Q. You are quite sure of this date?
A. Yes, I am.
THE PRESIDENT: Dr. Bergold, is that the secrecy order?
DR. BERGOLD: Yes, Your Honor. It was know in Germany -- in Germany it was known as the basic Fuehrer Order No. 1. That is the way they called it in Germany, the official language. Isn't that correct, witness?
THE WITNESS: Yes.
BY DR. BERGOLD:
Q. Witness, can you tell me how you judge the defendant Milch?
A. I know the defendant Milch, or rather, I met him when he was a director or manager of the Lufthansa. I had personal dealings with him, and our relationship was very good.
Q. Is he a just man or is he a man who is not afraid of any cruelty or atrocity?
A. He is a just man. Maybe once in a while he stuffs his mouth, that is to say, in order to stress certain remarks. However, I never noticed any Atrocities or cruelty in him.
DR. BERGOLD: May it please the Tribunal, I did not want to ask any more questions of this witness. All I wanted to know was the date of the Fuehrer Order.
THE PRESIDENT: Can we have that document which contains that order that you just referred to? It is the Court's impression that it bears a different date than the one given by the witness.
MR. DENNEY: I believe, if Your Honor please, they are talking about Document L79, which is the record by Col. Schmundt of the Hitler conference in May 1939. That, if Your Honor please, is document No. 1 on Page 1 of Document Book 1-A.
DR. BERGOLD: I must disagree with Mr. Denney. I do not agree with Mr. Denney. The Fuehrer Order was an order of his own. I tried to get this document everywhere; however, it was probably destroyed. Many German defense counsel or lawyers tried to get this document. Mr. Denney just mentioned the so-called Schmundt record or protocol where this Fuehrer order is contained in exact manner. However, it is not the Fuehrer order. Could you tell us something about that, witness?
THE PRESIDENT: We have seen that order. It is the one where Hitler said that no one should know more than was necessary, no one should speak before it was necessary, and so forth.
DR. BERGOLD: Yes, I saw it myself as a German soldier.
THE PRESIDENT: I am referring now to Document L79, which bears the date 23 May 1939.
DR. BERGOLD: Yes, Your Honor.
THE PRESIDENT: And this one says no one must be admitted who is not concerned, no one may know more than is necessary for him to know, and so forth. That is not the one you refer to?
DR. BERGOLD: No. It is a Fuehrer Befehl, a Fuehrer Order. My argument -- I will go into details later. My argument is that this document does not contain the full truth of the conditions at that time and this is in evidence -- that this Fuehrer order which was released in 1941 is already in that document book from May 1939. Therefore I say that this Schmundt record was made after 1940 and that therefore it is not enough evidence and cannot bring enough evidence what happened in this conference of May '39 and what was discussed in that conference. I would like to see if the witness can make any statement as to that.
BY DR. BERGOLD:
Q Witness, please answer.
A This order was released on the 12th of January 1940. It was written in a personal manner. The contents were approximately the following, and were about the same as our opinion of the Fuehrer order. The order said approximately the Fuehrer -- the troops should not be informed as to the intention of the leadership, they only have to know what they have to know immediately and have to find out as late as possible. In other words, at a time to enable them to release the necessary additional orders. I know the date for that particular reason exactly because on that day I got my release, or I was discharged.
Q Witness, I didn't want to ask you about that.
A However, this is in evidence because I remember exactly.
Q The order was released because of an incident you thought you were responsible for?
A Yes, there was an incident that happened within my field of work or activities.
Q And was started by this occasion?
A Yes, there can be no doubt about that.
DR. BERGOLD: I have no further questions. The witness is at the disposal of Mr. Denney.
CROSS EXAMINATION BY MR. DENNEY:
Q Witness, what was your rank in May 1939?
A In May 1939 I was commander of Air Fleet 2, Braunschweig.
Q What was your rank? General der Flieger?
A General der Flieger.
Q And that is one rank below the rank of Generaloberst, is it not?
A Yes, indeed.
Q Were you in a meeting with Hitler on 23 May or any time around that date, 1939?
A No.
JUDGE MUSMANNO: Mr. Denney, what is the American equivalent of that rank which you have mentioned in German?
MR. DENNEY: General der Fleiger is like our Lieutenant General, if Your Honor please. Generaloberst is like our four star General.
BY MR. DENNEY:
Q. Did you ever talk to anybody about that meeting?
A. No. I just learned about this conference through the press. I didn't know that there was a session in May with the Fuehrer.
Q. Did you talk to Milch about it?
A. No.
Q. With Goering?
A. Neither with Goering nor with Milch.
Q. Keitel, Jodl?
A. No.
Q. Raeder?
A. No.
Q. Warliment?
A. No.
Q. When did you first find out about this meeting?
A. Right now in the Nuremberg trials and from the excerpts of that so-called Schmundt record, of which excerpts appeared in the press, the papers.
Q. You didn't know that the meeting was held until sometime late in '45 or -
A. No, I didn't know about that. Later on in '45, to be exact, '46, I was in Braunschweig and I had nothing to do with Berlin exactly.
Q. Your duties didn't even have you in Berlin at that time, did they?
A. Once in a while, yes, but the left wing was Braun-schweig and the right wing of the Air Corps was Stralsund.
Q. Did you know anything about the employment of partisans which were captured as laborers? Withdrawn. You were commanding general of the 34th army corps down in -
A. No. No. At that time I was commander of Air Fleet II, Braunschweig.
Q. We are talking about '39 now. We are through with that.
A. No, later.
1294 (a)
Q. At one time you were commanding general of the 34th Army Corps in the southeast, were you not?
A. No, it was Yugoslavia.
Q. We won't argue about the direction. Do you recall what disposition was made of partisans who were captured down there?
A. There were different orders, various orders. There was an order against gang fights, I believe, from '42, and still later on it was extended by additional orders, and then later on was mitigated.
Q. Do you remember that partisans who were captured were made available as laborers in Germany?
A. According to my opinion, this was demanded in the summer of 1944. The troops were generally against it because they said that sabotage could be carried out by these partisans, and they weren't quite reliable, because of their previous activities. They didn't think that appropriate.
Q. But they did make them available as laborers to Germany?
A. Well, a certain percentage of them came to Germany. I do not know how many of them did cone to Germany, though, but they applied for them; that is correct.
MR. DENNEY: No further questions, Your honor.
DR. BERGOLD: I have no further questions, Your honor.
THE PRESIDENT: The Marshal may remove this witness. Are you ready for the next witness, Dr. Bergold?
DR. BERGOLD: Yes, General Warlimont.
THE PRESIDENT: You may bring General Warlimont back.
WALTER WARLIMONT? a witness, took the stand and testified as follows:
THE PRESIDENT: The witness will raise his right hand and repeat after me: I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
THE PRESIDENT: You may be seated.
DIRECT EXAMINATION BY DR. BERGOLD:
Q. Witness, will you tell this Tribunal your first and last names?
A. My name is Walter Warlimont, W-A-R-L-I-M-O-N-T.
Q. When were you born, witness?
A. 3 October 1894.
Q. What was your last rank in the German Wehrmacht?
A. I was general of the artillery and belonged to the Fuehrer Reserve of High Command of the army.
DR. BERGOLD: May it please this Tribunal, I shall now come to the famous Schmundt protocol or record, which we discussed a few minutes ago. It is Exhibit No. 3, page 1 of the Document Book Number 1-A of the Prosecution.
BY DR. BERGOLD:
Q. Witness, do you know that on 23 May 1939 in the office of Himmler, Hitler and the New Reich Chancellory there was a conference ?
A. I heard about this conference for the first time on 12 October 1945 in this building here. On that particular day I was questioned by an American interrogator. He shelved me a photostatic copy of this conference, and I immediately stated that I had not participated in that session and that I furthermore did not know anything about the fact that this conference had taken place.
Q. In other words, if this record shows that you were present, then it is not correct?
A. It is undoubtedly wrong.
DR. BERGOLD: I have no further questions of this witness. He is now at the disposal of Mr. Denney.
MR. DENNEY: No questions, Your Honor.
BY JUDGE MUSMANNO:
Q. Did you know Colonel Schmundt?
A. Yes, for quite a period of years.
Q. Did you ever have occasion to talk with him between May 1939 and the end of the war?
A. Yes, quite often.
Q. And nothing ever developed in the conversation that would lead you to know or to have some intimation that your name had been included in the memorandum which he made up of this famous meeting?
A. No, there was never a question about that.
BY THE PRESIDENT:
Q. Were you in Berlin in May 1939?
A. In May 1939 I was in Berlin in general because my office was there. However, I can not tell whether I was there on 23 May.
Q. Where was your office in Berlin?
A. It was in the building of the Reich bar Ministry in Bendlerstrasse.
CROSS EXAMINATION BY MR. DENNEY:
Q. Witness, you have spoken of your interrogation of 12 October 1945 by Lieutenant Colonel Hinkel. Do you recall that?
A. Yes.
Q. At that tine he showed you the original of this document signed by Schmundt?
A. Yes, indeed.
Q. And you identified Schmundt's signature, didn't you?
A. Yes, indeed.
Q. And he also asked you why you thought Schmundt would say that you were there if you were not there, didn't he? Do you remember him asking you that?
A. I do remember that, and I remember my answer as well.
Q. And what did you answer to that?
A. First of all, I pointed out that the list of those present had been typed prior to the conference, while the record itself was handwritten and could only have been written after the conference. The Wehrmacht adjutantur, whose chief was Schmundt, had anticipated my participation in that conference. However, later on, they did not correct the list of those present.
Q. Do you remember telling Colonel Hinkel that it may be that you had forgotten?
A. No, I did not say that.
Q. And then Colonel Hinkel said to you, "In other words, you don't say you were not there; you just say you don't remember?" And you said, "Yes, Yes, that is all I can say."
A. No, I explicitly mentioned that I was not there, and I gave him a whole series of reasons for that.
MR. DENNEY: No more questions.
BY JUDGE MUSMANNO:
Q. Is Schmundt living now?
A. No, Schmundt died after the attempt of 20 July.
Q. Of 1944?
A. Yes.
Q. Was he one of the conspirators?
A. No.
Q. What was the occasion of his death, what happened, if you know?
A. He was present in the room where the attempt on Hitler's life took place. He was injured very badly and died a few weeks later as a result of the so injuries he received.
Q. Very well.
RE-DIRECT EXAMINATION BY DR. BERGOLD:
Q. Witness, one more question. Were you asked to attend this conference?
A. No, I did not know anything about that conference until 12 October 1945. I did not know that such a conference took place until that date.
DR. BERGOLD: No further questions.
BY THE PRESIDENT:
Q. Had you been invited to attend the conference by Hitler, you hardly would have stayed away, would you?
A. No, I don't think so, under no circumstances. However, for that reason, it is quite improbable that I had been invited, because never during that period of my office was I over called to such a conference. Never. Three years prior to that I visited Hitler once -- one single time -- because for a particular reason when I had returned from abroad, and for that reason, I would not have forgotten such an incident.
THE PRESIDENT: The Marshal may remove this witness.
(Witness excused.)
DR. BERGOLD: May it please the Tribunal, I am very sorry to have to inform you of the fact that no witness is at our disposal at this moment, because the witnesses whom I applied for have not arrived in Nurnberg yet, neither the main witness, General Vorwaldt nor the very important witness General Westhoff, who could probably inform us of the shooting of Russian officers. These gentlemen at this moment are in either British or American captivity.
The free witness Kalk informed two days ago that he did not come to Nurnberg because he is now the administrator of three hospitals, and he is one of the few who are still in Berlin, so that there would be quite a danger to the population there if he left. As the interrogation or examination of the witness Kalk is quite long, I would have to go to Berlin with my secretary, which would necessitate an interruption of the trial. That is the situation at the present moment.
I have one more request to this Tribunal. I would appreciate it if the Tribunal would see to it that a copy of the English record is submitted to me. In one of the records which I glanced through with my secretary we found quite a few mistakes. We found no fault with the interpreters, but the so-called C-office was translated as "Sea-Office"S-E-A Office, or "Lake Office" and this is quite a serious mistake because one would actually think that this C-office had something to do with the sea distress experiments. They connect this with the sea, and it has no connection with sea but only with the letter "C", in the alphabet .
These mistakes, of course -- I would like to look through them so that when the Tribunal passes sentence, it does not have a report which contains such mistakes.
THE PRESIDENT: Do you got a copy daily of the German transcript?
DR. BERGOLD: Yes, indeed I do. I receive it with a delay of approximately five to six days. That is quite usual, though, and I am not com plaining about that.
However, I would like to have an English copy in order to climinate or find out these mistakes, because 1300 A this Tribunal has to base its sentence on the English record and not on the German record.
THE PRESIDENT: Do you wish the English copy from now on, or do you want the back copies?
DR. BERGOLD: I would like to have them from the beginning in order to glance through them and find very serious mistakes. Small mistakes can not be avoided, and I am not blaming anybody about that. In other words, I am not trying to play teacher here. However, serious mistakes which give the case a different meaning have to be clarified
THE PRESIDENT: Your request is reasonable, and it will be arranged that you be furnished an English copy of the testimony, together with the German.
DR. BERGOLD: Thank you very much, Your Honor.
MR. DENNEY: If Your Honor pleases, I think the Secretary General can arrange for that.
THE PRESIDENT: From the Document Division?
MR. DENNEY: Through the distribution center, If Your Honor pleases.
THE PRESIDENT: That's Mr. Niebergall.
MR. DENNEY: I believe, Mr. Niebergall. I think the actual physical work and handling is taken care of by Mr. J. Millard, if Your Honor please.
DR. BERGOLD: Thank you very much Your Honors. Thank you very much.
THE PRESIDENT: We're attempting to guess, Dr. Bergold, when this trial will be concluded as far as the taking of testimony is concerned. Can you give us some indication of the number of witnesses which you will call?
DR. BERGOLD: I would like to call General Vorwaldt, Colonel Petersen, General Raeder, that is the Marshal who knows exactly the question with regard to the death sentences, the witness Brandt, who played sick yesterday, the witness Xaver Dorsch, the man with the subterranean buildings, General Westhoff, and today - I just found out about it today I asked for two further witnesses, namely, General-Admiral Schniewindt from Garmisch, and Lt. General Engel from Camp Allendorf. These two gentlemen were present at the Schmundt conference. I just found out their address. The witness Brauchitsch told me their address.
THE PRESIDENT: What is the importance of the inquiry into who was present at the Schmundt conference?
DR. BERGOLD: It has an importance for the following reason: namely if, according to the opinion of the prosecution this slave labor plan was already planned within the framework of Germany or not, it is a question of the conspiracy in the first place.
If I can prove with these witnesses that these Schmundt records are false in quite a few points, then, in my opinion, and I 1302 A also take it that it will lose in your opinion, as well, its probative value.
THE PRESIDENT: Will it be your claim that Milch was not at that conference?
DR. BERGOLD: Yes, indeed; he was present. However, the record is wrong. It contains many points which were only written later on in falsification of history, as statements made by Hitler, allegedly, that is. We think that this record was only written in 1940, and it contains a series of wrong statements and could not be used for history; in other words, in order to show that Hitler could see in advance what was com ing. This conference was of different contents than the one on the record.
THE PRESIDENT: Well, your position, then is that Milch was there?
DR. BERGOLD: Yes; it is.
THE PRESIDENT: But what the Schmundt transcript of what was talked about is incorrect?
DR. BERGOLD: That is correct; yes. The prosecution submitted it, and therefore I assume that the prosecution attaches a probative value to it; otherwise I am sure they wouldn't have submitted it. Mr. Denney -- I don't think he would put a task on his shoulders witch is not necessary.
MR. DENNEY: Your Honor, please, all those questions were thrashed out with the Internation Military Tribunal -- it was signed by him, it was found in the German archives, and that is true. Now, I haven't objected to his calling Raeder, to testify with reference to what happened, I haven't objected to his calling Vorwaldt to come in and say he wasn't there, but if we're going to have a long parade of these people coming in and attacking this thing, I submit that it ought to stop.
DR. BERGOLD: May it please this Tribunal, it is correct that members of the Internation Military Tribunal ruled to that effect. However, all those points of evidence which I submitted had not been submitted by the German defense at the time I was in Berlin, in general, about this record, and nobody tried to check up on these records.
Therefore 1303 A I'm of the opinion that if I want to bring now evidence against the accuracy and value of this record, which evidence was not introduced in the first score - and therefore was not examined - then I think that I should be permitted to do so, because, in my opinion, it would be contrary to justice to overrule such an exact evidence.
It cannot be a prejudice, that mistakes that were made by defense counsels in different courts must be used for all future defendants. Milch, at the time, could not defend himself, and the proof that he believes that he can introduce now, he could not introduce at the time. That, in my opinion, should be permitted him, even according to the Charter.
THE PRESIDENT: Well, of course, the fact that some of your witnesses are somewhere in the custody of either the British or American military authorities doesn't help us much in determining when they will be here present as witnesses.
DR. BERGOLD: May it please this Tribunal, I understand that. However, it is outside of my jurisdiction and outside of my possibilities to make a statement to that effect, because this is a matter which concerns the military administrative officials exclusively, as this Tribunal already has asked for the witnesses to be brought to Nurnberg. I do not know the military office which I can apply to, and I can assure you that they wouldn't even listen to me.
THE PRESIDENT: Well, is the conclusion this: That you have no witnesses today?
DR. BERGOLD: No; I have no witnesses for today.
TIE PRESIDENT: What about tomorrow?
DR. BERGOLD: I don't know if anybody will come till the afternoon. I know as little as before. That is the unfortunate thing about it all. We don't get anything at all as defense counsels; we're only put before facts. The witness is here or he is not here; that as all. The witness Raeder, for instance -- he was here, I spoke to him, he was approved by this Tribunal, and in spite of that he was taken away.
All this is outside of my jurisdiction. I only learned about these things when the witnesses already appeared.
1304 A
MR. DENNEY: If Your Honor please, the statement that he has just made about the witness Raeder, isn't so. He refused to call him. He could have called, him, and said "I won't call him."
DR. BERGOLD: Oh, no. Oh, no; that isn't right. The witness Raeder had been granted me, I spoke to him, and before he could be called he suddenly disappeared. Lt. Garrett told me that.
THE PRESIDENT: Well, Raeder is the man who was shipped to Garmisch by mistake, wasn't he?
MR. DENNEY: I thought he was taling about Adamiral Raeder -- he was out here in the hall yesterday.
DR. BERGOLD: No; I'm speaking about Raeder -- Raeder.
MR. DENNEY: Oh, I don't know anything about him. And I must say that we don't have anything to do with it.
THE PRESIDENT: Whom do you mean by "we"?
MR. DENNEY: The prosecution.
THE PRESIDENT: The United States doesn't want to spirit any witnesses army.
DR. BERGOLD: I'm quite sure of that.
THE PRESIDENT: This seems to involve some inquiry that shouldn't be made in open court. If Dr. Bergold and Mr. Denney would be good enought to go from here to the Court's Chambers, we'll see if some of the practical aspects of this difficulty can't be ironed out. Do you expect to learn this afternoon whether you'll have a witness ready for tomorrow morning?
DR. BERGOLD: Yes.
THE PRESIDENT: I'm trying to determine until what time we should adjourn. I think we'll call it tomorrow morning and hope that it won't be time wasted. The Tribunal will recess until tomorrow morning at 9:30.
THE MARSHAL: This Tribunal is in recess until 0930 tomorrow morn ing.
(The Tribunal adjourned until 21 February 1947, at 0930 hours."