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THE PRESIDENT: I call on the Prosecutor for the United States.
MR. JUSTICE JACKSON: Colonel Amen will represent the United States this morning.
COLONEL JOHN HARLAN AMEN (Associate Trial Counsel for the United States): May it please the Tribunal, I propose to call as the first witness for the Prosecution, Major General Erwin Lahousen.
THE PRESIDENT: The Tribunal wish me to state that the evidence of the witness whom you propose to call must be strictly confined to the count with which the United States are dealing, Count One.
COL. AMEN: May I have a moment to discuss that with the Chief Counsel of the United States?
THE PRESIDENT: Yes, certainly. .
DR. OTTO NELTE (Counsel for Defendant Keitel): Mr. President, so far as I know the Prosecution...
THE PRESIDENT: Would you state for whom you appear? Do you appear for the Defendant Keitel?
DR. NELTE: Yes. As far as I know, an agreement was reached between the Prosecution and the Defense, to the effect that whenever possible, questions to be brought up in the proceedings on the following day should be announced beforehand. The obvious purpose of this very reasonable understanding was to enable Defense Counsel to discuss forthcoming questions :with their clients, and thus to assure a rapid. and even progress of the Trial.
I was not informed that the witness Lahousen was to be called by the Prosecution today, nor was I told on what questions he was to be heard.
It was particularly important to know this, because today, I believe, the witness Lahousen was not to be heard on questions connected with the Prosecutions case as presented during the past days.
THE PRESIDENT: That is the contrary of what I said. What I said was that the witness was to be confined to evidence relating
to Count One, which is the Count that has been solely discussed up to the present date.
DR. NELTE: Do you mean, Mr. President, that in order to enable the Defense to cross-examine the witness, there will be a recess after the interrogation by the Prosecution during which Counsel may discuss the questions with their clients? The witness Lahousen, as far as I recall, has never until now been mentioned by the Prosecution.
THE PRESIDENT: Is that all you have to say?
DR. NELTE: Yes.
THE PRESIDENT: I think the Tribunal would like to hear Counsel for the United States upon the agreement which counsel for the Defendant Keitel alleges, namely, an agreement that what was to be discussed on the following day should be communicated to defendants' counsel beforehand.
MR. JUSTICE JACKSON: I know of no agreement to inform defendants' counsel of any witness, nor of his testimony; nor would I want to make such. There are security reasons involved in disclosing to Defense Counsel the names of witnesses, which I don't need to enlarge upon, I am quite sure.
We did advise them that they would be given information as to the documentary matters, and I think that has been kept.
As to witnesses, however, a matter of policy arises. These witnesses are not always prisoners. They have to be treated in somewhat different fashion than prisoners; and the protection of their security is a very important consideration where we are trying this case, in the very hotbed of the Nazi organization with which some of Defense Counsel were identified.
THE PRESIDENT: I think, Mr. Justice Jackson, that that is sufficient. If you tell the Tribunal that there was no such agreement, the Tribunal will, of course, accept that.
MR. JUSTICE JACKSON: I know of nothing of that character, relating to witnesses. That does apply to documents.
We find it very difficult to know just the meaning of the ruling which the Court has just announced. Count One of the Indictment is a conspiracy count, covering the entire substantive part of the Indictment. There are problems, of course, of overlapping, which I had supposed had been worked out between the prosecutors until this morning. It is impossible, trying a conspiracy case, to keep from mentioning the fact that the act, which was the object of the conspiracy, was performed. In fact, that is a part of the evidence of the conspiracy.
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I know I don't need to enlarge upon the wide scope of evidence in a conspiracy case. I think, perhaps, the best way to do is to swear the witness, and that the other prosecutors, if they feel their field is being trespassed upon, or the judges, if they feel that we are exceeding, raise the objection specifically; because I don't know how we can separate, particularly on a moment's notice, Count One from the other Counts.
We have tried our best to work out an arrangement that would be fair, as between ourselves and the other prosecutors, but we find it impossible always to please everybody.
With the greatest deference to the ruling of the Court, I would like to suggest that we proceed. I don't know just what the bounds of the ruling might be, but I think the only way we can find out is to proceed, and have specific objections to the specific things which anyone feels have been transgressed; and in doing that, I want to say that we do it with the greatest respect to the ruling, but that we may find ourselves in conflict with it, because of the difficulty of any boundary on the subject.
THE PRESIDENT: Dr. Stahmer?
DR. STAHMER: Mr. President, I must return to the matter raised by Doctor Nelte, namely his statement that before the beginning of the Trial the Defense and the Prosecution reached an agreement to the effect that the next day's program should always be made known to the Defense on the previous day. Such an agreement was actually reached, and I cannot understand why the Prosecution was not informed of it. We considered the possibility and then reached this agreement in a conference with Doctor Kempner, who was acting as our liaison man. I should like further to point out the following:
The Prosecution stated that for security reasons the Defense could not be furnished with the names of witnesses to be called during the next day's proceedings. The press however received, as early as yesterday, information on the witnesses to be called today. We heard of this through representatives of the press this morning and, as far as I know, the information also appeared in today's papers. I cannot understand, therefore, why it was withheld from us, and why we were told that for security reasons, it could not be communicated to us. I think this amounts to a mistrust of the Defense's discretion that is quite unjustified. It is, furthermore, incorrect that we are now receiving documents in good time; they still reach us belatedly. For instance, a document which is to be dealt with in court today was put on our desks only this morning, moreover, in a language which many of the defending
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counsel cannot understand, since they do not have complete mastery of English.
As I have already submitted this complaint to the Prosecution in writing, may I ask the Tribunal to reach a decision in this matter as soon as possible.
THE PRESIDENT: Have you finished?
DR. STAHMER: Yes.
MR. JUSTICE JACKSON: It is quite correct that the name of the witness who is to be used today was given to the press. The question of our policy as to giving witnesses' names was submitted to me last night after Court recessed, because we had not been using witnesses heretofore; and I then stated to Colonel Storey that witnesses' names must not be given to the Defense Counsel for security reasons.
He communicated that, I believe, to Doctor Dix. I found that later it had been given to the press. They, of course, have had adequate information therefore as to this witness. However, I am speaking about the policy. We cannot be under an obligation to inform these counsel of the names of witnesses who will be called, who are here in Nuremberg, but not in prison; the situation does not permit of that. Neither can we furnish transcripts of testimony or that sort of thing of witnesses in advance.
Now we want to give the Defense Counsel everything that, in the fair conduct of the Trial, they ought to have. They are now receiving much more than any citizen of the United States gets on trial in the courts of the United States, in some respects, as to advance information and copies and help and service, and I do think that to ask us to disclose to them in advance either the names or substance of testimony-oftentimes the substance would disclose the witness-would not be proper. It was stated yesterday that we would take up a witness today.
THE PRESIDENT: We have already heard two of the counsel on behalf of the Defense. Have you anything to add which is different to what they have said?
DR. DIX: Yes, I believe I can explain a misunderstanding and clarify the whole problem.
Mr. President, as far as I am informed-I do not know what was discussed in my absence-the situation is this:
Though discussions took place, no agreement was reached between the Prosecution and the Defense. There is, as Your Lordship knows, only a decision of the Tribunal regarding documents; that decision is known and I need not repeat. As far as witnesses are concerned I think I may assume that we are all agreed that the
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desire of the Defense to know the names of witnesses ahead of time is justified.
The Tribunal must decide to what extent security reasons interfere with this desire, which is in itself justified. That is a matter which the Defense cannot determine. I think I understand Mr. Justice Jackson correctly in saying that if the press is being told what witnesses will appear on the next day, then it is a matter of course that the same information should be given to Defense Counsel at the same time. This was only a series of unhappy circumstances, which can be overcome by mutual understanding and good will.
As I said, I do not know what was agreed upon before I was present here. I cannot therefore contradict my colleague, Dr. Stahmer, in this matter. I think it possible, however, that the misunderstanding arose as a result of the decision of the Court to have documents submitted to us 48 hours in advance and to have the film shown to us beforehand, a decision which led my colleague to the conclusion-and I consider it a justified conclusion-that all matters of this sort were to be submitted to us in advance. We do not, of course, expect to be informed of the contents of the witness' testimony.
After this elucidation I should like to state my request that in the future we be informed as soon as possible which witness is to be called; and I should also like to ask that the security considerations be guided by the knowledge that the Defense as a body is reliable, determined and capable of assisting the Court in reaching its verdict by submitting to the discipline of the proceedings. I ask, therefore, that the cases in which the security officer believes that he should not communicate the name of the witness beforehand, should be reduced to an absolute minimum.
THE PRESIDENT: The Tribunal will consider the submissions which have been made to them on behalf of Defense Counsel with reference to what shall or what shall not be communicated to them. With reference to the witness whom the United States desire to call, they will now be permitted to call him. With reference to what I said about confining his evidence to the first count, the Tribunal thinks that the best course would be for the other prosecutors to have the opportunity now to ask any questions which they think right, and that they may have the opportunity, if they wish, of calling the witness later upon their own counts.
As to cross-examination by the defendants' counsel, that will be allowed to them in the most convenient way possible, so that if they wish to have an opportunity of communicating with their
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clients before they cross-examine, they may have the opportunity of doing so. Now we will continue.
COL.AMEN: May we have General Lahousen brought before the Tribunal? What is your name?
ERWIN LAHOUSEN (Witness): Erwin Lahousen.
COL.AMEN: Will you please spell it?
COL.AMEN: Will you say this oath after me: "I swear by God -the Almighty and Omniscient-that I will speak the pure truth- and will withhold and add nothing."
[The witness repeated the oath.]
THE PRESIDENT: Don't you think the witness had better sit down?
COL. AMEN: I think he should be allowed to sit down, particularly since he has a heart condition which may be aggravated.
THE PRESIDENT: Very well; you may sit down.
COL.AMEN: Where were you born?
LAHOUSEN: I was born in Vienna.
COL.AMEN: On what date?
LAHOUSEN: On 25 October 1897.
COL.AMEN: What has been your occupation?
LAHOUSEN: I was a professional soldier.
COL. ALIEN: Where were you trained?
LAHOUSEN: I was trained in Austria, in the Military Academy in Wiener-Neustadt.
COL. AMEN: Were you immediately commissioned as an officer?
LAHOUSEN: In 1915 I was commissioned as a second lieutenant in the infantry.
COL. AMEN: Did you serve in the first World War?
LAHOUSEN: Yes, as second and first lieutenant in the infantry.
COL.AMEN: Were you promoted from time to time thereafter?
LAHOUSEN: Yes, I was promoted under the normal regulations valid in Austria at the time.
COL. AMEN: By 1930 what rank had you attained?
LAHOUSEN: In 1930 I was a captain.
COL. AMEN: And commencing in 1930 did you take any additional training?
LAHOUSEN: In 1930 I entered the Austrian War School, which corresponds to the Military Academy in the German Army. There I received the training of an officer of the General Staff.
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COL.AMEN: How long did this training last?
LAHOUSEN: This training lasted 3 years.
COL.AMEN: In 1933 to what regular army unit were you assigned?
LAHOUSEN: In 1933 I was serving in the Second Austrian Division, that was the Vienna Division.
COL.AMEN: What type of work did you do there?
LAHOUSEN: I was an intelligence officer; that branch of the service for which I was already destined at the end of my training.
COL. AMEN: Did you then receive a further promotion?
LAHOUSEN: I was promoted normally in accordance with the regulations valid in Austria, and roughly at the end of 1933 I became a major. About l935 or the beginning of 1936 I was transferred to the General Staff, and in June, or at any rate, in the summer of 1936, I became a lieutenant colonel of the Austrian General Staff.
COL.AMEN: And were you assigned to the Intelligence Division at or about that time?
LAHOUSEN: I entered the Austrian Intelligence Division which corresponds technically to the Abwehr in the German Army. I must add that an Intelligence Division was only added to the Austrian Army about this time, i. e. 1936; before that year it did not exist. Since it was planned to re-establish within the framework of the Austrian Federal Army the military Intelligence Division which had ceased to exist after the collapse of the Austrian-Hungarian Empire, I was trained to assist in organizing this division within the framework of the Austrian Army.
COL.AMEN: After being assigned to the Intelligence Division, how were your activities principally directed?
LAHOUSEN: My responsible chief, or more exactly, the responsible chief at that time, was Colonel of the General Staff Böhme. He was the division chief to whom I was subordinate, the Chief of the Intelligence Division, the man to whom I was responsible, from whom I received my orders and instructions; later on it was the Chief of the Austrian General Staff.
THE PRESIDENT: Can't you shorten this, Colonel Amen? We really need not have all this detail.
COL. AMEN: Very good, Sir. It is, however, I think important for the Tribunal to understand more of this information than you ordinarily would by virtue of the fact that he was taken over subsequently to a corresponding position in the German Army, which I did want the Tribunal to appreciate.
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Now, will you state to the Tribunal what your principal activities were after being assigned to the Intelligence Division? What information were you interested in and seeking to obtain?
LAHOUSEN: May I repeat-I don't know if I understood you correctly-I was a member of the Austrian Intelligence Division, and not of the German Abwehr.
COL. AMEN: After the Anschluss, what position did you assume?
LAHOUSEN: After the Anschluss I was automatically taken into the High Command of the German Armed Forces, where I did the same work. In that position I was then a member of the Abwehr and my chief was Admiral Canaris.
COL.AMEN: And what was the position of Admiral Canaris?
LAHOUSEN: Canaris was at that time Chief of the German Abwehr, the German Intelligence.
COL. AMEN: And will you explain briefly the responsibility of the principal departments of the Abwehr under Admiral Canaris?
LAHOUSEN: When, after the Anschluss in 1938, I entered the Amt Ausland-Abwehr there were three Abwehr divisions, and the division called "Ausland," and together they formed the organization known as "Ausland-Abwehr." That was the set-up of the organization in my time. How it was composed before I became a member of it, I cannot say exactly.
COL. AMEN: And what were your duties?
LAHOUSEN: First, I automatically came into Abwehr Division I. That was the division concerned with collecting information. It was also called the Secret Information Service. I worked under a divisional chief, the then Colonel in the General Staff Pieckenbrock, whom I knew already from my Austrian past. I also knew Canaris from my time in Austria.
COL.AMEN: Admiral Canaris was your immediate superior?
LAHOUSEN: Admiral Canaris was my immediate superior.
COL.AMEN: From time to time did you act as his personal representative?
LAHOUSEN: Yes, in all cases and on all occasions when his actual deputy-namely, Colonel Pieckenbrock-was not present, or when Canaris, for one reason or another, considered it necessary or advisable to have me appear as his representative.
COL.AMEN: And in this capacity did you have any contact with Field Marshal Keitel?
COL. AMEN: Did you also have contact with Jodl?
LAHOUSEN: Yes, occasionally, but to a much lesser extent.
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COL.AMEN: And did you occasionally attend conferences at which Herr Hitler was also present?
LAHOUSEN: Yes, I attended a few of the sessions or discussions at which Hitler was present and which he conducted.
COL.AMEN: Will you tell the Tribunal whether the leaders of the Abwehr were in sympathy with Hitler's war program?
LAHOUSEN: I have to make clear in this connection that, at that time, we chiefs in the Abwehr were deeply influenced and captivated by the personality of Canaris, his inner bearing was perfectly clear and unequivocal to a small group of us.
COL.AMEN: And was there a particular group or groups in the Abwehr who worked against the Nazis?
LAHOUSEN: Within the Amt Ausland-Abwehr there were two groups which in their aims and actions were closely connected, but which, nevertheless, must somehow be kept apart.
COL. AMEN: And what were those two groups?
LAHOUSEN: Before I answer this question, I must briefly picture the personality of Canaris, who was the spiritual leader and focus of this group.
COL. AMEN: Please make it as brief as you can.
LAHOUSEN: Canaris was a pure intellect, an interesting, highly individual, and complicated personality, who hated violence as such and therefore hated and abominated war, Hitler, his system, and particularly his methods. In whatever way one may look on him, Canaris was a human being.
COL.AMEN: Now, will you refer back to the two groups of which you spoke and tell me about each of those two groups and their respective memberships?
LAHOUSEN: One might characterize the first of the groups as Canaris' circle. It included the heads of the Amt Ausland-Abwehr:
Canaris himself as its spiritual leader; General Oster, Chief of the Central Division (the head of the Abwehr); my predecessor, Lieutenant Colonel Grosscurth, who had introduced me into the circle of Canaris in Vienna in 1938; the Chief of Abwehr Division I, Colonel Pieckenbrock, who was a close friend of Canaris; Pieckenbrock's successor, Colonel Hansen, who was executed after July; my successor, Colonel Von Freytag Loringhoven, who committed suicide on 26 July 1944, before arrest; also, in a somewhat different way, what applies to all these persons, the Chief of Abwehr Division III, Colonel Von Bentivegni, and then various people in all these divisions, most of whom were executed or imprisoned in connection with the events of July 20, 1944.
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I must also name here a man who did not belong to this group but who knew of the actions designed to prevent the execution or issuing of orders for murder and other atrocities, namely, Admiral Buerckner who was Chief of the Ausland Division at that time. Those, in the main, are the leaders of the first group called the Canaris circle.
The second and much smaller group was centered around General Oster as its spiritual leader. This group included members of the Ausland-Abwehr who, as early as 1938-I recognized this clearly by 1939-40 and later on-were actively concerned with schemes and plans designed to remove the originator of this catastrophe, Hitler, by force.
COL.AMEN: What was the purpose of the group to which you belonged; that is, Canaris' inner circle?
LAHOUSEN: On its political motives or aims, I was not informed. I can only reiterate the thoughts and considerations which I, since I was one of Canaris' most intimate confidants, knew well. His inner attitude, which influenced and moulded not only my own actions but also those of the other men whom I mentioned, can be described as follows:
We did not succeed in preventing this war of aggression. The war implies the end of Germany and of ourselves, a misfortune and a catastrophe of very great extent. However, a misfortune even greater than this catastrophe would be a triumph of this system. To prevent this by all possible means was the ultimate aim and purpose of our struggle.
The sense of what I have just said was often expressed by Canaris among the group of which I am speaking.
COL.AMEN: Now, did this group of which you and Canaris were members meet frequently?
LAHOUSEN: I must explain that his group or circle was not to be regarded as an organization in the technical sense, or as a sort of conspirators' club. That would have been quite contradictory to Canaris' nature. It was rather a spiritual organization of men holding the same convictions, of men who had vision and knowledge-their official functions provided them with knowledge-of men who understood each other and acted, but each in his own way and in accordance with his own individuality.
This is also the reason for the differentiation of which I spoke earlier. The same demands were not made on each individual, but Canaris always approached the person whose attitude he knew from personal knowledge to be the most suitable to carry out a certain task.
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COL.AMEN: Did you have conversations at these official meetings, at which Canaris expressed his views with respect to the use of force in Poland, for example?
LAHOUSEN: These and similar methods were repeatedly, I may say always, discussed in our circle and they were naturally repudiated by all of us.
COL. AMEN: Do you recall what Canaris said about the Polish war at the time of its commencement?
LAHOUSEN: I very clearly recall the hour at which Canaris entered, completely shattered, to tell us that the situation had after all become serious, although it had earlier appeared as if the matter might still be postponed. He told us then: "This is the end."
COL.AMEN: Did you have conversations with Canaris and the other members of your group with respect to eliminating Nazis from your staff?
LAHOUSEN: While I was still in Vienna, before I took up my post in the OKW, I received instructions from Canaris not to bring any National Socialists with me to his department in Berlin. I was also instructed, whenever possible not to employ Party members or officers sympathizing with the Party in my division, especially in high positions. Thus the actual organization . . .
COL. AMEN: Did Canaris keep a diary?
LAHOUSEN: Yes, Canaris kept a diary. He did so even before the beginning of the war-a diary to which I personally had to contribute and did contribute much.
COL.AMEN: Was it a part of your duties to make entries in that diary?
LAHOUSEN: No, it was not a part of my actual duties, but it naturally fell to me to write entries on the conferences which I attended with Canaris or as his representative.
COL. AMEN: And did you keep copies of the entries which you made in Canaris' diary?
LAHOUSEN: Yes, I kept copies, with Canaris' knowledge and approval.
COL.AMEN: Do you have the original of some of those copies with you here today?
LAHOUSEN: I do not have them on me, but they are available here.
COL. AMEN: And you have refreshed your recollection in reference to those entries?
COL.AMEN: What was the purpose of Canaris in keeping such a diary?
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LAHOUSEN: As a truthful answer to this question I must repeat what Canaris himself said to me on this subject:
"The purpose and intention of this diary is to portray to the German people and to the world, at some future date, the leaders who are now guiding the fate of their nation."
COL.AMEN: Now, do you recall attending conferences with Canaris at the Fuehrer's headquarters, just prior to the fall of Warsaw?
LAHOUSEN: Canaris and I took part in discussions not in the Fuehrer's headquarters, but in the Fuehrer's special train, shortly before the fall of Warsaw.
COL.AMEN: And having refreshed your recollection from reference to the entries in Canaris' diary, can you tell the Tribunal the date of those conferences?
LAHOUSEN: According to the notes and documents at my disposal it was on September 12, 1939.
COL.AMEN: Did each of these conferences take place on the same day?
LAHOUSEN: The discussions in the Fuehrer's train took place on the same day: September 12, 1939.
COL.AMEN: And was there more than one conference on that Day? Were they split into several conferences?
LAHOUSEN: One cannot really call them conferences; they were discussions, conversations, of varying duration.
COL. AMEN: And who was present on this occasion?
LAHOUSEN: Present, regardless of location and time, were the following: Foreign Minister Von Ribbentrop; Keitel, the Chief of the OKW; Jodl, head of the Wehrmacht Operations Staff; Canaris; And myself.
COL.AMEN Do you see Ribbentrop in this courtroom?
COL.AMEN: Win you indicate for the record where he is sitting?
LAHOUSEN: Over there. [Indicating.] In the first row, third from the left.
COL.AMEN: Do you also see Keitel in the courtroom?
LAHOUSEN: Yes; he is next to Ribbentrop.
COL. AMEN: Do you also see Jodl in the courtroom?
LAHOUSEN: Yes; he is in the second row, next to Herr Von Papen.
COL. AMEN: Now, to the best of your knowledge and recollection, will you please explain, in as much detail as possible, to the
Tribunal, exactly what was said and what took place at this conference in the Fuehrer's train?
LAHOUSEN: First of all, Canaris had a short tale with Ribbentrop, in which the latter explained the general political aims with regard to Poland and in connection with the Ukrainian question. The Chief of the OKW took up the Ukrainian question in subsequent discussions which took place in his private carriage. These are recorded in the files which I immediately prepared on Canaris' order. While we were still in the carriage of the Chief of the OKW, Canaris expressed his serious misgivings regarding the proposed bombardment of Warsaw, of which he knew. Canaris stressed the devastating repercussions which this bombardment would have in the foreign political field. The Chief of the OKW, Keitel, replied that these measures had been agreed upon directly by the Fuehrer and Goering, and that he, Keitel, had had no influence on these decisions. I quote Keitel's own words here-naturally only after re-reading my notes. Keitel said: "The Fuehrer and Goering are in frequent telephone communication; sometimes I also hear something of what was said, but not always."
Secondly, Canaris very urgently warned against the measures which had come to his knowledge, namely the proposed shootings and extermination measures directed particularly against the Polish intelligentsia, the nobility, the clergy, and in fact all elements which could be regarded as leaders of a national resistance. Canaris said at that time-I am quoting his approximate words: "One day the world will also hold the Wehrmacht, under whose eyes these events occurred, responsible for such methods."
The Chief of the OKW replied-and this is also based on my notes, which I re-read a few days ago-that these things had been decided upon by the Fuehrer, and that the Fuehrer, the Commander-in-Chief of the Army, had let it be known that, should the Armed Forces be unwilling to carry through these measures, or should they not agree with then, they would have to accept the presence at their side of the SS, the SIPO and similar units who would carry them through. A civilian official would then be appointed to function with each military commander. This, in outlines, was our discussion on the proposed shooting and extermination measures in Poland.
COL.AMEN: Was anything said about a so-called "political housecleaning"?
LAHOUSEN: Yes, the Chief of the OKW used an expression which was certainly derived from Hitler and which characterized these measures as "political housecleaning". I recall this expression very clearly, even without the aid of my notes.
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COL.AMEN: In order that the record may be perfectly clear, exactly what measures did Keitel say had already been agreed upon?
LAHOUSEN: According to the Chief of the OKW, the bombardment of Warsaw and the shooting of the categories of people which I mentioned before had been agreed upon already.
COL.AMEN: And what were they?
LAHOUSEN: Mainly the Polish intelligentsia, the nobility, the clergy, and, of course, the Jews.
COL. AMEN: What, if anything, was said about possible cooperation with a Ukrainian group?
LAHOUSEN: Canaris was ordered by the Chief of the OKW, who stated that he was transmitting a directive which he had apparently received from Ribbentrop since he spoke of it in connection with the political plans of the Foreign Minister, to instigate in the Galician Ukraine an uprising aimed at the extermination of Jews and Poles.
COL.AMEN: At what point did Hitler and Jodl enter this meeting?
LAHOUSEN: Hitler and Jodl entered either after the discussions I have just described or towards the conclusion of the whole discussion of this subject, when Canaris had already begun his report on the situation in the West; that is, on the news which had meanwhile come in on the reaction of the French Army at the West Wall.
COL.AMEN: And what further discussions took place then?
LAHOUSEN: After this discussion in the private carriage of the Chief of the OKW, Canaris left the coach and had another short talk with Ribbentrop, who, returning to the subject of the Ukraine, told him once more that the uprising should be so staged that all farms and dwellings of the Poles should go up in flames, and all Jews be killed.
COL.AMEN: Who said that?
LAHOUSEN: The Foreign Minister of that time, Ribbentrop, said that to Canaris. I was standing next to him.
COL.AMEN: Is there any slightest doubt in your mind about that?
LAHOUSEN: No. I have not the slightest doubt about that. I remember with particular clarity the somewhat new phrasing that "all farms and dwellings should go up in flames". Previously there had only been talk of "liquidation" and "elimination."
COL.AMEN: Was there any note in Canaris' diary which helped to refresh your recollection on that point also?
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COL.AMEN: What, if anything, was said on the subject of France?
LAHOUSEN: On the subject of France a discussion took place in the carriage of the Chief of the OKW, in which Canaris described the situation in the West on the basis of Abwehr reports, and said that in his opinion a great attack was being prepared by the French in the sector of Saarbruecken. Hitler, who had entered the room in the meantime, intervened, took charge of the discussion, rejected in a lively manner the opinion which Canaris had just expressed, and put forward arguments which, looking back now, I must recognize as factually correct.
COL.AMEN: Do you recall whether, in the course of this conference, Ribbentrop said anything about the Jews?
LAHOUSEN: During the conversation, which was taking place in the private coach of the Chief of the OKW, Ribbentrop was not present.
COL. AMEN: Do you recall whether at any time in the course of the conferences Ribbentrop said anything about the Jews?
LAHOUSEN: I repeat, in this discussion, which took place in the coach, no.
COL.AMEN: For purposes of keeping the record straight, whenever you have referred to the Chief of the OKW, you were referring to Keitel?
COL.AMEN: Was the Wehrmacht ever asked to furnish any assistance for the Polish campaign?
COL.AMEN: Did that undertaking have any special name?
LAHOUSEN As is recorded in the diary of my division the name of this undertaking which took place just before the Polish campaign, was "Undertaking Himmler".
COL. AMEN: Will you explain to the Tribunal the nature of the assistance required?
LAHOUSEN The affair on which I am now giving testimony is one of the most mysterious actions which took place within the Amt Ausland-Abwehr. A few days, or sometime before-I believe it was the middle of August-the precise date can be found in the diary of the division-Abwehr Division I, as well as my division, Abwehr Division II, were given the task of providing Polish uniforms and equipment such as identification cards and so on, for an Undertaking Himmler. This request, according to an entry in the
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diary of the division which was kept not by me, but by my adjutant, was received by Canaris from the Wehrmacht Operations Staff or from the National Defense Department. I believe the name of General Warlimont is mentioned.
COL. AMEN: Do you know where this request originated?
LAHOUSEN: Where the request originated I cannot say, I can only say that it reached us in the form of an order. It was, to be sure, an order on which we, the divisional chiefs concerned, already had some misgivings without knowing what, in the last analysis, it meant. The name Himmler, however, spoke for itself, and that is also evident from entries of the diary which record my question why Herr Himmler should come to receive uniforms from us.
COL.AMEN: To whom was the Polish material to be furnished by the Abwehr?
LAHOUSEN: These articles of equipment had to be kept in readiness, and one day some man from the SS or the SD-the name is given in the official war diary of the division-collected them.
COL. AMEN: At what time was the Abwehr informed as to how this Polish material was to be used?
LAHOUSEN: The real purpose was unknown to us then; we do not know its details even today. All of us, however, had the reasonable suspicion that something entirely crooked was being planned; the name of the undertaking was sufficient guarantee for that.
COL. AMEN: Did you subsequently find out from Canaris what in fact had happened?
LAHOUSEN: The actual course of events was the following: When the first Wehrmacht communiqué spoke of the attack of Polish units on German territory, Pieckenbrock, holding the communiqué in his hand, and reading it aloud, observed that now we knew why our uniforms had been needed. On the same day or a few days later, I cannot say exactly, Canaris informed us that people from concentration camps had been disguised in these uniforms and had been ordered to make a military attack on the radio station at Gleiwitz. I cannot recall whether any other locality was mentioned. Although we were extremely interested, particularly General Oster, to know details of this action, that is, where it had occurred and what had happened-actually we could well imagine it, but we did not know how it was carried out-I cannot even today say exactly what happened.
COL. AMEN: Did you ever find out what happened to the men from the concentration camps who wore the Polish uniforms and created the incident?
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LAHOUSEN: It is strange. This matter has always held my interest, and even after the capitulation I spoke about these matters with an SS Hauptsturmfuehrer-he was a Viennese in the hospital in which both of us were staying, and I asked him for details on what had taken place. The man-his name was Birckel -told me: "It is odd, that even our circles heard of this matter only very much later, and then only by intimation." He added: "So far as I know, even all members of the SD who took part in that action were put out of the way, that is, killed." That was the last I heard of this matter.
COL.AMEN: Do you recall attending a meeting in 1940 at which the name of Weygand was under discussion?
COL.AMEN: Do you happen to recall the particular month in which this discussion took place?
LAHOUSEN: The discussion took place in the winter of 1940, either in November or December, as far as I recall I have recorded the precise date in my personal notes, with the knowledge and desire of Canaris.
COL.AMEN: To the best of your knowledge and recollection, who was present?
LAHOUSEN: The three divisional chiefs and the Chief of the Ausland Division, Admiral Buerckner, were present nearly every day during the daily conference on the situation.
COL.AMEN: What were you told at this meeting by Canaris?
LAHOUSEN: In this discussion Canaris revealed to us that already for some considerable time Keitel had put pressure on him to arrange for the elimination of the French Marshal, Weygand; and that naturally I-that is my division-would be charged with the execution of this task.
COL.AMEN: When you say "elimination", what do you mean?
COL.AMEN: What was Weygand doing at this time?
LAHOUSEN: Weygand was, so far as I recall, in North Africa at that time.
COL.AMEN: What was the reason given for attempting to kill Weygand?
LAHOUSEN: The reason given was the fear that Weygand together with the unconquered part of the French Army might form a center of resistance in North Africa. That, in the main, was the reason, as far as I remember today; it may be that there were other contributing factors.
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COL.AMEN: After you were so informed by Canaris, what else was said at this meeting?
LAHOUSEN: This request which was first put to the military Abwehr so openly and in such an undisguised form by a representative of the Armed Forces, was decidedly and indignantly rejected by all those present. I, myself, as the person most involved, since my division was expected to carry out this task, indicated flatly before all present that I had not the slightest intention of executing this order. My division and my officers are prepared to fight but they are neither a murderers' organization nor murderers.
COL. AMEN: What then did Canaris say?
LAHOUSEN: Canaris said: "Calm down. We'll have a word together later," or something to that effect.
COL.AMEN: Did you then talk it over later with Canaris?
LAHOUSEN: When the other gentlemen had left the room, I spoke with Canaris alone and he told me immediately: 'It is quite obvious that this order will not only not be carried out, but it will not even be communicated to anybody else," and that, in fact, happened.
COL.AMEN: Were you subsequently questioned as to whether you had carried out this order?
LAHOUSEN: On one occasion when Canaris was reporting to Keitel, and I was present, Keitel mentioned the subject to me, and asked me what had happened or what had been done in this matter up to now. The date of this incident was recorded in my notes, on Canaris' suggestion and with his knowledge.
COL.AMEN: What reply did you make to Keitel?
LAHOUSEN: I cannot, of course, recall my precise words, but one thing is certain; I did not answer that I had no intention of carrying out this order. That I could not tell him, and did not tell him; otherwise, I would not be sitting here today. Probably, as in many similar cases, I replied that it was very difficult but everything possible would be done, or something of that sort. Naturally, I cannot recall my precise words.
COL. AMEN: Incidentally, are you the only one of this intimate Canaris group who is still alive today?
LAHOUSEN: I believe I am at least one of the very few. Possibly Pieckenbrock is still alive; perhaps Bentivegni, who, however, did not belong to the inner circle. Most of the others were liquidated as a result of the events on July 20.
COL.AMEN: I have another subject to take up now. In 1941 did you attend a conference at which General Reinecke was present?
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COL. AMEN: Who was General Reinecke?
LAHOUSEN: General Reinecke was at that time Chief of the General Wehrmacht Department, which was part of the OKW.
COL.AMEN: Do you recall the approximate date of that meeting?
LAHOUSEN: It was roughly in the summer of 1941, shortly after the beginning of the Russian campaign; approximately in July.
COL.AMEN: To the best of your knowledge and recollection, will you state exactly who was present at that conference?
LAHOUSEN: At this conference, which is also recorded in the notes taken for Canaris, and in which I participated as his representative, the following were present:
General Reinecke as the presiding officer, Obergruppenfuehrer Mueller of the RSHA, Colonel Breuer representing the Prisoners of War Department, and I, as the representative of Canaris, of Ausland-Abwehr.
COL.AMEN: Will you explain who Mueller was and why he was at this meeting?
LAHOUSEN: Mueller was a division chief in the Reich Central Office of Security (RSHA), and took part in the session because he was responsible for putting into practice the measures for the treatment of Russian prisoners of war, that is, responsible for carrying out the executions.
COL.AMEN: Will you explain who Colonel Breuer was and why he was there?
LAHOUSEN: Colonel Breuer was the representative of the Prisoners of War Department. I do not know of which organization this department was a part at that time. At any rate, he was responsible in the OKW for questions relating to prisoners of war.
COL.AMEN: What was the purpose of this conference?
LAHOUSEN: The purpose of this conference was to examine the orders issued for the treatment of Russian prisoners of war, to comment on them, to explain and account for them on reasonable grounds.
COL.AMEN: Did you learn from the conversation at this conference what the substance of these orders under discussion was?
LAHOUSEN: These orders dealt with two groups of measures which were to be taken. Firstly, the killing of Russian commissars, and secondly, the killing of all those elements among the Russian prisoners of war who, under a special selection program of the
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SD, could be identified thoroughly bolshevized or as active representatives of the Bolshevist ideology.
COL. AMEN: Did you also learn from the conversation what the basis for these orders was?
LAHOUSEN: The basis for these orders was explained by General Reinecke in its outlines as follows:
The war between Germany and Russia is not a war between two states or two armies, but between two ideologies-namely, the National Socialist and the Bolshevist ideology. The Red Army soldier must not be looked upon as a soldier in the sense of the word applying to our western opponents, but as an ideological enemy. He must be regarded as the archenemy of National Socialism, and must be treated accordingly.
COL.AMEN: Did Canaris tell you why he was selecting you to go to this conference?
LAHOUSEN: Canaris gave me two or perhaps three reasons and motives for ordering me to this conference although he himself was in Berlin. Firstly, he wanted to avoid a meeting with Reinecke, for whom, as the prototype of the ever-compliant National Socialist general, he possessed strong personal dislike. Secondly, he told and directed me to attempt through factual argument- that is, through appeals to reason-to have this brutal and completely senseless order rescinded or at least mitigated in its effects as far as possible. He also selected me for tactical reasons since he, as department chief, could by no means be as outspoken as I, who, thanks to my subordinate position, could use much stronger language. Thirdly, he was well acquainted with my personal attitude, especially in this question, an attitude which I manifested wherever possible during my many journeys and trips to the front where I witnessed ill-treatment of prisoners of war. This is also clearly recorded in my notes.
COL. AMEN: Did Canaris and the other members of your group have a particular name for Reinecke?
LAHOUSEN: Not only among our group but also in other circles, he was known as the "little Keitel" or the "other Keitel".
COL. AMEN: Prior to your going to this conference, did Canaris make any other comment on these orders?
LAHOUSEN: Even at the time when these orders were issued, Canaris expressed strong opposition to them in our circles-when I say our circles, I mean mainly the divisional chiefs-and had a protest made through the Ausland Division, that is, through Buerckner. I no longer remember whether it was made in writing or whether Buerkner made it orally to Keitel directly; I think it
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was done in both ways. Buerckner should be well informed about this.
COL.AMEN: When you say "protested through Buerckner," what do you mean?
LAHOUSEN: When I say Buerckner, I mean his division, or a group, or perhaps even a representative in his office, where questions of international law were dealt with by Count Moltke who, incidentally, also among the circle...
COL.AMEN: Will you repeat that?
LAHOUSEN: This protest or this counter-argument on the question of the treatment of Russian prisoners of war was for. warded by Canaris through the Ausland Division, that is, through Buerckner. The Ausland Division included a section which dealt with questions of, international law, and the competent authority in that section was Count Moltke who was a member of Oster's inner circle, and who was executed after the 20th of July.
THE PRESIDENT: Would that be a convenient time to break off?
COL. AMEN: Yes, Sir.
THE PRESIDENT: Until 2 o'clock.
[A recess was taken until 1400 hours.]
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THE PRESIDENT: Yes, Colonel Amen.
[Witness Lahousen resumed the stand]
COL.AMEN: Prior to the luncheon recess you were testifying about a conference in 1941 with Reinecke and others. Prior to that conference did Canaris tell you what kind of appeal to make to those present at the meeting?
LAHOUSEN: Before the discussion Canaris said, as I have already pointed out, that I should use factual arguments in order to have this order withdrawn or at least to weaken its effects, but that otherwise I should not take it into my head to use arguments of a humanitarian nature lest I make a fool of myself.
COL.AMEN: And now will you explain to the Tribunal, to the best of your recollection, exactly what happened and what was said in the course of that conference?
LAHOUSEN: The discussion was opened by General Reinecke, and he explained these orders in the manner in which I described them before the recess. He said that these measures were necessary and that it was essential that this idea should also be made clear to the Wehrmacht, and particularly to the officers' corps, since they apparently were still entertaining ideas which belonged to the Ice Age and not to the present age of National Socialism.
COL.AMEN: What views did you present at this conference?
LAHOUSEN: According to instructions I held the view of the Amt. Ausland Abwehr-that is of Canaris-and in the main I pointed out, first of all, the most unfavorable effect of such measures on the troops, namely on the front troops, that they would never understand such orders, particularly not the simple soldier. Besides, we had reports that the executions were sometimes carried out before their eyes.
Secondly, I brought forward the objections of my office in regard to activities of the office itself, the unfavorable effect of these measures on the enemy, that is, the virtual hindering of Russians, who were surrendering to the last man without resistance, from deserting; and furthermore, the great difficulties which beset the Abwehr Division in acquiring agents, that is, people who, for various reasons, had voluntarily declared themselves ready to help the Germans.
COL. AMEN: In order that this may be clear on the record, because I think there was quite a bit of confusion in the translation, I want to point out one or two of those arguments again. What did
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you say at this conference about the effect of the execution of these orders on Russian soldiers?
LAHOUSEN: I pointed out, first of all, that through these orders some elements among the Russian soldiers who were inclined to surrender were prevented from doing so. Secondly, that people who for any reason would have offered their services to the Abwehr would also be hindered by these measures. And that, in summa, an effect opposite to that which they had desired would result and the resistance of the Red Army soldiers would be increased to the utmost.
COL. AMEN: And in order that we may be perfectly clear, what did you say about the effect of the execution of these orders on the German troops?
LAHOUSEN: I said, that from several reports we had from the front, the effect on the morale and on the discipline of the troops was devastating.
COL. AMEN: Was there any discussion about international law at this conference?
LAHOUSEN: No. In this connection there was no discussion of international law. The manner of selection of the prisoners of war was particularly stressed. It was completely arbitrary apart from the general order in itself.
COL.AMEN: We will get to that in a moment. Were your views accepted at this conference?
LAHOUSEN: My views which were the views of the Amt Abwehr, which I was representing, were opposed in the sharpest possible manner by Mueller, who with the usual cliches rejected the arguments that I had produced, and who made the sole concession that the executions, out of consideration for the feelings of the troops, should not take place before them but at a place some distance apart. He also made a few concessions in the question of the selection, which was completely arbitrary, and was just left to the Kommando leaders or to the prejudice of the Kommando leaders.
COL.AMEN: And subsequent to this conference did you learn whether an order was issued with respect to having these killings take place outside the sight of the German troops?
LAHOUSEN: Except for Mueller's promise, which I have just mentioned, I heard no more about it at the time. I found a confirmation of the results of this conference and the promises then made to me in an order which was submitted to me only now.
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COL.AMEN: Was there a conversation at this conference about the manner in which these orders for the killings were being executed?
LAHOUSEN: Yes. In the course of discussions the entire problem was under discussion including the manner in which these orders were carried out-according to my recollection-by the Einsatzkommandos of the SD. These SD squads were in charge both of singling out of persons in camps and in assembly centers for prisoners of war, and of carrying out the executions.
Reinecke also discussed measures regarding the treatment of Russian prisoners of war in the camps. Reinecke emphatically accepted the arguments put forth, not by me but by Mueller, and voiced his conviction in very decisive and excessively sharp manner.
COL. AMEN: Now, will you explain to the Tribunal from what you learned at this conference the exact manner in which the sorting of these prisoners was made and in what way it was determined which of the prisoners should be killed?
LAHOUSEN: The prisoners were sorted out by Kommandos of the SD and according to peculiar and utterly arbitrary ways of procedure. Some of the leaders of these Einsatzkommandos were guided by racial considerations; particularly, of course, if someone were a Jew or of Jewish type or could otherwise be classified as racially inferior, he was picked for execution. Other leaders of the Einsatzkommando selected people according to their intelligence. Some had views all of their own and usually most peculiar, so that I felt compelled to ask Mueller, "Tell me, according to what principles does this selection take place? Do you determine it by the height of a person or the size of his shoes?"
Mueller was very emphatic in rejecting these and any other objections, and Reinecke adopted rigidly the same point of view as Mueller, instead of accepting my opinions, that is, those of the Amt Ausland Abwehr, which were offered him as a "golden bridge" for his acceptance. That was essentially the contents of the discussion in which I participated.
COL. AMEN: And had you received knowledge about the manner in which these orders were executed through official reports which you received?
LAHOUSEN: We were currently informed of all happenings by our officials at the front or in the camps. Offices of the Abwehr Division III were active in these camps, and in this way, that is, through the normal service channels, we were informed by reports and oral presentation of all these measures and of their effects.
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COL.AMEN: Was the information which you received secret and confidential information not open to others?
LAHOUSEN: The information was confidential in accordance with the manner in which our offices were run. De facto, however, the happenings in the camps and the occurrences taking place at the selections were known to large groups of the Wehrmacht.
COL.AMEN: Now, at this conference did you learn anything from Reinecke with respect to the treatment of Russian prisoners in prison camps?
LAHOUSEN: In this discussion the treatment of Russian prisoners in the camps was discussed by Reinecke, and Reinecke was of the opinion that in the camps their treatment must not be the same as the treatment of other allied prisoners of war, but that here, too, appropriate and discriminating measures must be applied. The camp guards, at all events, had to be furnished with whips, and at the slightest sign of an attempted escape or other undesirable act, the guards should have the right to resort to arms.
COL.AMEN: Besides the whips, what other equipment were the Stalag guards given?
LAHOUSEN: Those are details which I do not remember for the moment. I can only say what was mentioned in this discussion.
COL.MIEN: What, if anything, did Reinecke say about the whips?
LAHOUSEN: Reinecke said that the guards, that is, the guard details, should make use of their whips or sticks or whatever instruments they had.
COL. AMEN: Now, through official channels did you learn of an order for the branding of Russian prisoners of war?
THE PRESIDENT: Colonel Amen, I think you should refer to them as "Soviet", not "Russian" prisoners.
COL. AMEN: Yes, Your Honor.
[Continuing the interrogation.] Did you learn of such an order?
LAHOUSEN: I have heard about it in one of the discussions at
which most of the previously mentioned divisional chiefs were usually present. At least a majority of them must have been present.
COL.AMEN: Do you know whether any protests were made with respect to that order?
LAHOUSEN: When the intention of branding these Soviet prisoners was made known, a very sharp protest was voiced at once by Canaris through the Amt Ausland, that is, by Buerckner himself.
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COL.AMEN: What, if anything, did Canaris tell you with regard to this order?
LAHOUSEN: Canaris told us that the question had already been expounded in a medical opinion by some physicians; and that there were actually people to lend themselves to treating such a mad subject in a written medical opinion. That was the main topic of this discussion.
COL. AMEN: What information, if any, did you receive through official channels regarding plans to bring Soviet prisoners back to German territory?
LAHOUSEN: In the same context and in the same circle-I must always repeat it-that is, in discussions between Canaris and the chiefs of his divisions I learned that the General Staff had prepared to bring Soviet prisoners into Germany, but that their transportation was suddenly abandoned. I remember that this was by direct order of Hitler-which resulted in the conditions developing in camps in the theater of operations where prisoners were crowded together, could not be fed, and could not be adequately clothed or housed, so that epidemics and cannibalism resulted in these camps.
COL. AMEN: I am not sure but what we missed some of your previous answer. Will you start again to tell us about the change which was made in these orders?
LAHOUSEN: Will you please repeat the question?
COL.AMEN: You referred to a change in the plans to take the Soviet prisoners back to German territory. Is that correct?
LAHOUSEN: Yes, they were not brought back into Germany.
COL.AMEN: And what was the result of this action, namely of their not being brought back at the direct order of Hitler?
LAHOUSEN: The result was as described just now.
COL. AMEN: But I want you to repeat it because we lost some of the answer in the interpreting process. Please just repeat it again.
LAHOUSEN The enormous crowds of prisoners of war remained in the theater of operation, without proper care-care in the sense of prisoner of war conventions-with regard to housing, food, medical care; and many of them died on the bare 'door. Epidemics broke out, and cannibalism-human beings driven by hunger devouring one another-manifested itself.
COL.AMEN: Were you personally at the front to observe these conditions?
LAHOUSEN: I made several trips with Canaris and I saw some of these things which I have just described, with my own eyes.
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At the time I made notes of my impressions which were found amongst my papers.
COL.AMEN: Did you also obtain information as to these matters through official channels of the Abwehr?
LAHOUSEN: Yes, I received this information through the office subordinate to me and through the Amt Ausland.
COL.AMEN: From your official information, to what extent was the Wehrmacht involved in the mistreatment of these prisoners?
LAHOUSEN: According to my information, the Wehrmacht was involved in all matters which referred to prisoners of war, except the executions, which were the concern of the Kommandos of the SD and the Reichssicherheitshauptamt.
COL. AMEN: But is it not a fact that the prisoner-of-war camps were entirely under the jurisdiction of the Wehrmacht?
LAHOUSEN: Yes, prisoners of war were under the jurisdiction of the Supreme Command of the Wehrmacht.
COL.AMEN: But before they were placed in these camps, the Special Purpose Kommandos of the SS were responsible primarily for the executions and the selection of the people to be executed, is that correct?
COL.AMEN: Did you receive through official channels information regarding the existence of an order for the killing of British Commandos?
COL.AMEN: What action, if any, did Canaris or yourself take with respect to this order?
LAHOUSEN: The order, and as far as I remember, even the mere intention that such an order was to be issued, were discussed in our circle, that is between Canaris and his section chiefs. We all, of course, unanimously agreed on its rejection. The reasons, apart from the aspects of international law, were that the Amt Ausland had under its command a formation, which was attached to our section named "Regiment Brandenburg" which had a task similar to the Commandos. As the head of the section to which this regiment was attached and for which I considered myself responsible, I immediately and most emphatically protested against it in view of the retaliation measures which were to be expected as a result of this order.
COL.AMEN: Did you personally assist in the drafting of these protests?
LAHOUSEN: I know that twice a protest was lodged against this order by Canaris, and by Amt Ausland, through Buerckner. The
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first time orally, or in writing as soon as the order was issued, and the second time after the first executions had been carried out in pursuance of this order. I myself helped to draft one of these written protests-I do not know whether the first or the second-making a contribution in the interest of my section, and the Regiment Brandenburg, whose functions were similar, very similar, to those of the Commandos.
COL.AMEN: To whom in the ordinary course did these protests go?
LAHOUSEN: The protests were addressed to Canaris' superior officer, that is to say, to the Chief of the OKW.
COL. AMEN: Who was that?
LAHOUSEN: It was Keitel, at that time.
COL.AMEN: Did these protests in the ordinary course go also to Jodl?
LAHOUSEN: That I cannot say, but it is possible.
COL.AMEN: Now, will you tell the Tribunal what were the grounds of the protests which you made?
LAHOUSEN: The grounds were above all, that it was contrary to the interpretation of international law that soldiers, that is to say, not agents or spies, but soldiers clearly recognizable as such, should be killed after they had been taken prisoner. That was the main point which was also of concern to my section since it also comprised soldiers who had to carry out such or similar tasks in their capacity as soldiers.
COL.AMEN: Were there any other grounds urged in protest against these orders?
LAHOUSEN: Certainly. Other reasons were also mentioned in accordance with the interests of the different sections affected by these orders. For the Amt Ausland, it was the point of view of international law. The Abwehr Division III was particularly interested in the interrogation of soldiers captured in commando raids, but never in seeing them killed.
COL.AMEN: Were there any other chiefs of the Abwehr Department who assisted in the preparation of these protests?
LAHOUSEN: As far as I remember today, no.
COL.AMEN: You mentioned Admiral Buerckner, did you not?
LAHOUSEN: Yes, Buerckner was not the chief of the Amt Ausland Abwehr, but only of the Amt Ausland.
COL.AMEN: Now, have you ever heard of an operation known as "Gustav''?
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LAHOUSEN: The name "Gustav" was applied not to an operation but to an undertaking similar to the one which was demanded for the elimination of Marshal Weygand.
COL.AMEN: Will you tell the Tribunal what was the meaning of "Gustav"?
LAHOUSEN: "Gustav" was the expression used by the Chief of the OKW as a cover name to be used in conversations on the question of General Giraud.
COL.AMEN: When you say the Chief of the OKW, are you referring to Keitel?
COL. AMEN: And are you referring to General Giraud of the French Army?
LAHOUSEN Yes, General Giraud of the French Army who, according to my recollection, fled from Königstein in 1942.
COL.AMEN: Do you know of any order issued with respect to General Giraud?
COL.AMEN: Who issued such an order?
LAHOUSEN: The Chief of the OKW, Keitel, gave an order of this kind to Canaris, not in writing but an oral order.
COL. AMEN: How did you come to know about this order?
LAHOUSEN: I knew of this order in the same way as certain other chiefs of the sections, that is Bentivegni, Chief of Abwehr Section I, Pieckenbrock and a few other officers. We all heard it at a discussion with Canaris.
COL.AMEN: What was the substance of the order?
LAHOUSEN: The essential part of this order was to eliminate Giraud, in a fashion similar to Weygand.
COL. AMEN: When you say "eliminate" what do you mean?
LAHOUSEN I mean the same as in the case of Marshal Weygand, that is, it was intended and ordered that he was to be killed.
COL.AMEN: Do you recall the approximate date when this order was given by Keitel to Canaris?
LAHOUSEN: This order was given to Canaris several times. I cannot say for certain when it was given for the first time as I was not present in person. It was probably after the flight of Giraud from Königstein and prior to the attempt on the life of Heydrich, in Prague. According to my notes, this subject was discussed with me by Keitel in July of the same year, in the presence of Canaris.
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COL.AMEN: Well now, what did Keitel first say to you personally about this affair?
LAHOUSEN: I cannot repeat his exact words, but the meaning was that he proclaimed the intention of having Giraud killed, and asked me, as in the case of Weygand, how the matter was progressing or had progressed so far.
COD. AMEN: And what did you say to him on that occasion?
LAHOUSEN: I cannot remember the exact words. I probably gave some evasive answer, or one that would permit gaining time.
COL.AMEN: Now, was this question later discussed by you at any time?
LAHOUSEN: According to my recollection, this question was once more discussed in August. The exact date can be found in my notes. Canaris telephoned me in my private apartment one evening and said impatiently that Keitel was urging him again about Giraud, and the section chiefs were to meet the next day on this question.
The next day the conference was held and Canaris repeated in this larger circle what he had said to me over the phone the night before. That is, he was being continually pressed by Keitel that something must at last be done in this matter. Our attitude was the same as in the matter of Weygand. All those present rejected flatly this new demand to initiate and to carry out a murder. We mentioned our decision to Canaris, who also was of the same opinion and Canaris thereupon went down to Keitel in order to induce him to leave the Military Abwehr out of all such matters and requested that, as agreed prior to this, such matters should be left entirely to the SD.
In the meantime, while we were all there, I remember Pieckenbrock spoke, and I remember every word he said. He said it was about time that Keitel was told clearly that he should tell his Herr Hitler that we, the Military Abwehr, were no murder organization like the SD or the SS. After a short time, Canaris came back and said it was now quite clear that he had convinced Keitel that we, the Military Abwehr, were to be left out of such matters and further measures were to be left to the SD.
I must observe here and recall that Canaris had said to me, once this order had been given, that the execution must be prevented at any cost. He would take care of that and I was to support him.
COL.AMEN: I don't think you have yet told us just who was present at this conference.
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LAHOUSEN: The three Abwehr chiefs were present, Colonel Pieckenbrock, whom I have already mentioned, Colonel General Bentivegni, and I. Probably, also General Oster, and possibly Buerckner, but I cannot remember clearly. In my notes only those three chiefs are mentioned who all strictly rejected the proposal.
COL. AMEN: What was the next occasion when this matter was again brought to your attention?
LAHOUSEN: A little later, it must have been September, the exact date has been recorded, Keitel, then chief of the OKW, rang me up in my private apartment. He asked me, "What about 'Gustav'? You know what I mean by 'Gustav'?" I said, "Yes, I know." "How is the matter progressing? I must know, it is very urgent." I answered, "I have no information on the subject. Canaris has reserved this matter for himself, and Canaris is not here, he is in Paris." Then came the order from Keitel, or rather, before he gave the order, he put one more question: "You know that the others are to carry out the order?" By "the others," he meant the SS and SD. I answered, "Yes, I know." Then came an order from Keitel to immediately inquire of Mueller how the whole matter was progressing. "I must know it immediately," he said. I said, "Yes," but went at once to the office of the Ausland Abwehr, General Oster, and informed him what had happened, and asked for his advice as to what was to be done in this matter which was so extremely critical and difficult for Canaris and me. I told him-Oster already knew as it was-that Canaris so far had not breathed a word to the SD concerning what it was to do, that is, murder Giraud. General Oster advised me to fly to Paris immediately and to inform Canaris and to warn him. I flew the next day to Paris and met Canaris at a hotel at dinner in a small circle, which included Admiral Buerckner, and I told Canaris what had happened. Canaris was horrified and amazed, and for a moment he saw no way out.
During the dinner Canaris asked me in the presence of Buerckner and two other officers, that is, Colonel Rudolph, and another officer whose name I have forgotten, as to the date when Giraud had fled from Königstein and when the Abwehr III conference had been held in Prague and at what time the assassination of Heydrich had taken place. I gave these dates, which I did not know by memory, to Canaris. When he had the three dates, he was visibly relieved, and his saddened countenance took on new life. He was certainly relieved in every way. I must add that-at this important conference of the Abwehr III Heydrich was present. It was a meeting between Abwehr III and SD officials who were
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collaborating with it-officials who were also in the counterintelligence.
Canaris then based his whole plan on these three dates. His plan was to attempt to show that at this conference he had passed on the order to Heydrich, to carry out the action. That is to say, his plan was to exploit Heydrich's death to wreck the whole affair. The next day we flew to Berlin, and Canaris reported to Keitel that the matter was taking its course, and that Canaris had given Heydrich the necessary instructions at the Abwehr III conference in Prague, and that Heydrich had prepared everything, that is, a special purpose action had been started in order to have Giraud murdered, and with that the matter was settled and brought to ruin.
COL.AMEN: There was a mistake I think in the translation back a little way. So if you don't mind, will you please go back to where you first referred to Heydrich in the conversation with Canaris, and repeat the story, because I think that the translation was incorrect. In other words, go back to the point where Canaris suddenly seemed relieved, and started to tell you what the apparent solution might be.
LAHOUSEN: All those present saw that Canaris was much relieved, as he heard the three dates from me. His whole plan or his maneuvering-and that was typical of his personality-was a purely intellectual or spiritual combination, built up on these three dates, essential being the date of the escape of Giraud, and the Abwehr III conference, for if the Abwehr III conference had taken place prior to Giraud's escape, then this combination would probably not have stood the test.
THE PRESIDENT: Colonel Amen, what is the reason for the repetition?
COL.AMEN: There was a mistake in the record. If it is the wish of the Tribunal, I shall not have him repeat it any further.
THE PRESIDENT: It seems clear to the Tribunal what was said.
COL. AMEN: Very well.
COL.AMEN: What, if anything, happened next insofar as the affair Giraud was concerned?
LAHOUSEN: Nothing more happened. Giraud fled to North Africa, and much later only I heard that Hitler was very indignant about this escape, and said that the SD had failed miserably- so it is said to be written in shorthand notes in the records of the Hauptquartier of the Fuehrer. The man who told me this is in the American zone.
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COL. AMEN: Were you acquainted with Colonel Rowehl?
COL.AMEN: Who was he?
LAHOUSEN: He was an officer. He was a colonel of the Luftwaffe.
COL.AMEN: What was the work of the special squadron to which he was attached?
LAHOUSEN: Rowehl had a special squadron for altitude flying which operated together with the Ausland Abwehr for the reconnaissance of certain territories or states.
COL. AMEN: Were you ever present when he reported to Canaris?
LAHOUSEN: I was present occasionally.
COL.AMEN: Do you recall what Rowehl told Canaris on those occasions?
LAHOUSEN: He reported on the results of the reconnaissance flights and submitted his photographs, I believe, to Abwehr I, Section Lust which, competent for this work, made some evaluation of them.
COL.AMEN: Did you know over what territories these reconnaissance flights had been made?
LAHOUSEN: They were taken over Poland, England and in southeastern Europe; I cannot be more explicit as I do not know the specific territories or countries of southeastern Europe. All I know is that this squadron was stationed in Budapest for the purpose of making such reconnoitering flights.
COL. AMEN: Did you personally see some of these photographs?
COL.AMEN: Now will you tell the Tribunal the dates when you know that these reconnaissance flights over London and Leningrad were being made?
LAHOUSEN: I cannot give the exact dates. I only remember, being present at discussions between Rowehl and Canaris-sometimes Pieckenbrock was there too-that these reconnaissance flights did take place in the aforementioned areas, that photographic material was furnished and that the squadron operated from Hungarian air fields in the vicinity of Budapest. I know this because once I myself flew back from Budapest to Berlin in such a plane, and also from knowing some of the pilots and their activities.
COL.AMEN: What I am going to ask you about now is the year, or years we will say, when these reconnaissance flights were being made.
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LAHOUSEN They were undertaken in 1939 before the beginning of the Polish campaign.
COL. AMEN: Were these flights kept secret?
LAHOUSEN: Yes, of course they were secret.
COL.AMEN: And why were these flights being made from Hungary, if you know?
LAHOUSEN: A Luftwaffe expert would have to give this information.
COL.AMEN: Do you have in your possession a report of the treatment of the Jews in certain territories?
LAHOUSEN: Yes, I have a report which probably came to us through Abwehr Department III, and I made several copies for Canaris and one for myself. This report deals with the shooting of Jews in Borrisov.
COL. AMEN: Is that an official report?
LAHOUSEN: Yes, it is. The report came by way of the Abwehr. The files would show from what office it came to us. In connection with these shootings of Jews in Borrisov the name of a counter-intelligence officer, whom I knew quite well and who was an Austrian like me, was mentioned.
COL.AMEN: Now, may it please the Tribunal, I should like to offer in evidence a photostatic copy, or copies, of the entries made by the witness in every detail, together with a photostatic copy of the report. The originals are here in court, but cannot be lifted out of the box in which they are contained. They are so much damaged by a bomb explosion that if they were to be lifted out of the box, they would be destroyed beyond use, but we have had them photostated, and the photostatic copies are now available. That letter would be Exhibit USA-80, 3047-PS.
THE PRESIDENT: Do I understand, Colonel Amen, that only such portions of these documents as are read in Court will be in evidence?
COL.AMEN: Well, these have been used by the witness to refresh his recollection.
THE PRESIDENT: Yes, I know they have.
COL. AMEN: And none of them have been read in full in court, but they may be so read at any time, Sir.
THE PRESIDENT: If you want them to go into evidence as documents, you must read them, of course. Colonel Amen, do you want to use the documents any more than you already used them for the purpose of refreshing the witness' memory?
COL.AMEN: I do not, Sir, except having used them in this fashion, I now think it is only fair to offer them in evidence for
the information and scrutiny of the Tribunal; as far as I'm concerned they have served their purpose.
THE PRESIDENT: If the Defense wants to see them for the purpose of cross-examination, of course, they may do so.
COL.AMEN: Oh, yes, Sir. I have offered them already Sir, to be Exhibit USA-80, 3047-PS.
THE PRESIDENT: But otherwise they may not be put in evidence.
THE PRESIDENT: From this damaged paper, it seems to contain a report on the execution of Jews in Borrisov.
THE PRESIDENT: That again will not be in evidence unless you read it.
COL.AMEN: Correct, Sir. We will include that in the offer which I just made to you, that unless what we are offering is desired by the Court I will not offer it in evidence or read it.
THE PRESIDENT: Very well, the Court does not desire it.
COL.AMEN: Very well. [Turning to witness] As a member of the Abwehr, were you generally well informed on the plans of the German Reich for the waging of war?
LAHOUSEN: Insofar as the effects of the plans concerned the preparatory activities or co-operation of the Amt Ausland Abwehr.
COL. AMEN: Did any intelligence information ever come to your attention which was not available to an ordinary person, or to an ordinary officer in the Army?
LAHOUSEN: Yes, certainly. That was in the nature of my office..
COL. AMEN: And, on the basis of the knowledge which you so obtained, did you in your group come to any decisions as to whether or not the attack on Poland, for example, was an unprovoked act of aggression?
THE PRESIDENT: Well . . .
LAHOUSEN: Would you be kind enough to repeat the question?
THE PRESIDENT: That is one principal question which this Court has to decide. You cannot produce evidence upon a question which is within the province of the Court to decide.
COL.AMEN: Very well, Sir. The witness is now available for cross-examination.
THE PRESIDENT: Is it the Soviet Prosecutor's wish to ask any questions of this witness? General Rudenko?
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GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Witness Lahousen, you have made definite replies to questions by Colonel Amen and I should like to have certain details. Am I to understand you rightly that the insurgent units of the Ukrainian nationalists were organized under the direction of the German High Command?
LAHOUSEN: They were Ukrainian immigrants from Galicia.
GEN. RUDENKO: And from these immigrants were formed Commandos?
LAHOUSEN: Yes. "Commando" perhaps is not quite the right expression. They were people who were brought together in camps and were given a military or a semi-military training.
GEN. RUDENKO: What was the function of these Commandos?
LAHOUSEN: They were organizations of immigrants from the Galicia Ukraine, as I already previously stated, who worked together with the Amt Ausland Abwehr.
GEN. RUDENKO: What were these troops supposed actually to accomplish?
LAHOUSEN: Tasks were assigned to them before each combat by the office in charge of the command, that is, in the case of orders originating from the office to which I belonged, they were determined by the OKW.
GEN. RUDENKO: What functions did these groups have?
LAHOUSEN: These Commandos were to carry out sabotage of all kinds behind the enemy's front line.
GEN. RUDENKO: That is to say in what territory?
LAHOUSEN: In those territories with which Germany had entered into war, or speaking of the concrete case here in question, with Poland, or to be more correct in Poland.
GEN. RUDENKO: Of course in Poland. Well, sabotage and what else?
LAHOUSEN: Sabotage, such as wrecking of bridges and other objectives of military importance. The Wehrmacht operational staff determined what was of military importance; details of that activity I have just described, namely, destruction of militarily important objectives or objectives important for a particular operation.
GEN. RUDENKO: But what about terroristic activities? I am asking you about the terroristic activities of these units.
LAHOUSEN: Political tasks were not assigned to them by us, that is, by the Amt Ausland Abwehr. Political assignments were made by the respective Reich offices responsible, where it should be said, often as a result of erroneous...
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GEN. RUDENKO: You have misunderstood me. You are speaking about sabotage and I was asking you concerning terroristic acts of these organizations. Do you understand me? Was terror one of their tasks? Let me repeat again, as well as the sabotage acts, were there any terror acts assigned to them?
LAHOUSEN: On our part never.
GEN. RUDENKO: You have told me that from your side there was no question of terrorism; from whose side was the question put, who worked on this aspect?
LAHOUSEN: Well, that was the whole point all the time. Each one of these military Abwehr units was asked again and again to combine our purely military tasks which were determined by the needs of the Wehrmacht leadership with political or terroristic measures, as is clearly shown by the memorandum on our files concerning preparation of the campaign against Poland.
GEN. RUDENKO: Answering the question of Colonel Amen as to whether the Red Army man was looked upon as an ideological enemy and was subjected to corresponding measures, what do you mean by corresponding measures? I repeat the question. You have said that the Red Army man was looked upon by you, I mean by the German High Command as an ideological enemy and was to be subjected to corresponding measures. What does it mean? What do you mean by saying corresponding measures?
LAHOUSEN: By special measures I mean quite clearly all those brutal methods which were actually used and which I have already mentioned and of which I am convinced there were many more, more than I could possibly have seen in my restricted field and more than was known to me.
GEN. RUDENKO: You already told the Tribunal that there were special Commandos for the screening of prisoners of war. I understand that they were screened in the following way: Into those who were to be killed and the others who were to be interned in camps, is that right?
LAHOUSEN: Yes, these special Commandos of the SD were concerned, however, solely with the execution of those selected amongst the prisoners of war.
GEN. RUDENKO: That of course makes the chief of the Commandos responsible and decisive for the question as to who was to die and who was not to die.
LAHOUSEN: Yes, in the course of a discussion with Reinecke, the question was raised whether to give to the head of one such Commando unit the right to decide who, in view of the order, was to be looked upon as Bolshevistically tainted or not.
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GEN. RUDENKO: And the chief of the Commando unit decided upon his own authority, what to do with them.
LAHOUSEN: Yes, at least up to the date of the discussion in which I participated, upon an order from Canaris. This point was one of the most important ones of this discussion.
GEN. RUDENKO: You have told us about your protest and the protest of Canaris against these atrocities, killings, and so forth. What were the results of these protests?
LAHOUSEN: As I have already stated, there were some very modest results, so modest that you can hardly call them results at all. For the fact that executions were not to take place in sight of the troops but only at a distance of 500 meters can in no way be called a good result.
GEN. RUDENKO: What conversation did you have with Mueller on this subject, concerning concessions he had made? You told us when you were asked by General Alexandrov....
LAHOUSEN: Who was Alexandrov?
GEN. RUDENKO: You were questioned by Colonel Rosenblith, a representative of the Soviet Delegation. I am sorry I made a mistake. Perhaps you will remember your communication to Colonel Rosenblith regarding the conversation and the concessions that Mueller made. I shall ask you to tell us that part again.
LAHOUSEN: The name of Alexandrov does not mean anything to me. What has the name Alexandrov to do in this connection?
GEN. RUDENKO: Alexandrov was a mistake on my part. Forget it. I am interested in the question of Mueller, concerning the shootings, torturings, and so forth.
LAHOUSEN: I had a long conversation with Mueller, especially with regard to making the selections. I cited, to be concrete, as an example of the methods used, the case of the Crimean Tartars, Soviet Russian soldiers who, according to their nationality, originated from the Crimea; and cases where, for certain reasons, Mohammedan people were declared Jews, and were then executed. Thus, aside from the brutality of these and all other similar measures, this proved the entirely irrational point of view, incomprehensible to any normal person, which characterized the handling of the entire matter. To that, among other things, I made reference.
GEN. RUDENKO: You told us how these measures were carried out.
THE PRESIDENT: He doesn't hear you, carry on but go a little bit more slowly.
GEN. RUDENKO: Have you finished your report concerning the conversation with Mueller?
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LAHOUSEN: No, I didn't quite finish, I had many discussions with Mueller on the subject-it was the central point of all these conversations. All the subjects about which I have given evidence were discussed first with Mueller, who was the competent man, at least in his sector. As for Reinecke, he then merely decided according to his ideas, which were contrary to those held by me and my office. I would be grateful if you would tell me what particular points you would like to have me explain and I would gladly repeat anything.
GEN. RUDENKO: Your usual topic of discussion was murders, shootings, and so forth, especially shootings. I am interested in all that. What did Mueller say about it? How were shootings to take place, especially in relation to your protests?
LAHOUSEN: He told me in a rather cynical way, that if the troops were so terribly disturbed by these shootings, as you claim, and their morale is suffering therefrom the shootings would simply take place at some distance, et cetera. That was the main meaning of what he said.
GEN. RUDENKO: That was the result of your protests?
LAHOUSEN: Yes, that was the very poor result of the protest, and then still a certain concession ...
GEN. RUDENKO: And one last question. The conditions of the concentration camps where Soviet prisoners were taken and where mass destruction of prisoners was committed was all this dependent on directives of the German High Command?
LAHOUSEN: In some sort of cooperation with the competent authorities, the Reich Main Security Office. In addition to all I have stated, I must point out that at the time, I myself did not read the orders and that I learned of the collaboration, or the coordination in this question mainly from the conversation with Reinecke, who came to me as a representative of the OKW and with the aforementioned Mueller.
GEN.RUDENKO: Excuse me, did you get that information in private or official sessions or conversations?
LAHOUSEN: It was a strictly official meeting called by General Reinecke as chairman. I was not there as "Lahousen," but as a representative of the Aunt Ausland Abwehr.
GEN. RUDENKO: Did the orders which were passed on in these sessions come to you directly from the German High Command?
LAHOUSEN: They came from the German High Command and from one of the highest offices of the RSHA according to what Reinecke said. I have never seen or read them with my own eyes, therefore this is all I can state.
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GEL. RUDENKO: But you have heard during these meetings where they were discussed and when they were discussed.
LAHOUSEN: Yes, during the discussion, the course of which I have already described, or at least its essential aspects, of course.
GEN. RUDENKO: And during these sessions which you mentioned were the questions raised about murders and burning of cities?
LAHOUSEN: There was no talk at these discussions about setting on fire, but mention was made of the orders which had been issued with respect to the prisoners.
GEN.RUDENKO: About the murders only.
LAHOUSEN: About the executions.
GEN.RUDENKO: That is all.
THE PRESIDENT: Does the French Prosecutor wish to ask any questions?
MR. DUBOST: One single question. Who gave the orders for the liquidation of the Commandos?
LAHOUSEN: What was it exactly that you meant? Presumably the killing I members of the Commando troops?
MR. DUBOST: Who gave the orders for the execution?
LAHOUSEN: I did not read the order myself, but according to what was said in our circles about this subject, the idea came from Hitler himself; but who was responsible for transforming this idea into an order, I do not know.
MR. DUBOST: The Defendants Keitel, Jodl-what orders did they handle; what orders did they give?
LAHOUSEN: I cannot say that because I do not know it.
MR. DUBOST: What were the reasons for these orders, as far as you know?
LAHOUSEN: Not merely was it my opinion, but it was common knowledge, that the reasons for these orders were to cause an intimidating effect and thus to prevent and paralyze the activity of the Commandos.
MR. DUBOST: Who gave the order to have General Giraud executed or murdered?
LAHOUSEN: I did not hear the first part of the question.
MR. DUBOST: Who gave the order to kill Weygand and Giraud?
LAHOUSEN: The order to liquidate, that is, to be explicit, to murder Weygand and Giraud, was given to me by Canaris, who received it from Keitel. This order and this intention regarding the matter Weygand, were furthermore transmitted to me through
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direct speech with Keitel. Keitel asked me after Canaris had read to him a report in my presence, on December 23, 1940, according to my notes, about the progress in the case Weygand.
As regards the second case, that is the case Giraud, I had it from Canaris himself that the order was sent to him by Keitel-as did also the other chiefs who were present. I further heard of it a second time during a report from Canaris to Keitel, in my presence, in July 1942, when this order was communicated to me in a manner similar to that of the case Weygand, and, finally, I received it in a direct manner from Keitel through telephone conversation which I described here, and transmitted as urgent intelligence.
[The British Prosecutor indicated that he had no questions.]
THE PRESIDENT: Do you want to ask any questions, Dr. Nelte?
DR. NELTE: The witness, Lahousen, has given very important evidence, particularly charging in a grave manner the Defendant Keitel, represented by me...
THE PRESIDENT: Are you going to make a speech now?
DR. NELTE: My client, the Defendant Keitel, would like to put numerous questions to the witness after he has had a discussion with me. I therefore ask the Tribunal to allow either that there may be a considerable adjournment now or that at the next session these questions may be discussed in cross-examination.
THE PRESIDENT: Very well. You shall have an opportunity to cross-examine at 10 o'clock tomorrow. Does any member of the Tribunal wish to ask any questions of the witness now?
THE TRIBUNAL (Mr. Biddle): I should like to ask the witness whether the orders to kill the Russians and in connection therewith the treatment of the prisoners were in writing.
LAHOUSEN: As far as I know, yes, but I did not see or read these orders myself.
THE TRIBUNAL (Mr. Biddle): Were they official orders?
LAHOUSEN: Yes, they were official orders, of course, though the facts were brought out in a roundabout way. It was these orders which Reinecke and the others discussed and this is how I learned about the essential points of these orders. I did not read them myself at that time. But I knew that they were not oral agreements because they were commented upon; consequently I knew that something existed in writing. Only I could not and cannot say whether there were one or more orders, and who signed them. This I did not claim to know. I submitted my knowledge which is based solely on discussions and reports from which I quite clearly could deduct the existence of orders.
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THE TRIBUNAL (Mr. Biddle): Do you know to whom or to what organizations such orders were usually addressed?
LAHOUSEN: Orders of this kind, involving the question of principle, went to the OKW, because things relating to prisoners of war were and had to be the concern of the OKW, and in particular of Reinecke, which also explains the discussions with Reinecke.
THE TRIBUNAL (Mr. Biddle): So usually the members or some of the members of the General Staff would have known of such orders, would they not?
LAHOUSEN: Certainly, many members of the Wehrmacht knew of the essential contents of this order, for the reaction of the Wehrmacht against this order was tremendous. Apart from official discussions which I have reported here, these orders were discussed a great deal in casino clubs and elsewhere, because all these matters became manifest in the most undesirable form and had a most undesirable effect on the troops. As a matter of fact, officers, and high-ranking officers at the front, either did not transmit these orders or sought to evade them in some way and this was discussed a great deal. I have named some of these officers; some are listed in the notes, diary, et cetera. It was not an everyday occurrence, and it was then the topic of the day.
THE TRIBUNAL (Mr. Biddle): And were the orders known to the leaders of the SA and SD?
LAHOUSEN: They must have been known to them, for the ordinary soldiers who watched all these proceedings knew and spoke about them. To a certain extent they were even known to the civilian populace; civilians learned far more details about these matters from wounded soldiers returning from the front than I could tell here.
THE PRESIDENT: General Nikitchenko wants to ask a question.
THE TRIBUNAL (Major General I. T. Nikitchenko): You have told us that you received instructions about the murder of prisoners of war and brutal treatment. You received these orders from Reinecke?
LAHOUSEN: Well, I must correct something that I said. It is not I and not the Amt Ausland Abwehr who got the order, because we had nothing to do with it, but I knew about it, as I was present at this conference as a representative of the Amt Ausland Abwehr. But we ourselves had nothing to do with the treatment of prisoners of war, and certainly not in this negative sense.
THE TRIBUNAL (Gen. Nikitchenko): Apart from these meetings, the meetings of the High Command, were such instructions
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ever given? Were there any meetings of the High Command headquarters about killings and ill-treatment of prisoners of war?
LAHOUSEN: There certainly must have been a number of discussions on this subject, but I was present at only one of them, which I have already described, so I cannot say anything more about it.
THE TRIBUNAL (Gen. Nikitchenko): At headquarters?
LAHOUSEN: In the OKW-at headquarters.
THE TRIBUNAL (Gen. Nikitchenko): At the headquarters of the German Army?
LAHOUSEN: Certainly in the OKW where Amt Ausland Abwehr had sent a delegate in my person, if for no other reason than to enter protest. As a matter of fact our Amt had nothing to do with prisoners of war in this sense. But contrarywise we were, because of technical and easily understandable reasons, interested in proper treatment of the prisoners.
THE TRIBUNAL (Gen. Nikitchenko): The meetings were not about good treatment of prisoners, but rather about ill-treatment and killing them? Was Ribbentrop also present at these meetings?
LAHOUSEN: No! On no account. This discussion-I mean the one conference about which I have given testimony-took place after the accomplished fact. Everything had already happened; executions had taken place, and now effects began to make themselves felt. Protests of all kinds, from the front and from other places, such as, for example, our own office, Amt Ausland Abwehr, followed. This conference was intended to show the necessity for the orders which had already been given, and to justify measures already taken. These discussions took place after the beginning of the operations, after the orders which had been given had already been carried out, and all that I have touched upon or stated had already happened and produced its evil effects. The accomplished fact had been thoroughly discussed with the idea of making one more attempt, a last attempt on our part, to put to an end, and break off, the matter.
THE TRIBUNAL (Gen. Nikitchenko): Did all these conversations bring about results?
LAHOUSEN: That is what I talked about, and that was the subject of the discussions with Reinecke in which I took part. I did not take part in the other discussions and therefore can say nothing about them.
THE TRIBUNAL (Gen. Nikitchenko): At which other meetings had orders been given about killings of Ukrainians and burning of towns and villages in Galicia?
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LAHOUSEN: I would like to achieve clarity relative to what the General has in mind. Am I being asked about the conference in the Fuehrer's train in 1939 prior to the fall of Warsaw? According to the entries in Canaris' diary, it took place on 12 September 1939. This order or directive which Ribbentrop issued and which Keitel transmitted to Canaris, Ribbentrop also giving it to Canaris during a brief discussion, was in reference to the organizations of National Ukrainians with which Amt Abwehr cooperated along military lines, and which were to bring about an uprising in Poland, an uprising which aimed to exterminate the Poles and the Jews; that is to say, above all, such elements as were always being discussed in these conferences. When Poles are mentioned, the intelligentsia especially are meant, and all those persons who embodied the national will of resistance. This was the order given to Canaris in the connection I have already described and as it has already been noted in the memorandum. The idea was not to kill Ukrainians but, on the contrary, to carry out this task of a purely political and terroristic nature together with the Ukrainians. The cooperation between Amt Ausland Abwehr and these people who numbered only about 500 or 1000, and what actually occurred can be clearly seen from the diary This was simply a preparation for military sabotage.
THE TRIBUNAL (Gen. Nikitchenko): These instructions were received from Ribbentrop and Keitel?
LAHOUSEN: They came from Ribbentrop. Such orders which concerned political aims couldn't possibly come from Amt Ausland Abwehr because any...
THE TRIBUNAL (Gen. Nikitchenko): I am not asking you whether they could or could not. I am asking you where they came from.
LAHOUSEN: They came from Ribbentrop, as is seen from the memorandum. This is the memorandum that I made for Canaris.
DR. DIX: I have three short questions. May I put them?
THE PRESIDENT: It is now past 4, and we have to hear the requests of the Defendant Hess, and the Court has to be cleared for them. So I think you had better postpone them until tomorrow.
[A recess was taken and all defendants except Hess were removed from the courtroom.]
THE PRESIDENT: I call upon counsel for the Defendant Hess.
DR. GÜNTHER VON ROHRSCHEIDT (Counsel for Defendant Hess): May it please the Tribunal, I am speaking as counsel for the Defendant Rudolf Hess.
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In the proceedings which have already been opened against Hess, the Court is to decide solely the question whether the defendant is fit or unfit to be heard, and further, whether he might even be considered entirely irresponsible.
The Court itself has posed this question affecting the proceedings against Hess by asking the experts to state their opinion, firstly, on whether the defendant is in a position to plead on the charge; secondly, on his state of mind, whether he is mentally sound or not.
With regard to question 1 (Is the defendant in a position to plead?) the Tribunal asked the experts specifically whether the defendant is sufficiently in possession of his mental faculties to understand the proceedings and to conduct his defense adequately -that is, to repudiate a witness to whom he has objections and to understand details of the evidence.
The experts to whom this task was entrusted have, in separate groups, examined Hess for a few days and have stated their expert opinion on these questions in writing. As the defendant's counsel I consider it my duty, after studying the reports of these experts, which unfortunately, I could not do as carefully as I desired since time was short, and in view of my knowledge of the defendant and my experience in almost daily contact with him, to state my opinion that the defendant Hess is not in a position to plead in the case against him.
I am therefore obliged to file the following applications on behalf of the Defendant Hess:
Firstly, I request a ruling to suspend the proceedings against Hess temporarily. Secondly, if his inability to plead is recognized by the Tribunal, I request that the proceedings against the defendant be not conducted in his absence. Thirdly, if the Tribunal rules that Hess is fit to plead, I request that in addition other competent psychiatrists be consulted for an authoritative opinion.
Before I come to the reasons for my applications, I should like to say, at the request of the defendant, that he himself considers he is fit to plead and would himself like to inform the Court to that effect.
May I now state the reasons for my application:
In regard to my first application: If the defendant is not fit to plead, I request that the proceedings against Hess be temporarily suspended.
In this connection may I refer to the opinions already submitted to the Tribunal.
After examining the questions placed before them by the Tribunal, the experts have come to the conclusion which is embodied in what I may call the main report signed by a mixed
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delegation consisting as far as I could determine of English, Soviet, and American experts, and dated 14 November 1945.
This report states, I quote: "The ability of the Defendant Hess is impaired"-that is-"the ability to defend himself, to face a witness, and to understand details of the evidence." I have cited this part of the report because it is closest to the questions put to the experts by the Tribunal.
Another opinion says that " . . . even if Hess' amnesia does not prevent the defendant from understanding what happens around him and to follow the proceedings in Court..."
THE PRESIDENT [Interposing]: Would you speak a little more slowly? The interpreters are not able to interpret so fast.
Would you also refer us expressly to those parts of the medical reports to which you wish to draw our attention?
Do you understand what I said?
DR. VON ROHRSCHEIDT: Yes. I am sorry I cannot refer to the pages of the original or English text, as I only have the German translation; so I can only say that the first quotation. . .
THE PRESIDENT [Interposing]: You can read the words in German, and they will be translated into English.
Which report are you referring to?
DR. VON ROHRSCHEIDT: I was referring to the report of 14 November as far as I can see from my German translation. This report seems to have been drawn up by a delegation of English, Soviet, and American experts, and accompanied the report of 17 November 1945. What I quoted was the following-may I repeat:
"The ability of the Defendant Hess to defend himself, to face a witness, and to understand details of the evidence is impaired."
I ask the Tribunal to tell me...
THE PRESIDENT: Can you say which of the doctors you are quoting?
DR. VON ROHRSCHEIDT: It is the report which, in my copy, is dated 14 November 1945, and, as I said, was presumably signed by Soviet, American, and English doctors.
Unfortunately, when returning the material yesterday evening after translation into German I could not get the original text, and my attempt to obtain it now failed through lack of time.
THE PRESIDENT: Have the English prosecutors got a copy, and can you tell us which it is?
SIR DAVID MAXWELL-FYFE: I'm sorry, My Lord, I think I am in the same difficulties as your Lordship. On the order that I have, I have copies of four medical reports. Your Lordship will see
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at the end of the document headed "Order," it says, "Copies of four medical reports are attached."
The first one of these is signed by three English doctors on the 19th of November. The second is signed by three American doctors and a French doctor, dated the 20th of November 1945. And then there is a report signed by three Soviet doctors, dated the 17th of November. And one is signed by three Soviet doctors and the French doctor dated the 16th of November. These are the only ones which I have with the Court's order.
THE PRESIDENT: Yes.
I don't know what this report is that you are referring to.
SIR DAVID MAXWELL-FYFE: Dr. Von Rohrscheidt seems to have an unsigned report of the 14th.
THE PRESIDENT: Dr. Von Rohrscheidt, have you got the four reports which are really before us? I will read them out to you.
The first one I have got in my hand is the 19th of November 1945, by Lord Moran, Dr. Rees, and Dr. Riddoch. Have you got that? That is the English report.
DR. VON ROHRSCHEIDT: I only have this report in the German translation and not in the original
THE PRESIDENT: But if you have got it in the German translation, that is quite good enough.
Then the next one is dated the 20th of November 1945, by Dr. Jean Delay, Dr. Nolan Lewis, Dr. Cameron, and Colonel Paul Schroeder. Have you got that?
DR. VON ROHRSCHEIDT: Yes, I have that.
THE PRESIDENT: That is two.
Then, the next one is dated the 16th of November, and is signed by three Soviet doctors and one French doctor, Dr. Jean Delay, dated the 16th of November. Have you got that?
DR. VON ROHRSCHEIDT: Yes.
THE PRESIDENT: Then there is another report of the 17th, signed by the three Soviet doctors alone, without the French doctor.
DR. VON ROHRSCHEIDT: Yes, I have that one.
THE PRESIDENT: Now, will you refer us to the passages in those reports upon which you rely?
There is another report by two English doctors which is practically the same. That is the one I have already referred to, that does not contain the name of Lord Moran on it, dated the 19th of November.
DR. VON ROHRSCHEIDT: Yes, I think I can shorten the proceedings by saying that in my opinion all the reports surely agree
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-even if not in the same words-that the ability of the accused Hess to defend himself, to face a witness, and to understand details of the evidence is impaired. And under this assumption that all the medical opinions agree on this point I, as the defendant's counsel, must come to the conclusion that the defendant is unable to plead. The reduced capacity of the defendant to defend himself, which is caused by his mental defect, recognized by all experts as amnesia and described as a mental condition of a mixed character, but more than mere mental abnormality, must be accepted as meaning that he is unfit to plead.
I am of the opinion that the conclusion reached by the medical experts implies that, in the way the question was formulated, the Defendant Hess cannot adequately defend himself on account of this mental defect, namely, amnesia. The medical reports also state that the defendant is not insane. That is not the important point at the moment because in my view it can already be convincingly stated, on the basis of the reports as such that on account of his reduced mental ability the defendant is not in a condition to understand the entire proceedings.
I myself believe-and I think that my opinion on this agrees with the medical opinion-that the defendant is completely incapable of making himself understood in a manner expected from a mentally normal defendant.
In view of my own experience with him I consider that the defendant is incapable of grasping the charges which the Prosecution will bring against him to the extent required for his defense, since his memory is completely impaired. On account of his loss of memory he neither remembers events of the past nor the persons with whom he associated in the past. I am, therefore, of the opinion that defendant's own claim that he is fit to plead is irrelevant. And since, as the medical report says, his condition cannot be rectified within appreciable time, I think that the proceedings against him should be suspended.
Whether the narco-synthesis treatment suggested by the medical experts will bring about the desired effect is uncertain. It is also uncertain within what period of time this treatment would result in the complete recovery of the defendant's health. The medical reports accuse the defendant of deliberately refusing to undergo such medical treatment. The defendant himself, however, tells me that, on the contrary, he would readily undergo treatment but that he refuses the suggested cure because firstly, he believes that he is completely sound and fit to plead, that therefore this cure is unnecessary; secondly, because he disapproves on principle of such violent intervention, and finally because he thinks that such an
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intervention at this time might render him unfit to plead and to take part in the proceedings-and that is the very thing he wishes to avoid.
If, however, the defendant is incapable of pleading, or of defending himself, as is stated in the medical report, and if this condition is likely to last for a long time, then in my opinion, a basis exists for the temporary suspension of the proceedings against him.
Coming now to my second application:
If the Tribunal accepts my arguments and declares the Defendant Hess unfit to plead, then, according to Article 12 of the Charter, it would be possible to proceed against the defendant in absentia. Article 12 provides that the Tribunal has the right to proceed against a defendant in his absence if he cannot be found, or if for other reasons the Tribunal deems it necessary in the interests of justice. The question then is whether it is in the interest of justice to proceed against the defendant in absentia. In my opinion it is incompatible with real justice to proceed against the defendant if he is prevented by his impaired condition-namely, amnesia which is recognized by all the medical experts-from personally safeguarding his rights by attending the proceedings.
In a trial in which charges being brought against the defendant are so grave that they might entail the death penalty, it seems to me incompatible with real justice that the defendant should on account of his impaired condition, be deprived of the rights granted him under Article 16 of the Charter. This Article of the Charter makes provisions for the defendant's own defense, for the opportunity of giving evidence personally, and for the possibility of cross-examining every witness called by the Prosecution. All this is of such great importance for the Defense, that exclusion from any of these rights would, in my opinion, constitute a grave injustice to the defendant. A trial in absentia could therefore not be regarded as a fair trial
If as I have stated the defendant's capacity to defend himself is reduced for the reasons agreed on and to the extent established in the reports of the experts, then he is also not in a position to give his counsel the information necessary for a defense conducted in the defendant's absence.
Since the Charter has clearly laid down these rights of the defendant's, it seems unjust to me as defense counsel, that the defendant should be deprived of them because his illness prevents him from personally safeguarding them by attending the proceedings.
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The provisions in Article 12 of the Charter for trying a defendant in his absence must surely be looked upon as applying in an exceptional case of a defendant who endeavors to evade the proceedings although able to plead. But the Defendant Hess has told me, and he will probably emphasize it to the Tribunal, that he wishes to attend the proceedings; that he will therefore consider it particularly unjust if the proceedings are conducted in his absence, despite his good will, despite the fact that he wishes to attend them.
I therefore request the Tribunal, if it declares the defendant unfit to plead, that it will not proceed against him in his absence.
And now my third application:
If the Tribunal considers the Defendant Hess fit to plead, thereby overruling my opinion and what I think is also the conclusion of the medical reports, I request that additional medical experts be consulted to re-examine this question since as far as I saw from the reports, each of the doctors examined and talked to the defendant for only a few hours on one day, one of them on two days. In a case of such outstanding importance as this one I think it would be necessary to place the defendant into a suitable hospital to obtain a reliable picture based on several weeks of examination and observation. The experts themselves are, obviously, not quite sure whether Defendant Hess beyond his inability to plead, is insane or at least not of sound mind. That is clear from the fact that all the medical statements end by emphasizing that if the Tribunal does not consider the defendant unfit to plead, he should again be subjected to a psychiatric examination.
I think therefore that this suggestion of the psychiatrists who have already examined him should be followed, and I request, that if the Tribunal considers the defendant fit to plead another exhaustive medical examination be authorized.
THE PRESIDENT: I want to ask you one question: Is it not consistent with all the medical opinions that the defendant is capable of understanding the course of the proceedings, and that the only defect from which he is suffering is forgetfulness about what happened before he flew to England?
DR. VON ROHRSCHEIDT: Mr. President, it is true that the experts consider the Defendant Hess capable of following the proceedings. But, on the other hand, in answer to the questions put to them, they emphasize that the defendant is not capable of defending himself. The Tribunal asked the experts to give their opinion on the question-may I read it again, under the second point: "Is the defendant sane or not?" The question was answered in the affirmative by all experts, but that does not exclude the fact that the defendant might, at this moment, be incapable of pleading.
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The Tribunal's question was this: "...the Tribunal wishes to be advised whether the defendant is of sufficient intellect to comprehend the course of the proceedings of the Trial so as to make a proper defense, to challenge a witness, to whom he might wish to object, and to understand the details of the evidence." This is the wording of the translation in my possession. In my view this question is answered by the experts to the effect that the defendant is incapable of adequately defending himself, of rejecting the testimony of a witness and of comprehending evidence submitted. That, as I see it, is the conclusion of all the experts' reports with the exception of the one signed by the Russians.
May I refer to the report signed by the American Delegation, dated 20 November 1945, it is stated there under Number 1:
"We find as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria characterized in part by loss of memory."
Now comes the passage to which I should like to draw the Tribunal's attention:
"The loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past and will interfere with his undertaking his defense."
This report thus establishes that Hess' defense will be impaired. And I believe that if the experts go so far as to admit that his memory is affected, then one may assume that to a great degree he is not fit to plead. The report of the Soviet French representatives, signed by the Russian professors and by Professor Jean Delay goes even further in stating that, although the defendant is able to comprehend all that happens around him, the amnesia affects his capacity to defend himself and to understand details of the past and that it must be considered an impediment. As I see it, the report clearly means that, although the defendant is not insane, and although he can follow the proceedings as such, he cannot defend himself as he is suffering from a form of amnesia which is based on hysteria and which can be believed.
THE TRIBUNAL (Mr. Biddle): Do you accept the opinion of the experts?
DR. VON ROHRSCHEIDT: Yes.
THE TRIBUNAL (Gen. Nikitchenko): I should like to draw the attention of Defense Counsel to the fact that he has referred inaccurately to the decision reached by the Soviet and French experts. He has rendered this decision in a free translation which does not correspond to the original contents.
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DR. VON ROHRSCHEIDT: May I ask whether the report of November 16 is meant? May I once more read what my translation says? I can only refer to the translation of the English text that was given to me; this translation was made in the Translation Division of the Secretariat and handed to me.
May I repeat that the translation in my possession refers to the report of November 16, 1945 signed by members of the Soviet Delegation and by Professor Delay of Paris.
Under point 3 of this report the following is stated:
"At present he is not insane in the strict sense of the word. His amnesia does not prevent him completely from understanding what is going on around him but it will interfere with his ability to conduct his defense and to understand details of the past which would appear as factual data."
That is the text which I have here before me in the authentic German version.
THE PRESIDENT: That is all we wish to ask you. Does the Chief Prosecutor for the United States wish to address the Tribunal?
MR. JUSTICE JACKSON: I think General Rudenko would like to open discussion, if that is agreeable.
THE PRESIDENT: Yes. Are you going on?
GEL. RUDENKO: In connection with the statement made by counsel for the defendant, on the results of the evidence of Hess' certified psychological condition, I consider it essential to make the following declaration:
The defendant's psychological condition was confined by experts appointed by the Tribunal. These experts came to the unanimous conclusion that he is sane and responsible for his actions. The Chief Prosecutors, after discussing the results of the decision and acting in accordance with the order of the Tribunal, make the following reply to the inquiry of the Tribunal:
First of all, we do not question or doubt the findings of the commission. We consider that the Defendant, Rudolf Hess, is perfectly able to stand his trial. This is the unanimous opinion of the Chief Prosecutors. I consider that the findings of the examinations by the experts are quite sufficient to declare Hess sane-and able to stand his trial. We therefore request the Tribunal to make the requisite decision this very day.
In stating his reasons for the postponement of the proceedings or for the settlement of the defendant's case, defense counsel referred to the decision of the experts. I must state, however, that this decision-and I do not know on what principle it was reached-
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was quoted quite inaccurately. In the summary submitted by defense counsel, it is pointed out that the mental condition of the Defendant Hess does not permit him to defend himself, to reply to the witnesses or to understand all the details of the evidence. This is contrary to the decision submitted by the experts in their statement. The final conclusion of the experts definitely states that his loss of memory would not entirely prevent him from understanding the trial; it would, however, make it impossible for him to defend himself and to remember particulars of the past. I consider that these particulars, which Hess is unable to remember, would not unduly interest the Tribunal. The most important point is that emphasized by the experts in their decision, a point which they themselves never doubted and which, incidentally, was never doubted by Hess' defense counsel, namely-that Hess is sane; and in that case Hess comes under the jurisdiction of the International Tribunal. On the basis of these facts I consider that the application of the Defense should be denied as being unsubstantiated.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, it has been suggested that I might say just a word, and as shortly as the Tribunal desires, as to the legal conceptions which govern the position with which the Tribunal and this defendant are, placed at the present time.
The question before the Tribunal is whether this defendant is able to plead to the Indictment and should be tried at the present time.
If I might very briefly refer the Tribunal to the short passages in the report, which I submit are relevant, it might be useful at the present time. According to the attachments to the order, which I have, the first report is that signed by the British doctors on the 19th November 1945. And in that report I beg the Tribunal to refer to Paragraph 3, in which the signatories say that at the moment he is not insane in the strict sense. His loss of memory will not entirely interfere with his comprehension of the proceedings, but it will interfere with his ability to make his defense and to understand details of the past, which arise in evidence.
The next report is that signed by the American and French doctors, and in Paragraph 1, the Tribunal will see:
"We find, as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria characterized in part by loss of memory. The nature of this loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past and will interfere with his undertaking his defense."
If the Tribunal will proceed to the third report, signed by the Soviet doctors, at the foot of Page 1 of the copy that I have there is a paragraph beginning "Psychologically..." which I submit is of importance:
"Psychologically, Hess is in a state of clear consciousness; knows that he is in prison at Nuremberg, under indictment as a tear criminal; has read, and, according to his own words, is acquainted with the charges against hi He answers questions rapidly and to the point. His speech is coherent, his thoughts formed with precision and correctness and they are accompanied by sufficient emotionally expressive movements. Also, there is no kind of evidence of paralogism.
"It should also be noted here, that the present psychological examination, which was conducted by Lieutenant Gilbert, Ph. D., bears out the testimony, that the intelligence of Hess is normal and in some instances, above the average. His movements are natural and not forced."
Now, if I may come to the next report, I am sorry-the report which is signed by the three Soviet doctors and Professor Delay of Paris, dated the 16th, which is the last in my bundle, that says in Paragraph 3:
"At present, he is not insane in the strict sense of the word. His amnesia does not prevent him completely from understanding what is going on around him, but it will interfere with his ability to conduct his defense and to understand details of the past, which would appear as factual data."
I refer, without quoting, because I do not consider that they are of such importance on this point, to the explanation of the kind and reason of the amnesia which appeared in the Soviet report, dated 17 November, under the numbers 1, 2, and 3 at the end of the report. But I remind the Tribunal that all these reports unite in saying that there is no form of insanity.
In these circumstances, the question in English law-and I respectfully submit that to the consideration of the Tribunal as being representative of natural justice in this regard-is, in deciding whether the defendant is fit to plead, whether the defendant be insane or not, and' the time which is relevant for the deciding of that issue is at the date of the arraignment and not at any prior time.
Different views have been expressed as to the party on whom the onus of proof lies in that issue, but the later, and logically the better view, is that the onus is on the Defense, because it is always presumed that a person is sane until the contrary is proved.
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Now, if I might refer the Court to one case which I suspect, if I may so use my mind, has not been absent from the Court's mind, because of the wording of the notice which we are discussing today, it is the case of Pritchard in 7 Carrington and Pike, which is referred to in Archibolds' Criminal Pleading in the 1943 edition, at Page 147.
In Pritchard's case, where a prisoner arraigned on an indictment for felony appeared to be deaf, dumb, and also of non-sane mind, Baron Alderson put three distinct issues to the jury, directing the jury to be sworn separately on each: Whether the prisoner was mute of malice, or by the visitation of God; (2) whether he was able to plead; (3) whether he was sane or not. And on the last issue they were directed to inquire whether the prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense, to challenge a juror, that is, a member of the jury, to whom he might wish to object and to understand the details of the evidence; and he directed the jury that if there was no certain mode of communicating to the prisoner the details of the evidence so that he could clearly understand them, and be able properly to make his defense to the charge against him, the jury ought to find that he was not of sane mind.
I submit to the Tribunal that the words there quoted, "to comprehend the course of the proceedings of the trial so as to make a proper defense," emphasize that the material time, the only time which should be considered, is whether at the moment of plea and of trial the defendant understands what is charged against him and the evidence by which it is supported.
THE PRESIDENT: And does not relate to his memory at that time.
SIR DAVID MAXWELL-FYFE: That is, I respectfully agree with Your Lordship, it does not relate to his memory. It has never, in English jurisprudence, to my knowledge, been held to be a bar either to trial or punishment, that a person who comprehends the charge and the evidence has not got a memory as to what happened at the time. That, of course, is entirely a different question which does not arise either on these reports or on this application as to what was the defendant's state of mind when the acts were committed. No one here suggests that the defendant's state of mind when the action charged was committed was abnormal, and it does not come into this case.
THE PRESIDENT: He will, it seems to me, be able to put forward his amnesia as part of his defense.
SIR DAVID MAXWELL-FYFE: Certainly, My Lord.
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THE PRESIDENT: And to say, "I should have been able to make a better defense if I had been able to remember what took place at the time."
SIR DAVID MAXWELL-FYFE: Yes, My Lord. If I might compare a very simple case within my experience, and I am sure within the experience of members of the Court where this has arisen scores of times in English courts, after a motor accident when a man is charged with manslaughter or doing grievous bodily harm, he is often in the position of saying, "Because of the accident my memory is not good or fails as to the acts charged." That should not, and no one has ever suggested that it could, be a matter of relief from criminal responsibility. I hope that the Tribunal will not think that I have occupied too much of their time, but I thought it was useful just to present the matter on the basis of the English law as I understand it.
THE TRIBUNAL (Mr. Biddle): Sir David, so I can understand you, one of the tests under the Pritchard case is whether or not the defendant can make a proper defense, is it not?
SIR DAVID MAXWELL-FYFE: With the greatest respect, you have got to read that with the preceding words, which limit it. They say, "Whether a prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense."
THE TRIBUNAL: (Mr. Biddle): And would you interpret that to mean that this defendant could make a proper defense under the procedure of the trial if you also find as a fact, which you, I think, do not dispute, and which you quoted in fact, that although not insane-now I quote that he did not understand, or rather:
"His amnesia does not prevent him completely from understanding what is going on around him, but it will interfere with his ability to conduct his defense, and understand details of the past...."
You don't think that is inconsistent with that finding?
SIR DAVID MAXWELL-FYFE: No, I am submitting it is not. It is part of his defense, and it may well be, "I don't remember anything about that at all." And he could actually add to that, "From my general behavior or from other acts which I undoubtedly have done, it is extremely unlikely that I should do it." That is the defense which is left to him. And he must take that defense. That is my submission.
THE TRIBUNAL (Mr. Biddle): So even if we assume, for the purpose of argument, that his amnesia is complete, and that he remembers nothing that occurred before the indictment though now understanding the proceedings, you think he should be tried?
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SIR DAVID MAXWELL-FYFE: I submit he should be tried. That is my submission as to the legal position. I especially didn't discuss, of course, as the Tribunal will appreciate-I didn't discuss the quantum of amnesia here because I am putting that to the Tribunal. I wanted to put before the Tribunal the legal basis on which this application is opposed. Therefore I accept readily the extreme case which the learned American judge has put to me.
THE PRESIDENT: M. Donnedieu de Vabres would like to ask a question.
THE TRIBUNAL (M. De Vabres): I would like to know in what period the real amnesia of Hess applies. He pretends to have forgotten facts which occurred more than 15 days ago. It may be simulation or, as they say in the report, it may be real simulation. I would like to know if according to the reports Hess has really lost his memory of facts which are referred to in the Indictment, facts which pertain to the past covered by the Indictment.
SIR DAVID MAXWELL-FYFE: The facts which are included in the Indictment, the explanation that the doctors give as to his amnesia, is most clearly set out in these paragraphs of the Soviet report. That is the third report dated the 17th of November 1945, Page 2, and the numbered paragraphs 1 to 3. They say first:
"In the psychological personality of Hess there are no changes typical of the progressive schizophrenic disease"-that is, there are no changes typical of a progressive double personality developing.-"and therefore, the delusions, from which he suffered periodically while in England, cannot be considered as manifestations of a schizophrenic paranoia, and must be recognized as the expression of a psychogenic paranoia reaction, that is, the psychologically comprehensible reaction"-now I ask the learned French judge to note the next sentence-"of an unstable personality to the situation (the failure of his mission, arrest, and incarceration). Such is the interpretation of the delirious statements of Hess in England as is bespoken by their disappearance, appearance, and repeated disappearance depending on external circumstances which affected the mental state of Hess."
"The loss of memory by Hess is not the result of some kind of mental disease but represents hysterical amnesia, the basis of which is a subconscious inclination towards self-defense" -now I ask the learned French judge to note again the next words-"as well as a deliberate and conscious tendency towards it. Such behavior often terminates when the hysterical
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person is faced with an unavoidable necessity of conducting himself correctly. Therefore the amnesia of Hess may end upon his being brought to trial."
"Rudolf Hess, prior to his flight to England, did not suffer from any kind of insanity, nor is he now suffering from it. At the present time he exhibits hysterical behavior with signs of"-and again I ask the learned French judge to note this point-"with signs of a conscious-intentional (simulated) character, which does not exonerate him from his responsibility under the Indictment."
The last sentence is a matter for the Tribunal. But in these circumstances it would be impossible to say that the amnesia may continue to be complete or is entirely unconscious. That is deliberately avoided by the learned doctors. Therefore the Prosecution do not say that that is the case, but they do say that even if it were complete, the legal basis which I have suggested to the Court is a correct one for action in this matter.
THE PRESIDENT: Thank you, Sir David. Would Dr. Rohrscheidt like to add anything by way of reply? One moment. Mr. Justice Jackson, I gathered from what Sir David said that he was speaking on behalf of you and of the French Prosecution, is that correct?
MR. JUSTICE JACKSON: I intend to adopt all that he said. I would only add a few more words, if I may.
THE PRESIDENT: Doctor Rohrscheidt, Mr. Justice Jackson has something to say first of all.
MR. JUSTICE JACKSON: I adopt all that has been said, and will not repeat. We have three applications before the Tribunal. One is for another examination. I will spend very little time on that. I think that we have made, up to this point with this examination, medical history in having seven psychiatrists from five nations who are completely in agreement. An achievement of that kind is not likely to be risked.
The only reason suggested here is that a relatively short time has been devoted to the examination, but I suggest to Your Honors that that is not the situation, because there have been available the examinations and observations and medical history during the incarceration of Hess in England, extending from 1941, and the reports of the psychiatrists of the American forces since he was brought to Nuremberg, and they all agree. So that there is a more complete medical history in this case than in most cases.
The next application was as to trial in absentia. I shall spend no time on that, for there seems to be no occasion for trying Hess
in absentia if he shouldn't be tried in his presence. If he is unable to be tried, why, he simply shouldn't be tried at all. That is all I can see to it.
I would like to call your attention to the one thing in all this, the one statement on which any case can be made here for postponement. That is the statement with which we all agree: That Hess' condition will interfere with his response to questions relating to his past and will interfere with his undertaking his defense. Now, I think it will interfere with his defense if he persists in it, and I am sure that counsel has a very difficult task. But Hess has refused the treatment, and I have filed with the court the report of Major Kelly, the American psychiatrist, in whose care he was placed immediately after he was brought here.
He has refused every simple treatment that has been suggested. He has refused to submit to the ordinary things that we submit to every day-blood tests, examinations-and says he will submit to nothing until after the trial. The medication which was suggested to bring him out of this hysterical situation-every psychiatrist agrees that this is simply an hysterical situation if it is genuine at all-was the use of intravenous drugs of the barbital series, either sodium amytal or sodium phenotal, the ordinary sort of sedative that you perhaps take on a sleepless night. We did not dare administer that, to be perfectly candid, against his objection, because we felt if that, however harmless-and in over a thousand cases observed by Major Kelly there have been no ill effects although some cases are reported where there have-we felt that if should he be struck by lightning a month afterward it would still be charged that something that we had done had caused his death; and we did not desire to impose any such treatment upon him.
But I respectfully suggest that a man cannot stand at the bar of the Court and assert that his amnesia is a defense to his being tried, and at the same time refuse the simple medical expedients which all agree might be useful.
He is in the volunteer class with his amnesia. When he was in England, as the reports show, he is reported to have made the statement that his earlier amnesia was simulated. He came out of this state during a period in England, and went back into it. It is now highly selective. That is to say, you can't be sure what Hess will remember and what he will not remember. His amnesia is not of the type which is a complete blotting out of the personality, of the type that would be fatal to his defense.
So we feel that so long as Hess refuses the ordinary, simple expedients, even if his amnesia is genuine, that he is not in a position to continue to assert that he must not be brought to trial.
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We think he should be tried, not in absentia, but that this trial should proceed.
THE TRIBUNAL (Mr. Diddle): Isn't Hess asserting that he wants to be tried?
MR. JUSTICE JACKSON: Well, I don't know about that. He has been interrogated and interrogated by us, interrogated by his co-defendants, and I wouldn't attempt to say what he would now say he wants. I haven't observed that it is causing him any great distress. Frankly, I doubt very much if he would like to be absent, but I wouldn't attempt to speak for him.
THE PRESIDENT: Does M. Dubost wish to add anything?
[M. Dubost indicated that he did not.]
DR. VON ROHRSCHEIDT: May I just say a few words to the Tribunal to explain my point of view once more?
Firstly, it is a fact that the Defendant Hess, according to the unanimous reports of the doctors, is not insane, that his mental faculties are not impaired.
Secondly, as all reports agree, the Defendant Hess is suffering from amnesia. The reports vary on whether this amnesia is founded on a pathological, a psychogenic, or hysterical basis, but they agree that it exists as an unsound mental condition. The defendant is therefore, not insane, but has a mental defect. Legally, therefore, he cannot claim that he is not to be held responsible for his actions; for at the time when the actions with which he is charged were committed, he was certainly not insane, and consequently can be held responsible. It is a different question, however, at least according to German law, whether the defendant is at this moment in a position to follow the proceedings of a trial, that is, whether he is fit to plead. And on the basis of the medical reports which I quoted, I think this question should be answered negatively. He is not fit to plead.
I admit that doubts are possible, that the Tribunal may have doubts whether the answers of the experts are sufficient to establish that the defendant's ability to plead is actually impaired, that he cannot, as the Tribunal perhaps deliberately phrased it, defend himself adequately. I think that perhaps the emphasis should be on this last point. It is my opinion that the amnesia-this loss of memory confirmed by all experts-is such that the defendant is unable to make an adequate defense. It may be, of course, that he can defend himself on one point or another, that he can raise objections on some points, and that he may be able to follow the proceedings as such. But his defense could not be termed adequate
in the sense in which the defense of a person in full possession of his mental faculties would be adequate.
May I add one word. I already mentioned that the defendant told me that he would like to attend the proceedings, as he does not consider himself unfit to plead, but that, in the opinion of the Defense, is quite irrelevant. It is a question which the Tribunal must examine, and in which the personal opinion of the defendant is of no account.
With regard to the conclusion which the American prosecutor draws from the defendant's refusal to undergo the narco-synthesis treatment suggested by the doctors-that is not a question of truculence. He refused it only because, as he assured me, he was afraid that the intravenous injections at this particular moment might incapacitate him in his weakened condition and make it impossible for him to follow the proceedings; he wants, however, to attend the trial He refused also because, as I have already mentioned, he himself thinks that he is sound and therefore says, "I do not need any intravenous injections, I shall recover in the course of time." The defendant also told me that he has an abhorrence of such treatments. I know that to be true, because in the unhappy times of the National Socialist regime, he was always in favor of natural remedies. He even founded the Rudolf Hess Hospital in Dresden, which uses natural and not medical remedies.
MR. JUSTICE JACKSON: May I make one observation, Your Honors?
THE PRESIDENT: Yes.
MR. JUSTICE JACKSON: The argument illustrates the selectivity of the memory of which I spoke to you. Hess apparently can inform his counsel about his attitude toward this particular matter during the National Socialist regime. His counsel is able to tell us how he felt about medical things during the National Socialist regime, but when we ask him about anything in which he participated that might have a criminal aspect, the memory becomes bad. I hope that the Court has not overlooked the statement of the matters that he does well recollect.
DR. VON ROHRSCHEIDT: May I make a correction?
THE PRESIDENT: It is unusual to hear counsel in a second reply, but as Mr. Justice Jackson has spoken again we will hear what you have to say.
DR. VON ROHRSCHEIDT: I merely want to say that I was misunderstood. It was not the defendant who told me that he always favored natural remedies; I said that from my own knowledge. I said it from my own experience to show that he has an
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instinctive aversion for medical interference. My remark was not based on the memory of the defendant, but on knowledge of my own.
THE PRESIDENT: Dr. Rohrscheidt, the Tribunal would like, if you consider it proper, that the Defendant Hess should state what his views on this question are.
DR. VON ROHRSCHEIDT: As his defense counsel, I have certainly no objection, and in my opinion it is the defendant's own wish to be heard. The Tribunal would then be able to gain a personal impression of his condition.
THE PRESIDENT: He can state whether he considers himself fit to plead from where he is.
HESS: Mr. President, I would like to say this. At the beginning of the proceedings this afternoon I gave my defense counsel a note saying that I thought the proceedings could be shortened if I would be allowed to speak. I wish to say the following:
In order to forestall the possibility of my being pronounced incapable of pleading, in spite of my willingness to take part in the proceedings and to hear the verdict alongside my comrades, I would like to make the following declaration before the Tribunal, although, originally, I intended to make it during a later stage of the trial:
Henceforth my memory will again respond to the outside world. The reasons for simulating loss of memory were of a tactical nature. Only my ability to concentrate is, in fact, somewhat reduced. But my capacity to follow the trial, to defend myself, to put questions to witnesses, or to answer questions myself is not affected thereby.
I emphasize that I bear full responsibility for everything that I did, signed or co-signed. My fundamental attitude that the Tribunal is not competent, is not affected by the statement I have just made. I also simulated loss of memory in consultations with my officially appointed defense counsel. He has, therefore, represented it in good faith.
THE PRESIDENT: The trial is adjourned.
[The Tribunal adjourned until 1 December 1945 at 1000 hours.]
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