dtufail/nuremberg-trials-corpus huggingface dataset:
MR. COUNSELLOR SMIRNOV: I refrained from reading the appendix because it had already been read in due course by Sir David Maxwell-Fyfe. I shall read it once more with pleasure: "9. The appendix attached hereto gives a list of the material upon which this report is based. The documents referred to are annexed to this report. "Appendix. "Material upon which the foregoing report is based: "(1) Proceedings of court of inquiry held at Sagan by order of the senior British officer in Stalag Luft III and forwarded by the protecting power. "(2) Statements of the following Allied witnesses: (a) Wing Commander Day, (b) Flight Lieutenant Tonder, (c) Flight Lieutenant Dowse, (d) Flight Lieutenant Van Wymeersch, (e) Flight Lieutenant Green, (f) Flight Lieutenant Marshall, (g)Flight Lieutenant Nelson, (h) Flight Lieutenant Churchill, (i) Lieutenant Neely, (k) P. S. M. Hicks. "(3) Statements taken from the following Germans: (a) Major General Westhoff, (b) Oberregierungsrat und Kriminalrat Wielen (two statements), (c) Oberst Von Lindeiner. "(4) Photostat copy of the official list of dead transmitted by the German Foreign Office to the Swiss Legation in Berlin on or about 15 June 1944. "(5) Report of the representative of the protecting power on his visit to Stalag Luft III on 5 June 1944."
THE PRESIDENT: Then, for the purposes of the record, you had better read in the signature and the department at the bottom.
MR. COUNSELLOR SMIRNOV: The document is signed by H. Shapcott, Brigadier, Military Deputy, and is certified by the Military Department, Judge Advocate General's Office, London, 25 September 1945.
THE PRESIDENT: Colonel Smirnov, so far as the Russian Chief Prosecutor is concerned, does that conclude the case for the Prosecution?
MR. COUNSELLOR SMIRNOV: Yes.
THE PRESIDENT: Thank you.
DR. NELTE: Mr. President, Paragraph 9 of the report which has just been read by the Prosecution mentions the documents which served as a basis for it and says that they are attached to the report. The individual documents on which the report is based are listed in the appendix. I ask the Tribunal to decide whether Document USSR-413 satisfies the requirements of Article 21 of the Charter, since the material on which it was based, and which is expressly mentioned in the report, has not been produced along with it. I request that the Prosecution be asked to make the appendix available to the Defense as well.
THE PRESIDENT: Dr. Nelte, do you mean that you have only had the report made by the Brigadier and have not seen any part of the other evidence upon which the report proceeds?
DR. NELTE: Mr. President, the Tribunal decided during an earlier phase of this Trial...
THE PRESIDENT: [Interposing.] Yes, but I did not ask you what we had decided. I asked what you had received. Have you received from the Prosecution the whole of this document or only the report made by the Brigadier?
DR. NELTE: Only the report, without the appendix.
THE PRESIDENT: Well, the Tribunal certainly intended that the whole of the document should be furnished to defendant's counsel, and that must be done so that you may have all the documents before you.
DR. NELTE: But that has obviously not been done. The appendix expressly mentions statements made by Major General Westhoff and by Oberregierungsrat Wielen. I am not acquainted with either of these statements. They were not attached to the report.
THE PRESIDENT: You must have them. The Prosecution must see that the whole of this document is furnished to the Defense Counsel.
SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I do not think the whole of it has been copied, but if Dr. Nelte will let us know if he wants the whole of it, or a part, we will co-operate the best way we can. The last thing we desire is that he should not have it. We want him to have everything he wants.
THE PRESIDENT: Well, Sir David, will you inform the Tribunal whether the Prosecution have now concluded their case.
SIR DAVID MAXWELL-FYETE: Yes, My Lord. That is the conclusion of the case for the Prosecution.
THE PRESIDENT: Very well. Then we will now proceed with the applications for witnesses and documents by the second four of the defendants: Kaltenbrunner , Rosenberg , Frank , and Frick .
DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): The Defendant Kaltenbrunner wishes to call a number of witnesses whom I will name now. First, Professor Dr. Burckhardt.
SIR DAVID MAXWELL-FYFE: My Lord, if the Tribunal approves, we will adopt the same procedure as was done on the first four defendants. With regard to the three Swiss witnesses, Burckhardt, Brachmann, and Meyer, the interrogatories were granted on the 15th of December and submitted on the 28th of January. The Prosecution considered that the interrogatories were rather on the vague side and suggested that they might be made more precise. The Prosecution have no objection to interrogatories in principle, and I am sure that there would not be much difference between Dr. Kauffmann and the Prosecution as to the form. That applies to the first three witnesses.
THE PRESIDENT: We are informed that none of these three witnesses has been located yet.
SIR DAVID MAXWELL-FYFE: Well, I respectfully agree, My Lord. That is the position of the Prosecution, that we have no objection in principle to these interrogatories, and if we can help the Court in any way to locate the witnesses, we should be glad to do so.
THE PRESIDENT: When were the interrogatories furnished to the Prosecution?
SIR DAVID MAXWELL-FYFE: The 28th of January, My Lord.
THE PRESIDENT: And were the Prosecution's objections communicated to the Defense Counsel shortly afterwards, or when?
SIR DAVID MAXWELL-FYFE: I am sorry, I am afraid I have not got that date, My Lord.
THE PRESIDENT: Wouldn't the most sensible course be for the Prosecution to try to agree upon a suitable form of interrogatory whilst the General Secretary is continuing his inquiries to find the witnesses?
SIR DAVID MAXWELL-FYFE: Yes. Well, if Dr. Kauffmann will communicate with me, I have no doubt that we could agree on a form that would be mutually acceptable.
THE PRESIDENT: Very well.
DR. KAUFFMANN: Mr. President, I think there is no need for me to repeat the individual questions which I have listed in the interrogatory. There are 19 of them. I do not think that I need repeat them now.
THE PRESIDENT: No, certainly not.
DR.KAUFFMANN: The fourth witness is the former German Minister in Belgrade, Neubacher. At present he is in the internment camp Oberursel near Frankfurt, in American custody.
SIR DAVID MAXWELL-FYFE: No objection to this witness.
DR.KAUFFMANN: Does the Tribunal want me to specify the evidence?
THE PRESIDENT: Yes, if you would.
DR. KAUFFMANN: Neubacher will, in the opinion of the Defendant Kaltenbrunner, be able to testify that the order given by Hitler in October 1944 to stop the persecution of the Jews was really given at Kaltenbrunner's suggestion. Furthermore, in the opinion of the defendant, he will be able to testify that when Himmler was appointed Chief of the Reichssicherheitshauptamt he put the defendant in charge of Amt III and VI. This seems to me to be important, since so far the Indictment has always been based on the defendant's definite connection with Amt IV, which is, indeed, borne out to a certain extent by the evidence. Neubacher is expected to be able to testify to this.
THE PRESIDENT: Dr. Kauffmann, if those are the questions which it is desired to interrogate Neubacher on, couldn't they be dealt with by interrogatories?
DR. KAUFFMANN: According to the information given to me by Kaltenbrunner, Kaltenbrunner attaches importance to the personal appearance of this witness for reasons which are easy to understand. I believe that Kaltenbrunner considers this witness one of the most important witnesses, and he would like to see this witness called.
THE PRESIDENT: Well, the Tribunal will consider that.
DR. KAUFFMANN: The next witness is Number 5, Wanneck, at present in American custody in Heidelberg.
SIR DAVID MAXWELL-FYFE: The Prosecution that the witness Wanneck is cumulative. According to Dr. Kauffmann's application, he is going to deal with the point that the Defendant Kaltenbrunner was actually occupied mainly with the task of the intelligence service and that he objected to persecution of the Jews. That is already covered by Neubacher, and it is also covered by the cross-examination of the Prosecution's witness Schellenberg, who was the chief of Amt VI, which Dr. Kauffmann has set out in his note on the witness Neubacher, Number 4, as being one of the Intelligence Amter.
DR. KAUFFMANN: I leave it to the Tribunal to decide whether this witness could be dealt with by means of an interrogatory. But I do consider the evidence material relevant in the case of Wanneck as well. In a certain sense it is cumulative, but some points in it go further. But I agree to an interrogatory. The sixth witness is Scheidler.
THE PRESIDENT: Sir David, do you think it would be unreasonable to administer an interrogatory?
SIR DAVID MAXWELL-FYFE: No, My Lord. Generally I make no objection to interrogatories at all. With regard to Scheidler, he was, as I understand the application, the Defendant Kaltenbrunner's adjutant, and as such the Prosecution would not make any objection. But I think it would be convenient if I were to draw the attention of the Tribunal to the fact that the next six witnesses, Numbers 6 to 11 inclusive, all deal with concentration camps, and numbers 6, 8, 9, and 11 deal with Mauthausen. I want to give Dr. Kauffmann warning that I shall ask for some selectivity among these six witnesses. The Prosecution feel that the application for an adjutant is a reasonable one, but it will be reflected in objections to later witnesses.
DR. KAUFFMANN: The defendant naturally considers it important that the adjutant who served him for many years and who accompanied him on every single trip, as Kaltenbrunner told me himself, be called. He knows also, for instance, that the wireless message to Fegelein, which is part of the accusation, did not come from Kaltenbrunner and that his radiogram was never sent. He also knows that Kaltenbrunner had made all preparations for the Theresienstadt camp to be made accessible to the Red Cross. These are things which have not been mentioned by previous witnesses, but which shed some light on the person of the defendant.
THE PRESIDENT: You are speaking now of Scheidler?
DR. KAUFMANN: Yes.
THE PRESIDENT: Sir David, the Tribunal would like you to deal with the whole of that group together, and then Dr. Kauffmann can answer what you say.
SIR DAVID MAXWELL-FYEE: With pleasure, My Lord. The next witness is Ohlendorf, who was called as a witness for the Prosecution. The situation as I have found it is that Dr. Kauffmann did cross-examine the witness Ohlendorf on the Defendant Kaltenbrunner's responsibility on concentration camps on the 3rd of January of this year, at Page 2034 of the transcript (Volume IV, Page 335). The witness Wisliceny, Number 12, who has not been cross-examined on behalf of Kaltenbrunner by Dr. Kauffmann, would be the natural person to deal with that point. But, of course, if Dr. Kauffmann has any special point for the recalling of Ohlendorf, he will tell the Tribunal. That is the position.
THE PRESIDENT: Dr. Kauffmann, if you had the opportunity of cross-examining General Ohlendorf and actually availed yourself of the opportunity wasn't that the appropriate time for you to put any questions which you had on behalf of the Defendant Kaltenbrunner?
DR. KAUFFMANN: I should like to remind you that Kaltenbrunner was ill for more than 12 weeks and that I could get almost no information from him. At the session of 2 January the right of cross-examining the witnesses at a later date was expressly granted me by the Tribunal. I had, as the Court will remember, made a motion to adjourn, and then I was permitted to cross-examine the witnesses at a given time which would suit me. That appears in the transcript of 2 January 1946. As these witnesses have all been called in Kaltenbrunner's absence, I should like to cross-examine now in his presence. I am, however, prepared to forego the cross-examination, if I can talk to the witnesses beforehand. Perhaps it will not be necessary to call one or the other witness.
THE PRESIDENT: What do you mean by one or the other witness? Which is the other? Wisliceny?
DR. KAUFFMANN: Number 7, Ohlendorf, and then Number 11, Hollriegel, and Plumber 12, Wisliceny, also Number 14, Schellenberg. All these witnesses have been heard here, and Kaltenbrunner was ill at the time.
THE PRESIDENT: What do you say about it, Sir David?
SIR DAVID MAXWELL-FYFE: I should suggest that Dr. Kauffmann cross-examine Number 11, Hollriegel, and Number 12, Wisliceny, whom he has not cross-examined so far. And then, if there is any special point which remains to be dealt with by the witness Ohlendorf, Dr. Kauffmann can make a special application to the Court.
THE PRESIDENT: Yes. Well, the Tribunal would like to know what position you take about the defendants' counsel seeing these witnesses and discussing with them their evidence before they call them. I mean, there is a distinction between cross-examination when defendants' counsel cannot see them and calling them as their own witnesses when they can see them. SIR DAVID MAXWELL-FYE'E: Well, the Prosecution feel that they ought simply to cross-examine witnesses that have been called by the Prosecution, unless there are very special circumstances. I think that Dr. Seidl showed special circumstances with regard to the case that he mentioned of one witness in special relation to the Defendant Hess . But as a general rule, the Prosecution submit that witnesses that they have called should be cross-examined without prior consultation.
THE PRESIDENT: Well, Sir David, the Tribunal would like to know your view. Of course, we are not deciding the point now, but we should like to know your view as to whether it would be a proper course to allow the defendants' counsel to see the particular witness in the presence of a representative of the Prosecution, because it may be that that would lead to a shortening of the proceeding, because the defendants' counsel might after that not wish to cross-examine the witness any further.
SIR DAVID MAXWELL-FYFE: Well, I am afraid that would require discussions with my colleagues on each particular witness. I am afraid I have not covered that point; witnesses 11 and 12 were called by my American colleagues and although I take the general position which I put before the Tribunal, I have not discussed that point; but I shall be pleased to discuss it with them and perhaps to inform the Tribunal later on in the day. Of course, you will appreciate the fact that there may be a special point relating to a special witness that may come up in this connection.
DR. KAUFFMANN: Perhaps I can explain this. The witness Ohlendorf was reserved for me for cross-examination. In accordance with an agreement made with the American Prosecution, I dispensed with a cross-examination of Ohlendorf and on this condition was allowed to speak to him. I think it would be quite fair if I could do the same with other witnesses. I forego the cross-examination and can speak to the witnesses beforehand. Perhaps one or the other will turn out to be unnecessary.
THE PRESIDENT: I am not quite sure that you understand the view being put to you, Dr. Kauffmann. The view is that when a witness is called on behalf of the Prosecution the defendants' counsel certainly have the right to cross-examine the witness, not to see the witness beforehand, but only to cross-examine him. If on the other hand they are entitled to call that witness as their own, then they are entitled to see him beforehand, which is...
DR. KAUFFMANN: Yes, that is what I mean. But if I am allowed to speak to the witness beforehand, then the Court will understand that I should like to avoid as far as possible the presence of a representative of the Prosecution, since the reasons which might cause me to forego the calling of a witness would then be known to the Prosecution. I think everyone will understand that, and I also think it is fair.
THE PRESIDENT: I wanted to clarify what the difference in view between you and the Prosecution is. The Prosecution said that when the witness was called for the Prosecution the right of the defendants is only to cross-examine. Can you help us further with respect to this group, Sir David?
SIR DAVID MAXWELL-FYFE: Certainly. With regard to Eigruber, Number 8, he is no longer in Nuremberg, and he is being held as a probable defendant in the case concerning Mauthausen Camp, which will be dealt with by a military court, and therefore the Prosecution suggests that in these circumstances, as he is one of this group dealing with concentration camps in general and Mauthausen in particular, he ought to be dealt with by interrogatories. Then with regard to Hottl, Number 9, he deals with two aspects of one point, that is, that Kaltenbrunner on his own initiative ordered the surrender of the concentration camp of Mauthausen and that he took steps to induce Himmler to release people from concentration camps. These seem to be general points that again might be conveniently dealt with by interrogatories. And the same applies to the witness Von Eberstein, who deals with the point that Kaltenbrunner is alleged not to have given an order to destroy the concentration camp at Dachau, and that he 4 March did not give an order to evacuate Dachau. The Prosecution suggest that these ought also to be interrogatories. With regard to the next witness, Hollriegel, the Prosecution make no objection to further cross-examination, and respectfully suggest to the Tribunal that he will be able to deal with the question of Mauthausen, which is one of the main questions that this whole group of witnesses is called to deal with.
DR. KAUFFMANN: [Interposing.] Maybe I can say something so that...
THE PRESIDENT: [To Sir David Maxwell-Fyfe.] Are you in agreement with Number 12, in the same group?
SIR DAVID MAXWELL-FYFE: Number 12 is not in the same group, because he deals with the question of Kaltenbrunner's relations with Eichmann and with reports he received regarding the action against the Jews. We have no objection to this witness being called for cross-examination, as Dr. Kauffmann did not cross-examine him.
THE PRESIDENT: Yes, Dr. Kauffmann?
DR. KAUFFMANN: Concerning the witness Eigruber, Number 8, may I point out that this witness is here in Nuremberg. However, I agree that interrogatories be sent. The subject of the evidence itself seems to me decidedly relevant, for what Eigruber is supposed to testify is neither more nor less than the fact that the concentration camp at Mauthausen was directly supervised by Himmler through Pohl and the commander of the camp. Kaltenbrunner denies the possession of exact knowledge regarding Mauthausen. The witness Hottl...
THE PRESIDENT: You were in error in saying he was here in town. Sir David said he has been removed from Nuremberg for the purpose of trial by a military court. So perhaps you would not object to interrogatories in that case.
DR. KAUFFMANN: Yes. The witness Hottl is, in my opinion, an important witness. As we know, Kaltenbrunner is also accused of having participated in the conspiracy against the peace. Here I intend to prove that Kaltenbrunner conducted an active peace campaign ever since 1943. An important name in this connection is Mr. Dulles. He is, according to Kaltenbrunner, the late President Roosevelt's confidential agent. Mr. Dulles was in Switzerland. According to Kaltenbrunner, meetings between them constantly took place with this object. I believe that this subject of evidence is relevant.
THE PRESIDENT: You mean that you want Dr. Hottl in person, not by way of interrogatories?
DR. KAUFFMANN: Yes, if I may ask for that.
THE PRESIDENT: The Tribunal will consider that.
DR. KAUFFMANN: Witness Number 10, General of the Police Von Eberstein, is called to prove that the statement of another witness by the name of Gerdes is untrue. The Tribunal will perhaps remember that the Prosecution submitted an affidavit by a man named Gerdes who was an important figure in Munich. He was the confidential agent of the former Gauleiter of Munich. In his affidavit, Gerdes accuses Kaltenbrunner of ordering the destruction of Dachau through bombing. Kaltenbrunner emphatically denies that.
THE PRESIDENT: That is a matter which could be clearly dealt with by interrogatories, whether or not Kaltenbrunner did give an order to destroy a concentration camp, or an order to evacuate Dachau. Surely those are matters which admit of proof by interrogatories.
DR. KAUFFMANN: I agree. The same problem arises in connection with the next witness, Number 11, the witness Hollriegel, who has already been heard. Am I to have the opportunity of speaking to this witness before he is cross-examined? Kaltenbrunner denies that he ever saw gas chambers, et cetera .
THE PRESIDENT: Dr. Kaufmann, isn't Number 11 really cumulative to Number 6, whom you particularly wanted to call?
DR. KAUFFMANN: Yes, Mr. President, certainly.
THE PRESIDENT: Anyhow, the Tribunal will consider the question whether you ought to be given the right merely to cross-examine or to recall as your own witness, with reference to Numbers 11 and 12.
DR. KAUFFMAN: Yes. Just a word about witness Number 12. Eichmann, as is well known, was the man who carried out the whole extermination operation against the Jews, and Kaltenbrunner's name has been mentioned in connection with this operation. Kaltenbrunner denies it. For that reason I consider Wisliceny a relevant witness.
THE PRESIDENT: That concludes that group. What about the other ones, Sir David? Are they in the same category?
SIR DAVID MAXWELL-FYFE: Not quite, but I think it might be convenient if I deal with them. Dr. Mildner, Number 13, is sought to testify that Kaltenbrunner did not authorize the chief of the Gestapo to sign orders for protective custody or internment, and I should submit that in view of the previous evidence, of Scheidler and Number 4, Neubacher, Dr. Mildner's evidence is cumulative and that interrogatories would suffice. As to Schellenberg, Number 14, I have already said that the Prosecution make no objection to his recall for cross-examination. Finally, Dr. Rainer. We do object to that request, because the object of his testimony, that Kaltenbrunner recommended to the Gauleiter of Austria not to oppose the advancing troops of the Western Powers and not to organize Werewolf movements, is in our submission irrelevant to the issues before this Tribunal.
THE PRESIDENT: Yes. Dr. Kauffmann?
DR. KAUFFMANN: The witness Dr. Mildner, Number 13, is here in Nuremberg, in custody. I have asked to call this witness because he has submitted an affidavit containing certain accusations against Kaltenbrunner which Kaltenbrunner denies. I do not think that an interrogatory can clear up these difficulties. Now, Number 14...
THE PRESIDENT: Dr. Mildner had submitted an affidavit?
DR. KAUFFMANN: Yes, Sir. There is a reference in the Indictment to an affidavit made by Dr. Mildner. I believe it was on 3 January. The witness' name was mentioned in connection with the charges against Kaltenbrunner. There are one or two affidavits . . .