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THE PRESIDENT: I have an announcement to make.
The attention of the Tribunal has been drawn by Dr. Hanns Marx, one of the German counsel appearing in this case for the Defense, to an article which was published in the newspaper Berliner Zeitung for February 2, under the heading, "A Defense Counsel." The article, which I do not propose to read, criticizes Dr. Marx in the severest terms for an error in his cross-examination of a witness when he deputized for Dr. Babel on behalf of the SS. The article suggested that in asking the question he did he was behaving most improperly, that he was expressing private and personal views under the guise of acting as counsel, and that his proper course was to remain silent in view of the character of the evidence.
The matter assumes a graver aspect still because the article goes on to threaten Dr. Marx with complete ostracism in the future and does so in language both violent and intimidating.
The Tribunal desires to say in the plainest language that such conduct cannot be tolerated. The right of any accused person to be represented by counsel is one of the most important elements in the administration of justice. Counsel is an officer of the Court, and he must be permitted freely to make his defense without fear from threats or intimidations. In conformity with the express provisions of the Charter, the Tribunal was at great pains to see that all the individual defendants and the named organizations should have the advantage of being represented by counsel; and the Defense Counsel have already shown the great service they are rendering in this Trial, and their conduct in this regard should certainly not leave them open to reproach of any kind from any quarter.
The Tribunal itself is the sole judge of what is proper conduct in Court and will be zealous to insure that the highest standard of professional conduct is maintained. Counsel, in discharge of their duties under the Charter, may count upon the fullest protection which it is in the power of the Tribunal to afford. In the present instance the Tribunal does not think that Dr. Marx in any way exceeded his professional duty.
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The Tribunal regards the matter as one of such importance in its bearing on the due administration of justice that they have asked the Control Council for Germany to investigate the facts and to report to the Tribunal.
That is all.
Sir David, the first application is for the Defendant Streicher. I call upon counsel for the Defendant Streicher.
DR. HANNS MARX (Counsel for Defendant Streicher): Mr. President, the Defendant Streicher is indicted under two counts: Firstly, that he was active in the planning and in the conspiracy for preparation of aggressive war; and secondly, Crimes against Humanity.
As far as the first point is concerned, the Defense does not think it necessary to offer any evidence because the Defendant Streicher, during the whole of this proceeding, was never mentioned in a single document; neither can it be proved that he took part in any of the intimate conferences with Hitler. In this respect I did not see fit to offer any proof. As to the second point, first of all I should like to call the wife of the Defendant Streicher, Frau Adele Streicher nee Tappe as witness.
SIR DAVID MAXWELL-FYFE: I wonder if it would be convenient for me to indicate the views of the Prosecution on these witnesses; there are only six of them. Then perhaps Dr. Marx could make his comments on my suggestions.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: The Tribunal will see that there are six witnesses, and if it would take them in my order, I would indicate the point of view of the Prosecution.
Number 3, Ernst Hiemer, was the editor in chief of Der Sturmer, and apparently the defendant's principal lieutenant.
Number 4, Wurzbacher, was an SA brigade leader in Nuremberg, and is alleged to be able to give evidence as to the speeches of the defendant.
Number 2, Herrwerth, was the defendant's chauffeur, and he is to speak on one point, namely, the defendant's annoyance at violence being used on the 10th of November 1938.
And Number 6, Dr. Strobel, who is a lawyer, is to speak on the same point, the disapproval expressed by the defendant in December 1933 of the measures taken in November.
Then there are two members of the defendant's family: Frau Streicher, who was his secretary from 1940 to 1945; and his son, Lothar Streicher.
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The Prosecution would have no objection to Herr Hiemer, as the defendant's principal lieutenant, speaking, as suggested by Dr. Marx, on what Dr. Marx calls the Defendant Streicher's basic attitude to the Jewish question. There are a number of matters on which he is said to be able to speak, to which the Prosecution would object as irrelevant. However, the time for so doing is later.
Then, with regard to Herr Wurzbacher, he is said to have always been present at meetings where Streicher spoke, from the early days. To that also the Prosecution would not make objection, but they draw attention to the fact that in the earlier applications Herr Wurzbacher was said to be able to speak as to the boycott in 1933 and the events of November 1938. Therefore the Prosecution respectfully remind the Tribunal that he can speak on the events in 1938, and, in the view of the Prosecution, it is not necessary to have oral testimony to repeat that point. They therefore suggest that with regard to Herr Herrwerth, the defendant's chauffeur, who really speaks on one main point -- that the defendant showed anger with regard to the events of 1938 -- an affidavit would be sufficient. They suggest the same course with regard to Dr. Strobel, the attorney who is mentioned.
With regard to Frau Streicher, Number 1, the Tribunal will see that it is said that Frau Streicher was the defendant's secretary during the period from May 1940 to May 1945. The gist of the case against this defendant refers, of course, to a much earlier period, both before and immediately after the rise to power.
The Prosecution suggest that the evidence which is desired from Frau Streicher is really a description of the life of the defendant during the war years, and they suggest that that, again, be covered by an affidavit.
That leaves Lieutenant Lothar Streicher, the eldest son of the defendant. If I may remind the Tribunal of how the matters mentioned in regard to him come into the case: In a report of the Goering commission on the question of corruption in regard to Aryanization, part of the report stated that this defendant paid a visit to three boys in prison, and that certain disgusting and cruel actions took place. The Prosecution, of course, submit that that is not really a matter relevant to the charges against the defendant, but they realize that it is a highly prejudicial matter; it has been read and a bad effect has resulted from that evidence. Therefore they feel it must be a matter for the Tribunal; and the Prosecution, having put in the report including that, ought not to take objection, except to point out that it is not strictly relevant. However, if the Tribunal feel that this defendant ought to have the advantage of his son's counteracting that account of very unpleasant matters,
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the Prosecution would not take any objection, although they are bound to point out that it is not strictly relevant.
THE PRESIDENT: In the view of the Prosecution, would an affidavit be suitable in that case?
SIR DAVID MAXWELL-FYFE: Certainly, that is the line the Prosecution would suggest.
Therefore, if I may summarize, what I am suggesting is that the Prosecution would make no objection to Herr Hiemer and Herr Wurzbacher giving oral evidence, and to affidavits from the other witnesses.
DR. MARX: I beg to differ in a few respects with Sir David Maxwell-Fyfe. The Prosecution hold that the testimony to be given by Frau Adele Streicher would not be specially relevant. Opposing this I should like to state that this witness was for 5 years, that is from 1940 to 1945, close to the defendant, handled his entire correspondence, and knows what contacts Streicher had during the whole war.
The Defense is particularly anxious to prove that Streicher had no connection with any of the leading men of the State or Party while he lived in isolation in Pleikershof. There was no exchange of letters or opinions with Hitler, Himmler, Kaltenbrunner, or Heydrich, or any other leading personalities, whatever their names might be. Streicher was completely isolated and played no political role whatsoever; neither had he any authority. In view of this, I, as his counsel, cannot waive the evidence of this witness, as otherwise the vital interests of the Defendant Streicher would be prejudiced. I therefore suggest that my application to call Frau Streicher as witness before the Tribunal be granted, so that the pertinent questions may be put to her.
The same applies to the witness Herrwerth. It cannot be said that this witness can give information only on irrelevant matters or on an insignificant incident. On the contrary the incident in question is of decisive importance. This man Herrwerth was present on the night of 9 November 1938, when SA Group Leader Von Obernitz reported to the then Gauleiter Streicher that demonstrations against the Jewish population were being planned. He therefore knows from personal experience what passed between these two men, and that Streicher was opposed to this demonstration, because he considered such a demonstration to be entirely wrong.
Thus, in opposition to the Fuehrer's will and order, Streicher kept himself aloof from this demonstration against the Jewish population. There can be no doubt that this incident is of particular importance. It is clear that the behavior of Streicher, who at the
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time was already in bed and received Obernitz in his bedroom, corroborated the stand taken by his defense. I therefore submit that Fritz Herrwerth be called as witness before the Tribunal, so that he can be examined by me and, if necessary, also by the Prosecution.
As to the witness Hiemer, the Prosecution and I seem to be in agreement that he as well as Wurzbacher appear before the Tribunal. I may mention that Wurzbacher is now in the Altenstaedt Camp near Schongau, Camp Number 10.
As to the witness Lothar Streicher, the Defendant Streicher attaches particular importance to having it confirmed by this witness that what the Goering report mentions about the Defendant Streicher's indecent words or acts, when visiting the prison, is untrue.
If the Prosecution are prepared to state that they will drop this point and no longer use this report, then I would agree to refrain from calling this witness. Otherwise, I consider it my duty to insist on having this witness called before the Tribunal to vindicate my client's honor. An affidavit could not possibly meet this purpose, and I therefore ask that the application of the Defense be granted.
SIR DAVID MAXWELL-FYFE: On that last point, My Lord, I have indicated from the Prosecution that that incident is not relevant to the charges against the Defendant Streicher. The Prosecution, of course, produced the report and I thought I had made it clear to the Tribunal that it is one of these collateral matters that do come in, and the Prosecution for that reason would not oppose an affidavit from Lothar Streicher. But the main case of the Prosecution against this defendant is on the stirring up of and consistent incitement to persecution of the Jews. I do not think I can put it further than that. But I had hoped I had made clear that the incident was not one that was relevant upon any other issue. Thee report under discussion was on the Aryanization of Jewish properties, and that was a passage in the report. The report itself is relevant to persecution.
THE PRESIDENT: The Tribunal will consider that matter.
DR. MARX: Mr. President; may I make a few additional remarks?
This matter which is to be proved by Lothar Streicher forms a part of the Goering report and cannot therefore be dealt with separated from its context. The defendant contends that this Goering report originates from a man who wanted to harm him, who, after having received many favors from him, became his enemy and used this Goering commission, which was originally meant for
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quite other purposes, to deal the defendant, whom he hated, a sudden blow.
It is a rather serious matter to say of a man that he indulged in sadism in the presence of other persons in a disgusting manner. That is why the defendant is so anxious to have the falsity of this allegation exposed here publicly. I therefore request once more that Lothar Streicher be brought before this Tribunal.
As to the last witness, Attorney Strobel, I would be very pleased to comply with Sir David Maxwell-Fyfe's wishes, but also in this case I am afraid I cannot do so.
Attorney Strobel's testimony is offered as proof for the following: Sometime, approximately three weeks after the events on the night of 9 November 1938, Streicher addressed a meeting of the Association of Lawyers at Nuremberg. At that public meeting of lawyers, Streicher defined his attitude to the events of 9 November 1938 and made it clear that he had been against the demonstration and the firing of synagogues. Attorney Strobel, as he said, was very surprised at the time that Streicher so openly took a stand against Hitler's order and made no secret of what he had said to Obernitz, that he would not take part in the demonstration and that he considered the whole thing to be a mistake.
Strobel's testimony may carry more weight than that of chauffeur Herrwerth, since in the case of the latter the Prosecution can hold against the Defense the fact that Herrwerth was an employee of the defendant and may therefore be inclined to take the defendant's side. This argument, however, does not apply to Attorney Strobel, as he, in a letter addressed to the Tribunal, wanted to express his aversion to the defendant and mentioned the meeting only incidentally.
Consequently, Strobel must be regarded as an impartial witness, whereas one might say of Herrwerth that he is perhaps not wholly disinterested. I therefore submit that Attorney Strobel also be called before the Tribunal in order to enable the Defense and, if necessary, also the Prosecution to put direct questions to this witness.
THE PRESIDENT: That concludes your witnesses, does it not? Now you can turn to the documents. No documents? Very well, the Tribunal will consider your applications.
DR. MARX: Mr. President, may I have a word please? Up to now it has not been possible for me to collect all the documents we need. There are a number of newspaper articles which I should like to submit to the Tribunal, and I ask for leave to submit the list of documents later on. I shall get in touch with the Prosecution beforehand as to which documents should be discarded and which should be put in.
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THE PRESIDENT: Yes, Dr. Marx, the Tribunal will have no objection to your getting in touch with the Prosecution with reference to documents later on, but you must understand that no delay can be permitted.
I call upon the Counsel for the Defendant Funk.
SIR DAVID MAXWELL-FYFE: If Dr. Sauter would allow me, I should like to say that, with regard to these applications, there is so little between the applications and the views of the Prosecution that it might shorten matters if I were to indicate the views of the Prosecution, and then Dr. Sauter could add anything he has to say. I could be extremely short, but I do not want to forestall Dr. Sauter if he has any objection.
THE PRESIDENT: Would that meet with your view, Dr. Sauter?
DR. FRITZ SAUTER (Counsel for Defendant Funk): That I present my applications now and that the Prosecution then reply?
THE PRESIDENT: I think Sir David meant that he should first indicate any objections which he has, and then you could explain your view.
DR. SAUTER: I quite agree, My Lord.
SIR DAVID MAXWELL-FYFE: If the Tribunal please, the witnesses fall into four groups. The first group is three witnesses from the Ministry of Economics, Numbers 1, 2, and 10 on the list. As I understand Dr. Sauter, he wishes to call Number 2, Herr Hayler, as an oral witness, and to have affidavits from the witnesses Landfried, Number 1, and Kallus, Number 10. The Prosecution have no objection to this course, except that with regard to the witness Landfried they may have some observation to make on the form of the interrogatories, which could no doubt be settled with Dr. Sauter, and then put to the Tribunal for their approval. Secondly, they want to reserve the right to apply for further cross-interrogatories. Apart from that, which I submit are really minor points, they agree with that suggestion.
The second group is two witnesses from the Reichsbank, Number 5, Herr Puhl, and Number 7, Dr. August Schwedler. Again, as I understand Dr. Sauter, he wants an affidavit in the form of answers to questions. The Prosecution have no objection to that, only again they reserve the right to apply for cross-interrogatories, if necessary; if the answers take a certain form, they might have to apply to the Court that the witness be brought for cross-examination. They simply want to reserve that right, but, of course, they cannot take up their position until they have seen the form of the answers.
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Then, the third group consists of one witness, who is Dr. Lammers, who has been called by most of the defendants orally, and there is no objection to that, and the Prosecution suggest that Dr. Sauter will put his questions to Dr. Lammers when he is called by the other defendants.
Then, the fourth group is a general one. There is Herr Oeser, who is an editor, Number 6; Herr Amann, Number 8; and Number 9, Herr Roesen; and lastly, Number 4, Frau Funk. As I understand it, with regard to all these witnesses, Dr. Sauter wished either an interrogatory or an affidavit. The Prosecution make no objection to that, with the same understanding that they reserve their rights to put cross-interrogatories or to ask the Tribunal to summon any of them as witnesses if any point emerges. Subject to the reservation of these points, there is nothing between us, because the result is, if I have understood it all correctly, that Dr. Sauter is asking for two oral witnesses and eight sets of interrogatories.
THE PRESIDENT: Sir David, don't you draw any distinction between an affidavit and interrogatories?
SIR DAVID MAXWELL-FYFE: Well, I do, certainly. But, My Lord, Dr. Sauter has shown in the case of most of the witnesses the interrogatories which he is putting -- apart from Dr. Lammers, who, of course, will be dealt with orally, because he is being produced as a witness. I understand that when Dr. Sauter says "affidavit" he means an affidavit in the form of answers to questions, such as those he has set out in the appendix.
THE PRESIDENT: Well, then, Sir David, so far as the Prosecution are concerned, they would take the line that you have suggested, meaning by an affidavit, interrogatories and, if necessary, cross-interrogatories?
SIR DAVID MAXWELL-FYFE: That is so.
THE PRESIDENT: Very well. Yes, Dr. Sauter?
DR. SAUTER: Mr. President, I am in agreement with the suggestions of the Prosecution as to the individual applications. As to the wording of the individual interrogatories I shall come to an agreement with the Prosecution.
THE PRESIDENT: Just one moment. Dr. Sauter, perhaps you could tell us, dealing, for instance, with Number 6 -- you say there, "I have in hand an affirmation from this witness with a supplement thereto." Does that mean answers to interrogatories, or does that mean an affidavit, a statement? Have you got the passage?
DR. SAUTER: Yes, I have an affidavit from this witness, Albert Oeser, Number 6, and this affidavit will be submitted to the
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Tribunal, together with my document book. I am already in possession of this affidavit.
THE PRESIDENT: Well, Sir David, that is not quite the same as interrogatories. I do not know whether you have seen the affidavit. I mean, it may be that at a later stage you would want to cross-examine or to put cross-interrogatories to that witness.
SIR DAVID MAXWELL-FYFE: Yes, that would be so, Your Honor. I must reserve the right, until I have seen the affidavit, to do that. The ones that are attached to Dr. Sauter'sapplication are all in the interrogatory form, but where the document is in the form of a statement, the Prosecution would have to reserve these rights. Really, one cannot make any declaration until one has seen that.
DR. SAUTER: Mr. President, before I put in evidence this affidavit by the witness Oeser, Number 6, I shall, of course, pass it to the Prosecution so that they have ample time to decide as to whether they wish to cross-examine this witness. This goes without saying.
THE PRESIDENT: Where is that particular witness? Where is he?
DR. SAUTER: He is witness Number 6, My Lord.
THE PRESIDENT: Yes, but where is the man? Where is he at the present moment? Is he in Nuremberg or where?
DR. SAUTER: Witness Oeser is at Schramberg in the Black Forest, in Baden, near the Rhine. It is some distance from Nuremberg. Moreover, Mr. President, the points to which the witness is to testify are comparatively so insignificant that it would hardly be worth while to bring the witness himself to Nuremberg. I personally do not know the witness, but an acquaintance of mine mentioned him to me as a person who could give favorable information on the conduct of the Defendant Funk. Thus we got to know about witness Oeser and obtained from him an affidavit which I shall pass to the Prosecution in good time.
SIR DAVID MAXWELL-FYFE: With regard to the documents, My Lord, the first one is a biography of the Defendant Funk. The extracts were submitted as part of the Prosecution's case. I ask that Dr. Sauter intimate what passages he desires to use, and then the Prosecution can make such objections or comments as may or may not be necessary.
The second request is, I think, the same as we had yesterday, namely for the record of the Dachau trial and of the evidence of the witness Dr. Blaha. The American prosecutors will be pleased
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to show Dr. Sauter the report that they have of Dr. Blaha's evidence at that trial.
With regard to the speeches of the Defendant Funk, there again, if Dr. Sauter will intimate what they are and what he intends to use, the Prosecution will consider them. Prima facie they would be a relevant matter.
And with regard to Number 4, the copy of the newspaper with a report of the defendant's speech, that again would prima facie be relevant, and we shall look into it. It is very unlikely that there would be any objection, but we shall look into it; and; if necessary, deal with it when Dr. Sauter makes his presentation.
THE PRESIDENT: Has Dr. Sauter the newspaper?
DR. SAUTER: Mr. President, the newspaper mentioned under Number 4, and also the speeches mentioned under Number 3, are now in my possession. I shall not use the entire text of the speeches in my brief.
THE PRESIDENT: Then you would be prepared to indicate to the Prosecution the passages in your Document 1 and the passages in 3 and 4, which you wanted to use, so that they can have them translated?
DR. SAUTER: Yes, My Lord. I shall include in the Document Book from the book mentioned under Number 1 only a few -- I think two or three pages and from the speeches and newspaper articles only those passages which I am going to use, and submit these to the Prosecution in time for translation. As to the record of the Dachau trial, this request is settled by what the Prosecution stated yesterday regarding the Defendant Frick. I believe the Dachau stenographic report is already available. I shall peruse it, so that this matter is settled.
THE PRESIDENT: Very well. Then I call upon counsel for Dr. Schacht.
DR. DIX: I am very pleased to be able to tell the Tribunal that I believe I am in agreement with Sir David as to the compass of evidence to be submitted by me, especially as to those applications which I shall either withdraw or restrict. In order to facilitate matters, may I therefore first tell the Tribunal which applications on my list I withdraw and which ones I restrict, so that eventually those will be left which I maintain. I withdraw application Number 5 for the examination of Dr. Diels. I heard yesterday that Dr. Diels has been called for as witness in another application. Should the Tribunal grant yesterday's application and order Diets to appear, then I should dike to reserve the right to examine. I myself shall, however, not apply for him.
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Then I should like to call your attention to applications Number 6, Colonel Gronau; Number 7, Herr Von Scherpenberg; Number 8, State Secretary Carl Schmid; Number 9, Consul General Dr. Schniewind; Number 10, General Thomas of the armament staff; Number 11, Dr. Walter Asmus; Number 12, Dr. Franz Neuter; and Number 13, Dr. Berckemeyer. For all these witnesses I am willing to accept an affidavit. I quite realize that I have to pass affidavits to the Prosecution and that the latter have the right to apply for these witnesses to be summoned for cross-examination.
The following witnesses, therefore, remain to be called before the Tribunal: Witness Number 1, Dr. Gisevius; witness Number 2, Frau Strunck; witness Number 3, the former Reichsbank Director, Vocke; and witness Number 4, the former Reichsbank Director, Ernst Huelse. In respect to these witnesses, I must insist on my application for their personal appearance. Schacht's defense cannot dispense with the oral examination of these witnesses. May I put forward my reasons in each case. The testimony of these witnesses is in no way cumulative. One witness knows things the other does not. Vocke and Huelse were Schacht's closest collaborators at the Reichsbank and at the International Bank at Basel. They know of events and developments which Schacht may not be able to recall in detail. The oral examination of these witnesses cannot therefore be replaced by interrogatories because he is no longer sufficiently versed to draw up the relevant questions. These witnesses must be informed of the theme of the evidence and be given the opportunity to make a comprehensive statement.
The same, namely that they still remember events in detail which Schacht no longer recollects, applies to Frau Strunck and Gisevius, who can testify particularly as to the plans for the various attempts on Hitler's life from 1938 to 1944.
This is all I have to say regarding my application for these witnesses.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Dix and Professor Kraus were good enough to indicate to me and my colleagues yesterday their proposals which Dr. Dix suggested be put before the Tribunal. The Prosecution felt that by limiting all the witnesses to the first point and Point 2, Dr. Dix was making a reasonable suggestion. The Prosecution, of course, reserve all rights as to the relevancy of the various points set out as to these witnesses, but they felt that that, as I say, was a reasonable suggestion. On Numbers 3 and 4 it means that the Defense are limiting all the witnesses, on the general economic course of conduct of the defendant, and again the Prosecution felt that that was a reasonable suggestion. With regard to the others, the Prosecution must, as I have said -- and Dr. Dix agreed -- reserve
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all rights by way of cross-interrogatories or of asking that the witness should be summoned, but the Prosecution felt that they could be in a position really to decide what their rights and proper course should be only when they had seen the affidavits that were put in. That is the reasoning of the Prosecution in the matter.
THE PRESIDENT: As to documents, Dr. Dix?
DR. DIX: Regarding the documents, I should like to make it clear that wherever in my list I have referred to books, published speeches, and such like, especially under Number 2, this does not mean that I intend to present to the Tribunal long extracts from these books. Only short Quotations will be made and these quotations will be...
[The proceedings were interrupted by technical difficulties in the interpreting system.]
THE PRESIDENT: The best course would be for us to adjourn now and then this mechanical defect will be remedied.
[A recess was taken.]
THE PRESIDENT: Just one moment, Dr. Dix. I have one or two announcements to make. In the first place, the application which has been made on behalf of the defendants for a separate trial of the organizations named under Articles 9 and 10 of the Charter is denied.
Secondly, with reference to the application made on behalf of counsel for the Defendant Bormann, the Tribunal have considered the application dated February 23, 1946, by Dr. Bergold, counsel for the Defendant Bormann, in which he asks that Bormann's cases should be heard last, at the end of the cases of all the other defendants. The Tribunal have decided to grant this application.
The Tribunal also rule that the hearing of Dr. Bergold's applications on behalf of Bormann for witnesses and documents, in accordance with Article 24(d), shall not take place at the present time, when the Tribunal are hearing the applications of all the other defendants, but at a later date to be fixed within the next three weeks.
Thirdly, with reference to the business of the Tribunal, the Tribunal will sit in closed session after the conclusion of the applications on behalf of the four defendants who are being heard today. Tomorrow the Tribunal will continue the applications on behalf of the next four defendants, and on Thursday the Tribunal will hear the case on behalf of the Defendant Goering.
Yes, Dr. Dix.
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DR. DIX: Before the recess, I was about to tell the Tribunal, as to Number 2 of the list of documents, that in my presentation I would confine myself to really important and quite short quotations, after having made them available to the Prosecution in our document book. This disposes of Number 2.
Number 1 consists of extracts from copies already submitted by the Prosecution. I shall give but one example, namely, the report by Ambassador Bullitt to the Secretary of State in Washington. The Prosecution presented the last part of this report, in which they were interested, whereas I wish to reserve the right to present the first part, which deals with Schacht's peaceful intentions and his lack of political influence on Hitler, and which is therefore of importance to the Defense.
I now turn to Number 3, Subparagraph (a), which is the Schacht memorandum to Hitler of 3 May 1935 concerning the legal rights of Jews, dissolution of the Gestapo, et cetera.
May I again ask the Prosecution to see to it as far as possible that this document, which has not been introduced so far, be procured together with Document 1168-PS, which at the time of Schacht's interrogation by Colonel Gurfein was produced. As I heard yesterday, the document has not yet been found, but perhaps Colonel Gurfein, who has already gone back, can assist us in this matter. These two documents are very important, as they constitute parts of a Schacht memorandum which can be understood and appreciated only in its entirety.
Furthermore, here is a letter addressed by Schacht to General Field Marshal Von Blomberg. It deals with restriction of armaments, et cetera, and its relevancy is, I think, obvious.
Still a word about Subparagraph (c). This is a Hitler memorandum of August 1936 regarding the Four Year Plan. This memorandum, in which Hitler reproaches Schacht most bitterly, even with sabotage, is of decisive importance to us. Contrary to what appears in the list, I am not in a position to produce a reliable copy of this memorandum, which under certain circumstances could replace the original. What I have is an extract, which in no way can be considered reliable and thus cannot be submitted to the Tribunal as evidence. In order to ascertain the exact contents of this memorandum, we must have the original. To my knowledge the original was among the files of the Dustbin Camp in the Taunus, and again I ask the Prosecution to assist in procuring it.
Then there is the letter written by Schacht to Goering in November 1942. Goering's answer was to dismiss Schacht for defeatism, or rather in consequence of this letter Schacht was dismissed for defeatism. A further consequence of this letter was that Goering excluded him from the Prussian State Council. A copy of this
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letter was last seen by Schacht in the possession of one Von Schlaberndorff, who worked with General Donovan, but who is no longer here. Where Schlaberndorff is now, I do not know. May I ask the Prosecution to assist us also in this matter. Furthermore, there is a telegram of January 1943 from Goering to Schacht, excluding him from the State Council.
As to Subparagraph (f), I have to ask the Russian Prosecution to assist us in procuring this item. It is made up of miscellaneous notes, records of Schacht's reflections, written soliloquies and letters, which were kept in a box at Schacht's country seat, Guehlen, near Lindow, Mark Brandenburg -- that is in the Russian occupation zone. According to information received, this box has been confiscated by Soviet troops. I should be very much obliged to the Russian Delegation if they would do their utmost to procure the box with its contents.
The documents under Number 4 are already in our possession. I do not think it necessary to enumerate and comment on them here; they will be included in our document book and the Prosecution will then have the opportunity of making observations on their relevancy. That is all I have to say now regarding the documents.
SIR DAVID MAXWELL-FYFE: With the approval of the Tribunal I shall confine the very few remarks I have to make to Paragraph 3 of Dr. Dix' memorandum. With regard to the document for which Dr. Dix has made a request, it is not yet procured. I have asked my colleagues to make inquiries, but at the moment they cannot find certain of these documents, although a search has been made. For example, (a), the note handed to Hitler on the same day, is Document Number 1168-PS. Mr. Dodd tells me that an exhaustive search was made by the American Delegation two months ago, and they are convinced that that document is not in their possession, and the same applies to the Soviet Delegation regarding (e).
THE PRESIDENT: Who was the interrogator, Judge Gurfein?
SIR DAVID MAXWELL-FYFE: Colonel Gurfein is the one who started the American Prosecution, who conducted the interrogations at the earlier stages.
THE PRESIDENT: Where is he now?
SIR DAVID MAXWELL-FYFE: New York. That point has been borne in mind in the usual interrogations. If the document is used, it is very carefully referred to, and the American Delegation informs me that they took that line of search, and they had that in mind, and that they have not been able to find it. Similarly, in regard to Number (e), my Soviet colleagues told me that they have no trace of the document there mentioned.
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THE PRESIDENT: You mean there is no reference to that document in the interrogation conducted by Judge Gurfein?
SIR DAVID MAXWELL-FYFE: That is so, yes. They are unable to find any reference, I am told, going through the interrogation.
THE PRESIDENT: Have you any knowledge of any communication that has been sent to Judge Gurfein?
SIR DAVID MAXWELL-FYFE: I am not sure; he had gone when the search was made two months ago. I am sure that the American Delegation will look into that. What I was going to say in regard to Number (e) was that my Soviet colleagues informed me that no trace of this document has been discovered by the Russian authorities. With regard to the others, the Prosecution would like some further time to make further inquiries, and then they will report to Dr. Dix and to the General Secretary if anything can be done. With regard to the other documents, the ones which are referred to by Dr. Dix, and the many extracts, his plan is one which entirely suits the Prosecution if it suits the Tribunal.
THE PRESIDENT: I call on counsel for the Defendant Doenitz.
FLOTTENRICHTER OTTO KRANZBUHLER (Counsel for Defendant Doenitz): I should like to call the following witnesses: First, Judge Admiral Kurt Eckhardt. He was expert on international law in the Naval War Staff. He is to testify that the rules of international law were considered when the German U-boat war policy was laid down. This testimony is relevant in view of the documents submitted by the Prosecution, according to which the U-boat war was conducted without regard for international law.
SIR DAVID MAXWELL-FYFE: Again it might help Dr. Kranzbuhler and the Tribunal, if I indicated the view of the Prosecution. They consider that Number 1, Admiral Eckhardt, and Number 2, Rear Admiral Wagner, and Number 4, Rear Admiral Godt, should not be the subject of objections; they do not make objections to these three. With regard to Commander Hessler, Number 3, it seems to the Prosecution that he is really cumulative to Rear Admiral Godt, as he ceased to be a U-boat commander at the end of 1941, before most of the material orders were issued. That is really the only point; as I said, we raise no objections to the other three. With regard to the second portion, the interrogatories, the interrogatory of Mr. Messersmith has been granted. With regard to the next three, Vice Admiral Kreisch, Captain Roesing, and Commander Suhren, these were granted on 14 February, and a slight error crept into the Prosecution's action which was purely mechanical. The Prosecution replied that they did not object in principle and did not wish to file cross-interrogatories; they objected to two of the questions to be addressed to Commander Suhren, Numbers 7 and 8. It was
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intended that the same objection to the same questions should be made with regard to the other two. It appears that the document only related to Commander Suhren, but in general there is no objection; with regard to Number 5, that has been done.
THE PRESIDENT: Well, Sir David, have those mistakes been rectified, in reference to 2 and 3?
SIR DAVID MAXWELL-FYFE: I am not quite sure. I want to mention that same objection, to narrow the issues of this objection to two of the interrogatories, and in connection with all three sets of interrogatories, I do not think this has been before the Tribunal so far as I know.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: And with regard to Captain Eck, that evidence has been taken on commission, and so there is no objection. Finally, with regard to Admiral Nimitz, the Prosecution do object to that application; that is a new application, and if the Tribunal will look at the grounds, they are that the United States submarines attacked all ships apart from the United States and Allied vessels without warning, and that the United States submarines attacked all Japanese ships without warning, at the latest from the time when it could be surmised that the Japanese ship would resist being taken as a prize. And third, that the United States submarines did not assist shipwrecked people in such waters where the submarine would have endangered herself through such assistance. The reason which Dr. Kranzbuhler gives is that this testimony proves that the United States Admiralty made the same strategical and legal considerations in carrying out its submarine warfare. In the submission of the Prosecution this is irrelevant. That they followed the same legal considerations might have been done as retaliation, and if so, the question whether the United States broke the laws and usages of war is quite irrelevant; as the question before the Tribunal is whether the German High Command broke the laws and usages of war, it really raises the old problem of evidence directed to tu quoque, an argument which this Prosecution has always submitted throughout this Trial is irrelevant.
FLOTTENRICHTER KRANZBUHLER: I shall confine myself to the points to which Sir David has raised objections.
First of all, witness Number 3, Commander Hessler. I do not consider his testimony to be cumulative. He is to testify as to when Order 154, which has been submitted by the Prosecution, was abrogated. This testimony is important because the Prosecution contend that the order of September 1942 need not have been issued at all but that it would have been sufficient to refer to the old
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Order 154. To counter this contention Hessler is to testify that Order 154 was no longer in force at that time.
Moreover, Captain Hessler, being on the staff of the U-boat commanders from 1941 on, instructed nearly all U-boat commanders putting to sea about the orders issued, particularly the order regarding treatment of shipwrecked persons. For these reasons, his testimony is, in my opinion, indispensable as a check on the statement of witness Moehle.
I now turn to the interrogatories for Numbers 2, 3, and 4: Admiral Kreisch, Captain Roesing, and Commander Suhren. I think that the objections of the Prosecution to two of the questions asked in my interrogatory can be dealt with only after these questions have been answered. I heard only today that objections would be raised, but I do not yet know on what grounds.
THE PRESIDENT: Have the Tribunal got the interrogatories and the objections of the Prosecution to Number 4?
FLOTTENRICHTER KRANZBUHLER: The Tribunal have received only the interrogatories from me.
THE PRESIDENT: Have the Prosecution given us their objection to one question? This, I understand, was an objection that was made to the interrogatories put to Suhren, which should have been an objection to a particular question on the other two as well.
SIR DAVID MAXWELL-FYFE: Yes. It is very short. I will indicate it, if Dr. Kranzbuhler will allow me.
The two questions were: "Is it known to you that in September 1942 German submarines saved shipwrecked people after torpedoing the British steamer Laconia and while doing so were bombed by an Allied plane?" Number 8, "Do you know whether this incident was the reason for the commander of the U-boat fleets issuing an order by which assistance at the risk of endangering one's own boat was prohibited, and for the declaration that this was not at variance with the laws of sea warfare?"
The objections -- I will read them out: "Question 7. Objection is entered on the ground that this question is unnecessary and the facts are admitted."
"Question 8: Objection entered. It is not seen how the witness could possibly know the reason for the orders from the Defendant Doenitz:"
These are the objections that were made.
THE PRESIDENT: Yes.
FLOTTENRICHTER KRANZBUHLER: May I say something to this? I think that the officers mentioned can testify as to the reasons for the orders received by them from the commander of the U-boat
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fleet, because the events which led to the order of September 1942 were generally known among the U-boat commanders, and U-boat commanders in the various theaters of war may possibly have picked up the wireless messages sent to the U-boats concerned with the Laconia incident. That is all.
I now turn to the application regarding the interrogatory to be put to Admiral Nimitz. The stand taken by the Prosecution differs entirely from the conception on which my application is based. I in no way wish to prove or even to maintain that the American Admiralty in its U-boat warfare against Japan broke international law. On the contrary, I am of the opinion that it acted strictly in accordance with international law. In the United States' sea war against Japan, the same question arises as in Germany's sea war against England, namely the scope and interpretation of the London Submarine Agreement of 1930. The United States and Japan were also signatories to this agreement.
My point is that, because of the order to merchant vessels to offer resistance, the London Agreement is no longer applicable to such merchantmen; further, that it was not applicable in declared operational zones in which a general warning had been given to all vessels, thus making an individual warning unnecessary before the attack.
Through the interrogatory to Admiral Nimitz I want to establish that the American Admiralty in practice interpreted the London Agreement in exactly the same way as the German Admiralty, and thus prove that the German conduct of sea warfare was perfectly legal. The same applies to the treatment of shipwrecked persons in waters where the U-boat would endanger herself by rescue measures.
THE PRESIDENT: Yes, Dr. Kranzbuhler.
FLOTTENRICHTER KRANZBUHLER: I now turn to the documents.
THE PRESIDENT: If you are departing from Admiral Nimitz I should like to ask a question of Sir David.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.
THE PRESIDENT: Sir David, I understood you to submit that these questions to Admiral Nimitz were entirely irrelevant?
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: Would it make any difference to your submission whether the German Navy had attacked merchant ships without warning in the first instance in the beginning of their war against England?
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SIR DAVID MAXWELL-FYFE: Well, that of course would be a clearer breach of the treaty, as, at that time, there was no question of armament, so far as I am aware; and there was certainly no question that the German submarines thought that they were attacking armed vessels which were really ships of war. Then, of course, one comes to the position which the Prosecution developed in evidence, that, the German Navy having indulged in the beginning in that form of submarine warfare, the position changed, and armament had to be installed in British ships. In my submission it would make a difference even if one takes the argument as Dr. Kranzbuhler has put it now; he is saying that he is not alleging breaches of the laws and usages of war, but is relying on his interpretation of the London Agreement, that merchant ships that were armed could be attacked. It really becomes a very difficult matter if one is to construe these treaties by a sort of general investigation of the interpretation by various commanders. Within the point that Your Lordship put to me there is that very clear point which appears in our documents that the arming of merchant ships was the result of the attacks without warning which took place in the first months of the war.
THE PRESIDENT: But would you say that these questions to Admiral Nimitz are irrelevant because the United States came into the war in December 1941 when the sea warfare between Germany and England had developed to that stage, when attacks were being made without warning?
SIR DAVID MAXWELL-FYFE: That is so, My Lord. That is what I was saying. I am very grateful to Your Lordship for clarifying the argument that I wanted to make.
THE PRESIDENT: Is that clear to you, Dr. Kranzbuhler? The argument which I understand Sir David is putting forward with reference to these interrogatories is that they are truly irrelevant because of the date at which the United States came into the war; a date when the sea war between England and Germany had, for reasons which must be investigated, arrived at the stage that submarines were attacking merchant vessels without warning, and merchant vessels were defending themselves against those attacks.
FLOTTENRICHTER KRANZBUHLER: Yes, Mr. President. It is, however, my opinion that the conditions which developed in the sea war between Germany and England do not necessarily have a bearing on the measures applied in the sea war between the United States and Japan, as here an entirely different theater of war was involved, in which German forces did not operate. In my opinion, the directives for sea warfare in the East Asia theater of war should be based on the conditions prevailing there and not be derived from experiences made in the European theater of war.
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THE PRESIDENT: Then the Tribunal will consider these arguments.
THE TRIBUNAL (Mr. Biddle): How can what any navy did show the proper construction of a law? It may show what a particular admiral thought about it, but how are we interested in knowing what one admiral or another admiral thought about the law? Isn't that for us to decide? How is that any evidence? Isn't that your point, Sir David?
SIR DAVID MAXWELL-FYFE: Yes.
THE TRIBUNAL (Mr. Biddle): How does that really throw any light on the meaning of a law?
FLOTTENRICHTER KRANZBUHLER: I do not think that the principles for the conduct of sea war originate from one admiral, but that in view of their far-reaching implications they have become a matter for the government. It is recognized in international law that it springs not only from treaties, but also from acts of governments. May I give as an example that Mr. Justice Jackson in his first report to President Truman specially emphasized that international law is developed by acts of governments. Consequently, if the London Naval Agreement of 1930 did not originally imply that merchant vessels which had orders to resist were excluded, then acts to this effect on the part of the governments of all nations would have been instrumental in creating new international law to this end. I am therefore of the opinion that the attitude taken in this question by the United States as one of the greatest sea powers is decisive as to the interpretation of the London Agreement and hence as to the legality of Germany's conduct.
THE TRIBUNAL (Mr. Biddle): Do you claim that the London Agreement is ambiguous?
FLOTTENRICHTER KRANZBUHLER: Yes.
THE TRIBUNAL (Mr. Biddle): What words in the London Agreement are ambiguous?
FLOTTENRICHTER KRANZBUHLER: The term "merchant vessels."
THE TRIBUNAL (Mr. Biddle): You have not got the citation there, have you?
FLOTTENRICHTER KRANZBUHLER: Which is it?
THE TRIBUNAL (Mr. Biddle): The phrase in the London Agreement which you claim is ambiguous.
FLOTTENRICHTER KRANZBUHLER: I have not got it here, but I can give a fairly accurate quotation. It says that submarines
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are subject to the same rules as surface vessels in their conduct towards merchant vessels.
I shall later submit proof that the term "merchant vessel," even at the Washington Conference of 1922, was considered ambiguous, and that also in books on international law published later it had repeatedly been stressed that this term is ambiguous.
THE TRIBUNAL (Mr. Biddle): Dr. Kranzbuhler, you want Admiral Nimitz to give us his opinion of his construction of the treaty, do you not? Isn't that the purpose of these interrogatories?
FLOTTENRICHTER KRANZBUHLER: No, I do not want to hear Admiral Nimitz' opinion, but the policy pursued by the United States in its sea war against Japan.
THE PRESIDENT: The Tribunal will consider the arguments you have addressed to them, Dr. Kranzbuhler.
FLOTTENRICHTER KRANZBUHLER: I now turn to the documents. As I have just heard from Sir David, there are no objections on the part of the Prosecution. I do not know whether I need give my reasons for submitting the individual documents.
First of all, there are the war diaries and the standing orders of the Admiralty and of the commander of the U-boat fleet. They have already been admitted, and the Prosecution do not raise any objections.
Under Number 3, I ask for the "British Confidential Fleet Orders" and "Admiralty Merchant Shipping Instructions" of the British Admiralty to be produced.
SIR DAVID MAXWELL-FYFE: My Lord, this matter came up before the Tribunal in closed session on an application from Dr. Kranzbuhler. I have not heard definitely from the British Admiralty whether they agreed to do this, but I have asked Dr. Kranzbuhler if he will leave this matter over for 10 days in the hope that we may be able to meet him. If Dr. Kranzbuhler will not press it for 10 days, I shall, of course, let him know as soon as I have any definite information.
THE PRESIDENT: Yes.
FLOTTENRICHTER KRANZBUHLER: I agree to that. Under Number 4 I declare my intention to submit a number of statements and letters I have received from German U-boat commanders and of ricers, some of them through the General Secretariat. These statements contain items from the lecture given at Gydnia by the Commander-in-Chief of the Navy and referred to by witness Heisig, including the instruction of U-boat commanders by witness Moehle and the orders regarding the treatment of shipwrecked persons. I understand the Prosecution have no objections.
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THE PRESIDENT: Have you got any objection, Sir David?
SIR DAVID MAXWELL-FYFE: My Lord, many of these matters may have to be considered when the actual document is put before us. There are no class objections to them.
FLOTTENRICHTER KRANZBUHLER: I should like to mention that I shall probably have to submit some further documents later, after I have spoken to Judge Admiral Eckhardt. May I again ask the Tribunal to allow me as soon as possible to call this witness, who is particularly important for the defense of the methods employed in U-boat warfare.
THE PRESIDENT: Yes, I think the Tribunal would grant that, subject, of course, to there being no delay regarding further applications.
FLOTTENRICHTER KRANZBUHLER: Yes.
THE PRESIDENT: The Tribunal will now adjourn.
[The Tribunal adjourned until 6 March 1946 at 1000 hours.]