFMANN: I should like to remind you that Kaltenbrunner was ill for more than 12 weeks and that I could get almost no information from him. At the session of 2 January the right of cross-examining the witnesses at a later date was expressly granted me by the Tribunal. I had, as the Court will remember, made a motion to adjourn, and then I was permitted to cross-examine the witnesses at a given time which would suit me.
That appears in the transcript of 2 January 1946.
As these witnesses have all been called in Kaltenbrunner's absence, I should like to cross-examine now in his presence. I am, however, prepared to forego the cross-examination, if I can talk to the witnesses beforehand. Perhaps it will not be necessary to call one or the other witness.
THE PRESIDENT: What do you mean by one or the other witness? Which is the other? Wisliceny?
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DR. KAUFFMANN: Number 7, Ohlendorf, and then Number 11, Hollriegel, and Plumber 12, Wisliceny, also Number 14, Schellenberg. All these witnesses have been heard here, and Kaltenbrunner was ill at the time.
THE PRESIDENT: What do you say about it, Sir David?
SIR DAVID MAXWELL-FYFE: I should suggest that Dr. Kauffmann cross-examine Number 11, Hollriegel, and Number 12, Wisliceny, whom he has not cross-examined so far. And then, if there is any special point which remains to be dealt with by the witness Ohlendorf, Dr. Kauffmann can make a special application to the Court.
THE PRESIDENT: Yes. Well, the Tribunal would like to know what position you take about the defendants' counsel seeing these witnesses and discussing with them their evidence before they call them. I mean, there is a distinction between cross-examination when defendants' counsel cannot see them and calling them as their own witnesses when they can see them.
SIR DAVID MAXWELL-FYE'E: Well, the Prosecution feel that they ought simply to cross-examine witnesses that have been called by the Prosecution, unless there are very special circumstances. I think that Dr. Seidl showed special circumstances with regard to the case that he mentioned of one witness in special relation to the Defendant Hess. But as a general rule, the Prosecution submit that witnesses that they have called should be cross-examined without prior consultation.
THE PRESIDENT: Well, Sir David, the Tribunal would like to know your view. Of course, we are not deciding the point now, but we should like to know your view as to whether it would be a proper course to allow the defendants' counsel to see the particular witness in the presence of a representative of the Prosecution, because it may be that that would lead to a shortening of the proceeding, because the defendants' counsel might after that not wish to cross-examine the witness any further.
SIR DAVID MAXWELL-FYFE: Well, I am afraid that would require discussions with my colleagues on each particular witness. I am afraid I have not covered that point; witnesses 11 and 12 were called by my American colleagues and although I take the general position which I put before the Tribunal, I have not discussed that point; but I shall be pleased to discuss it with them and perhaps to inform the Tribunal later on in the day.
Of course, you will appreciate the fact that there may be a special point relating to a special witness that may come up in this connection.
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DR. KAUFFMANN: Perhaps I can explain this. The witness Ohlendorf was reserved for me for cross-examination. In accordance with an agreement made with the American Prosecution, I dispensed with a cross-examination of Ohlendorf and on this condition was allowed to speak to him. I think it would be quite fair if I could do the same with other witnesses. I forego the cross-examination and can speak to the witnesses beforehand. Perhaps one or the other will turn out to be unnecessary.
THE PRESIDENT: I am not quite sure that you understand the view being put to you, Dr. Kauffmann. The view is that when a witness is called on behalf of the Prosecution the defendants' counsel certainly have the right to cross-examine the witness, not to see the witness beforehand, but only to cross-examine him. If on the other hand they are entitled to call that witness as their own, then they are entitled to see him beforehand, which is...
DR. KAUFFMANN: Yes, that is what I mean. But if I am allowed to speak to the witness beforehand, then the Court will understand that I should like to avoid as far as possible the presence of a representative of the Prosecution, since the reasons which might cause me to forego the calling of a witness would then be known to the Prosecution. I think everyone will understand that, and I also think it is fair.
THE PRESIDENT: I wanted to clarify what the difference in view between you and the Prosecution is. The Prosecution said that when the witness was called for the Prosecution the right of the defendants is only to cross-examine. Can you help us further with respect to this group, Sir David?
SIR DAVID MAXWELL-FYFE: Certainly. With regard to Eigruber, Number 8, he is no longer in Nuremberg, and he is being held as a probable defendant in the case concerning Mauthausen Camp, which will be dealt with by a military court, and therefore the Prosecution suggests that in these circumstances, as he is one of this group dealing with concentration camps in general and Mauthausen in particular, he ought to be dealt with by interrogatories.
Then with regard to Hottl, Number 9, he deals with two aspects of one point, that is, that Kaltenbrunner on his own initiative ordered the surrender of the concentration camp of Mauthausen and that he took steps to induce Himmler to release people from concentration camps. These seem to be general points that again might be conveniently dealt with by interrogatories.
And the same applies to the witness Von Eberstein, who deals with the point that Kaltenbrunner is alleged not to have given an order to destroy the concentration camp at Dachau, and that he
did not give an order to evacuate Dachau. The Prosecution suggest that these ought also to be interrogatories.
With regard to the next witness, Hollriegel, the Prosecution make no objection to further cross-examination, and respectfully suggest to the Tribunal that he will be able to deal with the question of Mauthausen, which is one of the main questions that this whole group of witnesses is called to deal with.
DR. KAUFFMANN: [Interposing.] Maybe I can say something so that...
THE PRESIDENT: [To Sir David Maxwell-Fyfe.] Are you in agreement with Number 12, in the same group?
SIR DAVID MAXWELL-FYFE: Number 12 is not in the same group, because he deals with the question of Kaltenbrunner's relations with Eichmann and with reports he received regarding the action against the Jews. We have no objection to this witness being called for cross-examination, as Dr. Kauffmann did not cross-examine him.
THE PRESIDENT: Yes, Dr. Kauffmann?
DR. KAUFFMANN: Concerning the witness Eigruber, Number 8, may I point out that this witness is here in Nuremberg. However, I agree that interrogatories be sent. The subject of the evidence itself seems to me decidedly relevant, for what Eigruber is supposed to testify is neither more nor less than the fact that the concentration camp at Mauthausen was directly supervised by Himmler through Pohl and the commander of the camp. Kaltenbrunner denies the possession of exact knowledge regarding Mauthausen. The witness Hottl...
THE PRESIDENT: You were in error in saying he was here in town. Sir David said he has been removed from Nuremberg for the purpose of trial by a military court. So perhaps you would not object to interrogatories in that case.
DR. KAUFFMANN: Yes. The witness Hottl is, in my opinion, an important witness. As we know, Kaltenbrunner is also accused of having participated in the conspiracy against the peace. Here I intend to prove that Kaltenbrunner conducted an active peace campaign ever since 1943. An important name in this connection is Mr. Dulles. He is, according to Kaltenbrunner, the late President Roosevelt's confidential agent. Mr. Dulles was in Switzerland. According to Kaltenbrunner, meetings between them constantly took place with this object. I believe that this subject of evidence is relevant.
THE PRESIDENT: You mean that you want Dr. Hottl in person, not by way of interrogatories?
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DR. KAUFFMANN: Yes, if I may ask for that.
THE PRESIDENT: The Tribunal will consider that.
DR. KAUFFMANN: Witness Number 10, General of the Police Von Eberstein, is called to prove that the statement of another witness by the name of Gerdes is untrue. The Tribunal will perhaps remember that the Prosecution submitted an affidavit by a man named Gerdes who was an important figure in Munich. He was the confidential agent of the former Gauleiter of Munich. In his affidavit, Gerdes accuses Kaltenbrunner of ordering the destruction of Dachau through bombing. Kaltenbrunner emphatically denies that.
THE PRESIDENT: That is a matter which could be clearly dealt with by interrogatories, whether or not Kaltenbrunner did give an order to destroy a concentration camp, or an order to evacuate Dachau. Surely those are matters which admit of proof by interrogatories.
DR. KAUFFMANN: I agree. The same problem arises in connection with the next witness, Number 11, the witness Hollriegel, who has already been heard. Am I to have the opportunity of speaking to this witness before he is cross-examined? Kaltenbrunner denies that he ever saw gas chambers, et cetera.
THE PRESIDENT: Dr. Kaufmann, isn't Number 11 really cumulative to Number 6, whom you particularly wanted to call?
DR. KAUFFMANN: Yes, Mr. President, certainly.
THE PRESIDENT: Anyhow, the Tribunal will consider the question whether you ought to be given the right merely to cross-examine or to recall as your own witness, with reference to Numbers 11 and 12.
DR. KAUFFMAN: Yes. Just a word about witness Number 12. Eichmann, as is well known, was the man who carried out the whole extermination operation against the Jews, and Kaltenbrunner's name has been mentioned in connection with this operation. Kaltenbrunner denies it. For that reason I consider Wisliceny a relevant witness.
THE PRESIDENT: That concludes that group. What about the other ones, Sir David? Are they in the same category?
SIR DAVID MAXWELL-FYFE: Not quite, but I think it might be convenient if I deal with them.
Dr. Mildner, Number 13, is sought to testify that Kaltenbrunner did not authorize the chief of the Gestapo to sign orders for protective custody or internment, and I should submit that in view of the previous evidence, of Scheidler and Number 4, Neubacher,
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Dr. Mildner's evidence is cumulative and that interrogatories would suffice.
As to Schellenberg, Number 14, I have already said that the Prosecution make no objection to his recall for cross-examination.
Finally, Dr. Rainer. We do object to that request, because the object of his testimony, that Kaltenbrunner recommended to the Gauleiter of Austria not to oppose the advancing troops of the Western Powers and not to organize Werewolf movements, is in our submission irrelevant to the issues before this Tribunal.
THE PRESIDENT: Yes. Dr. Kauffmann?
DR. KAUFFMANN: The witness Dr. Mildner, Number 13, is here in Nuremberg, in custody. I have asked to call this witness because he has submitted an affidavit containing certain accusations against Kaltenbrunner which Kaltenbrunner denies. I do not think that an interrogatory can clear up these difficulties.
Now, Number 14...
THE PRESIDENT: Dr. Mildner had submitted an affidavit?
DR. KAUFFMANN: Yes, Sir. There is a reference in the Indictment to an affidavit made by Dr. Mildner. I believe it was on 3 January. The witness' name was mentioned in connection with the charges against Kaltenbrunner. There are one or two affidavits . . .
THE PRESIDENT: But if the affidavit has not been produced to the Court, what have we got to do with it? We have not seen it, at least in my recollection. You know about it, Sir David?
SIR DAVID MAXWELL-FYFE: I have not been able to trace this affidavit of Dr. Mildner's. I do not remember it, but I will willingly check the reference that Dr. Kauffmann has given.
THE PRESIDENT: Of course, if the Prosecution have used the affidavit, then you would have no objection to the witness being called for cross-examination?
SIR DAVID MAXWELL-FYFE: Well, in general, no. The reason why I am rather surprised is that usually that point has been taken when it is sought to use the affidavit. The Defense Counsel involved has asked for the production of the witness -- but I will have it looked into, this particular point; but in general the Tribunal may take it that unless we put forward a special point, where an affidavit has been given, and where we have not argued to the Court previously, it is a very good case for the witness's being brought here, if it is convenient.
THE PRESIDENT: I did not understand that Dr. Kauffmann was saying that the affidavit had actually been put in by the
Prosecution, but there was some reference made to it. Is that right, Dr. Kauffmann?
DR. KAUFFMANN: It would not take me long to look it up. I have the files for 3 January here.
THE PRESIDENT: Dr. Kauffmann, we will give you an opportunity for looking that up. We will adjourn now for 10 minutes.
[A recess was taken.]
DR. KAUFFMANN: The name of Mildner appears in the transcript of 2 January, not in the form of an affidavit but in the form of a letter written by a third person and this letter is only mentioned in connection with Mildner's name; it is not an affidavit. I should like to request that Mildner be interrogated in writing.
Now turning to witness Number 15 . . .
THE PRESIDENT: Fourteen?
DR. KAUFFMANN: We have already dealt with Number 14.
THE PRESIDENT: Oh, you have already dealt with that? Very well, then 15.
DR. KAUFFMANN: Witness Number 15 is Rainer, who was a Gauleiter. I should like to request that this witness be heard as well. He is in Nuremberg. The subject of the evidence seems important to me. In the case against Kaltenbrunner, he is not expressly charged with the contrary; but if we are dealing with peace and violations of peace, an effort on the part of the defendant to prove that he has done everything in his power to prevent further bloodshed seems to me relevant.
THE PRESIDENT: Would an interrogatory satisfy you for that witness?
DR. KAUFFMANN: Yes, My Lord.
THE PRESIDENT: Yes.
DR. KAUFFMANN: I have not yet submitted any documents, Mr. President. Later on, I may present some affidavits, but, as I have not yet received them, I cannot present them at the moment.
THE PRESIDENT: The Tribunal understands, Dr. Kauffmann, that you wish to reserve for yourself the right to apply to put in documents at a later stage.
DR. KAUFFMANN: Yes, I request that.
THE PRESIDENT: The Tribunal will consider that and let you know when they make the order.
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Yes, Dr. Thoma?
SIR DAVID MAXWELL-FYFE: Dr. Thoma suggests that we deal with the document list.
THE PRESIDENT: Very well.
SIR DAVID MAXWELL-FYFE: On the first six documents, which are quotations from various books on philosophy, the Prosecution submit that they are irrelevant to the question of the ideology propounded by the Defendant Rosenberg, which the Prosecution make part of the case against him.
Of course, if the purpose is merely that Dr. Thoma would quote from such books in making his speech, and if he would let us know the passages he wants to quote so they can be dealt with mechanically, we do not make any anticipatory objection.
I think that takes us up to Number 6 -- which are purely general books on philosophy. The Prosecution view with some dismay all these books being put in evidence and the Prosecutors' having to read them.
I think I have made the position quite clear that if Dr. Thoma wishes to use them to illustrate the argument, and if he lets us know the passage, we make no general objection, but we object to their being put in as evidence, as not being relevant to the matters before the Court.
DR. THOMA: I do not think that it is possible without a consideration of world philosophy before Rosenberg's time to understand the morbid psychological state of the German people after their defeat in the first World War. Unless this psychological condition is appreciated, it is impossible to understand why Rosenberg believed that his ideas could help them. I am extremely anxious to show that Rosenberg's theories were representative of a phase of contemporary philosophy taught in similar form by many other philosophers both at home and abroad. I am extremely anxious to refute the charges made against Rosenberg's ideology as degenerate and -- I must quote the expression -- a "smutty ideology." I have to bear in mind that the members of the Prosecution, especially M. De Menthon, who has made a special study of the National Socialist ideology, made the very natural mistake of confusing the extravagances and abuses of this ideology, usually dubbed "Nazism," with its real philosophic content. The French Revolution of 1789 was in the same way, I believe, represented by neighboring peoples as a disaster of the first magnitude, and all the rulers in Europe were called upon to fight against it.
I believe that the Court was specially impressed by M. De Menthon's statements, which represented the Nazi ideology as having no spiritual value and described it as a dangerous doctrine. I think
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we must allow the possibility of its being taught in other countries as well at that time. I should like, therefore, to ask permission to present the philosophical systems of the time in question, by which I mean the views expressed by other philosophers on Rosenberg's main concepts, especially the question of blood or race, the soil as a fact of nature and as political and economic living space. Science declares that these ideas are based on the irrational presentation of natural and historical facts. They cannot be dismissed for that reason as unscientific, although they may be disturbing to rationalism and humanism.
I should like, in particular, to prove that these ideas have been respected and developed by rational and empirical science on account of their significance, and that they have been put into practice by other countries in their policy -- a fact which I think is important. I need only remind you of the U.S.A. immigration laws, which also give preference to particular races.
SIR DAVID MAXWELL-FYFE: As I understand Dr. Thoma, he wants to use the teachings of other philosophers as illustrations and arguments. If he is going to quote from them, then all that the Prosecution ask is that he tell us which passages he is going to quote, but we suggest that it is not relevant for us to go into an examination of, say, M. Bergson's book as a matter of evidence.
It is a perfectly clear distinction, and I suggest that Dr. Thoma will be well able to develop the point which he has just put with the limitation which I have just suggested.
THE PRESIDENT: Dr. Thoma, the Tribunal would like to know what it is that you actually propose. Are you proposing to put in evidence certain passages from certain books and that the Tribunal should read them or are you simply asking for the production of books so that you may consult them, read them, and then incorporate in your argument certain ideas which you may gather from the books?
DR. THOMA: I ask the Tribunal to note -- officially, at least -- the contents of the books which I shall submit. I shall not read all these quotations from the books, but I shall ask the Tribunal to note the outlines. I think it is important for the Tribunal to have the passages quoted from these books actually before them, so that they may have a clear picture of the philosophical -- and particularly of the ethical situation -- of the German people after their defeat in the World War.
THE PRESIDENT: But the books are not books of any legal authority. You can only cite, surely, to a court of international law, books that are authorities on international law. You can, of course,
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collect ideas from other books which you can incorporate in your argument. You cannot cite them as authorities.
DR. THOMA: Gentlemen, by submitting quotations from the works of well-known philosophers who presented ideas similar to Rosenberg's, I propose to prove that this ideology is to be taken quite seriously. In the second place I want to prove that those features of Rosenberg's ideology which have been branded as immoral and harmful are extravagances and abuses of this ideology; and in my opinion it is most important for the Tribunal to know from a consideration of the history of philosophy, that even the best ideas -- such as the French Revolution -- can degenerate. I should like to point out these historical parallels to National Socialism and to Rosenberg's ideology.
I also need these books to prove that Rosenberg was concerned only with the spiritual combating of alien ideology and that he was not in a position to protest any more energetically against the brutal application of his ideology in National Socialism, but that as a matter of principle he allowed scientific discussions of his works to proceed freely and never called in the Gestapo against his theological opponents.
He assumed that his ethnic ideas were not to be carried through by force, but that every people should preserve its own racial character and that intermingling was only permissible in the case of kindred races. He believed that this ideology was for the good of the German people and in the interest of humanity generally.
For these reasons I believe that the Tribunal, in order to have a vivid picture of the background of the development of National Socialism, should inform itself of the spiritual conditions of that time.
THE PRESIDENT: The Tribunal will consider the argument you have addressed to it.
SIR DAVID MAXWELL-FYFE: With regard to Document Number 7, that is, excerpts from certain books, the first five are from Rosenberg's own works, and the last is a book by another author on Hitler.
Again I submit that if Dr. Thoma wants to support the thesis contained in the first half of his note -- that "the Defendant Rosenberg does not see individual and race, individual and community, at contrast but represents the new romantical conception that the personality finds its perfection and its inner freedom by having the community of the racial spirit developed and represented within itself" -- if Dr. Thoma will give any of the extracts from Rosenberg's works on which he bases that argument, then he can present them at whatever part of his case is convenient; and similarly, with regard to the specific points set out in the second part of his note -- there
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again, if he will give the relevant extracts, they can be considered and their relevancy for the purpose of this Court dealt with when he introduces them in his presentation. But again I take general objection to the fact that either the Court or the Prosecution should read all these works and treat them as evidence. I developed that about the previous document.
DR. THOMA: Gentlemen, if I quote Rosenberg's actual words and ask the Tribunal to take official notice of them, I shall be in the fortunate position of being able to show that Rosenberg's philosophy and ideology differ basically from the extravagances and abuses which were attributed to him and to which he took exception.
I am in a position to show that it is clear from his works that Rosenberg intended the Leadership Principle to be restricted by a special council exercising an authoritative, advisory function. I shall also be able to show that the Myth of the Twentieth Century was a purely personal work of Rosenberg's which Hitler did not by any means accept without reserve. More especially, I am in a position to prove that Rosenberg, as his works will show, would have nothing to do with the physical destruction of the Jews and that, as far as his writings show, he took no part in the psychological preparations for war and that, as far as his writings show, he worked for a peaceful international settlement, especially between the four great European powers of the period. Therefore I beg the Tribunal to allow me to submit the real, genuine quotations from his writings as evidence material.
THE PRESIDENT: Dr. Thoma, the Tribunal will consider the whole question of the production of and the citation from these books.
SIR DAVID MAXWELL-FYFE: Number 8, My Lord, falls into a rather different field. The first 11 documents seem to be books and writings containing Jewish views of an antinational basis. The Prosecution reminds the Tribunal that the questions at issue are: Did the defendants as co-conspirators embark on a policy of persecution of the Jews; secondly, did the defendants participate in the later manifestations of that policy, the deliberate extermination of the Jews? Within the submission of the Prosecution, it is remote and irrelevant to these important and terrible accusations that certain Jewish writings, spread over a period of years, contained matters which were not very palatable to Christians.
DR. THOMA: Gentlemen, I should like to reply to this point as follows: I am not interested in showing that the Nazi measures against the Jews were justified. I am interested only in making clear the psychological reasons for anti-Semitism in Germany; and I think I am justified in asking you to listen to some quotations of
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this kind taken from newspapers, since they must by their very nature offend the patriotic and Christian susceptibilities of very many people.
I must go rather more deeply into this question, too, in order to show the reason for the existence of the so-called Jewish problem in history and religion and the reason for the tragic opposition between Jewry and other races. I should like to quote both Jewish and theological literature on the point.
THE PRESIDENT: The Tribunal will consider the question.
SIR DAVID MAXWELL-FYFE: My Lord, I think the Tribunal can take the remaining documents, 9 to 14, together. They seem to deal with specific and, if I may say so without the least intention of offense, more practical matters, in that they deal with the government of the Eastern territories, for which this defendant was responsible; and the Prosecution has no objection to my friend's using these documents in such a way as it seems fit to him.
DR. THOMA: I should like to mention the following points in connection with the documents:
I have had four additional documents allowed in part by the Tribunal. I have not been able to submit them, because they have not yet been handed over to me; but I would like to tell the Tribunal what they are: First, a letter written by Rosenberg to Hitler in 1924, containing a request by Rosenberg not to be accepted as a candidate for the Reichstag; second, a letter written by Rosenberg to Hitler in 1931 regarding his dismissal from the post of editor in chief of the Volkischer Beobachter, the reason being that Rosenberg's Myth of the Twentieth Century created a tremendous stir among the German people. Rosenberg asked at the time that his work be considered a purely personal work, something which it actually was, and that if his writing was in any way detrimental to the Party, he would ask to be released from his position as editor of the Volkischer Beobachter; third, I should like to include a directive from Hitler to Minister for the Eastern Occupied Territories Rosenberg, dated June 1943, in which Hitler instructs Rosenberg to limit himself to matters of principle; fourth, an eight-page letter from Hitler to Rosenberg written by hand and dating from the year 1925.
THE PRESIDENT: And the fourth one? Will you state the fourth one, the fourth document?
DR. THOMA: I am coming to that.
Point 4 -- a letter written by Hitler to Rosenberg in 1925, in which Hitler stated his reasons for refusing on principle to take part in the Reichstag elections. Rosenberg's view at that time was that the Party should enter the Reichstag and co-operate practically with the other parties.
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I have just learned that this letter is dated 1923.
Gentlemen, this is something of decisive importance. From the very beginning, Rosenberg wanted the NSDAP to co-operate with the other parties. That could constitute the exact opposite of a conspiracy from the start. May I present to the Court a copy of my four applications?
SIR DAVID MAXWELL-FYFE: My Lord, these seem to be individual documents whose relevancy can be finally dealt with when Dr. Thoma shows their purpose in his exposition. I do not stress that the Tribunal need not make any final decision on them at the present time.
DR. THOMA: I should like to refer to the fact that I have already asked the General Secretary to admit these documents.
THE PRESIDENT: Dr. Thoma, have you the documents in your possession?
DR. THOMA: Yes, My Lord. The only documents that are lacking are the four I have just mentioned. They are still in the hands of the Prosecution.
THE PRESIDENT: They are in the hands of the Prosecution, are they?
DR. THOMA: Yes.
SIR DAVID MAXWELL-FYFE: I have not appreciated that. If Dr. Thoma wants the documents we will do our best to find them. The first time I heard of them, of course, was when Dr. Thoma started speaking a few minutes ago. If the Prosecution have them or can find them, they will let Dr. Thoma have them or have copies of them.
THE PRESIDENT: May I ask you, Dr. Thoma, why it is that you have not put in a written application for these four?
DR. THOMA: I have made such a request, My Lord, several days or a week ago. I made the first request already in November.
THE PRESIDENT: For these four documents?
DR. THOMA: It is like this: The first two documents were granted me already in November or December 1945, but I have not as yet received them.
THE PRESIDENT: Very well, we will consider that. Well, that finishes your documents, does it not?
DR. THOMA: Yes.
SIR DAVID MAXWELL-FYFE: My Lord, with regard to the witnesses, it might be convenient if I indicated the view of the Prosecution on the, say, first six. The Prosecution has no objection
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to the first witness, Riecke, the State Secretary of the Ministry Agriculture, or to Dr. Lammers, who is being summoned for a number of the defendants, or to Ministerialrat Beil, who was the deputy chief of the Main Department of Labor and Social Policy in the East Ministry.
With regard to the next one, Number 4, Dr. Stellbrecht, the Prosecution suggests that that is a very general matter which does not seem very relevant, and they say that Dr. Stellbrecht should be cut out, or at the most that that point be dealt with by a short interrogatory.
We also object to 5 and 6, General Dankers and Professor Astrowski. General Dankers is sought to say that certain theaters and museums of art in Latvia remained untouched, and that hundreds of thousands of Latvians begged to be able to come into the Reich.
There are papers about certain laws. The Prosecution submits that that evidence does not really touch the matters that are alleged against the Defendant Rosenberg and again they make objection.
Professor Astrowski, who is alleged to be the Chief of the White Ruthenian Central Council and whose whereabouts are still unknown, who was last in Berlin, is to be called to prove that the Commissioner General in Minsk exerted all efforts in order to save White Ruthenian cultural goods. There again the Prosecution says that that is a very general and indefinite allegation and, if the defendant and certain of his officials are called to give evidence as to his policy and administration, it is suggested that the witnesses 5 and 6 are really unnecessary.
I might also deal with Number 7, because the first seven witnesses are the subject of a note by Dr. Thoma. Number 7 is Dr. Haiding, who is the Chief of the Institute for German Ethnology, and it is sought to call him in order to prove that in the Baltic countries cultural institutions were advanced and new ones founded by Rosenberg. That witness, the Prosecution submits, falls into the same category as Dankers and Astrowski. But, with regard to him, if there is any general point, they say that he could be dealt with by interrogatories but certainly should not be called.
It is relevant for the Tribunal to read the note under Number dealing with these witnesses. Dr. Thoma says:
"The witnesses can present evidence for the refutation of the Soviet accusation that Rosenberg participated in the planning of a world ideology for the extermination of the Slavs and for the persecution of all dissenters."
The Prosecution submits that the three witnesses that they have suggested, coupled with the interrogatories, if necessary, in the case of Stellbrecht and Haiding, should cover these points amply.
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DR. THOMA: I agree with Sir David that as far as Dr. Haiding and Dr. Stellbrecht are concerned an interrogatory will be sufficient. Regarding witnesses Numbers 5 and 6, I was interested in bringing in as witnesses people who actually lived in these countries and who have their personal impressions of Rosenberg's cultural activities; and I request that these witnesses be granted.
THE PRESIDENT: Very well, the Court will consider that.
SIR DAVID MAXWELL-FYFE: The witness Scheidt comes into the story of the Defendant Rosenberg's connection with Quisling, and this has been dealt with by interrogatories by the Defense and by certain cross-interrogatories by the Prosecution. This is obviously an important part of the case, and I suggest that the Tribunal does not decide as to the personal summoning of Scheidt until the answers to the interrogatories are before the Tribunal.
Number 10 is Robert Scholz, the department chief in the Special Staff of creative art, and roughly the evidence is to show that the defendant did not take the works of art for his personal benefit. The Tribunal ordered the alerting of this witness on the 14th of January, but on the 24th of January the application for this witness was withdrawn and it is now renewed by Dr. Thoma. If the Tribunal will look at the way in which it is put in Dr. Thoma's application, which is limited and guided by certain specific acts on which Mr. Scholz can speak -- the Prosecution suggest that the Tribunal might think the most convenient way was again to get a set of interrogatories on Mr. Scholz, and see how he can deal with the many individual points put to him.
DR. THOMA: Gentlemen of the Tribunal, the case of the witness Wilhelm Scheidt touches the question of Norway. Scheidt is the decisive witness as to the reports made by Quisling of his own volition without being invited to do so, either through the Amt Rosenberg for foreign policy or through the Reich Ministry for Foreign Affairs. I believe that a personal hearing, a cross-examination, of this witness Scheidt is extremely important, because he can give a great deal of detailed information which is decisive for the question of whether or not Hitler conducted a war of aggression against Norway.
I have been granted an interrogatory for the witness, Departmental Director Scheidt, and I have already taken steps to confer with the Prosecution in this connection. The witness Wilhelm Scheidt has not made an affidavit; but I must point out to the Tribunal that I should have to be present when the affidavit is made and that I should be allowed to question the witness myself, in common with the Prosecution. I should like to repeat my request to cross-examine this Wilhelm Scheidt as a witness.
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THE PRESIDENT: Dr. Thoma, if the witness was granted to you as a witness to give evidence in court, it would not be necessary for you to have any representative of the Prosecution when you saw the witness wherever he might be. The advance of a witness would entitle you to see him yourself and to obtain proof of his evidence. Is that clear?
DR. THOMA: So far I have been granted only an affidavit. I have not been granted him as a witness as yet.
THE PRESIDENT: Yes, I only wanted to make clear to you the difference between interrogatories and being allowed to call a witness to give all the evidence. Of course, if you are submitting to written interrogatories, you would not see the witness; but if, on the other hand, you were going to call the witness as a witness or to present an affidavit from him, you would then be at liberty to see the witness before he made his affidavit or before he drew up his proof.
DR. THOMA: Then I should like to put the request that Wilhelm Scheidt be called as a witness.
THE PRESIDENT: I understand that you are making that request.
DR. THOMA: As far as Robert Scholz is concerned, I should like to point out to the Tribunal that Scholz was the director of the Special Staff entrusted with the practical application of measures to be taken for the safekeeping of works of art in both eastern and western districts and I should like to draw the special attention of the Tribunal to the fact that a number of learned German experts were members of this Special Staff and that they did a great deal of very conscientious work in safeguarding, restoring, and protecting these works of art and in preserving them for posterity. The way in which this Special Staff did its work is of decisive importance, therefore, for a good many men. Robert Scholl knows every detail of the procedure. Robert Scholz can testify, in particular, to the fact that Rosenberg did not appropriate for himself a single one of the enormous wealth of art treasures that passed through his hands and that he kept a careful record of those that went to Hitler and Goering. He also knows that all these works of art -- or, at least, the greater part of them -- were left where they were at first, especially in the East, and were only brought to the Reich when it was no longer safe to delay.
I beg the Tribunal to hear this important witness.
THE PRESIDENT: Dr. Thoma, can you explain why the application was withdrawn on the 24th of January?
DR. THOMA: It was said then -- I think by the British or American Prosecution -- that the Special Staff would not be mentioned
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again during the proceedings. The French Prosecution, however, have now given detailed accounts of the looting of France; and so this witness is once more required.
THE PRESIDENT: That concludes your witnesses, I think?
DR. THOMA: I have one other request. I want to call a further witness, and I have already filed a request with the General Secretary for this witness, ministerial Subdirector Brautigam. Brautigam was Junior Assistant Secretary in the Ministry for the Occupied Eastern Territories, and he is to be called as a witness to prove that Rosenberg, in his capacity of Reich Minister for Occupied Eastern Territories, did not persecute the churches but granted freedom to all religious sects by the issue of an edict of tolerance; that, further, Rosenberg himself consistently opposed the use of force, supported a policy of promoting culture and represented the view that the peasant class should be strengthened and established on a healthy basis. Further -- and this seems to me to be particularly significant -- that very many letters and telegrams of thanks from the clergy in the Soviet Union arrived at the ministry for Occupied Eastern Territories addressed to Rosenberg. Gentlemen, if Dankers and Astrowski are not granted as witnesses, then I request permission to go back to Brautigam.
And then I have one further witness. To show how Rosenberg behaved towards his academic opponents, I should like to call one of these academic opponents, to wit, Dr. Kuenneth, a university professor who wrote an important book attacking the Mythos. He will testify that those who disagreed with Rosenberg's philosophy were not at all afraid of the Gestapo and that they had no cause to fear the Gestapo.
THE PRESIDENT: Yes. Sir David, did you want to review those last two?
SIR DAVID MAXWELL-FYFE: My Lord, in my submission these last two witnesses are not really relevant to the charges against this defendant which have been developed by the Prosecution. They are general witnesses, and if I may put it -- I hope the Tribunal will not think it flippant to put it this way -- they are really witnesses who say that the Defendant Rosenberg would not hurt a fly; we have often seen him doing it -- not hurting flies. That really puts it quite briefly as to what this class of evidence amounts to, and I respectfully submit, on behalf of my colleagues, that that should not be the subject of oral evidence, and it should be disallowed; or if there is any special point raised, it should be dealt with by an affidavit.
THE PRESIDENT: Does the Indictment allege that he instigated the persecution of churches?
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SIR DAVID MAXWELL-FYFE: The Indictment says that he took part in anti-religious teaching. I am speaking from memory. That is one of the matters. And I think there was certain correspondence between him and the Defendant Bormann, which was directed towards his antireligious views. I do not remember at the moment that there was any evidence that he had personally participated in physical destruction of churches. That is my recollection.
My Lord, I am reminded that there is a general allegation in Appendix A that he authorized, directed, and participated in the War Crimes and Crimes against Humanity, including a wide variety of crimes against persons and property.
THE PRESIDENT: Very well; those matters will be considered.
DR. SEIDL: The first witness that I ask be summoned is Dr. Hans Buhler, State Secretary with the Chief of the Administration in the Government General. This witness is detained here in Nuremberg, pending trial; and he is the most important witness for the Defendant Dr. Frank. He is called for Dr. Frank's whole policy in the Government General, since he was head of the government during the entire period from the establishment of the Government General up to the end.
THE PRESIDENT: Sir David, have you got any objection to Dr. Buhler?
SIR DAVID MAXWELL-FYFE: No, I have not, My Lord. The only point that I want to make clear is that the Defendant Frank calls an enormous number of witnesses from his own officials, he calls something like 15. And I am not going to object to Dr. Buhler; I am going to ask the Tribunal to cut down substantially the witnesses who were officials of the Government General. And it might help Dr. Seidl if I told him before the adjournment that my suggestion would be that the Tribunal would consider allowing Dr. Buhler, an affidavit from Dr. Von Burgsdorff, and that they might consider allowing Fraulein Helene Kraffczyk, the defendant's secretary, and Dr. Bilfinger, and Dr. Stepp, but not the succession of officials from the Government General.
THE PRESIDENT: Sir David, you say your suggestion is to allow Dr. Buhler?
SIR DAVID MAXWELL-FYFE: Dr. Buhler.
THE PRESIDENT: And affidavits from...
SIR DAVID MAXWELL-FYFE: Affidavits from Burgsdorff, allow Dr. Lammers -- he is in the general list...
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE Allow the private secretary, Fraulein Kraffczyk, Number 7, and allow Numbers 9 and 10.
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THE PRESIDENT: What are the names?
SIR DAVID MAXWELL-FYFE: Dr. Bilfinger and Dr. Stepp.
THE PRESIDENT: Wait a minute.
SIR DAVID MAXWELL-FYFE: And if these are allowed, I should suggest that Numbers 13 to 20, who are various officials from the office of the Government General, should not be allowed. If I may say so, with the submission of the Prosecution, the height of irrelevancy will be Number 18, Dr. Eisfeldt, who is chief of the Forestry Department.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: I thought it might be convenient for Dr. Seidl to know what the views of the Prosecution were. Of course, if he has any suggestions of any alternatives we should be pleased to consider them.
THE PRESIDENT: We will continue with that after the adjournment, Dr. Seidl.
Before the Tribunal rises, before the adjournment, I want to say that the Tribunal will rise this afternoon at 3:30.
[The Tribunal recessed until 1400 hours.]
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THE PRESIDENT: Yes, Dr. Seidl.
DR. SEIDL: Mr. President, Your Honors, if I understand correctly. Sir David has no objection to the calling of the witnesses Dr. Hans Buhler, Dr.Bilfinger, and Fraulein Kraffczyk.
THE PRESIDENT: Yes.
DR. SEIDL: The second witness named by me is Dr. Von Burgsdorff, whose last appointment was that of Governor of Krakow. He is at present in the Moosburg Internment Camp, which means that he is close to Nuremberg.
The witness Dr. Von Burgsdorff is the only one of the nine governors whom I have named to the Court as a witness. Considering the importance of the position of the governors in the Government General and in view of the great difficulties which these governors had to overcome, it seems proper to me that the witness Dr. Von Burgadorff should be heard personally by the Court and not by means of an interrogatory.
Is it necessary for me to read out the evidence Material in detail now, or is it enough to refer to the application for evidence?
THE PRESIDENT: We have got it in writing, and we understand that, while Sir David suggests an affidavit, you want to insist upon his coming personally.
DR. SEIDL: Yes, Mr. President, since the Court approved the calling of this witness at an earlier date.
THE PRESIDENT: Yes.
DR. SEIDL: The next witness is Reich Minister and Chief of the Reich Chancellery Dr. Lammers. This witness has already been approved for the Defendant Keitel, so that no further discussion is necessary.
The fourth witness is State Minister Dr. Meissner. With regard to the fact that this witness is called in connection with evidence for which the witness Dr. Lammers was also named, I should like to ask the Tribunal to allow an interrogatory unless this witness is called for another defendant and can appear in person.
SIR DAVID MAXWELL-FYFE: My Lord, I did check that point as far as I could from my records, and I could not find that he was being called as a witness for any other defendant. And, as Dr. Seidl very fairly says in his first sentence, Dr. Meissner is named for the same evidence material as the witness Dr. Lammers. That is my point.
THE PRESIDENT: Yes.
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DR. SEIDL: The next witness is Dr. Max Meidinger, former Chief of the Chancellery of the Government General, who, like Dr. Von Burgsdorff, is in Moosburg. My written application shows that this witness held a very important appointment. He received all the correspondence of the administration of the Government General and is acquainted in particular with the substance;, with suggestions and complaints addressed by the Defendant Dr. Frank to the central government authorities in Berlin, and in particular with the proposals which the Defendant Dr. Frank repeatedly made to the Fuehrer himself.
The witness was likewise approved previously by the Tribunal, and I think that considering the vast knowledge of this witness -- he worked in the Government General for several years -- a personal hearing before this Court seems advisable.
THE PRESIDENT: You say he was approved. Was he not approved as one out of a group of which Frank was to choose three? There was a large group of witnesses.
DR. SEIDL: Yes, Mr. President. The witnesses Von Burgsdorff and Dr. Max Meidinger were chosen from this group. Those are the two witnesses who were selected from a group of 13.
THE PRESIDENT: Which was the other one?
DR. SEIDL: The other one was witness Number 2, Dr. Von Burgsdorff. Witness Number 6, whom I have named and whom I should like to have called in person, is the witness Hans Gassner. His last appointment was that of press chief of the Government General, and he is also in the Moosburg Internment Camp. He was named, along with some others, to give evidence that the Defendant Frank did not hear of the existence of the camp of Maidanek and the conditions prevailing there until 1944, and then only because the witness informed him of reports published by the foreign press.
The witness was also present -- this is not stated in my application -- when Dr. Frank told a press reporter that the forests of Poland would not be large enough to publish the death warrants. The witness will also be able to describe the interview in detail, to say what Frank meant by this remark, how he intended it to be understood, and what his reasons were for making the remark.
I may add that the Court likewise approved this witness at an earlier date. I may say also, generally speaking, that, according to the wishes of the Tribunal, my applications for evidence will only indicate the general lines on which the witnesses are to be questioned and that I have consciously refrained from formulating the separate questions which I intend to put to the witness.
THE PRESIDENT: Sir David, will you express your view about Number 6?
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SIR DAVID MAXWELL-FYFE: If Your Lordship pleases, it seemed to the Prosecution that the second matter which Herr Gassner was desired to speak about, that the Defendant Frank learned from him only in 1944 about Maidanek, is really a matter about which no witness can be as satisfactory as the defendant himself. All the witness can say is, "I told the Defendant Frank about Maidanek, and it appeared to me that he did not know anything about it." Well, that is not, in the view of the Prosecution, satisfactory evidence.
The Court will be able to judge from the Defendant Frank himself when he has been cross-examined on that point. If it is desired that that interview should be before the Court, the Prosecution submit that it could be adequately dealt with by an affidavit or an interrogatory. Apart from that, the grounds are entirely general and again could be covered by a written statement.
THE PRESIDENT: Well, then, the next one Sir David has already expressed his views on.
DR. SEIDL: Yes, Mr. President.
The next witness is Helene Kraffczyk, the defendant's last secretary. If I understand correctly, there are no objections on the part of the Prosecution.
Witness Number 8 is General Von Epp, the last Reich Governor of Bavaria. He is at present in the internment camp at Oberursel. The statements to be made by this witness will be mainly concerned with the attitude of the Defendant Frank towards the concentration camps in 1933. As the witness is at present in the neighborhood of Frankfurt, I should be satisfied in this case with an interrogatory.
THE PRESIDENT: Yes, Sir David?
SIR DAVID MAXWELL-FYFE: Your Lordship will see that General Ritter von Epp seems to cover the same incident as Dr. Stepp. I said that I would not object to Dr. Stepp, but if Dr. Seidl wishes an interrogatory on some specific points from General Ritter von Epp, I should not make any objections.
DR. SEIDL: The next witness, Number 9, is Dr. Rudolf Bilfinger, late Oberregierungsrat and SS ObersturmbannFuehrer in the Reich Security Main Office. This witness is already here in Nuremberg. The Prosecution apparently has no objection to the hearing of this witness.
The next witness, Number 10...
SIR DAVID MAXWELL-FYFE: (Interposing) My Lord, I would just like to say one word about Dr. Bilfinger. I want the Tribunal to understand what the Prosecution have in mind. The general plan
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for these witnesses is to show from both ends the relationship between the Defendant Frank and the central agencies. The Prosecution thought that it was right that the defendant should be allowed to call two or three members of his own staff and a member from headquarters, who was in the position of Dr. Bilfinger, to give the other side of the picture. I just wanted the Tribunal to understand the plan on which we were working.
THE PRESIDENT: Yes.
DR. SEIDL: Number 10 is Dr. Walter Stepp, former chief judge of the highest regional court of appeal in Munich. He is at present in the internment camp at Ludwigsburg. If I understand Sir David correctly, he has no objection to the calling of this witness.
I should be glad if in this case I could submit to the Court an affidavit which is in my possession, and which will prove the veracity of these points. The reading of this affidavit would only take a few minutes, if the Court would permit me to call another witness instead, or if it would withdraw its objection to my calling another witness . . .
SIR DAVID MAXWELL-FYFE: I have to ask for some notice as to who the other witness is. I was stating that I had no objection to Dr. Stepp, because he speaks as to the Defendant Frank's position in relation to other people in Bavaria in earlier years. Of course I cannot speak on behalf of my colleagues and accept just another witness blindly until I know who the witness is and what he is going to say.
DR. SEIDL: The witness is Dr. Max Meidinger.
SIR DAVID MAXWELL-FYFE: I want to be as reasonable as possible. The reason that I had objected to Dr. Meidinger was because, as the Tribunal will see under Number 7, it is stated that Fraulein Kraffczyk is called for positive facts for which the witness Dr. Meidinger has already been named. It seemed to me that the private secretary is probably the most useful witness, but I am afraid that I cannot help Dr. Seidl any further. I have put my view, but I shall not say anything further against him. I am afraid that is as far as I can go on that point.
DR. SEIDL: The next witness, Number 11, is Von dem Bach-Zelewski, SS ObergruppenFuehrer and general of the Waffen-SS, who has already been heard by this Tribunal as a witness for the Prosecution. The Court has already at an earlier date granted permission for an interrogatory. In the meantime I have spoken to the witness. He has made an affidavit, which I shall submit instead of calling him in person.
SIR DAVID MAXWELL-FYFE: I should have thought that it would be most convenient if the witness Von dem Bach-Zelewski
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came back, and then Dr. Seidl could put any affidavit to him if he wanted. We might want to re-examine on the point. I do not know what is in the affidavit.
THE PRESIDENT: Was he cross-examined by Dr. Seidl?
DR. SEIDL: When the witness was heard here I had no opportunity to cross-examine him, and for that reason...
THE PRESIDENT: Why did you have no opportunity to cross-examine him?
DR. SEIDL: Because I did not know beforehand that he would be called by the Prosecution as a witness and had no opportunity to speak to the Defendant Frank about the questions which might hake been put to this witness.
THE PRESIDENT: Well, we will consider whether the witness ought to be recalled for cross-examination or whether you will be allowed to call him yourself. The affidavit which you say he has made, has that been submitted to the Prosecution?
SIR DAVID MAXWELL-FYFE: I have not seen it, My Lord.
DR. SEIDL: No, Mr. President, my opinion on this point is the following . . .
THE PRESIDENT: When you saw Von dem Bach-Zelewski did you see him with a representative of the Prosecution?
DR. SEIDL: No, Mr. President, the General Secretary himself granted me permission to speak to the witness, and that was after the Court had already approved the use of an interrogatory.
THE PRESIDENT: But when the witness was called by the Prosecution and you had the opportunity of cross-examination, if you were not ready to cross-examine, you ought to have asked to cross-examine him at a later date. I mean if you were not able to cross-examine at that time, because you had not had any communication with the Defendant Frank on the subject, you ought to have asked to cross-examine at a later date.
DR. SEIDL: I could have made this application to the Court if I had thought that there was any reason for questioning the witness. I did not find out until later that the witness possessed any vital information relevant to Frank's case.
THE PRESIDENT: Well, the Tribunal will consider the matter.
DR. SEIDL: May I perhaps add something to this point? The difficulty of a cross-examination is just this, that we do not learn of the intended calling of a witness by the Prosecution until the witness is led into the courtroom, and we do not know the subject of the evidence until the ' prosecution start to examine the witness.
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It would have been much easier for us to cross-examine, if we had received information about the witnesses and the subjects of evidence as far in advance as the Prosecution -- that is, as the Prosecution is informed about the witnesses for the Defense.
The next witness is witness Number 12, Von Palezieux. His last appointment was that of art expert in the Government General. In regard to this witness I should like to suggest that an interrogatory might be granted in this case too.
SIR DAVID MAXWELL-FYFE: If Dr. Seidl asks for an interrogatory, I have no objection. I just want to be clear that that is a written interrogatory. I do not want Dr. Seidl to be under a misapprehension.
THE PRESIDENT: You meant a written interrogatory, did you not, Dr. Seidl?
DR. SEIDL: Yes; I assume that in cases where a written interrogatory is admitted the submission of an affidavit is also admitted by the Court. The purpose is obviously to avoid bringing witnesses here and thus to save time.
The next witness is Number 13, Dr. Bopple. His last appointment was that of State Secretary in the administration of the Government General. He is now in the internment camp at Ludwigsburg near Stuttgart. This witness seems to me to be one of the most important because in the administration of the Government General he answered a number of questions which play an important part in the case against the Defendant Frank. I may refer to the details in my list of evidence and should like to add, above all, that this witness can give detailed information as to whether, during the 5 years of the Government General's existence, the industrial equipment of the area was exploited or whether in 1943 and 1944, as a result of transfers from the Reich, the Government General did not possess a considerably greater industrial potential than before.
SIR DAVID MAXWELL-FYFE: The Prosecution submit that, as is stated in the first sentence, Dr. Bopple is called for a number of facts of evidence for which Dr. Buhler has been already generally mentioned. Part of the evidence stated is the relationship with the Government General agencies, and the remainder, as to the happenings in the Government General, can be dealt with by the witness already agreed to by the Prosecution.
DR. SEIDL: It is correct that some of the things which Dr. Bopple is to confirm are also to be testified to by Buhler. But in my opinion it cannot be denied that the subject of evidence for which I have named this witness is so important that one witness might not be sufficient to convince the Court.
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I should like furthermore to point out the following: The witness Buhler was chief of the administration of the Government General. He has already been interrogated many times by the Popish Delegation as well. There is a danger that proceedings may be instituted against this witness as well, on account of the importance of the position he held. It is self-evident that under these circumstances every conscientious Defense Counsel should take into account the fact that the witness may try to shield himself when he answers certain questions; and considering the importance of the evidence, it seems proper that, in these difficult circumstances, the Defendant Frank be granted additional witnesses.
THE PRESIDENT: Sir David, in your suggestion, did you include any of the other witnesses who were cumulative to Buhler?
SIR DAVID MAXWELL-FYFE: I suggested an affidavit from Bopple and only Fraulein Kraffczyk on the general work of the Government General. The others, I think, are on the different points of the relationship with the central agencies.
THE PRESIDENT: Yes, I see.
DR. SEIDL: The next witness is Number 14, President Struve, whose last appointment was that of chief of the main labor department of the Government General. In other words, he was Minister for Labor in the Government General. Since both the United States Prosecution and the Russian Prosecution have made grave charges against the Defendant Dr. Frank on this very point of the alleged compulsory transfer of workers, it seems to me proper that one witness at least -- the competent of ficial -- should be examined on the facts presented by the Prosecution so that he can say what orders he received on the subject from the Government General. Information as to the location of this witness has also been obtained. He is in an internment camp near Paderborn.
SIR DAVID MAXWELL-FYFE: I should suggest, My Lord, with great deference, that if Dr. Seidl would run through the other witnesses and show those to which he attaches special importance, it would be convenient for the Tribunal; and if Dr. Seidl would be good enough to say quite bluntly whether he attaches importance to any of the others or if he does not, then it might be possible for the Prosecution to reconsider the elimination of all these witnesses; but the position at the moment is that there are requests for all sections, all departments of the Government General, and the Prosecution failed to see how these are necessary. If Dr. Seidl would indicate any special purpose that he attaches to any of them, then one might come back and consider President Struve again; but the position at the moment is that the Prosecution do not see how
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it really helps the case of the Defendant Frank that each one of the departmental chiefs should be called.
DR. SEIDL: It is not the case that all the offices or rather holders of office, were named as witnesses. A good many others could have been named. For instance, I have already said that out of nine governors, each of whom was in charge of 3 to 3 1/2 million people, I have named only one: the witness Von Burgsdorff.
I have also foregone witnesses whom I had previously named -- for instance, the various military commanders. If, however, the Prosecution wishes to know which witnesses I consider of special importance, I shall give the numbers of these witnesses.
They are, besides State Secretary Dr. Buhler, witness Number 2, Von Burgsdorff; Lammers has already been approved; further, the witness Dr. Max Meidinger; the witness Gassner, Number 6; the witness Number 7, Helene Kraffczyk; the witness Number 9, Bilfinger -- he was not a member of the administration of the Government General; members of the Government General; Numbers 13, 14, 15, and 19. That does not mean, however, that I am willing to forego the witnesses which I have not mentioned. Witness Number 15, President Dr. Naumann, is an important witness because he was the chief of the main department for food and agriculture and can give us detailed information about the Defendant Dr. Frank's policy with regard to the feeding of the Polish and Ukrainian peoples and how he tried in particular, through the highest authorities of the Reich, to have the demands of the Reich reduced. The witness' address was not known until now, but I understand that the chief Polish public prosecutor, Dr. Sawicki, is supposed to know where he is at present. The next witness is Number 16, President Ohlenbusch, who is called mainly to testify to the cultural policy pursued by the Defendant Frank in the Government General. He is not, however, one of our most important witnesses; and I imagine that in his case an interrogatory would suffice.
The same applies to witness Number 17. Witness Number 18 is Dr. Eisfeldt whose last appointment was head of the main department of forestry, and who will testify to the forestry policy of the defendant and especially this seems to me an essential point -- to the fact that there was so much trouble with the partisans in the Government General that it was in the interest of the Polish and Ukrainian people themselves to take strong measures against them. Witness Number 19 is President Lesacker, lately head of the main department of internal administration, whose last known place of residence was Bad Tolz. His present address may now have become known. Witness Number 20 is Professor Dr. Teitge, who, as my application shows, is to testify to the efforts made by the Defendant Dr. Frank in the field of public health.
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SIR DAVID MAXWELL-FYFE: May it please the Tribunal, I have now had the advantage of hearing everything that Dr. Seidl has to say, and it seems to me that, so far as the witnesses from the Government General itself are concerned, the position is that Dr. Bopple, Number 13, does not add greatly to the general position which would be explained by Dr. Buhler and Dr. Von Burgsdorff and Fraulein Kraffczyk; that the witness Number 5, Dr. Meidinger, seems to deal with very much the same problems as President Struve, witness Number 14, and the witness Naumann, Number 15, and that, on reconsideration, I think the Prosecution would be prepared to agree that one of these witnesses, either Dr. Meidinger, or Dr. Struve, or Dr. Naumann, might well be called.
With regard to all the others, Dr. Ohlenbusch, Dr. Senkowsky, and Dr. Eisfeldt seem to speak about points that are really removed from the issues in this case, and Dr. Lesacker speaks on the general attitude of the defendant towards Poles and Ukrainians, which is covered by Dr. Buhler and Von Burgsdorff, and Meidinger, if he is granted; and the last witness, Teitge, seems again to speak on a really departmental point which is not a serious issue in the case. And, therefore, in trying to apply our own principle of recommending any witness where there is a real relevancy, the Prosecution would be prepared to go as far as I said in their recommendation, that, in addition to the witnesses that I have mentioned, they would suggest that either Dr.Meidinger or one of the witnesses Struve or Naumann should be called.
COL. POKROVSKY: I ask for permission to add a few words to that which has been said by my esteemed colleague, Sir David.
THE PRESIDENT: Yes.
COL. POKROVSKY: After listening very carefully to Dr. Seidl, I have come to the conclusion that we must ask you to take notice of our negative attitude towards a further summoning of the witness Von dem Bach-Zelewski. The Soviet Delegation fears that should the Tribunal deem it possible to grant Dr. Seidl's application -- which, to my mind, appears completely unfounded -- then a very dangerous precedent would be created for the factual annulment of the basic decision already accepted by the Tribunal in this respect.
As far as I understand, the Tribunal are of opinion that every witness can and must be called once only for purpose of crossinterrogation. In reply to your question Dr. Seidl confirms that he was present here during the cross-examination by my colleague, Colonel Taylor, and myself. He saw and heard how the cross-examination was progressing. His reference to the fact that he did not have time enough to prepare for participation in this crossexamination appears to me unworthy of the slightest attention. He
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was in the same position as the rest of us. The Tribunal will remember that a number of the Defense Counsel participated in the cross-examination of the witness Von dem Bach-Zelewski. I see no reason why a different attitude should be adopted for Dr. Seidl's sake and I do not see why, to gratify a wish of Dr. Seidl, which, to me, is completely incomprehensible, the basic decision of the Tribunal should be changed concerning the repeated calling of witnesses for cross-examination.
This is what I wanted to add to the words of my respected colleague, Sir David Maxwell-Fyfe.
DR. SEIDL: Mr. President, I do not believe that the desire to hear an important witness is incomprehensible in itself, if the cross-examination is rendered difficult for reasons over which we have no control. In the first place, I have only asked the Court for permission to submit an affidavit from this witness to the Tribunal. If now the affidavit is such....
THE PRESIDENT: Are you dealing with Number 20?
DR. SEIDL: No, Sir. I am speaking about the witness Von dem Bach-Zelewski.
THE PRESIDENT: The Tribunal will consider what you said about it.
DR. SEIDL: May I now begin with the list of documents?
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents, Dr. Seidl asks for the correspondence between the Governor General and the Reich Chancellery. I have just verified that we do not have the other part of the correspondence. Of course, if any of it comes into our possession, we will be only too pleased to give it to Dr. Seidl. We do not have it, and we also do not have the personal files of the Defendant Frank in the Reich Security Main Office. The same applies to that -- that if we do get possession we will let Dr. Seidl know at once.
THE PRESIDENT: Have the Prosecution any objection to the other documents which are asked for?
SIR DAVID MAXWELL-FYFE: I think that is all. The others are the diary. Dr. Seidl can comment on and call evidence as he desires as to the diary.
THE PRESIDENT: Yes, very well. Now counsel for the Defendant Frick.
DR. PANNENBECKER: Your Honors, the first witness I have named is Dr. Lammers, who has, however, already been approved
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for the Defendant Keitel. I believe, therefore, that I need make no statement on this point.
As my second witness I have named the former State Secretary of the Ministry of the Interior, Dr. Stuckart. He is one of the State Secretaries of the Ministry of the Interior, and he is in custody in Nuremberg. He was chief of the central office.
THE PRESIDENT: Is Dr. Stuckart being asked for by the Defendant Keitel?
SIR DAVID MAXWELL-FYFE: I think the explanation is that it was certainly thought that on the 9th of February this witness was to be so called by the Defendant Keitel, and on that basis he was approved in connection with the Defendant Frick. That is not directly my request to write it on the Defendant Keitel's final list.
THE PRESIDENT: You have no objection to him?
SIR DAVID MAXWELL-FYFE: I have no objection to him, Your Lordship.
THE PRESIDENT: Very well.
DR. PANNENBECKER: Mr. President, as witness Number 3 I have named General Daluege, who was formerly general of the Regular Police, and who is now in custody here in Nuremberg. He is informed especially about the attitude of the Defendant Frick to the anti-Jewish demonstration on 9 November 1938, and he also knows the relations between Frick and Himmler.
SIR DAVID MAXWELL-FYFE: I have no objection.
DR. PANNENBECKER: As witness Number 4 I have named Dr. Diels, who is now in an internment camp in the Hanover district. The witness was chief of the Gestapo in Prussia in 1933-1934. He is acquainted with the measures which the Defendant Frick, as Reich Minister of the Interior, decreed for the supervision of the provinces by the Reich, as well as about the concentration camps, and also, in particular, about measures taken in individual cases and about conditions in the camps.
SIR DAVID MAXWELL-FYFE: I submit that this witness' evidence should be taken in writing. With regard to the earlier part, the Tribunal will have the advantage of the Defendant Goering who was concerned especially with the practices of the police in Prussia in 1933 and 1934, and with regard to the other points, as to the measures of the Defendant Frick, these are either laws or orders or administrative measures, which could be included, in the submission of the Prosecution, as being dealt with by written testimony supplemented by testimony of the Defendant Frick himself.
DR. PANNENBECKER: I should like to say something to that. I believe that it would be more practical to hear the witness here
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before the Court. We can then have a talk with him beforehand and find out the points on which he has detailed information, whereas in an interrogatory these things could not be discussed in detail.
THE PRESIDENT: We will consider that.
DR. PANNENBECKER: As witness Number 5 I have named the former police commissioner, Gillhuber. Gillhuber accompanied the Defendant Frick on all his official trips as his police guard. He therefore knows what trips Frick made and can therefore testify that Frick never went to the Dachau Concentration Camp, which contradicts the testimony given here by the witness Dr. Blaha.
SIR DAVID MAXWELL-FYFE: I have no objection, of course, to the Defendant Frick's dealing with that point. The only difficulty as to a witness of this sort is, I will say, the unfamiliarity with all of his travels, because if he is or was a bodyguard, he is almost certain to have periods of leave, and periods of interruption would occur. I should have thought that this could have been dealt with by affidavits, or an interrogatory, if necessary. When they are seen the matter could be reconsidered. But I would suggest at first stage the interrogatories, indicating in the witness' own account how often he was with the Defendant Frick and what interruptions would be most frequent in that period; therefore, it is for the Court to decide.
DR. PANNENBECKER: I agree with that, Mr. President.
SIR DAVID MAXWELL-FYFE: Now dealing with the next point, I have a suggestion to make in regard to the witness -- the next witness, Denson. The point, as I understand it there, is that the Witness Blaha said before the Tribunal that Frick had visited Dachau, that it was, however, his evidence at the Dachau trial that Frick did not come to Dachau. I should say the most satisfactory way in dealing with that is to get the shorthand notes of the Witness Blaha's evidence at the Dachau trial and put in a certified copy.
DR. PANNENBECKER: Agreed. I believe also that these notes . . .
SIR DAVID MAXWELL-FYFE: Actually we have a certified copy of the shorthand notes of Blaha's evidence here, and I also say in fairness to the witness that it does show he did say that at Dachau Frick visited the concentration camp, and I will show it to Dr. Pannenbecker whenever he likes.
DR. PANNENBECKER: As witness Number 7 I have named Dr. Messersmith. An affidavit from him has been read here by the Prosecution. An interrogatory has already been approved for this witness. We have not as yet received an answer. I should like for
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the time being to withhold the question as to whether a hearing of this witness in person seems necessary.
As an additional application I have also named the witness Dr. Gisevius.
SIR DAVID MAXWELL-FYFE: I should submit that Dr. Gisevius' evidence might also be reasonably dealt with directly in an affidavit in answer to interrogatories. He was consultant of the Reich Minister of the Interior under the Defendant Frick and supposedly went to Switzerland after 20 July 1944; he has exact knowledge of the responsibility and actual authority of the Defendant Frick to issue orders in police matters. I should think that such matters might be conveniently dealt with in an affidavit.
THE PRESIDENT: What do you say, Dr. Pannenbecker?
DR. PANNENBECKER: I should like to say that the Witness Dr. Gisevius -is also required as a witness by the Defendant Schacht, as far as I know, about the events of 20 July 1944. I believe that this witness will have to appear in person for the Defendant Schacht. It would also be better if the witness could be heard here in person for the Defendant Frick. In case of necessity an affidavit would suffice.
THE PRESIDENT: There is one other point about it. You asked earlier for the return of Colonel Ratke. I think that you were told you could have him or Stuckart. Will you now leave him out of your application because you have Stuckart?
DR. PANNENBECKER: No, it was like this. I had named three witnesses for Dr. Blaha -- Gillhuber, Ratke, and a third. We dropped Ratke when I got Gillhuber.
May I speak about the document book here?
THE PRESIDENT: Yes.
DR. PANNENBECKER: In order to give a general description of the Defendant Frick's character, I asked permission to refer to two books. One of them is a small book, We Build the Third Reich, which contains speeches made by Frick. I intend merely to quote short excerpts from these speeches in the course of my presentation of evidence. As regards the other book, Inside Europe, by John Gunther, I want to read here, too, only a short excerpt, one sentence about Frick.
Then I have offered further evidence material on the question of whether Frick intervened by means of restrictive decrees against arbitrary measures in imposing protective custody and have based my observations mainly on documents originally submitted by the Prosecution but not read in court. These documents I have listed simply under Number 2a-c.
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I have further asked for permission to refer to the files of the police department of the Ministry of the Interior, where restrictive decrees issued by the Defendant Frick in regard to protective custody are also to be found.
With reference to his intervention in individual cases, I request permission to read a letter written to me by the former Reichstag Deputy Wulle. I have listed it under Number 3. The Prosecution has submitted an affidavit by Seger, in which the latter declares that Frick, as chairman of the Committee for Foreign Affairs of the Reichstag, had made statements on putting political opponents into concentration camps as early as December 1932. In Number 4 I have asked for the stenographic records of the Foreign Affairs Committee to prove that such a statement was never recorded and never made.
Number 5 concerns the records of the Dachau trial in regard to the Blaha incident already discussed.
Number 6 concerns an affidavit by the Witness Dr. Stuckart, which he made for the American Prosecution on 21 September 1945. I could just as well ask this witness about these questions when he is heard in person; but it would shorten the hearing if I could read this affidavit, which was made for the Prosecution.
With regard to Frick's position as Reich Protector of Bohemia and Moravia, I should like to submit the Prosecution's Document Number 1368-PS, which contains details of the limitations imposed on the Defendant Frick's powers as Reich Protector at the time of his appointment.
I have also made a supplementary application for Gisevius' book, To the Bitter End. I learned of this book through an extract published in the Suddeutsche Zeitung on 26 February 1946 which gave interesting details of the Rohm Putsch of 30 June 1934. This extract states that for the events of 30 June 1934, police power was assumed by Hitler and transferred to Goering and Himmler. The book will give further details in precisely this field, since Gisevius was at that time expert for police matters in the Reich Ministry of the Interior. I request the Tribunal, therefore, to refer to this book, which is not yet in my hands, or to assist me to procure a copy.
SIR DAVID MAXWELL-FYFE: I might say I do not think that there is much disagreement between Dr. Pannenbecker and the Prosecution. I might run through the documents asked for. In the book, We Build the Third Reich, if Dr. Pannenbecker will indicate the excerpts he is going to use, the Prosecution will have no objection to his quoting from them, and the same with regard to the quotations from Mr.Gunther's book, Inside Europe. To Paragraph 2 of the Document 779-PS and the excerpt from a newspaper,
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the Document 775-PS -- to these there are no objections. The files of the police division are not in the hands of the Prosecution. If we do get any of them, then we shall let Dr. Pannenbecker know. As far as the letter from the former representative Wulle is concerned, there is no objection to that. I have not seen any letter yet, but there is no objection to it in principle.
With regard to Number 4, I think there is some misunderstanding there. That is Document 83. The affidavit of Seger is before the Tribunal as Exhibit Number USA-234, and the statement referred to by Seger was that the Defendant Frick said to him, "Don't worry, when we are in power, we shall put all of you guys into concentration camps." This was alleged in the affidavit as said by Frick to Seger during the course of a conversation. It is not alleged to have been said in the Foreign Affairs Committee.
Then Number 5 -- I say I have the shorthand notes, and it will be shown to Dr. Pannenbecker. As to Number 6, I understand that Dr. Stuckart is going to be called. Of course, the affidavit can be put to him and he can verify its truth. The Document 1336-PS will be put at the disposal of the Defense and they can make such use of it as they can. That covers the,documents. As to Dr.Gisevius' book, I understand that Dr. Pannenbecker has not a copy of that. Perhaps the Tribunal will see that a copy can be obtained for him. I do not know whether we have a copy. We will see what we can do and see that a copy is available.
DR. PANNENBECKER: As to Number 4, Dr. Seger, I still have a brief comment to make on Document 83. Perhaps an interrogatory could show whether or not Frick made the statement in question in his capacity as chairman of the Foreign Affairs Committee -- in other words whether or not that statement is in the stenographic minutes.
SIR DAVID MAXWELL-FYFE: I understood that it was not in the minutes.
It would not be in the minutes because Dr. Seger alleges that it was made during the course of a conversation, and not in that committee.
DR. PANNENBECKER: Thank you.
THE PRESIDENT: The Tribunal will continue tomorrow morning at 10 o'clock, if possible, with the further applications for witnesses and documents, which the Tribunal understand have been lodged on Friday evening.
[The Tribunal adjourned until 5 March 1946 at 1000 hours.]