The Avalon Project at Yale Law School

Nuremberg Trial Proceedings Vol. 8

SEVENTY-SIXTH DAY

Thursday, 7 March 1946

Morning Session

THE PRESIDENT: I call on counsel for the Defendant Von Papen.

SIR DAVID MAXWELL-FYFE: If the Tribunal approves, I shall indicate the views of the Prosecution on the witnesses requested by Dr. Kubuschok.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL-FYFE: The first witness is Von Lersner and there is no objection. This witness is called to cover, among other things, the period of the coming into power of the Hitler Government, which is a time of material importance in the case against Von Papen.

If the Tribunal would consider the next three witnesses, there is a minor point: The witness Tschirschky was, as I understand it, Von Papen's private secretary from 1933 to February 1935. That is, he covered the period of the rise to power of the Nazi Party. And he also covers some of the Austrian period.

The next witness, Von Kageneck, is also a private secretary. He does not cover the period of the rise to power, but covers the whole Austrian period.

The next witness, Erbadh, was counsellor at the Embassy in Vienna, that is, he covers the period 1934 to 1938.

The Prosecution has always been reluctant to oppose the calling of secretaries who could assist the memory of the defendant, but it did seem to us that the witness Tschirschky was cumulative both on the period of the rise to power and the Austrian period and that it would be sufficient to have interrogatories in that case. Therefore, the Prosecution, apart from that, would not object to Von Kageneck and Erbach.

THE PRESIDENT: That is, you suggest interrogatories for 2 and calling 3 and 4?

SIR DAVID MAXWELL-FYFE: Yes, My Lord, interrogatories, and calling of 3 and 4.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: And with regard to Number 5, the witness Kroll, the Prosecution submits that he is irrelevant. He

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is called for the period when the defendant was an ambassador in Turkey and he allegedly is able to say that Von Papen had no aggressive thoughts with regard to Russia. The Prosecution would submit that Von Papen is really the person who can speak on a matter like that, and the Prosecution has had no evidence as to any subversive activity of the Nazi Party in Turkey, which is the other point that this witness is said to speak on.

Then the next five witnesses, 6, 7, 8, 9, and 10: The Tribunal granted interrogatories and, so long as the matter is limited to interrogatories, the Prosecution will make no objection.

And Number 11, the Baroness De Nothomb: The Prosecution object to evidence on acts of intercession on behalf of members of the resistance movement, and individual acts of that kind, in the opinion of the Prosecution, are not really relevant to the matters before the Court.

With regard to Archbishop Grober, if the Tribunal would not mind looking at Number 12 in the application, in the opinion of the Prosecution the matters raised by the questions are not relevant. The first is, "Were the Concordat negotiations between Germany and the Holy See brought about by Defendant Von Papen's own initiative?" The second part of this question is, in short, "Did Von Papen make efforts with Hitler regarding the conclusion of the Concordat?" Well, the Concordat was made, and what the Tribunal are really concerned with is the breaches of the Concordat, of which the Prosecution has given written evidence.

The second question -- I am afraid that I do not understand that, and in its present form I submit that it is irrelevant, in addition to being vague -- "Were the activities of the defendant directed by his positive religious attitude after the conclusion of the Concordat also?"

Then the third question: "Was the conclusion of the Concordat welcomed by the German Episcopate?" I don't think that really helps.

And fourth: "Did the Concordat give legal backing to the Church during the latter's religious struggles?" And, "Could the Church, in the end, fall back on the Concordat?"

The Concordat is there and speaks for itself, and, as I say, the issue in this case is the breaches of the Concordat, not its contents. So we object to Number 12.

Number 13, the witness Von Beaulieu -- that is very short, if the Tribunal would be good enough to look at it:

"I shall submit an affidavit of the witness, which deals with the intervention of the defendant as President of the Union Club on behalf of Jews."

The Prosecution submit that the intervention in a racing club on behalf of some Jewish members is not really a relevant matter, even on the Jewish issue.

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Number 14, the witness Josten -- Dr. Kubuschok asks for the use of a statement which has been sent to the Tribunal. The Prosecution would prefer that to be in the form of an affidavit or interrogatory, if this is possible.

THE PRESIDENT: That is 14, is it?

SIR DAVID MAXWELL-FYFE: 14, My Lord, yes.

Then 15 is His Majesty, the King of Sweden. That is a new application and general in its scope. It is difficult to judge how much King Gustav could contribute, and, therefore, the Prosecution do not object to interrogatories.

THE PRESIDENT: Sir David, in 14 Dr. Kubuschok says that he requested that the statement made by the witness to the legal department of the Military Government headquarters, Dusseldorf, be furnished him. Are you objecting to that being furnished him?

SIR DAVID MAXWELL-FYFE: No, I thought that he had got it.

DR. KUBUSCHOK: I got it this morning.

SIR DAVID MAXWELL-FYFE: Dr. Kubuschok says that he received it today, this morning.

THE PRESIDENT: Are you objecting to his offering it as evidence?

SIR DAVID MAXWELL-FYFE: No, I only say that we should prefer it in the form of an affidavit or interrogatory if that can be done. I do not make any great objection.

DR. KUBUSCHOK: In regard to the witnesses I should like to say the following: Witness Number 1, Baron Lersner -- the Tribunal granted only an interrogatory at first. The prosecutor has today agreed to have the witness called before this Tribunal. I also ask very urgently that this witness be questioned before the Tribunal.

The witness was the president of the German peace delegation at Versailles. He is a very well known German diplomat, who since 1932 has worked very closely with the Defendant Von Papen. A man like Lersner had, of course, a particularly fine understanding for every policy of aggression. Therefore, it is very important that this co-worker of the Defendant Von Papen be heard and be allowed to tell us how he has observed the defendant in his activities up to 1944. It is particularly important that Lersner, at the instigation of Defendant Von Papen, could go to Turkey.

THE PRESIDENT: Dr. Kubuschok, Sir David agreed, I think, with reference to Number 1.

DR. KUBUSCHOK: Yes, if the Tribunal also agrees, then the matter is taken care of.

The second witness, Tschirschky -- Tschirschky was the private secretary of the defendant from 1933 to 1935, the first private.

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secretary during the time that the defendant was Vice Chancellor. He is a man who was himself persecuted by the Gestapo and had to go into exile in 1935, where he still is. He is a man who can give exhaustive information on the whole period from 1933 to 1935 in regard to the external activity of the defendant and his personal attitude.

I believe that, especially for the time from the beginning of 1933, we shall not get a thorough picture if we do not hear this closest co-worker of the defendant personally. The other witnesses concern mostly different periods. Only in some cases do they overlap with the activity of this witness.

Number 5, Kroll...

THE PRESIDENT: Supposing that the Tribunal thought it right to grant you Number 2 as an oral witness, would it not be possible to dispense with one of 3 or 4 and have interrogatories from one of them and call the other one? They deal with somewhat the same period.

DR. KUBUSCHOK: We definitely need 3 for the following reasons:

Witness Kageneck was present when Hitler entrusted Papen with the Austrian mission. This is a very important point, since the Prosecution alleges that he was entrusted with this mission for those purposes of which he was accused. The witness will testify that Papen accepted the mission only after a clear guarantee concerning the purpose of the mission. Furthermore, Count Kageneck was also in Vienna after 1935, that is to say, from 1935 until the Anschluss, and for this period we should not have any other witness. Kageneck can also confirm a very important point, that is, that he was entrusted with taking diplomatic documents to Switzerland and safeguarding them there, since from these documents the documentary proof for the activity of the defendant in Vienna could be deduced. Therefore, in my opinion, the witness Kageneck also cannot be dispensed with.

If we can dispense with any witness, it would be witness Number 4, Erbach, in regard to whom I might then ask for permission to use an interrogatory, because here, too, questions are to be asked which the other witnesses cannot answer.

Witness Number 5, Minister Kroll -- Papen is accused of a conspiracy for aggressive war. The Indictment is not limited in respect to time. For the largest part of the time in question, namely 1938 to 1944, Papen was in a position which would have been particularly designed for an activity directed at undermining the peace. Turkey was for a long time an important pillar in military and, therefore, political considerations. It is, therefore, of the greatest interest

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whether Papen used his position for any activity in the nature of such a conspiracy.

Moreover, I should like to bring proof of the opposite. The fact vas that his activity was directed at preserving the peace and that he was, in particular, against any extension of the war by means of military measures against Russia, and was against every political measure for the destruction of the relations between Turkey and the Allied Powers.

The witness was, during the Turkish period, the closest co-worker of the defendant. He is, therefore, in a position to give us information about the entire period.

Baroness De Nothomb -- I have asked in this case to be permitted to present an affidavit or interrogatory. I want...

THE PRESIDENT: Which number are you dealing with?

DR. KUBUSCHOK: Number 11.

THE PRESIDENT: You are not dealing with 6 to 10?

DR. KUBUSCHOK: No, we are in agreement about 6 to 10.

THE PRESIDENT: Very well, 11.

DR. KUBUSCHOK: Number 11, Baroness De Nothomb -- in this case I asked for an interrogatory or for permission to submit an affidavit. The subject of' the evidence is:

During the years 1940 to 1944 the defendant continuously supported the witness in her intervention on behalf of persecuted members of the French resistance movement. I want thereby to prove that the Defendant Von Papen shows again, in this case, that he was greatly interested in a peaceful shaping of German-French relations, and that during the war he always had in mind the postwar time, when the poison should be removed from these relations. The intervention on the part of the defendant was also a result of general humanitarian considerations. This is not without considerable importance in connection with the charge of conspiratorial activity.

Number 12, Archbishop Grober -- the Indictment asserts that the Defendant Von Papen used his position as a prominent German Catholic for a dirty business of deception, and that the conclusion of the Concordat, as such, was effected in the course of a policy directed against the Church; that the conclusion of the Concordat was not intended seriously, as one could see from the later violations of the Concordat. Archbishop Grober was, at the time of negotiations concerning the Concordat, at the Holy See. He was present during all the negotiations. He knows that the initiative for starting negotiations came from Von Papen himself, who did not get Hitler's approval until later. He knows that the draft which had been made by Von Papen for the Concordat was strongly disapproved by Hitler

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and that Papen was able to advance this draft only after long struggles. The witness knows the Defendant Von Papen very well. He also knows from what inner stand toward the Catholic question the defendant approached the matter of the conclusion of the Concordat. As an influential dignitary of the Church he can also judge the consequences of the Concordat. He is in a position to judge that the contents of the Concordat at a later time also were still a protect lion for Church interests; and from his knowledge of the personal relations of the defendant and all the relations of the Church in Germany, he can testify as to whether the defendant had anything at all to do with the violations of the Concordat.

THE PRESIDENT: Dr. Kubuschok, does witness Number 2 deal with the same subject? Where you say in your discussion of the subject of the evidence, that witness Number 2 accompanied the defendant to Rome to conclude the Concordat -- can he testify that against Hitler's strong opposition he succeeded, at the last minute, in concluding the Concordat? At that time was the witness present at all the speeches?

DR. KUBUSCHOK: The witness Tschirschky was introduced into the negotiations concerning the Concordat by the defendant. It is very important, in my opinion, to examine also a witness who was present at the negotiations as representing the other side. In particular, this witness, Archbishop Grober, could also express an opinion in regard to the later period, the violations of the Concordat. He can judge the entire situation from the point of the Church better than can the private secretary Tschirschky. He can also give an essentially more reliable picture of Von Papen's personality which in this matter is very closely connected with his politica activity. I have been very modest in my requests; but I should like to ask urgently, in this case, that an interrogatory or an affidavit by Archbishop Grober be granted, for it is indeed clear that the accusation that a prominent German Catholic uses his position for evil purposes of deception is a very serious one, and the defendant also is very greatly interested in having this question clarified, within the framework of the Indictment and also beyond that.

Witness Number 13 -- an affidavit of Herr Von Beaulieu, who shal testify that the defendant, in his position as president of a very large and prominent German organization, intervened until the very end for the non-Aryan members, as this term was used at that time. Everything which is of importance in judging the Papen case lies, for the most part, in the sphere of the subjective. We will see very few actual actions in the Papen case. The accusations are, for the most part, based on the fact that he was present. It is, therefore relatively difficult to bring proof and therefore the counterevidence must to a large extent be subjective in nature. To judge a person's

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character in its entirety, it is not unimportant to know what, for instance, his attitude was in 1938 toward the question of the treatment of Jews, for, if Papen here definitely deviated from a general line followed by Hitler and the Nazis, one will certainly be able to draw a conclusion as to whether he was really the faithful follower of Hitler which the Indictment tries to picture him.

Witness Number 14 -- I received the statement today. I have not yet had time to look through it. I shall submit either the statement or an affidavit which I shall try to get.

Number 15 -- a questioning of His Majesty King Gustav of Sweden, to be conducted in every way possible. This is a very important question. It touches a major point of the Defense, namely, in how far it was possible for a person not entangled in the ideas of Nazism to collaborate to a certain extent. To what extent could he hope, by his personal activity, to change things or at least to modify them? If, on the basis of the evidence submitted, we prove that Von Papen not only exhausted his means to serve this end within Germany, but also, beyond this, used his foreign political connections for this purpose, then this should, I believe, round out the picture of the character of the defendant in an important way. This strong activity in the interest of peace is such that, in my opinion, simply on the basis of such activities, the absolute falsehood and untenability of that charge of the Indictment that the defendant at any time could have approved of the aims of an aggressive policy within the framework of a conspiracy becomes apparent.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents, Numbers 1 to 8, the Prosecution asks Dr. Kubuschok to submit the extracts, and then we can consider the relevancy at that time. I think that Dr. Kubuschok has Number 9.

DR. KUBUSCHOK: I have in my possession only the photostat which I received from the Prosecution.

SIR DAVID MAXWELL-FYFE: I am sorry. I should have said he had a photostatic copy, but the Prosecution have certified the photostat. The original is not obtainable at present. If it comes into our possession we shall let Dr. Kubuschok see it.

The third point is that Dr. Kubuschok says that he may have to make a supplementary application after Herr Von Papen, Jr. returns. That is, of course, a matter for him and the Tribunal. The Prosecution make no objection.

THE PRESIDENT: With reference to 1 to 8, has Dr. Kubuschok got the books?

DR. KUBUSCHOK: Yes.

THE PRESIDENT: Very well. Then he will be prepared to specify what parts of them...

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DR. KUBUSCHOK: Yes, Sir; yes, indeed. I should merely like to add one point to the list. Yesterday I received from the Prosecution a further report to Hitler by Von Papen at the time of his activity in Vienna -- Number 9, also a report to Hitler. I have also received it in the form of a photostat. I shall also submit this report for purposes of evidence.

THE PRESIDENT: I call on counsel for the Defendant Seyss-Inquart.

SIR DAVID MAXWELL-FYFE: May we state our position?

May it please the Tribunal, with regard to this defendant, the position as to the first four witnesses is that they deal with the Austrian part of the case. On the 2d of December the Tribunal allowed this defendant a choice of four out of nine. He has chosen Glaise-Horstenau, who was a minister in the Austrian Government Guido Schmidt, who was the Foreign Minister at the time of the Schuschnigg-Hitler-Ribbentrop interview; Skubl, who was the Police President and State Secretary for Security in Vienna; and Rainer, who is a well-known Nazi and who was afterwards Gauleiter of Carinthia.

The Prosecution have no objection to these witnesses.

Then we come to the Holland period, and the Prosecution have no objection to Wimmer and Schwebel, but they do object to Bolle's being called as an oral witness. The position is that he was refused by the Tribunal on the 26th of January. After the refusal interrogatories were submitted, but these seem to be almost entirely covered by the interrogatories administered to the witness Von der Wense, who is the second under the heading of affidavits. I think out of the 20 questions suggested for Bolle, there are only two that are not covered by Von der Wense, which are Numbers 17 and 18, and two others which seem to deal with very obvious points. So that is the objection with regard to Bolle, and the Prosecution submit that he would really be cumulative and is unnecessary. They make no objection to Fischbock, who speaks on the Jews, financial administration, art treasures, and forced labor. They make no objection to Hirschfeld, who speaks about confiscations and destruction of factories and the food situation. So, on the oral witnesses, the only objection is regarding Bolle.

With regard to the affidavits there is no objection -- or rather, they should be interrogatories. They were all granted by the Tribunal on the 26th of January, and under these circumstances the Prosecution make no objection to them.

THE PRESIDENT: Yes, Dr. Steinbauer.

DR. GUSTAV STEINBAUER (Counsel for Defendant Seyss-Inquart): Mr. President, Your Honors, my client, Dr. Seyss-Inquart,

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had at first asked for a large number of witnesses and then, at my advice, and according to the desire of the Tribunal, reduced this number considerably.

I ask that the witness, construction supervisor Bolle, be admitted before the Tribunal because in my opinion the objection made by the. Prosecution, that this is a cumulative witness, is not quite correct. Bolle was, before the occupation, Director of the Port of Hamburg, and then during all the years of the occupation he was director of the transportation department in Holland.

In particular he can testify about the railroad and shipping strike in October 1944. This chapter of the history of the occupation is extraordinarily important, because this strike resulted in a blocking of traffic which led to an embargo. The Indictment asserts, moreover, that the causes of the later famine catastrophe in Holland, as wemay call it, can in part be traced back to measures which the Defendant Seyss-Inquart took in October 1944. Quite understandably, the Armed Forces wanted to use the few means of transportation which were still functioning, for their own purposes. The very examination of the witness Bolle should prove, however, that Seyss-Inquart endeavored, insofar as possible, to mitigate the effects of the measures taken by the Wehrmacht in this matter. In an interrogatory this complex of questions could not be treated exhaustively.

I ask you, Gentlemen, to realize that we are dealing here with the examination of the administration of a kingdom of 9 million within a period of 5 years. If we read through the report submitted by the Dutch Delegation we see, in regard to the financial consequences, alone, that it is alleged that the damage, which had been brought about by the administration on the one hand and by the events of war on the other hand, in short, by the occupation of Holland by Germany, reaches a figure of 25,725,000,000 Dutch Builders, to which, considering the difference in prices between 1938 and now, we have to add a margin of 175 percent.

I wish to point out that we are dealing here with the examination of administrative, legal, financial, and economic measures over a period of 5 years. I therefore believe that the request of the defendant that this witness be admitted is quite justified.

Concerning the affidavits, I took the liberty of making two more applications which have not yet been granted. This is on the last page, a very short affidavit by Baron Lindhorst-Hormann. He was formerly Commissioner of the Province of Groningen and should in particular be examined in regard to one point, in regard to the treatment of the so-called hostages in the hostage camp, and also in regard to the fact that none of these hostages was shot.

In addition to getting this affidavit, I have also asked that some official announcements be obtained, announcements by the Higher

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Police and SS Leader Rauter regarding the executions in order to prove who had done these things, that is, that the point of view of the defendant is that these regrettable measures were taken by the police and not by the civil administration.

I also intend to submit two affidavits which are already in my possession. One of them is an affidavit by a German judge, Kammergerichtsrat Rudolf Fritsch. In Seyss-Inquart's administration in Holland he was in charge of appeals. He can tell us how Seyss-Inquart handled this important chapter of jurisdiction.

Another affidavit which I have in my possession comes from a Dr. Walter Stricker. It is cited as Document Number 30. Dr. Walter Stricker was a lawyer in Vienna and emigrated in 1938 to Australia. He served in the Australian Army and, without my asking, he sent me an affidavit, notarized by an Australian notary public, in which he testifies about conditions in Vienna in the critical days of October and November 1938. I ask also that this affidavit be admitted. As to the documents, as I have already told Sir David, I shall submit an exact list.

THE PRESIDENT: One moment, before you deal with that. Sir David said that with reference to the affidavits, which are mentioned on Page 2, that these ought to be called interrogatories. I do not know whether you wish to ask particularly for affidavits, which are different from interrogatories.

DR. STEINBAUER: Yes, Sir.

THE PRESIDENT: You want affidavits?

DR. STEINBAUER: Interrogatories, Sir.

THE PRESIDENT: Would there be any objection to the affidavit from the lawyer in Australia being shown to the Prosecution, so that they may see whether they wish to put cross-interrogatories to that witness? Australia is too far away from here for him to be brought here for cross-examination.

DR. STEINBAUER: Certainly.

SIR DAVID MAXWELL-FYFE: I have just been handed that affidavit from the witness Stricker and also Number 6, on the Dutch questions, from Judge Fritsch; and if the same course could be taken with regard to that from Baron Lindhorst-Hormann, I shall be ready then to consider that, too.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: With regard to the rest of the documents in the usual course, I ask that the Defense make extracts and show them to us.

THE PRESIDENT: Yes.

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SIR DAVID MAXWELL-FYFE: There is one point I call to the attention of the Tribunal. It may be helpful that Number 28, Document Number D-571, is already in as Exhibit Number USA-112. I do not know if the Defens'e really wants Number 3. I shall not deal with it now, but the Prosecution will submit that it is really unnecessary and irrelevant, but I think that is a matter that we can more conveniently discuss when it comes up.

THE PRESIDENT: Yes. Then with reference to Number 2, under the heading concerning the Dutch question, will it be satisfactory if that is in the form of an affidavit and is submitted to you, so that you can put cross-interrogatories if you want to?

SIR DAVID MAXWELL-FYFE: That would be very satisfactory.

THE PRESIDENT: Dr. Steinbauer, have you got the affidavit mentioned in Paragraph 2 of the last heading?

DR. STEINBAUER: No, Sir; I have not received it yet. But I have requested that the Tribunal question the witness.

THE PRESIDENT: Could the interrogatories be in a more convenient form?

DR. STEINBAUER: Yes, Sir.

THE PRESIDENT: Then we need not trouble you further about the documents.

DR. STEINBAUER: I have only the request that, if possible, No books, which are not in my possession, be obtained: Document Number 8, Guido Zernatto, The Truth about Austria, and Number 9, the book A Pact with Hitler -- The Austria Drama by Martin Fuchs. l was told by Austrian people that both these books contain worthwhile information on clarifying the events in 1937 and 1938. Both books were, of course, prohibited in Austria during the Nazi regime and therefore I cannot get them.

The second book is also on the list presented by the French Prosecution, and from this I have learned that the book appeared in the publishing firm of Plon in Paris. Perhaps it is possible, with the assistance of the Prosecution, to get these books in time. All other documents I have in my possession.

THE PRESIDENT: Did you say Number 2? You said 8 and 9, but did you also say Number 2?

DR. STEINBAUER: Number 2, Three Times Austria, by Schuschnigg.

THE PRESIDENT: I thought you mentioned the third book. You said you have not got Numbers 8 and 9 and I thought you went on to mention a third one.

DR. STEINBAUER: No, Sir; only these two books.

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THE PRESIDENT: Very well. Then, no doubt, the Prosecution will help you to get them.

SIR DAVID MAXWELL-FYFE: We will make inquiries, My Lord, and we will communicate with them.

THE PRESIDENT: Yes. I call on counsel for the Defendant Speer.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Defendant Speer has asked for 22 witnesses, who are all to answer in writing. There are no oral witnesses. And he asked for 41 documents. He has also asked that the Court appoint a panel of experts to interrogate a number of witnesses on what are termed "economic questions." Now, I think it would be convenient if I summarize in four sentences the points of defense that appear on Page 26 and the following pages of the application, because if the Tribunal have these in mind it will make consideration of the witnesses easier.

There are four points. Number 1 is to show the responsibility of Speer. The Defendant Speer says that he was not responsible for the mobilization, allocation, or treatment of labor. The second point is to prove that his functions were merely technical and not political. The third point, to prove his actions to stop the importing of foreign labor and the treatment of concentration camp labor in the armament factories, which were his concern. The fourth point is his efforts, at the end of the war, to stop destruction in Germany and so to benefit the Allies and Germany after the war.

Now, of the witnesses, the following are from his own ministry, Numbers 1 to 6, 8, 10, and 12. The Prosecution submit that nine is rather a large number dealing with the position of the ministry. They are cumulative on many points and we should suggest that, if counsel would pick three, that that would cover that part of the case.

Now, the following witnesses, Numbers 15 to 21, are designed to show the attitude of the defendant at the end of war. There are a number of documents on this point, and again the Prosecution submit that that number of witnesses could be cut down to two or three.

Now, dealing with the remaining witnesses, Number 7, Field Marshal Milch, has already been allowed to Defendant Goering, so that point does not arise.

And Number 9, Dr. Malzacher, although not a member of the defendant's ministry, was in charge of armaments in the southeast, and would appear to be cumulative as to the members of the ministry.

Number 11 is the liaison officer between the ministry and the OKW and also appears cumulative, unless counsel could indicate any special point that escaped the Prosecution.

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Number 13 is really cumulative of Number 12, speaking on a Feint on which Frau Kempf can speak.

Number 14 is the defendant's doctor, to speak on a period of illness. Again, unless there is some point that the Prosecution have not appreciated, they would have thought that the defendant and his secretary could speak on a period of illness.

Finally, Number 22, Gottlob Berger, is designated to inform the Tribunal of Hitler's general views on the situation at the end of April 1945, and would appear to be irrelevant. I think the only point that is made is to show that this had some effect on the radio speech which this defendant wanted to make. These are the views of the Prosecution as to the witnesses. With regard to the panel of experts, the Prosecution respectfully say that these matters of supply labor and armaments are matters which are very generally familiar now and on which a great deal of evidence has been given, and that they are essentially matters which canoe dealt with by the Tribunal which will decide other questions of fact. They are not really sufficiently specialist matters to merit the Tribunal's setting up a special panel to deal with them. These are the views of the Prosecution on the question of.witnesses.

THE PRESIDENT: Yes, Dr. Flachsner.

DR. HANS FLACHSNER (Counsel for Defendant Speer): May I start, Mr. President, with the last point which the prosecutor has mentioned, namely, the question of whether the case of the Defendant Speer might justify having his sphere of activity explained and interpreted to the Court by an expert. The prosecutor is of the opinion that the evidence presented so far is sufficient to inform the Tribunal about the manner of work, the course of work, and its consequences in regard to those questions, which came under the jurisdiction of the Defendant Speer.

I regret to have to say, however, that the description which the Prosecution has given of the activity of the Defendant Speer up till now is not correct, that is to say, not complete.

It is very difficult to take account of a ministry and its manner of work, which in normal times has no place in the state administration. In all states at war the ministries of armament and production are created during the war. The sphere of activities of these ministries is determined from time to time; and that also applies to the ministry which the Defendant Speer headed.

Not only the ministry of the Defendant Speer, but especially other authorities within the state administration were concerned with that question, which the Prosecution has brought to the notice of the Tribunal; and the authorities overlapped each other in regard to jurisdiction. Many times the jurisdiction of a single authority

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could not be determined, so that from time to time a solution would have to be found. These are all questions of importance, if the Tribunal is to judge to what extent this or that accusation of the Prosecution, especially concerning the employment of foreign workers, is well founded. In addition we have to consider that that defendant originally involved in this complex of economic questions, who could have helped very much to clear up the question of jurisdiction -- the Defendant Ley, who, as head of the German Labor Front, played an important role in the question of labor employment, that is, the taking care of the laborers utilized -- that this Defendant Ley is no longer here. The question of the use of foreign labor, of which the Defendant Speer is in the main accused by the Prosecution, must be discussed further. For this reason I requested that an expert be allowed to clear UD these purely technical questions of the labor employment as a help to the Tribunal.

The selection of such an expert is not easy. I proposed that one of the gentlemen who work in the economic branch in Washington might have examined the question of Speer's ministry; and might appear as an expert before this Tribunal. I was told this office does not exist any more and the persons of whom the Defendant Speer had the impression, at the occasion of an interrogation, that they really understood the situation, are no longer available. But, there is still an Allied authority here, which is concerned with, in all probability, economic questions; and perhaps it would be possible to select a suitable person within the circle of gentlemen who are working there, who would be in a position to clear up these questions for the benefit of the Tribunal.

I turn now to the question of witnesses. First of all I have to correct a wrong impression which may have been formed by the Prosecution. If it is said that witnesses 1 to 5 -- no, 1 to 6, 8 and 10 and 12...

THE PRESIDENT: If you are leaving now the question of the panel of experts, this would be a convenient time to break off for the recess.

[A recess was taken.]

DR. FLACHSNER: Mr. President, I am now turning to the question of witnesses and should like to make a general remark before I start.

The evidence to be offered by the witnesses, as I have already requested in writing, is somewhat more extensive for this reason, that those very witnesses who would have had the most comprehensive knowledge cannot be called. Those are the former Army chiefs of armaments, General Fromm, and Schieber, who for many

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years was the chief of the central office in Speer's ministry. The names which I have included in my list are, in part, men who only later were called to these tasks. Witness Hupfauer, for instance, who is listed as Number 1, was active in this function only from 1 January 1945 on -- that is barely 4 months -- as chief of the central office, an office formerly held by the previously mentioned Schieber.

I know very well that if I mention a number of witnesses who were employed in Speer's ministry the appearance is thereby created that these witnesses might be cumulative because they are questioned in regard to the same points. In reality that is not the case. Indeed, although the witnesses concerned were active in Speer's ministry, they were not active as routine officials, that is, as professional civil servants in an office.

Speer's ministry as a war institution was organized along lines entirely different from those of a regular ministry. Main functions were delegated to industrialists, who took care of them in a suboffice. Rohland, witness Number 2, was, for instance, by profession a director of the United Steel Works; witness Number 4 was director of the Zellwell A.G.; witness Number 6, a manufacturer and owner of a textile factory; witness Number 9, the director of the Upper Silesian mining works and of Hutten A.G. In addition to these functions they had special functions in Speer's ministry. Therefore they can testify only on a small section, namely, those functions delegated to them. Therefore I cannot follow the suggestion of the Prosecution, that only two of these gentlemen be selected by me.

I do not know just how far each of these gentlemen is informed on the questions which I shall submit to him. I am not in the fortunate position of the Prosecution, who can question their witnesses in advance and find out what they know. I must rely on an interrogatory and can only surmise that they are in a position to answer the questions submitted to them. If I were to follow the suggestion of the Prosecution and select only two or three of these gentlemen, it may very well happen that I should select exactly the wrong people, those who do not know anything. Therefore I cannot say that I could dispense with any one of these witnesses who are to be here on the main question in the case against Defendant Speer, namely, the employment of foreign laborers.

In the list of witnesses I mentioned briefly the particulars about which these witnesses are to be heard. I believe that it is unnecessary for me to make further explanations in that regard; I believe my reasons are self-explanatory.

Now I am turning to the question of witness Number 7. This witness has already been granted me. I do not believe that further explanations in regard to this are necessary.

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As far as Malzacher, witness Number 9, is concerned, the Prosecution asserts that this witness would be cumulative of witness Number 1. But that is not so. The vital question which is to be put to this witness is the question as to how the distribution of manpower to the various industries was made by the labor office. The second question is, whether and to what extent the offices of Speer's ministry and the industries had the opportunity of influencing the distribution of available manpower. This witness is of decisive importance in regard to this question. I have further questions to put to this witness and I should include in the interrogatory these questions which refer in particular to destruction, et cetera.

I wanted my list to be as concise as possible and therefore mentioned only the main points. I therefore request that this witness be admitted, since I shall make use of the interrogatory only insofar as the witnesses can state therein something which is really relevant. If an interrogatory comes back to me which does not contain relevant material, I shall, of course, refrain from abusing the time and the patience of the Tribunal by not presenting that interrogatory.

The Prosecution is of the opinion that witnesses 12 and 13 are cumulative. That is not correct. Perhaps I expressed myself too concisely in regard to the facts on which these witnesses are to testify.

The Prosecution have, only incidentally to be sure, produced a document, 3568-PS, which contained an interrogatory which gave information regarding Speer's membership in the SS. This document did not, according to the Defendant Speer, come from him, and therefore I name his secretary as a witness to this fact; that is, she should receive an interrogatory.

Witness 13 is to testify on an entirely different matter. The ReichsFuehrer SS Himmler had the intention of making Speer an SS man and of taking him into his personal staff. Witness Wolff had received from Himmler the official statement, which he was to hand to Speer. And Wolff is to testify that this statement was never forwarded to Speer, for which reason there is no question of Speer's membership in the SS.

Even if, in respect to the charge in the Indictment, this is a very minor point, it must nevertheless be considered, since Document 3568-PS has been submitted by the Prosecution and used as evidence for their case.

I agree with the Prosecution that questioning of witness Number 22 can be dispensed with and I can do so.

As far as the questioning of the other witnesses is concerned, I ask to be allowed to use interrogatories.

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THE PRESIDENT: May I ask you what you have to say about 14? Surely the secretary can speak as to the fact that the defendant was ill in the spring of 1944?

DR. FLACHSNER: Yes, Mr. President; I did not include this question in the interrogatory but I can add it, and we can dispense with witness 14.

THE PRESIDENT: Would it, do you think, Sir David, expedite matters or help the defendant's counsel if he were to be allowed to issue all these interrogatories and then were to consider them with you and see what was then cumulative?

SIR DAVID MAXWELL-FYFE: Yes, I should be quite prepared to do that. They are all witnesses who are giving their~evidence in writing so that I shall be quite prepared to . ..

THE PRESIDENT: Well, the Tribunal will consider that aspect of the matter.

SIR DAVID MAXWELL-FYFE: If the Tribunal saw fit I should be very happy to co-operate.

THE PRESIDENT: Then you can now deal with the documents, Dr. Flachsner, or Sir David will.

SIR DAVID MAXWELL-FYFE: My Lord, the documents 1 to 8 deal with the Defendant Speer's being against the importation into Germany of foreign labor and they seem relevant, apart from Number 1, which seems rather a non sequitur, for the amount used in the armament industry does not seem to have any connection, as far as we can see, with the Prisoner-of-War Convention, 1929. And Number 6, as to the calling up of women in Germany, seems rather remote. But perhaps these matters can be more conveniently dealt with when counsel seeks to introduce the documents.

Numbers 9 to 13 show the general attitude of the Defendant Speer to the treatment of foreign workers and therefore appear relevant. Number 14 deals with the point on which I think it is desired also to have evidence from the witness Milch.

Numbers 15 to 18 are reports showing the hopelessness of the economic situation in Germany from June 1944 onwards. The Prosecution makes no objection at the moment. Of course, all these matters will have to be considered when the document is used. And Numbers 19 to 41 all deal with the efforts of the Defendant Speer to prevent destruction of bridges and railways and water transport undertakings and the like, during the last few weeks of the war. They might have a bearing on the sentence and therefore the Prosecution make no objection.

Perhaps learned counsel will set out the quotations which he wants admitted in that regard. It is not a matter on which the

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Prosecution have called any contrary evidence and therefore, if counsel will indicate what the matters are that he wants submitted, it may be that we shall be able to agree and shorten the presentation.

With regard to Documents 38 to 41, these are said to be in the possession of the French Delegation. They are not in the possession of the French Delegation at the moment, but they have asked for them to be sent here.

I think that covers our position as to documents.

DR. FLACHSNER: I should like to comment briefly on one factor. Document Number 1 is of value only if the Tribunal decides to call an expert on the general themes which I described to the Tribunal.before the recess.

An expert -- for practical purposes an industrial expert -- can draw from the old distribution plan conclusions which the jurist is generally not in a position to draw. If the expert is considered superfluous by the Tribunal, then Document Number 1 is also superfluous -- that I see.

The other documents requested by me are of importance, but not because, as the Prosecution seem to assume, I am trying to produce evidence of the fact that we did not want any foreign laborers; this should not be expressed so pointedly.

The Defendant Speer had the task of producing armaments and needed workers for that. Nothing is farther from his intentions than, in any way, to deny or lessen his responsibility in respect to that. But what I have to consider important -- and for this purpose these documents, which I am requesting, are essential -- is the task of defining the extent to which the defendant is responsible.

I believe that this explains the question of documents.

THE PRESIDENT: I am not quite clear as to whether you are suggesting that the Tribunal should call the panel of experts or whether you would like to designate the persons who would form that panel.

DR. FLACHSNER: The selection of experts I wish to place in the hands of the Tribunal. At the moment I myself should not have the opportunity of finding a suitable person. I am fully aware, though, that in the department of economic warfare there were persons who would be very suitable as experts and who have the knowledge which is necessary in the judgment of these questions.

THE PRESIDENT: Then, supposing that the Tribunal were not to accept your contention as to appointing a panel of experts, there is nobody whom you wish to add to your list of interrogatories?

DR. FLACHSNER: I believe not, Mr. President. I have only one more request. This expert should voice an opinion as to whether

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the figures given by Mr. Deuss in his affidavit -- Document Number 2520-PS -- would stand up under close examination. In this affidavit Mr. Deuss stated statistically how many of all the workers employed in Germany were foreign workers in the armament industry, et cetera.

Important technical objections can be raised to the method of figuring used by Mr. Deuss. If the Tribunal is not to grant the use of an expert in this matter, I wish to ask for permission to submit certain questions to Mr. Deuss, in the form of an interrogatory, naturally, in order to give him the opportunity of checking his figures.

The affidavit as given by Mr. Deuss and the statements contained therein were considered relevant by the Prosecution at the time; I assume that the objections made to Mr. Deuss' figures will also be considered relevant. I should then have to ask permission to call Mr. Deuss' attention, by means of an interrogatory, to these points which in my opinion are technically incorrect.

THE PRESIDENT: Thank you.

COL. POKROVSKY: Please forgive me. I have not had the time to exchange opinions on the subject with my friend, Sir David, and my other colleagues. Therefore, at the present time, I am merely expressing the point of view of the Soviet Delegation on the subject of experts.

I do not consider that the appointment of a board of experts would be a method of solving the problem which could be recognized as correct. We would object to the introduction of experts for the clarification of the circumstances interesting the Defendant Speer and his counsel, as set forth in the document submitted by them. We do not consider it right that a question like the procedure governing the request for manpower for Speer's ministry, and the ratification of this request by Sauckel, as well as the allocation of workers by the competent local labor offices should call for the findings of a board of experts. We do not consider it right that questions of technical productions, as emanating from Speer's ministry, should call for expert opinion.

I could say as much with regard to all the subsequent points. We are inclined to defend the point of view that all these problems can be adequately elucidated by the high Tribunal, and this without the intervention of experts. Therefore the Soviet Prosecution objects to the granting of this claim and requests the Tribunal to reject the application for a board of experts.

THE PRESIDENT: I call upon counsel for the Defendant Von Neurath.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the witnesses of the Defendant Von Neurath, the Prosecution

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to makes no objection to Number 1, Dr. Koapke, who was the director of the political division in the Foreign Office.

Then, Number 2, Dr. Gauss, is the witness who has already been granted for the Defendant Ribbentrop.

With regard to the third, Dr. Dieckhoff, the Tribunal granted this witness on the 19th of December, but the Prosecution, having considered the basis of the present application, respectfully suggests that it might be covered by interrogatories.

DR. OTTO FREIHERR VON LUDINGHAUSEN (Counsel for Defendant Von Neurath): Mr. President, I agree, and I have already worked out an interrogatory which will be submitted to the Genera] Secretary today; but I wish to reserve the right of asking under certain circumstances that, when the interrogatory is returned to me, the witness nevertheless be heard in person before the Tribunal. In principle I agree, however, to his being heard by means of an interrogatory.

SIR DAVID MAXWELL-FYFE: Much obliged. And the same view is taken by the Prosecution of. Number 4, the witness Prufer; again it seemed to be largely a historical matter and they suggested an interrogatory. There is no objection to the evidence of the witness being brought before the Court.

DR. VON LUDINGHAUSEN: This interrogatory has already been submitted by me to the General Secretary several weeks ago. l assume that it will be returned to me, answered, within a reasonable period of time.

SIR DAVID MAXWELL-FYFE: Then, Number 5 is Count Schwerin von Krosigk, who was Finance Minister for a long period of years in the Government of the Reich. If the Tribunal would be good enough to look at the application which Dr. Von Ludinghausen has put in: He says this witness is most accurately informed about the personality of the defendant, his political viewpoints as well as the basic thoughts and aims of the policy of peace carried on by the defendant, and his avoidance of all use of force as well as his endeavors for the maintenance of peace, even after being Foreign Minister, and about his opinion of National Socialism and about the happenings in the Cabinet session of 30 January 1937.

The Prosecution felt that these matters were rpally~emphasizing points that the defendant would speak on, and that it was difficult to see that Count Schwerin von Krosigk was being asked to speak on any particular point that was an issue. Therefore, again, they would suggest that an interrogatory would be sufficient for the purpose of the defense.

DR. VON LUDINGHAUSEN: I do not believe that an interrogatory will serve the purpose that I wish to accomplish, for several

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sectors of the activity of the Defendant Von Neurath are dealt with, in regard to which the witness is to give us information.

For instance, the Indictment asserts that Defendant Von Neurath acted as a sort of Fifth Column in the ranks of the conservative, that is, the German National Party. In regard to the fact that this is not true, the witness named by me, Count Schwerin von Krosigk, can give extensive information; and I attach importance to having this take place before the Tribunal in such a way that the Tribunal may have an idea also of the atmosphere in the ranks of the parties of the Right at the time these things took place.

A further subject for his hearing is the question of the outstanding manner in which the Defendant Von Neurath intervened, although he was no longer Foreign Minister at the time, in order to bring about the conference at Munich in September 1938, and the measure in which he had an effect on the outcome of this conference which, at that time, was generally considered a happy one.

I should consider the summoning before the Tribunal of this witness, who is present in Nuremberg, and who will therefore not have to be brought from another city, important.

SIR DAVID MAXWELL-FYFE: I do not desire to say anything more on that point.

Then, Field Marshal Von Blomberg is, we understand, ill, and there will be an interrogatory.

Number 7, Dr. Guido Schmidt, is the same witness as was dealt with this morning in the case of Seyss-Inquart. He is an Austrian ax-Foreign Minister. I made no objection in the case of Seyss-Inquart and I make no objection now, of course.

Lord Halifax has been the subject of interrogatories.

DR. VON LUDINGHAUSEN: The interrogatory has already been sent to Lord Halifax, as I have been told by the General Secretary.

SIR DAVID MAXWELL-FYFE: Dr. Mastny, who was the Czechoslovakian Arrtbassador in Berlin, came into the case in that the Prosecution put in a letter from Jan Masaryk describing a visit of Dr. Mastny to the Defendant Von Neurath. Of course, if there is any issue as to that report -- its not being true -- then there would be some reason for calling him as a witness; but if it is merely a question of clarifying it, I should believe an interrogatory would be sufficient.

DR. VON LUDINGHAUSEN: I agree to an interrogatory in this case.

SIR DAVID MAXWELL-FYFE: Then with regard to the next witness, Dr. Stroelin -- if the Tribunal would consider that along with Number 12, Dr. Wurm -- I understand that the Tribunal granted

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Number 12 on the 19th of December as an alternative to Stroelin, giving the choice between the witness Stroelin and the witness Wurm. Dr. Stroelin is Oberburgermeister of Stuttgart. I do not know if Dr. Seidl can tell the Tribunal if it is the same Dr. Stroelin he desires in the case of Hess.

DR. VON LUDINGHAUSEN: Yes.

SIR DAVID MAXWELL-FYFE: Dr. Von Ludinghausen tells me that he is, so the Tribunal might note that point -- that that witness will also be asked for by Dr. Seidl in the case of Hess -- and therefore I should suggest that we might leave that undecided for the moment. If the Tribunal grant it in the case of Hess, of course, Dr. Von Ludinghausen will automatically have the advantage of this witness; and if he is not granted -- and I do not know whether Dr. Von Ludinghausen feels strongly about his personal presence -- I am not the Court -- I do not feel very strongly on the point myself. Do you want to be heard?

DR. VON LUDINGHAUSEN: I quite agree that I should make this decision at that time when the question is settled as to whether the witness is granted to another defendant or not. I should like to make the following remark...

THE PRESIDENT: One moment. Which witness?

SIR DAVID MAXWELL-FYFE: Number 10, Dr. Stroelin.

THE PRESIDENT: If Dr. Stroelin were granted would you require Dr. Wurm at all, Number 12?

DR. VON LUDINGHAUSEN: Mr. President, I do not insist on Dr. Wurm's being heard in person at Nuremberg. Bishop Wurm has already told me that he would give me the information requested in the form of an affidavit. I should ask for permission to submit this affidavit to the Tribunal. I do not insist on his being heard in person.

SIR DAVID MAXWELL-FYFE: It is merely cumulative, Number 10, but if it is felt that an affidavit would help -- it will be along the same lines -- I shall not press an.objection.

Now, Number 11. The Prosecution felt, with regard to the witness Zimmermann, that he was really speaking on the contents of the defendant's mind. If I might read the first five lines:

"The witness is in a position to give information about the personality, the character, and the philosophy of the defendant, as well as about the fact that he entered the Cabinet only at the express request of the Reich President Von Hindenburg, and that he remained in the Cabinet after the latter's death because he was a convinced friend of peace and an opponent of any policy pointing toward force or war, and that because

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of this reason he handed in his resignation as Reich Foreign Minister soon after 5 November 1937; also about the reasons because of which he declared himself ready to take over the office of Reich Protector of Bohemia and Moravia."

It would appear that these are all matters which Dr. Zimmermann has heard from the defendant. I do not really think it helps the defendant's case any further. The Prosecution therefore felt that that witness was irrelevant.

DR. VON LUDINGHAUSEN: I should like to request that he be heard here. The witness has been a very intimate friend of Defendant Von Neurath for many, many years. The defendant considered him somewhat as a father confessor and informed him of everything which oppressed him. From this information the witness has a very clear impression of events and happenings. Thus this lawyer, Dr. Zimmermann, is very closely informed about the incidents that took place in September 1932, when Von Neurath entered the newlyformed Cabinet of Von Papen upon the express desire of the then Reich President Von Hindenburg. The witness is informed of the fact that Defendant Von Neurath did not wish to accept the calf and that it took very earnest persuasion on the part of the Reich President Von Hindenburg, concerning his patriotic and personal duty, before the defendant could be moved to assume the office of Reich Foreign Minister. This witness also knows the motives because of which the defendant after the death of the Reich President considered it his duty, in response to a wish expressed previously by the Reich President, to remain in office, and in that way to fulfill the wishes of the Reich President.

He also knows very well what a really devastating effect it had on Von Neurath when, on 5 November 1937, Hitler for the first time came to the fore with martial intent. Witness Zimmermann also knows very exactly the reasons which moved the defendant after very long deliberation to assume the office of Reich Protector. The witness also is very well informed not only about the difficulties confronting the position of Reich Protector, but also about the attitude of the defendant to the problems in the Reich Protectorate. These matters are all of decisive importance so far as a judgment of the defendant is concerned, and I do not believe that even an affidavit or minutes of interrogation which has been worked out with the greatest care can have the same weight as a personal hearing of the witness. For these reasons I request that this witness, who has already given me his assurance that he will be glad to come here from Berlin, be granted me. We do not have to find him; he is a practicing lawyer and notary in Berlin.

SIR DAVID MAXWELL-FYFE: I do not wish, to add to that. That leaves one point, My Lord, the two witnesses, 13 and 14. The

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first one, Dr. Volkers, was the chief of the Cabinet of Defendant Von Neurath in Prague. He has not been located. The second, Von Holleben, was...

DR. VON LUDINGHAUSEN: This witness is in an internment camp at Neumunster, and I indicated the exact address.

SIR DAVID MAXWELL-FYFE: Then I think the submission of the Prosecution is that one of these witnesses is suitable, and that it would be unnecessary to call the second witness if Dr. Volkers is available. That is my point.

DR. VON LUDINGHAUSEN: I quite agree, but I ask you to consent to witness Consul Von Holleben's being heard by means of an interrogatory.

THE PRESIDENT: It is now a quarter to 1; we will adjourn until 2.

[The Tribunal recessed until 1400 hours.]

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Afternoon Session

THE PRESIDENT: It appears probable that the Tribunal will finish the applications for witnesses and documents before the end of the sitting today, but they do not propose to go on with the case against the Defendant Goering until tomorrow. They will take that case at 10 o'clock tomorrow morning.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents applied for by the Defendant Von Neurath, Paragraph 1 requires no comment.

Paragraph 2 refers to documents which Dr. Von Ludinghausen has in his possession. If they are treated in the usual way and extracts are made, I have nothing further to say.

Then we come to documents that are not yet in his possession. Number 1 and Number 4 are minutes of the Disarmament Conference in 1932 and in May 1933 respectively. I am afraid I do not know what the difficulty has been in obtaining those documents, and if there is any way in which the Prosecution can help, they will.

DR. VON LUDINGHAUSEN: Concerning Document Number 1 I was able to find, in the meantime, in one of the documents which referred to the Disarmament Conference, a copy of this document which is important for me, namely, the resolution about Germany's equality of rights. If the document which I have asked for is not here in time, I am nevertheless in the position of having to submit an excerpt from this German book. However, that does not apply to Number 4, and I should like to be able to get that.

SIR DAVID MAXWELL-FYFE: Number 2 is a request for the interrogation of Karl Hermann Frank.

The ruling of the Tribunal was that only the portions of interrogations of defendants used by the Prosecution might be re-used. If any portions of this interrogation were used by the Soviet Prosecution, and I confess...

THE PRESIDENT: One moment, please, Sir David. As I understood you, you did not state our ruling quite accurately.

SIR DAVID MAXWELL-FYFE: I am sorry, My Lord.

THE PRESIDENT: I think our ruling was that if the Prosecution put in any part of an interrogation of a defendant, then the defendants would have the opportunity of using any other part of the interrogation, treating the interrogation as one document.

SIR DAVID MAXWELL-FYFE: I am very grateful to Your Lordship. That was the rule so far as defendants are concerned, but Karl Hermann Frank is not a defendant.

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THE PRESIDENT: Oh, I see.

SIR DAVID MAXWELL-FYFE: And any portion that has been used would have appeared in the ordinary way in the document book of whichever delegation had used it. The general interrogation was taken, of course, not only for the Prosecution's purpose at this Trial, but also for the purposes of the Czech Government, in the trial of Karl Hermann Frank himself. Therefore, what I suggest is that Dr. Ludinghausen put interrogatories to Karl EIermann Frank, on whatever points he wants to raise. The Prosecution would have no objection to that.

DR. LUDINGHAUSEN: Mr. President, may I make the following reply?

These minutes of the four interrogations of Karl Hermann Frank are mentioned and discussed in Exhibit Number USSR-60, which has been given to me and which contains the indictment made by the Czech Government.

I cannot judge to what extent these interrogations are important in reference to my client, the Defendant Von Neurath, as Reich Protector, or whether they have to do with a later period. For that reason I have asked that these protocols be made available to me. I know that Karl Hermann Frank has also been questioned about the document concerning. the meeting in Prague on a policy of Germanization of the Czech country. To this document, which was presented, that is to say, which is contained in a report of General Friderici, reference is made in the respective minutes.

Now, I know that Frank once made a report to the Reich Protector in which he labeled all the opinions and proposals which actually, however, were never put into actions -- ridiculous and declared them to be impossible. Therefore, it is important for me to know just what is said in these minutes which the Czech indictment has drawn on at this point. If nothing is contained therein, then, of course, I shall dispense with these minutes, but I have to examine them myself. It is, therefore, important for me to see these minutes, at least, and then to present from them whatever is of importance for me.

THE PRESIDENT: Sir David, would you have any objection to counsel for Von Neurath seeing these interrogations?

SIR DAVID MAXWELL-FYFE: I should have to consult the Czech Government before I could agree, because, frankly, I have not gone through the parts which we were not concerned with in this case, and I do not know on what subjects the interrogation was based.

THE PRESIDENT: But treating the matter as a matter of principle, if a certain document or a part of a document is used,

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ought it not to be open to the defendants to use the rest of the document?

SIR DAVID MAXWELL-FYFE: I should have thought it a matter of principle, My Lord, only if there were connected parts. I think that is the general rule that is applied, say, to interrogatories in the English courts. For example, supposing that one day Karl Hermann Frank was examined about the early days of the Protectorate, and then on another day he was examined on a specific point at the end of the Protectorate. Then I should not have thought that the two things were sufficiently closely connected.

My Lord, I am reminded that there is another point, which Mr. Barrington has just brought to my attention. These interrogatories were the basis of the Czech Government report. They are not introduced as interrogatories but -- so I am told -- as part of the report by the person who drew it. It is not material that we are in a position to introduce as interrogatories. They come in as a Government report from the Czech Government.

THE TRIBUNAL (Mr. Biddle): If it should develop later that it is relevant to the occasion, could the Prosecution object to that material being introduced?

SIR DAVID MAXWELL-FYFE: No. If he can get the material, but the material is the property of the Czech Government.

THE TRIBUNAL (Mr. Biddle): Then your position is really that it is not in your hands, but for the Czech Government to determine it.

SIR DAVID MAXWELL-FYFE: Certainly.

THE TRIBUNAL (Mr. Biddle): I see.

SIR DAVID MAXWELL-FYFE: The only other document is the treaty between France and the Soviet Union, in 1935. This document was authorized by the General Secretary on 29 January, and if there is any difficulty in getting a copy, I will try to do anything I can to help, subject to the reservation of objecting to its relevance when I know what use is going to be made of it.

DR. LUDINGHAUSEN: May I add a few more words to this point?

During the very last few days I have received, from various sides, suggestions of information which seem important to my defense; but I have not yet had the opportunity of checking this information and finding out whether it is really of importance to the conduct of the Defense. May I therefore ask, if this should be the case and if there should be one or two other witnesses or documents which I can find out about only later, that I be permitted

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to make an application supplementary to the list of witnesses and documents I have given today.

THE PRESIDENT: I call upon counsel for the Defendant Fritzsche.

[Dr. Fritz approached the lectern.]

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, there are only two witnesses applied for in this case.

The first of them is Von Schirmeister, who was an official of the late Dr. Goebbels in the Propaganda Ministry. The Prosecution have no objection to that witness.

With regard to the second witness, Dr. Otto Kriegk, the application says that he received his information and instructions from the Defendant Fritzsche and he can speak as to the directives issued to journalists. On the assumption that these were more or less official directives that he gave in the course of his duty, again, I do not think there can be any objection from the Prosecution. But I do not know what Dr. Fritz would think about interrogatories, or whether he has any strong views about calling Dr. Kriegk on that point. As I understand it, it would be more or less a synopsis of the directives given, but in view of the very modest proportions of the applications in this case, I do not want to be unreasonable if there is any special reason for calling Dr. Kriegk.

DR. HEINZ FRITZ (Counsel for Defendant Fritzsche): Your Honors, I have presented a very restricted list of evidence material and I should be grateful if the personal appearance of the second witness, Dr. Kriegk, were granted, for the following reasons: First the witness Von Schirmeister has been named because he is to give us information about the internal tasks which the Defendant Fritzsche had in the Ministry for Propaganda, especially about his relations to Dr. Goebbels. As far as the daily press conferences which the Defendant Fritzsche held are concerned, this first witness, Von Schirmeister, did not take part in them. From the subjective angle, especially, it is important to know what directives the Defendant Fritzsche gave the journalists, specifically the most important German journalists who assembled daily at his press conferences.

As a further reason for my request that the personal appearance of this witness be granted, I point out that, of the collection of documents or rather of the two document collections, 1 and 2 of my list are not yet available to me, so that there are various points which I had wanted to prove by presenting documents or quotations therefrom which I now hope to prove by questioning these two witnesses.

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SIR DAVID MAXWELL-FYFE: I do not press the point of an affidavit. I leave it to the Tribunal.

With regard to the documents, Number 1 is the broadcasts of the Defendant Fritzsche, and there is obviously no objection from the Prosecution to that.

Number 2 is the archives of the section German Express Service. And again we make no objection at this stage. We will perhaps have to consider the reports when we get them.

There is a little trouble about the third group, sworn testimony or letters which contain objective observations on the part of the writers about the acts of the Defendant Fritzsche. If these are official reports or anything of that kind, of course, there would be no objection, if they were contemporaneous; but the course which the Prosecution respectfully suggests to the Tribunal is that we wait and see these in the document book and then we can consider them and make any objection when they come up.

DR. FRITZ: I agree to this procedure. I believe I need say nothing more about Documents 1 and 2 after the statement Sir David has just made.

THE PRESIDENT: Sir David, some of the defense counsel want to put in supplementary applications. It would be convenient to deal with them now.

SIR DAVID MAXWELL-FYFE: Perhaps Your Lordship will allow me to confer with my colleagues as we deal with each one, as we go along, in case they have any further views to express.

THE PRESIDENT: Certainly. I think there are some supplementary applications by Dr. Seidl.

DR. SEIDL: Mr. President and Your Honors, on 28 February 1946, I submitted to the Tribunal a supplementary application for the Defendant Rudolf Hess. The application was necessary for the following reasons: In my first application I mentioned the witness Bohle, the former Gauleiter of the Auslands-Organisation of the NSDAP, for a number of subjects, among others in reference to the German Foreign Institute and the activity of the League for Germans Abroad. When I made that application to question the witness Bohle I had not yet had any opportunity to speak to the witness. After approval by the Tribunal, however, I did so, and I found out that the witness Bohle, although he can make very concrete statements about the Auslands-Organisation, does not have any immediate first-hand information about the activity of the German Foreign Institute and the activity of the League for Germans Abroad.

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I therefore ask that the following be approved as further witnesses: First, Dr. Karl Stroelin, former Oberburgermeister of Stuttgart and finally President of the German Foreign Institute. The witness is here in Nuremberg as a prisoner awaiting trial, and it is the same witness who has also been requested by the Defendant Von Neurath in his case.

SIR DAVID MAXWELL-FYFE: Perhaps it would be convenient, My Lord, if Dr. Seidl would indicate what the final position of these witnesses is. As I understand it, he no longer wants Herr Bohle. Is that right? I am not clear whether this witness is in addition to or in substitution for Herr Bohle.

DR. SEIDL: With regard to the witness Dr. Stroelin, this is an additional witness. The witness Bohle will still be needed as a witness, but only concerning the matter of the activity of the Auslands-Organisation. The witness Stroelin, since the witness Bohle has not first-hand information about the Foreign Institute, should speak about this latter point.

SIR DAVID MAXWELL-FYFE: If I understand it, that would mean that Dr. Seidl is now asking for Herr Bohle, Herr Stroelin, Dr. Haushofer, and an affidavit, I think it is, from Alfred Hess.

I am not sure that this is not rather an accumulation of witnesses on what is, perhaps, a narrower point than Dr. Seidl realizes, from the point of view of the Prosecution. The Prosecution said that the Auslands-Organisation was used for promoting Fifth Column activities, but it was only put in this way: That by using the Auslands-Organisation there was, first of all, complete record and organization of Party members abroad; secondly, the intelligence service of that organization, through the organization, reported on all German officials of every section of the Government who came abroad and kept check on them in their work, in addition to German subjects; and because of this intelligence service, these Germans were ready for use and in fact were used when there was a question of invasion of the country.

It was not suggested that there were direct orders, for example, to blow up bridges or commit acts of sabotage, given directly to the organization, which is a matter of inference from the functioning of the organization that I have described.

I say that only because it should be helpful to Dr. Seidl to know the case he has to meet. The Prosecution has never proved direct orders for sabotage in this regard.

DR. SEIDL: The trial brief on his case has accused Rudolf Hess of the fact that, under his leadership, the Auslands-Organisation of the NSDAP, as well as the Foreign Institute and the League for Germans Abroad had developed an activity which was

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almost equivalent to that of a Fifth Column. It is correct that in the original indictment of the Defendant Hess, personally, there were no details given by means of which the indictment meant to show this activity and above all Hess' guilt in regard to the activities of these organizations.

As long, however, as the Auslands-Organisation and the Foreign Institute and the League for Germans Abroad are accused of any connection with the activities of a Fifth Column, the Defendant Hess has a reasonable interest in seeing explained, first, what kind of activity these organizations had and, second, which orders or directives he had given to these organizations.

The witness Bohle is in a position to make very concrete statements regarding the Auslands-Organisation. The same is necessary for the German Foreign Institute about which Dr. Stroelin, who is here in Nuremberg, can make authentic statements, and for the League for Germans Abroad, about which the witness Dr. Haushofer can speak.

I agree, however, with regard to the physical condition of the witness, Dr. Haushofer, that only an interrogatory be used for this witness.

SIR DAVID MAXWELL-FYFE: I have no objection to interrogation as far as Dr. Haushofer is concerned.

THE PRESIDENT: There is one more you want?

DR. SEIDL: Yes, Sir, a third one. Before I come to the third witness, whom I wish to name as an additional witness, I should like to inform the Tribunal that I do not insist on a personal hearing of the witness Ingeborg Sperr, who has already been approved by the Court. Instead of that, I shall submit a short affidavit, which is already in the document book which I have already given to the General Secretary.

In the place of the witness Sperr, I request, however, that the witness Alfred Leitgen be called. Leitgen was for many years, until the flight of Rudolf Hess to England, his adjutant.

I could not apply for this witness any sooner because I have found out only now where this witness is. I believe that a personal hearing of this witness is so important that one should not dispense with it.

SIR DAVID MAXWELL-FYFE: The two points which Dr. Seidl specifies both seem to be relevant points, and in view of the fact that he is prepared to drop the calling of the secretary, the Prosecution will not take objection to that witness.

THE PRESIDENT: Are there any more applications?

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SIR DAVID MAXWELL-FYFE: I wonder if Your Lordship will allow me to say one thing. Dr. Servatius has already had certain conversations with a member of my staff. I think they will prove profitable and helpful on the lines that Your Lordship suggested, and if the Tribunal will be good enough to safeguard Dr. Servatius' rights for a day or two, we hope to have something practical aIld useful to put before the Tribunal.

THE PRESIDENT: You mean with reference to the organizations?

SIR DAVID MAXWELL-FYFE: No, with reference to the Defendant Sauckel.

THE PRESIDENT: Oh, yes.

SIR DAVID MAXWELL-FYFE: Your Lordship will remember that you allowed the matter to stand over. We have been working along the lines that Your Lordship suggested, but I am afraid that I have not had time to go into it myself and see the final result.

THE PRESIDENT: I see.

DR. SERVATIUS: In discussing the witnesses, I proposed a restriction which is being presented to the Court in writing. Concerning the documents, I have also practically come to an agreement as to how they should be handled. There are, however, two principal applications which I should like to submit and which have notbeen mentioned so far. But I believe that a decision will have to be made by the Tribunal in respect to principle. The applications are Documents 80 and 81.

Document 80 is a photostat of a deportation order which had been issued in the city of Gels by the Soviet local commander, whereby the native male population had to report for deportation; and it can be seen from this order that it is deportation for the purpose of labor. I want to submit this to show that the Hague agreement concerning land warfare has been considered obsolete by the Soviet Army. I have only this one deportation order. I should therefore like to suggest that the Tribunal make use of Article 17(e) of the Charter and have a judge determine on the spot to what extent this deportation took place, and I should like thereby to have it shown that it is not only the town of Oels, but that it was done similarly on a large scale in the cities of East Prussia and Upper Silesia. The population was deported in large numbers for purposes of work and, if the information which I have received is correct, part of the population of Konigsberg is today still in the Ural Mountains. I am not in a position to submit documents about all these things, because of the difficulties of mailing, and the difficulties of receiving news from the East at

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all. But the Tribunal should be in a position, by asking the mayors and other officials, to find out that what I have just said is correct.

Under Document 81 I submit an affidavit concerning the city of Saaz in Czechoslovakia. There 10,000 inhabitants of the city of Saaz were put into a camp and, until Christmas 1945, they worked there without pay. I believe also that this is proof of the fact that the Hague agreement concerning land warfare is considered to be obsolete and outmoded in regard to labor employment.

Furthermore, Documents 90 and 91: These are two books with affidavits meant as a substitute for an investigation. It would be irrelevant if I were to produce one or two affidavits concerning conditions in the labor camps. One could object to that as being irrelevant because, in view of the large number of factories and camps which exist, little proof would be afforded by these affidavits. These mass conditions have somehow to be considered juridically. Therefore, the Charter has admitted government reports. I am not in a position to ask a government to help me in this matter. Therefore I have to find a substitute by collecting affidavits and grouping them in logical form in a notebook in order to submit them to the Tribunal. This is the purpose of my proposal to introduce a presentation of proof which is an innovation and is difficult for me; but thereby the same objections are justified which one might make to an investigation. An investigation has great weaknesses, especially if it is conducted in a one-sided manner without participation of those involved on the other side. In the case of my affidavits, this danger is greatly reduced because it is hard to find anybody who would fin out these affidavits unless he has very serious reasons for doing so. I therefore ask the Tribunal to decide about my application concerning these Documents 90 and 91. That is the matter I wanted to submit here; the rest I shall discuss with the Prosecution.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, I have already intimated the grounds on which the Prosecution object to Documents 80 and 81. To test their admissibility the easiest way is to assume that Dr. Servatius has proved the facts alleged. And if that is done they would not, in my opinion, come within miles of proving that Article 52 had become obsolete; and it is illustrative of the danger which I ventured to point out to the Tribunal in regard to these two arguments -- that vague and hypothetical suggestion that there might be some evidence that Article 52 had become obsolete. It is suggested that the Tribunal should try the conduct of the Soviet Union with regard to labor conditions and, as I understand, send a commission to collect evidence on that

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point; and I do not want to repeat the arguments, but the Prosecution most strenuously object to the suggestion and say that nothing has been indicated which provides any basis for it.

With regard to 90 and 91, I really feel that the best method would be by solvitur ambulando. Let us see the affidavits and get some idea of their contents and the source of knowledge disclosed and then the Prosecution can make a decision regarding them. At this stage I do not want to do anything to exclude them and they will receive the most careful attention by my colleagues and me when they are brought forward.

THE PRESIDENT: I am told that there are other supplementary applications for the Defendant Schacht and for the Defendant Keitel. I think there may be some mistake about that.

Is the Defendant Bormann's counsel here?

DR. FRIEDRICH BERGOLD (Counsel for Defendant Bormann):Yes.

THE PRESIDENT: Are you ready to deal with anything yet?

DR. BERGOLD: No.

THE PRESIDENT: I think the Tribunal made an order that your applications would stand over for some application within the next three weeks. So you are not ready yet? I am told your documents are all here. Is that so?

DR. BERGOLD: Mr. President, my documents are here, as far as I know. However, since I have to collect my own information from the books, I cannot tell the Tribunal whether these will be all my documents. I therefore have asked permission to speak to the secretary, Wunderlith, who was secretary for a long time, and also to another woman secretary. Only from these two shall we get satisfactory information. Bormann, I cannot reach. Therefore, for practical reasons, I ask permission to present everything at a later date.

THE PRESIDENT: Very well. Then the Tribunal will now -- I am told that there are applications from the Defendants Keitel, Rosenberg . . .

DR. BERGOLD: Mr. President, Defense Counsel for Keitel and Rosenberg are not present at the moment. They probably did not expect that their applications would be presented today. Maybe that could be done tomorrow before the beginning of the Goering case.

THE PRESIDENT: Well, the Tribunal will now adjourn.

[The Tribunal adjourned until 8 March 1946 at 1000 hours.]

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