Official Transcript of the American Military Tribunal in the matter of the United States of America, against Erhard Milch, defendant, sitting at Nurnberg, Germany on 3 January 1947, 0930, Justice Toms, presiding.
THE MARSHAL: The Honorable Judges of military Tribunal Number 2.
Military Tribunal No. 2 is now in session.
God save the United States of America and this Honorable Tribunal.
There will be order in the court.
MR. DENNEY: Your Honors please, I would first like to hand up to the Court, not as an exhibit but just by the way of being of assistance to the Court, a list of comparative rank in the United States Army, the German Army, the SS and various other German organizations. As I say, it is not to be considered as an exhibit and I will hand one copy of it to the Defense counsel. This is the same chart given to the Tribunal in the first case and also in the case that is going on upstairs. As far as the presentation of documents is concerned we propose, with the Court's approval, to follow the same procedure in presentation of documents as was followed in the initial case before the International Court and which is presently being followed in the United States against Karl Brandt and others. The prosecution will mention a specific document by identifying numbers and will give to it a number at the time that it is offered and we respectfully suggest that the Clerk assign the numbers to it that we will mention at the time that the document is offered. Of course, the defense counsel will have his opportunity to object and if no objection is raised, why, then the document will be deemed to have been received in evidence and to receive the number which has been announced when the document was offered. We believe that this is the most expeditious and orderly way to enter the document. It was followed before and it seemed to have worked fairly well. At the time we present it a member of the prosecution staff will hand the original or a certified copy which is serving as the original to the Clerk of the Tribunal Judge Dixon or his representative, and he will, of course, place a number on the exhibit.
Normally we won't find it 25 a necessary to read entire documents into the record as has been done on some cases before.
In the first case the reason they read so many complete documents was because of the fact they had to be translated into four languages. Very often at the time the document was presented the translation in one or two of the languages was not available so they read the whole document into the record. However, that doesn't mean there aren't some we won't try to read entirely into the record.
THE PRESIDENT: Mr. Denny, the documents which you are about to introduce are the same ones we have had before in this document book?
MR. DENNEY: Yes, sir.
THE PRESIDENT: Which are indexed but have not been given exhibit number?
MR. DENNEY: That's correct, your Honor. Now, we charge that these two books that are up there now constitute Document Book 1. The index in the first volume being for both volumes and the page numbers that have been placed in the lower right hand corner I will refer, your Honor, to the pages as we go along. We have given the defense counsel a copy of these documents Tuesday evening and we shall continue to abide by your Honor's ruling of giving the copy 24 hours in advance except in so far as documents which will be produced for cross-examination. Counsel in that instance will have to see new documents when used for cross-examination or when they will be handed to the witness so there will be some he has not seen before. Generally speaking, we will try to direct the attention of the Court by reading the parts of the documents which we deem most relevant. Of course, we would like to make it clear we are offering the whole document when we do offer it, even though we don't read it. As far as the method of authentication of the documents is concerned, we will again follow the procedure that has been followed before the International Military Tribunal and is now being used by Mr. McHaney in the case of the United States against Karl Brandt and others.
Probably for a purpose of showing the process whereby these documents were initially obtained it might be well to read from the transcript in order that the record may show and the Court will understand how these captured documents were sent to Nurnberg for the present case going on before Military 26 a Tribunal 1. I have here pages 75 and 76 of the original transcript.
When the United States Army entered Germany, it had specialized military personnel whose duties were to capture and preserve enemy documents, records and archives. Such documents were assembled in temporary document centers. Later each Army established fixed document centers in the United States Zone of Occupation where there documents were assembled and the slow process of indexing and cataloguing was begun. Certain of these document centers in the US Zone of Occupation have since been closed and the documents assembled there sent to other document centers. When the International Military Tribunal was set up, field teams under the direction of Major William N. Coogan were organized and sent out to the various document centers. Great masses of German documents and records were screened and examined. Those selected were sent to Nurnberg to be and were given trial identification numbers in various series, such as the letters "PS", "L", "R", "CH", and "C" indicating the means of acquisition of the documents. As an example, the "PS" documents or most of them were obtained by Col. Storey in Paris so they gave them "P" for Paris and the "S" is Storey and the "L" means London. Within each series, documents were listed numerically. The prosecution in this case shall have occasion to introduce in evidence documents processed under the direction of Major Coogan. Some of these documents were introduced in evidence before the International Military Tribunal and some were not. Those which were, this Tribunal is required by Art. XX of Ordinance 7 to take judicial knowledge thereof. However in order to simplify the procedure, we will introduce photostatic copies of documents used in Case 1 before the International Military Tribunal to which will be attached a certificate by Mr. Fred Niebergall, the Chief of our Document Control Branch, certifying that such document was introduced in evidence before the International Military Tribunal and that it is a true and correct copy thereof.
These documents have been and will be made available to the defendants just as in the case of any other document.
As to the documents processed under the direction of Major Coogan and which was not used in the case before the International Military Tribunal, they are authenticated by the affidavit of Major Coogan and dated 19 November 1945. This affidavit served as a basis of authentication and substantially all documents used by the Chief of Counsel before the IMT. It was introduced in that trial as United States of America Exhibit No. 1. Since we will use certain documents processed for the IMT trial, I would now like to introduce as Prosecution Exhibit No. 1 the Coogan affidavit in order to authenticate such documents. This affidavit explains the manner and means by which captured German documents were processed for use in War Crimes Trials, I can't read it because it's substantially the same as the affidavit of Mr. Niebergall to which I shall come in a moment. I believe Judge Dickson has a copy of this affidavit with the original for Your Honors. If Your Honors please, I believe that is the original affidavit and there are some photostatic copies which -
JUDGE MUSMANNO: Mr. Denney, it would appear to me that where you have a document of sufficient importance as to be studied by the Tribunal in analyzing all the testimony, that you read a substantial part of it into the record.
MR. DENNEY: Yes, but if Your Honor please, that is exactly our intention.
JUDGE MUSMANNO: That the record itself will be complete without having to leaf through a number of other documents.
MR. DENNEY: Yes, your Honor, that is exactly what I have in mind. The only reason that I mentioned that we won't read the complete document in every instance is because that process was followed on occasion before the first trial and I thought perhaps Your Honors might have the idea that every document should be read in toto. Now, of course, if Your Honors, want it, we will definitely do it, but we do definitely have in mind to read into the record documents at some length where they are important and where we fool that they are cast like either on the slave labor program or medical experiments or that we fool is definitely on the subject, but of course that is for Your Honors' ruling.
JUDGE MUSMANNO: In other words, tho record should be self-sustaining.
MR. DENNEY: Yes, we have that in mind, Your Honor.
Coming now to the manner in which the documents are authenticated by the affidavit of Mr. Niebergall, I now like to offer as Prosecution's Exhibit No. 2 the Niebergall affidavit and with Your Honors' permission I should like to read it into the record; one, in view of the fact that the Coogan affidavit was omitted; and 2 two, in order that the record will show how these exhibits were obtained and how they are authenticated. This affidavit was made on 3 December 1946.
MR. PRESIDENT: Let me interrupt a second, Mr. Denney. We appear to have some German and some English copies. Let's get this straightened out.
MR. DENNEY: Yes, sir, I am very sorry.
Mr. Niebergall's affidavit, which was executed on 3 December 1946, reads as follows:
"I, Fred Niebergall, A.G.O. D-150636, of the Office of Chief of Counsel for War Crimes, do hereby certify as follows:
"1. I was appointed Chief of the Document Control Branch, Evidence Division, Office of Chief of Counsel for War Crimes (hereinafter referred to as 'OCC') on 2 October 1946.
"2. I have served in the U.S. Army for more than five years, being discharged as a 1st Lieutenant, Infantry, on 29 October 1946. I am now a reserve officer with the rank of 1st Lieutenant in the Army of the U.S. of America. Based upon my experience as a U.S. Army Officer, I am familiar with the operation of the U.S. Army in connection with the seizing and processing 29(a) of captured enemy documents.
I served as Chief of Translations for OCC from 29 July 1945 until December 1945, when I was appointed liaison officer between Defense Counsel and the Translation Division of OCC and assistant to the executive officer of the Translation Division. In my capacity as Chief of the Document Control Branch, Evidence Division, OCC, I am familiar with the processing, filing, translation, and photostating of documentary evidence for the United States Chief of Counsel.
"3. As the Army overran German occupied territory and then Germany itself, certain specialized personnel seized enemy documents, records, and archives. Such documents were assembled in temporary centers. Later fixed document centers were established in Germany and Austria where these documents were assembled and the slow process of indexing and cataloguing was begun. Certain of these document centers have since been closed and the documents assembled there sent to other document centers.
"4. In preparing for the trial before the International Military Tribunal (hereinafter referred to as 'IMT') a great number of original documents, photostats, and microfilms were collected at Nuernberg, Germany. Major Coogan's affidavit of 19 November 1945 describes the procedures followed. Upon my appointment as Chief of the Document Control Branch, Evidence Division, OCC, I received custody, in the course of official business, of all these documents except the ones which were introduced into evidence in the IMT trial and are now in the IMT Document Room in Nuernberg. Some have been screened, processed, and registered in accordance with Major Coogan's affidavit. The unregistered documents remaining have been screened, processed, and registered for use in trials before military tribunals substantially in the same way as described below.
"5. In preparing for trials subsequent to the IMT trial, personnel thoroughly conversant with the German language were given the task of searching for and selecting captured enemy documents which disclosed information relating to the prosecution of Axis war criminals. Lawyer and Research Analysts were placed on duty at various document centers and also dispatched on individual missions to obtain original documents or certified photostats thereof.
The documents were screened by German speaking analysts to determine whether or not they might be valuable as evidence. Photostatic copies were then made of the original documents and the original documents returned to the files in the document centers. These photostatic copies were certified by the analysts to be true and correct copies of the original documents. German speaking analysts, either at the document center or in Nurnberg, then prepared a summary of the document with appropriate reference to personalities involved, index headings, information as to the source of the document, and the importance of the documents to a particular division of OCC.
"6. Next, the original document or certified photostatic copy was forwarded to the Document Control Branch, Evidence Division, OCC. Upon receipt of these documents, they were duly recorded and indexed and given identification numbers in one of six series designated by the letters: 'NC', 'NI' 'NM' 'NOKW' and 'NP', indicating the particular Division of OCC which might be most interested in the individual documents. Within each series, documents were listed numerically.
"7. In the case of the receipt of criminal documents, photostatic copies were made. Upon return from the Photostat Room, the original documents were placed in envelopes in fireproof safes in tho Document Room. In the case of the receipt of certified photostatic copies of documents, the certified photostatic copies were treated in the same manner as the original documents.
"8. All original documents or certified photostatic copies treated as originals are now located in safes in the Document Room, where they will be secure until they are presented by the Prosecution to a court during the progress of a trial.
"9. Therefore, I certify in my official capacity as herein above stated, that all documentary evidence relied upon the OCC is in the same condition as when captured by military forces under the command of the Supreme Commander, Allied Expeditionary Forces; that they have been translated by competent qualified translators; that all photostatic copies are true and correct copies of the criminals, and that they have been correctly filed, numbered, and processed as above outlined.
"The Niebergall affidavit, as I have mentioned before, is in substance the same as the Coogan affidavit which was accepted by the International Military Tribunal as sufficient authentication of documents used in the case before that Tribunal. However, in addition to these affidavits, the Prosecution in this case will attach to each document submitted in evidence, other than self-proving documents such as affidavits signed by the defendants, a certificate signed by an employee of the Evidence Division of the Office of Chief of Counsel for War Crimes, reading for example as follows:
'I, Donald Spencer, of the Evidence Division of the Office of Chief of Counsel for War Crimes, hereby certify that the attached document, consisting of one photostated page and entitled, 'Letter from John Doe to Richard Roe, dated 19 June 1943' is the original of a document which was delivered to me in my above capacity, in the usual course of official business, as a true copy of a document found in German archives, records and files captured by military forces under the command of the Supreme Commander, Allied Expeditionary Forces.
'To the best of my knowledge, information and belief, the original document is at the Berlin Document Center' or wherever it may be.
"At as early a date as possible, in all cases in which a photostatic copy was available, the Prosecution sent to the Defendants' Information Center one such copy of the documents which it intended to use in its case in chief. In addition, on 5 December 1946, the Prosecution consented to the furnishing of a German copy of all Central Planning Board Minutes. Thus, the bulk of the Prosecution's documents have been in the hands of the Defense Counsel for some time.
The Prosecution has prepared document books in both German and English of the documents on which it will rely during its case in chief. These are principally mimeographed copies and each book contains an index which sets out the document number, a short description, the page number and a space for writing in the index number of the document on its admission in evidence.
The books themselves and the documents within each book are arranged substantially in the order in which they will be presented.
The Prosecution will follow the rule which requires that one official copy in German of each document book be filed in the Defendant's Information Center at least 24. hours prior to the time of introduction in Court. In addition, the Defendant's Information Center will receive one unofficial copy in German and one photostatic copy in German of each document book used by the Prosecution. Six official copies of the German document books will be presented to the Tribunal, one for each of the justices and two for the Secretary General. Two of these will contain photostatic copies so that the Tribunal may be able to refer to the original. Copies will also be made available to the German interpreters and to the Court Reporters.
The English document books will contain certified translations of the documents in the German document books, numbered and indexed so as to correspond to the arrangement in the German document books. A copy of each English document book will be deposited in the Defendant's Information Center and sufficient copies will be distributed to the interpreters and Court Reporters.
The Secretary General's office will receive six copies of the English document books for the use of the Tribunal.
At various times, unintentionally or unavoidable, the Presecution may fail to observe the procedure outlined above, or may overlook some other rule of the Court. We respectfully request in advance that any such omissions may be ascribed to our inexperience in the presentation of a case in two languages, rather than to any lack of effort to comply with the Court's rule.
On occasions it may be necessary for us to introduce documents which are not in a book, the reasons being that matters of omission in processing or lateness of translation, or any one of a number of other causes, or were left out through some inadvertence. At that time we will advise the Court and comply with the rule by presenting the document sufficiently in advance to Dr. Bergold so there will be no question about it.
Just in passing - in the case this morning there were two or three documents which have been listed but which will be left out for the moment because adequate copies couldn't be obtained, or the stencils were bad and couldn't be read. At some later time we hope to produce them and insert them in the proper place in the record.
JUDGE PHILLIPS: Does Exhibit 1 comprise both Coogan's and Niebergall's affidavits?
MR. DENNEY: If your Honors please, we had indicated that Exhibit 1 would be Coogan's affidavit and Exhibit 2 Niebergall's Affidavit, unless your Honors would rather have it another way.
THE PRESIDENT: That is all right.
MR DENNEY: We come new to the first document which is in your Honors' Document Book. Beginning at page 1-1 actually is the 6th page but it is the first page after the index. This is Document Book 1-A that has the index. I believe there is no index in Document Book 1-B. The index continues over from 1-A for both books. I would like to offer this document in evidence, it being No. L 79, and we offer it as Prosecution exhibit No. 3. It is a secret copy of the minutes of a conference held 23 May 1939. The place in which the conference was held was Hitler's study in the New Reich Chancellery. The copy indicates that the Adjutant on duty, Lt. Col. Schmundt of the General Staff Corps, also made the notes. His signature appears on page 7. Present at the conference were Hitler; Field Marshal Goering, Commander in Chief of the Luftwaffe; Grand Admiral Raeder, at that time Commander in Chief of the Navy; Colonel General von Brauchitsch, later Field Marshal von Brauchitsch, at that time Commander in Chief of the Army; Colonel General Keitel, later Field Marshal Keitel, the Chief of Staff at the Oberkommando Wehrmacht, which was set up subsequent to this meeting; the defendant, then Colonel General Milch; in addition General of Artillery Halder; General Bodonschatz; Rear Admiral Schniewindt; Colonel Jeschennel; Colonel Warlimont; the afore mentioned Lt. Colonel Schmundt; Captain Angel, of the army; Lt. Commander Albrecht of the navy; and Captain von Below - the latter three acting as aides.
Your Honors will note that the subject of this is: Indoctrination on the political situation and future aims.
JUDGE PHILLIPS: Mr. Denney, what evidence do you have as to who was present?
MR. DENNEY: It is recited, if your Honors please, on the first page of the document. Now here we have Hitler calling to a conference, some few months prior to the time the invasion of Poland was started, which as the Court knows took place 1 September 1939, a group of some fourteen men to whom he was explaining the situation so far as the political aims of the Nazi party were concerned, and also its future aims so far as conduct of the war and various other necessarily allied elements. I don't think it is necessary to read in detail from the first two pages. However, it is worthy of note in passing that Lt. Colonel Schmund stated that the Fuehrer defines as the purpose of the conference: "1) Analysis of the situation. 2) Definition of the tasks for the armed Forces arising from the situation. 3) Exposition of the consequences of those tasks. 4) Ensuring the secrecy of all decisions and work resulting from these consequences. Secrecy is the first essential for success. It then follows that the Fuehrer's observations are given in systematized form below."
The first part has to do with the settlement of the well known question of lebenstraum for the German people and Hitler makes a short summary of the fact that 80 million people solved the ideological problems and then proceeds to state that the national policy is as of this month.
It is to be noted on page 2, 8 lines from the bottom. It states: "The population of non-German areas will perform no military service, and will be available as a source of labor."
Then on page 3 he goes into some more comments on the attack upon Poland. It is clearly indicated there that they mean to attack Poland even at this early date.
On page 4, art the top, he states "The war with England and France will be a life and death struggle. The idea that we can get off cheaply is dangerous; there is no such possibility. We must burn our boats, and it is no longer a question of justice or injustice, but of life or death for 80 milling human beings."
And then it is worthy of note in the next paragraph he states, "Every country's armed forces of government must aim at a short war. The government, however, must also be prepared for a war of 10-15 years duration."
I'm sorry; there were some notes I wanted to call the Court's attention to on the second page, again tending to show at this early date the magnitude of the problem that was facing the German people, at least as it was expressed by Hitler, and the fact that he had called these men here, which will be seen later in the document, to advise them that certain procedures were to be taken and that a special staff was to be set up for the conduct of this war.
At the top of page two it will be noted that:
"A mass of 80,000,000 people have solved the ideological problem; so, too, must the ecomonic. problem be solved. No German can evade the creation of the necessary economic conditions for him. The solution of the problems demands courage. The principle by which one evades solving the problems be adapting oneself to circumstances is enadmissible. Circumstances must, rather, be adapted to aims. This is impossible without invasion of foreign states or attack upon foreign property. Living space in proportion to the magnitude of the state is a basis of all power. One may refuse for a time to face the problem, but finally it is solved one way or the other. The choice is between advancement or decline. In 15 or 20 years' time we shall be compelled to find a solution. No German statesman can evade the question longer that that.
"We are at present in a state of patriotic fervour , which is shared by two other nations: Italy and Japan.
And then, dropping down and omitting the part where he speaks about Danzig and the Polish Corridor, there is one short note just below the point where he says, "There is no other possibility for Europe," speaking of colonies, he says:
"Beware of gifts of colonial territory. This does not solve the food problem. Remember -- blockade."
Then, going over to page 5, about the middle of the page -there is a Roman numeral I to the left with a parenthesis:
"The effort must be made to deal the enemy a significant or the final decisive blow right at the start. Considerations of right and wrong or treaties do not enter into the matter. This will only be possible if we are not involved in a war with England on account of Poland."
Again directing the Court's attention to the fact that throughout this speech he indicated that nothing mattered so long as Germany went ahead.
Then, the last of the five listed items under "Consequences" on the same page, he says, "Germany will not bleed to death on land."
Going over to the top of page 6, following Number 3, "The unrestricted use of all resources is essential.
"Once the army, in cooperation with the Air Force and Navy, has taken the most important positions, industrial production will cease to flow into the bottomless pit of the Army's battles and can be diverted to benefit the Air Force and Navy."
Dropping down about six lines, paragraph beginning with Number 5:
"This applies to gas, submarines and the Air Force. It would be true of the latter, for instance, as long as the English Fleet had not available counter-measures; it will no longer be the case in 1940 and 1941. Against Poland, for example, tanks will be effective, as the Polish Army possesses no counter-measures."
Then, again on the same page, to show that he is considering the various possibilities even at this early date:
"A correct estimate of weapons and their effectiveness: e.g., (a) Battleship or aircraft carrier, which is the more effective? Individually or considered as a whole?
"(b) Is air attack more important on a factory than on a battleship? Where are bottlenecks in production located?"
Then he goes on, down to the bottom of the page, where he speaks of the "Study of the enemy's weak points." This is of great importance because at this time was when Hitler first announced that he was taking away from the German General Staff what had prior to this time been their own particular functions and that he was going to set up this OKW, the Oberkommando Wehrmacht, and here, in substance, were the men who were to be spread throughout all of the German army, navy and Luftwaffe being taken into his confidence about this.
"A study of the enemy's weak points:
"These studies must not be left to the General Staff. Secrecy could no longer be guaranteed.
"The Fuehrer has therefore decided to to order the formation of a small planning staff as OKW.
It will keep the Fuehrer informed and report to him.
"The planning staff is responsible for the planning of operations on the highest level, and of the technical preparations and organization necessarily required by the decision taken.
"The purpose of certain regulations concerns no one outside the staff."
In other words, all they did was to tell them what they do, and they did it. Nobody told them why.
"However great are the increases in the armament of our adversaries, they must at some time come to the end of their resources, and ours will be greater."
Dropping down on page 7:
"Secrecy is the decisive requirement for success. Our object must be kept secret even from Italy or Japan. The break-through the Maginot line is still a possibility for Italy and must be studied. The Fuehrer considers that such a breakthrough is possible."
Then he goes on to state, "The close combination of the services, for the study of the problem in its entirety, is important.
"The Object:
"1. The study of the problem in its entirety.
"2. Study of the procedure.
"3. Study of the necessary requirements.
"4. Study of the necessary training."
Dropping down to the "Working Principles:
"No one must be admitted who is not concerned.
"No one may know more than it is necessary for him to know.
"When must the person concerned know, at latest? No one may know of a matter earlier than is necessary for him to know of it.
"At the request of Field Marshal Goering, the Fuehrer decrees that:
"The various services shall decide what construction is to be undertaken.