We are familiar with the ruling of the Court to the effect that once a witness has been dismissed, that an affidavit, according to the general rule, will not be received following his dismissal. However, it seems apparent that that ruling must also consider the subject matter. I take it that if the subject matter of this affidavit was referred to or commented upon by the witness Hecker while he was on the stand, we would have to abide, concerns the question of Nacht und Nebel, about which the witness Hecker did not testify while he was on the stand. We, therefore, think that the offering of this document at this time is not within the framework of the previous ruling of the Court.
Before reading several portions of this document, which I would like to do if the Court is favorable to receiving it in evidence, may I ask for a preliminary statement of the Court on this question?
THE PRESIDENT: Do Defense Counsel want to be heard on this question.
DR. SCHILF: (Attorney for Defendants Klemm and Mettgenberg) May it please the Tribunal, as regards the contents of this document, a quick glance through it shows that it deals not only with matters of the Nacht und Nebel decree, but also with matters of a more general nature, and matters concerning the Chief Reich Prosecutor at the People's Court.
If this document is admitted now, Defense Counsel would have to reserve the right for themselves to call the witness again, to have the witness brought back again for cross examination. Had this document been submitted in time, it would have been possible that it would have become the subject for cross examination at that time. Since it is submitted now, later, the Defense should not be put in a position of disadvantage with regard to the cross examination; on that occasion I should like to put a technical question. The affidavit, according to the German text, on page had been signed, has been signed, has been sworn to on the 5th of January, 1945; according to this statement of the 5th of January, 1945 -- Excuse me, please. It is a typographical error, but I read it correctly; it should be 1947; it is apparently a mistake in the text; the German text actually says 1945. I repeat the date therefore, 5th of January, 1947. After that there is a further statement by the witness of the 10th of March, 1947, which contains two corrections. These corrections on the 10th of March, 1947 apparently were not included in the oath, covered by the oath, as much as can be seen from the German wording of the last statement by the witness, because he only refers to the statement made on the 5th of January 1946. Here again I have to say according to the German text it says there "1946". I doubt whether my correction from 1945 to 1947 was correct; may be it was 1946 after all. A number of points are not clear, so that I believe that also formal objections can be raised to this document; objections of a technical nature.
MR. KING: Dr. Schilf has raised two questions, one as to the reaction of Defense Counsel -- perhaps Dr. Schilf is speaking only for himself -- is not quite clear as to the admission of the document in evidence.
I thought I discerned from what he said that he would have no objection to the admission of the document -- at least speaking for himself -- if he could reserve the right to recall the witness Hecker. So far as we know, he has the right, without reserving it, and even if we wanted to, I don't think we could prevent him from calling Hecker as his own witness. In any event, we would not object.
THE PRESIDENT: He would have no right to recall the witness except with the reservation; he would have to call him as his own witness.
MR. KING: That, of course, was what I was referring to.
THE PRESIDENT: Let me inquire whether Mr. King has properly understood the statement of Dr. Schilf. Are you able to speak for all of Defense Counsel, and are you willing that this be a modified condition, that you may call Hecker not as your witness, but as the Prosecution's witness?
DR. SCHILF: The translation did not come through.
THE PRESIDENT: It is necessary to repeat. As we understand Dr. Schilf's statement, and assuming that he speaks for the entire Defense Counsel, we understand that he has no objection to the admission of this document in evidence at this time if the Defense have the right to call this witness for cross examination as the witness of the Prosecution, and not merely as their own witness. Am I stating it correctly?
DR. SCHILF: Yes, Mr. President, that is correct insofar as this witness is concerned, if he can be called again for cross examination. We don't want him here as our witness, but as a witness for the Prosecution. I regret, however, that I have to say that I am not speaking in the name of all Defense Counsel, because my statement could only be for the two defendants who are my clients. I don't know what the interests are of the other Defense Counsel.
DR. HAENSEL: (Attorney for Defendant Joel) May it please the Tribunal, I have not spoken to my colleagues, but I believe that we do agree with the statement made by Dr. Schilf.
I only want to say one more thing in regard to this affidavit. There must be an error on page 4 -
MR. KING: May the Court please, that involves the second question which was raised by Dr. Schilf, and I thought it pertinent to discuss the first one, since if we decided the first question in the negative, there would be no point in discussing the second. I think, however, I can clear that question up to Dr. Schilf's and Dr. Haensel's satisfaction.
THE PRESIDENT: You may proceed with the other point. We assume there is now no objection to the document being received upon the conditions stated. It seems now that there is no objection on the part of any of the Defense Counsel to the document being received in evidence, subject to the right of any Defense Counsel to call him for further cross examination as the witness of the Prosecution. You may now, therefore, proceed to the next point that you had in mind, Mr. King.
MR. KING: Concerning the second point Dr. Schilf raised, and in which he was later joined by Dr. Haensel, I am quite frank to admit that on the basis of what one sees on the fact of this document, that the dates are a little confusing. I believe the history and a background perhaps is necessary. This affidavit, the main portion of it, was first -- let me say the statement, the main portion of the statement, was first made by Hacker on the 5th of January, 1946. At that time Hecker did not swear to the statement which he made. We discovered that omission in due course, and when Hecker became available we attempted to cure that defect by having him swear to the statement. At that time he actually did swear to the statement on the 10th of March, 1947. However, in the meantime, more than a year having elapsed, Mr. Hacker had an opportunity to think over the statement which he had made earlier, and for purposes of clarification he wished to add before he swore to it certain clarifying sentences, which he did; and they appear in the English copy on page 3, the second full paragraph.
Having added those explanatory sentences, he then proceeded to take the oath as administered by Mr. Schafer. Therefore, we think as the document now stands that it is a qualified affidavit, since he has sworn to the statement even though more than a year elapsed between the time the original statement was made and the time he actually was given the oath.
I said the oath was given by Mr. Schafer, the oath was given by Mr, Beauvais.
JUDGE BRAND: Is 5 January 1946 correct in the original?
MR. KING: 5 January 1946. 10 March 1947 as to the oath.
Is the Court still discussing this question?
THE PRESIDENT: No.
MR. KING: I assume, therefore, that the defense counsel have no objections to either the admission of the document in evidence or to the form of the oath? Admittedly it is a little confusing.
THE PRESIDENT: Was there not a. further objection by Dr. Schilf, which I do not know, in addition to the matter of admissibility?
DR. SCHILF: May it please the Tribunal, there are no more objections since we have had an opportunity to see the original and the original makes it possible to disentangle the matter, which was not possible on the basis of the German document book.
MR. KING: I do not wish to read extensively or, in fact, at all from this document. I suggest, however, that we have introduced here a fact concerning Nacht und Nebel which is not elsewhere spelled out as it is in this document, and that is the final status of the Nacht und Nebel program.
I call to the attention of the Court the statement of Hecker which begins under point 3 and continues on from there. It concerns the disposition of the program in the Fall of 1944 when Nacht und Nebel prisoners were afforded a different treatment than they had prior to that time.
We offer the document NG-373 as Exhibit 416.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: May it please the Court, I am interrupting at this moment to inquire if the defense counsel would consent to waiving the normal written notice in advance of the appearance of a witness. If they will do this, we will introduce this afternoon before the conclusion of the session a witness to testify to the geographical location of the concentration camps.
Otherwise we will have to call him sometime in the future after we file the normal notice.
DR. HAENSEL: We have no objection. We agree.
MR. WOOLEYHAN: After the recess we will introduce such a witness.
MR. KING: The document 1676-PS has been distributed to the Bench and the translators.
THE PRESIDENT: Does this belong to any particular document book?
MR. KING: I suggest that it also be placed at the end of Document Book 1-A. It was not included in the index in Document Book 1 or any of the document books, or any of the sections of Document Book 1, but I believe 1-A would be as logical as any other place.
This will be, when formally received in evidence, Exhibit 417.
This document is the transcript of an article or speech made by Dr. Goebbels. The transcript originally appeared in the Voelkischer Beobachter by Dr. Goebbels, for the 28th of May 1944. That is clear from the original which is being submitted.
The speech concerns the question of lynching and other treatment of downed allied flyers. I do not wish to read from this document but I point out to the Court that the portion of the speech or article which begins on - in the upper part of page 2 and continuing on throughout the balance of the transcript, as the part in which we are particularly interested.
The prosecution will maintain that following the delivery of this speech, and in collaboration with the Reich Ministry of Justice, the murder of allied flyers, of which Goebbels speaks here, was actually carried out or were actually carried out.
I show the photostatic copy of the Voelkischer Beobachter for 28 May to the defense counsel, if they care to look at it before we hand it up to the Secretary General.
(The document was then delivered to the defense counsel.)
We offer Document 1676-PS as Prosecution's Exhibit 417.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: May I ask if the representative of the Secretary General has copies of Document EG-491 on hand for distribution to the Court?
THE SECRETARY GENERAL: Yes, I have quite a few here; let me look. Yes.
MR. KING: Do you, by chance, have any German versions of that document?
THE SECRETARY GENERAL: I have only five copies in English.
MR. KING: I do nothave a copy of the German version of that document here. I do not wish to read very much. Perhaps the translators can follow me if I read slowly.
THE PRESIDENT: Do you wish to identify this with any particular document book?
MR. KING: The Document NG-491, which will be Exhibit 418 when received in evidence, should be placed in Document Book 3-K and should be substituted for the document presently appearing in 3-K at page 45.
This document is a sworn statement by Dr. Arnulf Klett. Klett at the present time is the Lord Mayor of Stuttgart. Klett was formerly, perhaps still is, a practicing lawyer in Germany and frequently appeared as defense counsel before the defendant Cuhorst.
I would like to call attention to two paragraphs, particularly in this document; the first of which begins on the bottom of Page 1. Reading from the document, the paragraph mentioned:
"In the course of his activity with the Special Court Cuhorst passed many death sentences, according to my memory especially against foreigners; also, whereby one had to have the impression that, out of his outspoken national socialistic attitude, he felt great satisfaction in sentencing especially foreigners severely. When, in many cases, death sentences were not passed, it was not the merit of Cuhorst but that of the Associate Judges (i.e. Dinkelacker and the District Court Judge Frey) who as I know for certain - have gone through a lot of trouble to dissuade Cuhorst from his intended death sentences."
I would also like to read the following paragraph:
"Moreover Cuhorst took delight in working on executions of death sentences 'stop watch in h*** as he put it himself in order to ascertain afterwards in how short a time a number of death sentences had been carried out. He was also sometimes anxious that the case leading to a death sentence was conducted in a surprisingly short time, where he could then boast afterwards to third persons that one could pass already a legal death sentence in a hearing in so and so many minutes."
We offer the Document NG-491 as Exhibit 418.
DR. DOETZER: May it please the Tribunal. Dr. Doetzer for the defendant Cuhorst. I believe I remember that a few weeks ago, upon objection made by my colleague Dr. Brieger, the statement by this Lord Mayor was rejected; the acceptance of this document was rejected because it had not been submitted in the form of an affidavit. In the meantime, the statement of that time, on the 7th of April 1947, was sworn to by Mr. Klett. Apparently, however, in the old statement of the 3rd November 1946, there were handwritten corrections made. At any rate, a comparison between the copy previously submitted and the one submitted now shows that certain words had boon put in, and one can not see for sure when this occurred.
Not disregarding the probative value of this document, because it has been sworn to on the 7th of April 1947, it still seems necessary to me to point to these facts; that is to say, I do not really raise a definite objection against the document.
THE PRESIDENT: It would seem that if this is the document he swore to, it wouldn't matter if these was same other document some other time that had not been sworn to. Tho question is, did he swear to this document.
MR. KING: The principle which defense counsel seeks to invoke apparently is that every correction must be dated. I submit that that is not relevant since the affiant here, on the 7th or April, has sworn that the document which is being submitted as the original, together with changes, is the one that he was swearing to. As to when the particular changes were made, it doesn't seem to mo that it makes a bit of difference.
THE PRESIDENT: The document will be received in evidence.
MR. KING: The document NO-2253, copies of which have been circulated to tho bench and to the translators, will be, when formally offered in evidence, Exhibit 419.
THE PRESIDENT: With what document book do you identify this document?
MR. KING: I suggest that this document be placed at the end of Document Book 8-A. I think it does not appear in the index there, but that is where it quite logically should fill.
This is an affidavit of Dr. Hugo Suchomel. His present position can be seen by referring to the first page, the middle of the first paragraph. I wish to read from tho English, beginning on Page 3, opposite Point 4.
"In the second half cf 1932, I remember the date because I know that Thierack was already Minister of Justice at that time, he was appointed in August 1942, and because at that time Prof, Karl Brandt was already General Commissioner for the Medical and Health Service (He was appointed in July 1942), I received orders to take part in a meeting at the Reich Ministry of Justice in Berlin.
As far as I recollect, approximately 30 persons were present at this meeting. I can remember the following: Ministerialdirigent Mettgenberg, Ministerialrat Joel, Oberregierungsrat Dr. Hans Hoyer, Ministerialrat Mielke, second Generalreferent Dr. Karl Westphal, Ministerialrat Ammon, Ministerialdirigent Dr. Fritz Grau and Ministerialrat Rietzsch.
I do not know who called the meeting, as I received the request to attend through official channels. The purpose of the meeting was a lecture on euthanasia killing of insane persons. The lecture was given by a representative of Dr. Karl Brandt. I am of the opinion that it was Brack who was to explain the problem to us.
He informed us that a Fuehrer decree had been issued according to which mercy-killing could be performed on persons affected with incurable mental diseases, with the exception of the war-wounded and. persons who had become insane as a result of air attacks. Among the group of persons who were excluded from mercy-killing, foreigners and Jews were certainly not mentioned. He stated furthermore that all measures against any misuse had been taken:
1) The various mental institutions (lunatic asylums) had to make a list of the persons affected with incurable mental diseases, and send this last to Berlin, "2) A commission of physicians would then visit the various mental institutions in order to examine the patients in question, "3) Only then there would an order from Berlin be given.
He did not explain the idea in any more detail, saying that these patients were to be transferred to institutions where the killing would be performed.
"At the end he showed us a large number of pictures showing individual patients before and after the killing, in order to demonstrate the moral justification of this program, as well as the fact that death was painless."
The affidavit goes on, but that is all that we wish to read at this time. Vie offer the Document NO-2253 as Exhibit 419. We will offer it to the Secretary-General as soon as defense counsel completed the examination of it.
THE PRESIDENT: The document will be received in evidence; and we will take our usual 13 minute recess.
(A recess was taken.)
THE MARSHAL: Persons in the court room will please find their seats. The Tribunal is again in session.
MR. KING: I have been informed that the admission of NO 2253 as Exhibit 419 did not come through on the sound track. I wounder, therefore, if we could have it admitted again.
THE PRESIDENT: Exhibit No. 419 being document NO 2253, is admitted in evidence.
MR. KING: A few days ago the Document KG 457 which appears in Book 3-H was offered and accepted into evidence as Exhibit 20. That was on April 2. It appears that the document as offered was not complete, and we would at this time offer the remainder of that document. I am in doubt as to how we should have that numbered as an exhibit. It would seem to me that we should call it 201-A, if that is agreeable with the Court.
THE PRESIDENT: That would seem to be the logical way to handle it.
MR. KING: For the benefit of defense counsel who may not have the document before them, this is in connection with the Kaminska case and merely completes the case of the defendant of that case.
After defense counsel have examined the document to their satisfaction, we will offer the document NG 457 as Exhibit 201-A.
There apparently being no objection on their part, we now hand it up to the Secretary General.
THE PRESIDENT: It will be admitted in evidence.
MR. KING: The next document, which will become Exhibit 420 when received in evidence, is the document NG 179. This document consists of a number of separate documents, none of which we wish to read, and we will only briefly summarize the content of the entire document.
THE PRESIDENT: With what document book shall we identify that?
MR. KING: Excuse me. I did mean to point that out, too. May we suggest that that be placed as the last document in Book 5-A, as the last document in Book 5-A.
The document NG 179 concerns a trial which never, in fact, was held, of one Gruenspan. In 1939 the German ambassador to Franco was found murdered, apparently by gunshot wound, which apparently came from the real. In 1942 plans were made for a demonstration trial of the alleged murderer of vom Rath, one Gruenspan. The first document, or the first portion of document 179 is an outline of what is conceived to be a proper form of this demonstration trial of Gruenspan. There follows on Pages 4, 5, and 6 an outline of each day's program, which was to consume a week of the trial. The following few pages also concern the manner in which the trial should be held, and the final portion of the document is a statement as to the reasons why the trial should not be held.
We, as I said at the outset, do not wish to read extensively from this document, but we do point out to the Court that the Gruenspan case represents a trial which was to be conducted as a demonstration to show how world Jewry was operating against the tenets of National Socialism, and, then how that trial was postponed because of certain facts which it was feared the defendant Gruenspan might bring out if he took the stand. This trial was to have been an extraordinary session of the People's Court to be held in Paris, and at one time, as is evident from the document, Thierack was to preside at that trial.
We offer the document NG 179 as Prosecution Exhibit 420.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: The prosecution calls as witness, one Henty Einstein.
JUDGE BLAIR: Do you take the American oath?
WITNESS: Yes, sir.
JUDGE BLAIR: Do you solemnly swear that the testimony you shall give in this case will be the truth, the whole truth, and nothing but the truth, so help you God?
WITNESS: I do.
HENRY EINSTEIN
DIRECT EXAMINATION BY MR. WOOLEYHAN:
Q. Witness, will you please tell the court your full name?
A. Henry Einstein.
Q. Where are you employed, Mr. Einstein?
A. I am employed in the Office of the U.S. Chief of Counsel for War Crimes.
Q. Here in Nurnberg?
A. Yes.
Q. How long have you been working here in Nurnberg for the Office of the U.S. Chief of Counsel for War Crimes?
A. I have worked for the OCC since October 1945.
Q. Since October 1945, when you say you commenced working here, was any portion of that work done in the International Military Tribunal?
A. Yes. Until the conclusion of the International Military Tribunal in October 1946, I worked for that organization,
Q. And since when you have worked for the Office of U.S. Chief of counsel for War Crimes?
A. Yes.
Q. In what capacity have you performed this work that you have just described?
A. I have always been a research analyst.
Q. In the course of your work as a research analyst since October 1945, here in Nurnberg, have you ever had occasion to do research work concerning concentration camps?
A. Yes.
Q. In the course of that research did you have occasion to ascertain the geographical locations of concentration camps?
A. Yes.
Q. Would you please stand up and face the wall map?
A. Yes.
Q. Now, witness, on that map of Europe represented on the wall, do you see any red dots which we assume represent the location of certain concentration camps. Do yon see any concentration camps that are located outside the German Reich? That is, outside of Germany.
A. Yes.
Q. Would you please point out as many as you can -- concentration camps that are outside of Germany. Name them, and designate the geographic location of each, and point as you do so, please. Start in any order that you like, as you see them there.
A. On the left side of -
Q. One moment, Mr, Einstein, please. For the purposes of the record, perhaps you should explain at the time you point to the geographical area to which you point.
A. On the left side of the chart, near the top, Hertogen Bosch, in the Netherlands, near the Belgian-Dutch frontier.
On the left bottom of the chart you have Natzweiler, in the French province of Alsace, slightly southwest of Strassbourg.
Here, you have Mauthausen, located in Austria, province of Upper Austria, slightly southeast of Linz.
Over here, you have Auschwitz, and various branch camps.
Auschwitz is in the vicinity of Cracow, in Poland, near the Czechoslovak-Polish frontier.
Over here, you have Majdanek, located in Galicia, which is a section of Poland.
Over here, you have Treblinka, southeast of Warsaw - therefore in Poland - east of Warsaw.
MR. WOOLEYHAN: Mr. Einstein, southeast of Warsaw....It is in Poland, is it not?
WITNESS: Yes, in Poland.
Then we have two camps north on this chart, which at present belong to the boundaries of Poland.
Up here, Stutthof, slightly east of Danzig.
And Gross Rosen, in Silesia, presently belonging to the boundaries of Poland.
MR. WOOLEYHAN: Mr. Einstein, from your research on the subject of concentration camps, do you see any concentration camp on that nap that you have just described, as far as its location is concerned, that is incorrectly located..... Generally?
WITNESS: No.
MR. WOOLEYHAN: Does the Tribunal have further questions?
THE PRESIDENT: For the purposes of the record, I think you should name those camps shown on the map which are within the German Reich.
MR. WOOLEYHAN: Yes. Witness, would you do that please?
WITNESS: Yes. Near the German-Czechoslovak frontier, east of Nurnberg, you have Flossenbuerg.
Slightly northwest of Munich, half way between Augsburg and Munich, you have Dachau.
Slightly east of Erfurt, province of Thuringia, you have Buchenwald.
South of Brunswick, Province of Lower Saxony, you have NOrdhausen, also called the Harz Region.
Near the German-Luxembourg frontier, you have Hinzert.
East of Dortmund, Province of Westphalia, you have Nieder hagen.
Slightly northeast of Hannover, you have Bergen-Belsen.
Slightly southeast of Hamburg, you have Neuengamme.
North of Berlin, and southwest of Stettin, in the Province of Pommerania, you have Ravensbruck.
And also north of Berlin, you have Sachsenhausen, Province of Brandenburg.
THE PRESIDENT: One more question, if I may.
You have referred to the Gross Rosen being in Silesia. Whatever may happen to the outer boundaries, the possible changes, that camp was in the Reich one?
WITNESS: That was in the Reich.
THE PRESIDENT: And the same is true of Stutthof?
WITNESS: Yes, Stutthof, East Persia.
MR. WOOLEYHAN: The prosecution has no further questions, your honor.
THE PRESIDENT: Has the counsel any further questions?
BY DR. KARL HAENSEN (for defendant Joel):
Q. Witness, do you know who made up this map... who drew this map?
A. I believe this chart was prepared by the American prosecution.
Q. And when was it made up?
A. I do not know the exact month; however, it was during the I.M.T. trial.
Q. That is, after 1945?
A. Well, after the beginning of the trial; or, I would say, in connection with the preparation of the trial.
BY DR. SCHILF (for defendants Klemm and Mettgenberg):
Only one question, in order to clarify the geographic situation.
Q. Witness, first you were asked which camps were outside of Germany. I would like to ask you to define the term "Germany" which you used in this question. "Outside of Germany" - that means, in regard to which borders of Germany? You were thus speaking when you began: Hertogenbosch, Natzweiler -- and then you went over to the East. You said these were the camps which were outside of Germany. Which borders of Germany determined---- at what time were you thinking of?
A. The German frontier of 1939. The beginning of the war. -- I have to correct myself. I would say, before the annexation of Austria, in 1938.
Q. And for the later time, could you describe the geographical situation a little bit more precisely?
A. After the annexation of Austria all the concentration camps located in Austria were, of course, not beyond the boundaries of Germany. After the annexation of Austria the concentration camps located in Austria formerly in that sphere, were in the boundaries of the German Reich.
Q. Can you tell me how it was about Natzweiler? What was this location?
A. Natzweiler, located in Alsace. Alsace was annexed by Germany after the Germany-French campaign.
Q. And how about Auschwitz?
A. Auschwitz is located in Poland. After the Eastern campaign Germany annexed parts of Poland, which became the German Generalgouvernment, and Auschwitz falls within those boundaries.
Q. Would you please repeat. The interpreter could not hear you?
A. Auschwitz is located in Poland. About one-half of Poland was annexed by Germany, incorporated into Germany, after the Eastern campaign, after the Polish campaign, and Auschwitz falls within the boundaries of the so-called "Generalgouvernment."