Q. Do you think that this corresponds exactly with what they said?
705a
A. That, of course, I cannot remember today.
Q. Witness, you stated that the Central Planning Board was not created by decree. I have here Nachrichtenblatt No. 2, of the 23 April 1942, with a decree issued by Goering. Do you think that such a decree issued by Goering was a law, or what do you understand by that word "decree"?
A. I consider that decree a decree and not a law. However, publication of this decree, in my opinion, did not take place, because otherwise the publication would have to take place in the Reichsgesetzblatt, and it did not take place. As far as I can remember now, I don't believe that this decree was published in either of the two papers.
Q. I don't believe that was published either. What was that Nachrichtenblatt No. 2?
A. I am afraid that I cannot answer that question, because I can only imagine that this was a Nachrichtenblatt within the working sphere of Speer. I do not know these nows leaflets. However, I believe that Speer might be able to answer those questions.
Q. In any case, it was not an official paper in which the publication of laws took place?
A. No, I am sure it was not. The official paper was the "Reichsgesetzblatt" and the "Reichs-und-Proussische Staatsanzeiher".
Q. In this decree, issued by Goering, Goering played as though he were in power for the Central Planning Board. Did that happen in order to save face for Goering to the outside?
A. I believe I am able to say that that is the way it was. With the appointment of Speer by Hitler, through which he was to take over the interests of the whole armament situation it was becoming more and more evident, which way Speer wanted to go.
That Speer no longer wanted to work with distribution of raw materials under the Four Year Plan in cooperation with the Reichministry shows that he had the distribution of raw materials transferred to himself. That is, the Committee of the Central Planning Board was created in order that he may be able to influence more effectively the tasks which were carried out so far by the Four Year Plan.
706a.
Q. Did the Central Planning Board over report to Goering concerning its activity?
A. As far as I can remember, no.
Q. Would not that have been necessary if Goering had really been the boss of the Central Planning Board?
A. Then, of course, it would have been necessary.
Q. Witness, the Prosecution has submitted to you the 56th Conference, which is in the fourth bundle. The Prosecution submitted to you the following sentence, "550,000,000 are being promised, the contingent Jaegerstab plus 150,000,000 from the reserve, and the contingent RIM in administration, 200,000,000. Both contingents are to be in accordance with your requests."
I shall continue to read a passage which was not introduced by the Prosecution concerning the contingent RLM administration. There are exact minutes. I mean certain constructions, the necessary number of workers, and the amount of building material are stated, the building projects for the supply industry; that is the industry that supplies the parts, for instance, optical glass, are to be delivered to the armament office. This 56th session according to its title concerns itself with the building volume for 1944.
Witness, if we speak of 550,000,000, including 150,000,000 definite promise from the reserve and of the contingent RLM administration, if we speak of 200,000,000, are we speaking about laborers, or what are we speaking about?
A. I can only remember that this was only money, only sums of money, because so many millions can not be provided, either in steel or iron or in workers.
DR. BERGOLD: May it please the Tribunal, I shall now come to a statement on what Mr. Denney spoke of concerning the decree of Speer, without asking a question of the witness. I want to state for the record, then, that witness has testified, that this was a decree inside of the Ministry. I want to reserve to myself the right under the circumstances to ask Speer again about these matters.
I believe, however, that I will have to renounce this. For the time being, however, I want to reserve this right to myself.
I have finished my examination of the witness.
THE PRESIDENT: Judge Phillips has some questions to ask the witness.
707a BY JUDGE PHILLIPS:
Q Witness, the Tribunal understood you to say, on direct examination that the Central Planning Board met every three months for the purpose of distributing raw materials only, but never in the procurement of labor and labor allocations; is that correct?
A I believe that I can say yes; I can answer yes to this question.
Q Mr. Denney, will you please show the witness Prosecution's Exhibit 483, Book 33, and page 37.
DR. BERGOLD: I ask that you repeat that your Honor.
Q Exhibit 483, Prosecution Book 33, pages 37, 38, 39 and 40, 53rd Session of the Central Planning Board. This document seems to be dated the 18th of February 1944, and is a result of the 53rd Session of the Central Planning Board, in regard to labor assignments for 1944. The first paragraph: The purpose of the session is to determine the needs and resources in labor for the first quarter and for the whole year 1944. The session is opened by the discussion of the data submitted by the planning office, see enclosures 1-9. On the basis of the Planning Office's estimate of the requirements, Enclosures 9, these turn out, after discussion with individual allottees, to be the following: agricultural, forestry and wood, Armament and war production, air-raid damages, communications, distribution, public administration, Wehrmacht administration; and the total allotment and distribution of labor for that year is 4,850,000 workers. Now, you appear to have been present at that meeting, along with the defendant Field Marshal Milch. If that is true, how do you reconcile the statement that you made to the Tribunal, that the Central Planning Board did nothing more at the time than to allocate raw materials and never labor?
A. As can be seen from this document, this is a simple estimate. Already this morning during the various examinations I said that such conferences had been absolutely of an informatory character; that they were to find out hew the real situation of the labor problem was.
Q So you say that this document does not show that the Central Planning Board allocated labor to these various organizations?
Q. No. As far as I can see from this document, there are no orders --- there were no orders issued, to any office or agency.
Q Doesn't it give the assignment by the Board for January, February and March prior to this time?
A No.
Q Will you look at the last paragraph, before it is signed by Steiffener, where it says assignments for January, and assignments in February and March.
A This is just a statement for the first quarter of 1944. According to the 6BA it says the following assignments in January, 146,000; assignment in February, March 500,000, and this is just an estimate; nothing else.
Q The tribunal understood you to make the following statement: That the statement was to the effect that foreign workers were not to be obtained on a voluntary basis. Was it not true; is that an opinion of yourself, or are you speaking of your own personal knowledge?
A I am speaking here of the knowledge of this document, which is clearly shown by this document; and it says here that through the GBA the following can be seen.
Q I am not asking you about the document; I am asking you about the statement that you made this morning.
A I will stick to the statement which I made this morning.
Q Did you ever go to France to see how Sauckel obtained labor?
A No.
Q Then you admit then, whatever was done by the Central Planning Board and its members at their discretion was done of their own volition and not on orders from above?
A Well, when you speak about this and that, I can only speak about the real task of the Central Planning Board, and this task was the distribution of raw material; the distribution of raw materials was carried out by the Central Planning Board and reports were made on it every three months.
- Q Did members of the Central Planning Board act as a board and have discretion as to the way and manner in which they were to perform their duties?
A Yes, indeed.
BY DR. BERGOLD (Attorney for defendant Erhard Milch)
Q May I ask another question of the witness. I am talking about the results of the 53rd meeting. That session was caused by the fact that during a Fuehrer conference, the Fuehrer asked for 4 million laborers, and then during that conference they wanted to decide if that number was correct? Was that quite the way it was? Was that conference due to the fact it was quite ordered by Speer?
AAs far as I can remember, yes. I did not participate in this session with the Fuehrer; that is why I don't know the details. That is my reason why this session was held of the Central Planning Board was because Speer wanted to have a clear picture of the working conditions in Germany.
DR. BERGOLD: May it please the Tribunal, I am very sorry today that Speer has not been interrogated by the whole Tribunal. Then, of course, this would have been cleared. Speer mentioned that yesterday, and I am sure Judge Musmanno remembers that fact. Speer testified on that to a great extent.
THE PRESIDENT: The Tribunal will have the benefit of whatever Speer stated yesterday in his deposition.
DR. BERGOLD: May it please the Tribunal, tomorrow I shall ask for the witness Schmelter. I want to mention it today officially, because I didn't have an opportunity to make the written statement to Mr. Denny.
Furthermore, I want to state, that the misunderstanding concerning the witness this morning, is not the fault of the Secretary General, but it was my own fault, because I thought that the Secretary General and the Marshal of the Court were the same persons, and as I had told it to the Marshal I thought that would be sufficient. I wish that the Secretary General be cleared of the responsibility; it was my fault.
THE PRESIDENT: The Secretary General will be cleared from any blame.
710 a Is there anything else before we adjourn.
MR. DENNEY: There are two questions; first, tomorrow afternoon a funeral is being held for the one of the of the American lawyers here was died over the week-end. I would appreciate if the Court would adjourn in order that some of us might attend. On Monday Dr. Bergald has some personal matters to attend to, which he has assured me are of the utmost importance to him, and he would appreciate it if the Court did not sit on Monday of next week in order that he can take are of his business. He wanted to give the Court advance notice of it because he wanted to arrange to conduct the business, and he has difficulty getting around town due to the transportation facilities. He would appreciate if Your Honors would grant hire that request and I certainly have no objection to it.
THE PRESIDENT: First of all, has the examination of this witness been concluded by both sides?
MR. DENNEY: Yes.
DR. BERGOLD: Yes. And I want to thank Mr. Denney for cooperating in my problems.
THE PRESIDENT: You are thanked, Mr, Denney.
There will be no objection to recessing tomorrow afternoon so that the Prosecution may attend the funeral of the son of one of their associates. At least from this point it seems there will be no objection next Monday to recessing to enable Dr. Bergold to attend to pressing affairs of his own.
We will, however, resume session of Court tomorrow morning at 0930.
710-B Official transcript of the American MilitaryTribunal in the matter of the United States of America, against Erhard Milch, defendant, sitting at Nurnberg, Germany, on 9 January 1947, Justice Toms, presiding.
THE MARSHALL: The Honorable, the Judges of Military Tribunal No. 2. Military Tribunal No. 2 is now in session. God save the United States and this Honorable Tribunal.
There will be order in the courtroom.
DR. BERGOLD: May it please the Tribunal, I am very sorry that today again I have some trouble but it isn't my fault though the following thing happened; the witness Generalarzt Dr. Hippke upon my suggestion of the 21st of December 1946 was granted for me on the 8th of January as a witness. I found him in Hamburg at his private address at first. Then I found out that he was in British custody and a prisoner now in Altona near Hamburg. A similar request was made by my colleague Dr. Sauter before Tribunal No. 1. Dr. Sauter and myself were of the opinion that Dr. Hippke is a witness of the defense. I spoke with Dr. Hippke several times. Yesterday afternoon Dr. Sauter wanted to speak to Hippke. Thereupon, Lieutenant Garrett called us up that the interrogation had to be stopped right away because the witness would not be at the disposal of the defense for a period of eight days. If it please the Tribunal, that is the difficulty. Before the International Military Tribunal and as we heard here before this Tribunal, too, the rule was that a witness who was called upon by one of the defense counsel, and was granted to the defense counsel by the Tribunal, was only at the disposal of the defense counsel and nobody else. We have had the agreement that the prosecution would only examine these witnesses with the permission of the defense counsel before a commission. For the time being I am of the opinion that this procedure cf the prosecution--Mr. Denney has nothing to do with that--I am speaking of somebody else--that the prosecution does not follow the rules which have been set up by this Tribunal.
The trouble is, furthermore the following: The witnesses granted me for the greatest part have not today, appeared yet. The witness Raoder, for instance, whom in case we finished earlier I wanted to examine today.
711a Due to a mistake of the prison administration he was taken back to Garmisch day before yesterday although he was granted me as a witness.
Therefore, I have to begin with the prosecution tomorrow as far as dealing with the Dachau experiments. The main witness Prof. Dr. Hippke, whom I wanted to call to the witness box tomorrow morning. This Tribunal will understand that I wanted to speak to him yesterday and, of course, I have to speak to him today. I would appreciate, therefore, if the Tribunal would rule, if this procedure of the prosecution is correct, and I wish the Tribunal would rule that the witness be put at my disposal tonight for examination, because I want to call him to the witness stand and I must call him to the witness stand tomorrow, unless a long recess should occur. That is the start of this new trouble of mine, which I have to present to this Tribunal. Yesterday I tried to settle the matter with the Secretary General Mr. *******. Mr. ******* told me, however, that this matter would be taken up with the Tribunal for a decision today.
MR. DENNEY: If your Honor please, with reference to the application of Dr. Bergold concerning the witness Hippke I would like to say this about the attitude of the prosecution staff, at least so far as I am concerned, and I believe Mr. McHancy would agree with the matters that I am about to state. Hippke has been searched for at least seven months. He were unable to find him. He was in the British zone. He was arrested sometime in December. I believe approximately the 21st. It was a few days before Christmas. We made every effort to get him here as soon as we could. Now, it's submitted, that if the defense are able to foreclose us from talking to men when we are certainly looking for by merely submitting their names as witnesses and have us approve them, then the ends of justice aren't being served. Dr. Bergold submitted Hippke as a witness. I assume that he didn't know where he was, but in the interest of his client he was trying to produce him. I don't question that Dr. Bergold submitted his name in good faith. I approved the application, as your Honors recall.
I made no objection to it, but Hippke still has some value to us from the standpoint of being a subject of interrogation and just because Dr. Bergold or Dr. Sauter or any other German defense counsel submits an application for a witness, who is a man in that category, I submit they should not be allowed to foreclose us. Now, Hippke has been here for quite some time. It is only as of, I believe, Saturday of last week, that the Tribunal ruled that he would be available to the prosecution for purposes of examination, I don't know of my own knowledge but I am told that he has been interrogated, I don't know how extensively, by defense counsel. Now, I certainly am not opposed to Dr. Bergold being allowed to talk to him before he puts him on the stand, but I did want to put these remarks in the record with reference to his application in order that, what I think would be an injustice to the prosecution in cases similar to this, won't be a matter of normal procedure as a result of the ruling the court might make.
THE PRESIDENT: Well, I can see some difference between a witness whom the defense procures voluntarily and brings here from civil life to testify, and a witness who is a prisoner of war or who is sought by the United States, and is needed by the United States in its investigation, possibly as a witness or possibly even as a defendant. In the latter category it seems to me the witness belongs to the United States, rather than to the defense, even though the defense has asked that he be produced. You wouldn't contend, Mr. Denney, that if Dr. Bergold had secured an order for the attendance of a witness off the street who was not a prisoner, that you would have the right to examine him for any period before Dr. Bergold did?
MR. DENNEY: Not if the witness was not -
DR. BERGOLD: May it please the Tribunal -
MR. DENNEY: If Your Honor please, you asked me a question. Not if the witness was not in the first category which Your Honor mentioned. Certainly if he wants to go out and get some one named John Smith, who was a master welder, who was not a subject of search, not some one we want, some one to testify, that is his business. I submit that I can go out and talk to the man, but I certainly can't keep Dr. Bergold from going to see him.
DR. BERGOLD: May it please the Tribunal, may I add the following: The case is very peculiar, because the Prosecution would not have found out the address without the defense. On the 13th of December my colleague Sauter told me the address, and I informed him on the 21st that I had found it also independently. In other words, after my colleague Sauter had found out the address, he was arrested. Without our efforts the Prosecution wouldn't have found this man even today. It is like that, although Mr. Denney tells me I can speak to him, however there is an order from the Prosecution and the witness room that for eight days no defense counsel can speak with Hippke, and I am of the opinion that even in the American law this is forbidden.
If I would have known that Hippke was being sought for, then of course I would have made this application to the Tribunal to grant me the witness and to give him free transportation to this place. I couldn't understand why the Prosecution didn't charge him in the first case, but I am sure that there was no reason to indict him. Had I known that at the time, then I and colleague Sauter would have 714a asked safe transportation to Nuremberg before we divulged the address, which, of course, I am sure would have been granted me.
Therefore I am of the opinion that he is our witness, and that we have the right to examine him, even if the Prosecution wants to indict him later on.
MR. DENNEY: Well, first, I know nothing about Dr. Bergold's statement of what Dr. Sauter did. I do know that we have searched high and low for this man since last summer. As to why he wasn't produced in Case 1, the answer is that they couldn't find him. And as to whether or not we got the information of his address from Dr. Sauter, I don't know. I saw nothing that I recall in the application that indicated what his address was. Now, it may have been there, but I assure the Court that I didn't take the application, look it over, and then call somebody up and say, "Arrest this man." That was not done, and I have no present recollection of ever having seen what his address was.
DR. BERGOLD: I am convinced of that. That is what the Prosecution probably did in the first trials. In any case, Your Honor, I have to call the man as a witness tomorrow, and of course it is natural that I have to speak to him once more. I found a document which I would like to discuss with him. I would appreciate it if the Tribunal would rule that in spite of the fact that there was an order by the Prosecution that the witness should not be spoken to, that they make an exception in my particular case.
MR. DENNEY: First, just so the record will be clear about the order, it is not a prosecution order, as has been stated by Dr. Bergold. It is an order of this Tribunal and Tribunal No. 1, based on an application by the Prosecution made in Tribunal No. 1.
DR. BERGOLD: I didn't know that, Your Honors.
MR. DENNEY: I just want to have the record clear.
THE PRESIDENT: Yes, I know that to be a fact that the Presiding Judges of the two Tribunals signed such an order.
Well, Mr. Denney, approaching this practically, has the Prosecution questioned Dr. Hippke?
MR. DENNEY: Yes, Your Honor.
THE PRESIDENT: Well, then, is there any objection now to Dr. Bergold following with his interrogation?
MR. DENNEY: No, no objection so far as I am concerned. I could perhaps talk to Mr. McHaney and see if he has any objection, because Hippke is also involved in the case concerning the SS medical men, but I certainly would think, as a practical matter, that he would have no objection to making him available for this afternoon, if that is what Dr. Bergold has in mind. I could go up and see Mr. McHaney at the recess this morning.
THE PRESIDENT: All right, will you do that, please? And if he has concluded his questioning of Hippke then Dr. Bergold may examine the witness this afternoon or this evening and be ready tomorrow morning. We will let the matter stand that way until after the eleven o'clock recess.
DR. BERGOLD: May it please the Tribunal, I would now like to call Fritz Schmelter as a witness.
THE PRESIDENT: The Marshall will produce the witness.
FRITZ SCHMELTER:a witness, took the stand and testified as follows:
JUDGE MUSMANNO: You will raise your right hand and repeat this oath after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE MUSMANNO: You may be seated.
DIRECT EXAMINATION
BY DR. BERGOLD:
Q. Witness, will you give us your first name and you last name?
A. Fritz Schmelter.
Q. When were you born?
A. On the third of March, 1904.
Q. What was your position at the end of the war?
A. At the end of the war, I was Central Department Manager at the Ministry of Armament. (Ministerial dirigent)
Q. Do you know the Defendant Milch?
A. Yes.
Q. Do you see him in the courtroom?
A. Yes.
Q. Please point to him.
DR. BERGOLD: I wish the record to show the witness recognized the Defendant Milch.
THE PRESIDENT: The record will show that the witness has recognized the Defendant.
Q. Witness, how long have you known Milch?
A. From sight, I have known him for a long time. I know him personally after I joined the Ministry in 1944.
THE PRESIDENT: Will you have the witness repeat the position held at the end of the war?
