Q. Now, then was there a department designation made on correspondence that went through and from the Party Chancellery consisting of Roman Numerals and letters?
A. Yes.
Q. What was the one for the department which you worked in there at the Party Chancellory -- that handled matters to and from the Ministry of the Interior?
A. Roman III a.
Q During the time you were at the Party Chancellory working under the arrangement which you have described, did the Ministry of Justice also have a representative working under the same sort of conditions?
A. Yes, they did.
Q. And, did their correspondence have a designation composed of Roman Numerals and letters? If so, what was it?
A. III c.
Q. Do you know the defendant Herbert Klemm?
A. Yes.
Q. Was he at the Party Chancellory during the time that you were there?
A. Herr Klemm was there sometime before that, and he left it sometimes before I did, when he was appointed the Under-Secretary of the Ministry of Justice.
Q. Do you recall when he was appointed Under-Secretary of the Ministry of Justice, approximately?
A. No.
Q. You were still there when he was appointed, however; is that right?
A. Yes, it must have been before March 1944.
Q. Yes, and he was there when you came in January 1942, as you remember?
A. Yes.
Q. While you were at the Party Chancellory were you made a Dienstleiter in the NSDAP?
A. Yes
Q. Do you remember approximately what time that was; what year and month?
A. It must have been February or March 1942.
Q. Was the defendant Klemm made a Dienstleiter about that time or possibly before then, or do you recall?
A. I do not remember that exactly, but I suppose that he was appointed at the same time.
Q. Was the officer of the rank of Dienstleiter within the leadership corps of the Party level?
A I do not understand that question, quite. As far as I know, in the order of rank of the political leaders, there was no difference between Unterfuehrer and Oberfuehrer -- between the lower leader and the fuehrer.
Q. Describe what the leadership corps was?
A. It is very difficult to describe it.
Q. Well, you can do your best.
A. It was so large, this political leadership corps, that positions and the value of political leaders, were very different; there were very great differences between the position of leaders. For the rank of Herr Klemm and myself, it is important to know that they were so-called honor ranks, that is, we got the uniforms -- the assistants in the divisions, too. The political divisions did not consider us as full political lenders. That was evident from little details. First of all, in pay; we received the salary which was for the rank of which we had as civil servants, and as far as the income was concerned, that was 50 percent of the salary which the men in the same position in the political division received. During that time when I was in the Party Chancellory, attempts were made also to make this position of the Dienstleiter evident in the type of uniform by having the official rank, the insignia of the service rank, that it had a green base, as the Paymaster of the Wehrmacht has it.
We were considered just simply as civil servants. If I am not mistaken our appointments, at the time, was made so that we could be introduced to Hitler, which happened about March 1942; for that, we needed a uniform.
Q. Will you turn to the exhibit that you have at the witness box. I believe if you run through that exhibit you will find a letterhead of the National Sozialistische Deutsche Arbeiter Partei. It is a rather large letterhead. When you come to the letter written on that letterhead, just let me know, will you?
A. Yes, I have it here.
MR. LAFOLETTE: Your Honors, please, this is in book 3 H, the exhibit NG-131 has to do with the further restrictions of legal rights of the Jews. It runs from page 38 through page 66. This is one of the exhibits that is somewhat badly put together chronologically, and I believe I furnished the Court, at the time, a suggested chronological reading of the document. The letter to which the witness now refers is found on page 65 of the English book. I am talking of the document book now. I am sorry I cannot give the cross reference in the German because this book is not cross referenced.
THE PRESIDENT: What is the exhibit number?
MR. LAFOLLETTE: Exhibit No. 204, your Honor.
Q. Do you find immediately below the dateline of that letter that you have, on the letterhead of the Party Chancellory, a designation composed of Roman Numerals and letters; and, if you do, what is that designation that you find?
A. III c.
Q. Did you talk with me, as I recall, twice yesterday about this exhibit; is that correct? Yesterday morning and yesterday afternoon?
A. Yes.
Q. And, as I recall in the morning I did not have a photostatic copy which corresponded to the one you have there before you now; is that your recollection?
A. It is possible, yes. Yesterday this photostatic copy came up during the course of the conversation I had with you.
Q. Yes, that was the second conversation yesterday, when I laid it before you when you were in my office; do you remember that?
A. Yes.
Q. At that time you had an occasion to read this letter from the Party Chancellory which is signed with a typewritten signature on the next page -- M. Bormann; is that correct?
A. Yes.
Q. Now, that photostat of the original letter uses the expression "Rechtsmittle" and "Rechtsbehelf"; is that correct?
A. Yes.
Q. Do you recall that Mr. Boguet, who speaks German and English was with us and that on the first discussion that you and I had there Mr. Boguet, that you told him you found it difficult to accurately mark the fine line of differentation between "echtsmittel" and "Rechtsbehelf"; is that correct?
A. Yes.
Q. Later on, in the afternoon, we noticed a letter from the office of the Food Administrator -- the Administrator of Food and Agriculture, dated August 20th; do you find that now?
A. Yes.
Q That is on page 48 of the English text, your Honor. And there is definition on attempt there, on the letter of the Food and Agriculture Ministry, to find and point out the difference, is that correct?
A Yes.
Q I ask you whether or not, in your memory, you had seen that letter, at any time before you saw it in my office yesterday - the letter from the Ministry of Food and Agriculture.
A No.
Q I ask you whether or not the character of your legal training was such that in September 1942 you would have felt free to use these two terms as marking a difference in legal remedies, and different legal meanings, accurately?
A That there were differences between these two terms, I must have known at that time - but an exact definition I could not have given; especially of the term "Rechtsbehelf."
Q Now, I ask you, do you know what the educational training - the professional training - of Martin Bormann was?
A If I am not mistaken, he was a graduate of an agricultural college, Diplomlandwirt, and after the first World War he was inspector of largo farms, Gutsinspector. Then, he was in the Party service in the Main Office.
MR. LAFOLLETTE: Thank you very much. I think that is all.
THE PRESIDENT: Defense counsel may cross-examine.
CROSS EXAMINATION
DR. SCHILF: (for defendant Klemm) : Witness, you stated that for many years you worked in the Party Chancellory, and that you were Gruppenleiter in Department III-A. You also stated that there was a Department III-C, and that Klemm was working in that Department.
First of all, I want to ask you whether you could tell us something more, still, about the organization of the Party Chancellory, for the figures "3" and the letters "A" and "C" show, already, that there was a rather extensive organization. I ask you to make your description of the organization of the Party Chancellory really brief.
A The Party Chancellory had three divisions, or departments:
Division I, the Business Office; Division II, political Division; Division III, legal Division - "Staatsrechliche" Division. Division III was divided into groups: III-A, mainly Ministry of Interior; III-B, the Economic Ministries - that is, Labor - Speer; III-C, Justice; III-D, Education and Culture, Church; III-E, Finance. Then there were special groups: III-S, Liaison Leaders for the Police; III--- I can't remember the letter --- Special Commissions Special Tasks.
Q Was that all within the framework of Division III that is, the Division for Administration and State Policy?
A Yes, it was called the "Staatsrechtliche" Division the Legal Division; yes.
Q You were searching in your mind for the special group .... Was it III-P - for personnel matters?
A I forgot that one. All personnel matters -- III-P. Pohl was in charge of personnel matters of all higher Reich authorities.
Q Then there was still a Division III-S... That was the one you were speaking about ... Special Tasks.
A Yes, especially liaison with the police, with the Chief of the German Police.
Q The other Divisions, I and II, were they also subdivided? I am just asking you the question. I don't want you to describe the subdivision.
A How it was about I, I don't know.
Q Can you, in brief, describe the sea of activity of Division I?
A If I am not mistaken, I had very little insight into this Division. There were two main tasks. First, the inner business service, or the office of the Reich Chancellory that is, Buildings, Operations, Personnel, Travel Course, etc. And, consequently, in this Division they were working on matters which had to do with Bormann's task as Secretary to the Fuehrer. That comprised approximately Haus and Hofmarschall, personal marshal to Hitler - the administration of this personal income, that is, Hitler's personal income and property, and everything that was connected with that task of Bormann's.
Q Then, I would like you to give a brief description of Division II, which you have already repeatedly mentioned.
A Division II was divided also into groups. These groups, were working with the political matters of the Party. Thus, essentially: direction, political influence and personnel matters on the Party organization, its branches, and affiliated organizations.
Q Witness, I would like to ask you to describe Bormann' s position, and attitude, toward the Party Chancellory, and I mean for the time when you -- approximately at the time the defendant Klemm and you were working in the Party Chancellory.
A Bormann was the leader of the Party Chancellory, the Director.
Q Was he always present in the Party Chancellory?
A Bormann was almost exclusively in the Fuehrerhauptquartier - in the Fuehrer Headquarters.
Q The Party Chancellory: I am asking you to state this: Was it in Munich?
A Its official seat was in Munich. The members of Division III were, as a rule, for two to three days during the week, in Berlin.
Q And you said that Bormann almost exclusively was in the Headquarters of Hitler; that was, of course, outside of Munich, and also outside of Berlin?
A That was, as a rule, in the East.
Q In what way was the connection established between Bormann as a Director, Leader, to the Party Chancellory, formally, and the offices in Munich and Berlin?
MR. LAFOLLETTE: Don't answer that, please. If your Honors please, I have refrained from objecting at this time. I call the court's attention at this time that I called for a very limited direct examination as to this man's service, the fact that the defendant Klemm was there, as to the matter of leadership corps; and then, as to these two Divisions - subdivisions of Division III, how they were designated for correspondence, and referred to one letter. Now, all of this material which is now being elicted on cross-examination, I would say, was probably pertinent, eventually, to the defendant's case; but I am positive of the opinion that it does not constitute correct cross-examination as against the direct examination of this witness, which was definitely limited; and, I may say, also, purposely limited; and I object to this question. I have actually felt as though I should have objected to the preceding question. I want to state my my position very strongly now:
I don't think it proper for the defense to develop answers from my witness on crossexamination on matters which were not material to the direct examination, or relevant to any issue therein.
THE PRESIDENT: Will you re-propound that last question, please?
BY DR. SCHILF:
Q Witness, you stated that Martin Bormann almost exclusively stayed at the Fuehrer headquarters; the Party Chancery with its offices, however, was in Munich After you stated that, I asked you in what way a connection between Bormann and the offices in Munich was maintained.
MR. LA FOLLETTE: If Your Honors please, maybe I haven't made myself plain. Of course there is a connection between what Martin Bormann did, between this letter, between the fact that the defendant Klemm was handling Ministry of Justice matters. But, as far as the direct examination of this witness was concerned, it was limited to an identification of the correspondence numerals and the method of identifying as to the content of this letter and the Leadership Corps, which was not going in, and that was all.
Now, I did not go into any of these matters on direct examination. They are in the record from other evidence, various links. But I definitely object to this crossexamination as not being relevant to the direct examination and going into a field which was not entered in any way in the direct examination.
DR. SCHILF: May it please the Court, may I ask something in connection with this? The witness was asked about the profession of Martin Bormann and also made a statement as to what it was. That referred to the letter which Mr. LaFollette had also shown to him. The question was put as to whether Martin Bormann, as a former agriculturalist, was in a position to explain difficult legal expressions in this letter, or to understand them.
My cross-examination is directed to this question as to what extent Martin Bormann, who signed this letter, could have been in a position to use altogether difficult legal expressions. Before I can put this question, however, I have to ask the witness to what extent the Party Chancery in Munich had connection with Bormann altogether. Therefore, it is my opinion that the questions in my crossexamination are in an indirect, if not direct connection with this letter.
MR. LAFOLLETTE: Now we come to the point exactly. Dr. Schilf is attempting, by cross-examination, to elicit from this witness information having to do with a conclusion which is probably implicit from the facts which are in this case and some of which I elicited from the witness, from the facts. I did not ask the witness did he think that Martin Bormann could have written this letter. That is what this goes to. I admit I asked the witness what he knew about Martin Bormann's education, and he answered that. And that is where my direct examination stopped.
Now, had I, in my opinion, made the mistake of asking the ultimate question, I would have opened the flood-gates for this cross-examination. I did not do it.
Of course, the defendants are entitled to rebut the ultimate inference, but it is my point that they must do that by evidence which they produce themselves, and they cannot do it by cross-examination of this witness beyond the field of the direct questions asked him on direct examination.
We have reached exactly the issue upon which I ask the Court to make a decision.
THE PRESIDENT: We have before us a close question. Of course, it is not the field of cross-examination to develop any defense theories except as the field has been entered on the direct examination. We feel that this is an attempt to enter upon the defense, and we don't feel that the field has been sufficiently entered to permit defense counsel to do so. We therefore seem to feel that the objection should be sustained.
Of course, let us be clearly understood. This field is open to the defense and they may make this witness, if they like, their witness in defensive matters when it comes to the defense. But at this time we do not feel that this field has been opened.
DR. SCHILF:
Q Witness, I wanted to ask you whether Bormann--even though he was an agriculturist by profession--in his activity in the Fuehrer headquarters, had a Referent an assistant, who was a lawyer.
A Yes.
Q Was this trained jurist constantly in the Fuehrer headquarters; that is, in personal contact with Bormann?
A Yes.
MR. LAFOLLETTE: I ask that the answers be stricken because they enter a field which is clearly that of the defense; they do not cover the direct examination. It is difficult to get to your feet here and make objections; I know the usual rule that you must object. However, I ask that the answers be stricken. They definitely go to matters which were not covered by the direct examination.
THE PRESIDENT: We feel that defense counsel is pursuing that beyond the restrictions that have been laid down by the Tribunal. We will no withdraw the answer, but you will please direct your inquiry to other matters.
DR. SCHILF: May it please the Court, I would like to say something principally on my part. In the direct examination, the witness was asked about the letter.
THE PRESIDENT: We wish counsel to feel that when we have ruled, that becomes a finality.
DR. SCHILF: But this applies to my future questions; in regard to the questions which I am going to ask now, I would like to know the opinion of the Tribunal.
THE PRESIDENT: You may proceed to ask your questions and we will rule upon them in turn. Don't make your argument in advance.
BY DR. SCHILF:
Q Witness, within Division III, which was in Munich, can you tell us any details about the office procedure? According to the letter which was submitted to you, and the letter which has the signature of Martin Bormann himself, the important thing is that the file number III-C has been mentioned. You probably have the photostat before you; it is of the 9th of September, 1942. I would like to ask you to look at the other signs and also the handwritten note. It is the letter of the 9th of September, 1942. I would like to ask you to tell me, after that, whether this letter, which has the division and sign "IIIC", must actually have been written by this party without any question, or whether this letter might also have been worked over by another division, perhaps III-A.
MR. LAFOLLETTE: Don't answer that, please.
Again I have the same objection, Your Honor. This is a matter for the defense which they can certainly produce. They may call this witness, they may call any witnesses that they please. All I asked was that this witness identify this letter as coming from by its identification III-C, or as being one within the matters handled by the Ministry of Justice representative at the Party Chancery.
As to who might have written it, whether some one else might have gone over it, is certainly a matter for the defense. This question does not go as to whether or not the witness was mistaken as to his identification of this III-C; it does not go as to whether he was mistaken as to what division those letters represented.
Again, I will say to the Tribunal that I deliberately asked only those facts from which I choose to ultimately argue an inferrable fact. But the answer and the explanation of that I think is clearly a matter for the defense in chief and not to be elicited from my witness, whom I purposely restrained.
For the reason I again say that this question is beyond the range of the direct examination and is not proper cross-examination.
THE PRESIDENT: The ruling which has been made puts defense counsel at no disadvantage. The matters that are now sought to be elicited by this question and other questions related to it are matters easily proven, we think, by other witnesses. But if not, this witness will be available to the defense, and you may call him as your witness. However, we think the cross-examination has proceeded far enough along those lines.
BY DR. SCHILF:
Q Witness, if you look at the contents of the letter of the 9th of September, 1942, would you say that the questions asked in it-- that is, we are concerned with Jews--whether they were not also worked on by another division than III-C, or originally would have had to have been submitted by another division?
MR. LAFOLLETTE: Same objection, Your Honor.
THE PRESIDENT: The objection will be sustained.
BY DR. SCHILF:
Q Witness, you spoke about the fields in which the different divisions worked. The division in which you were working, III-a, did it also treat questions of Jews or nationality, Volkstum? Did you understand my question?
A Yes.
MR. LAFOLLETTE: If Your Honor please, I move to have that answer stricken. It opens up a field I didn't to into, and it is purely defensive matter.
THE PRESIDENT: He didn't answer it.
MR. LAFOLLETTE: I though he answered "Ja".
THE PRESIDENT: I did not hear it, but if he did -
MR. LAFOLLETTE: If he did, I move it be stricken.
THE PRESIDENT: The answer will be held in suspense until we can act on it, at least.
THE WITNESS: I answered "yes" to the question whether I understood the question, not an answer to the question itself.
MR. LAFOLLETTE: He said that he simply understood the question. He did not say he was giving an answer to the question, so the objection still stands, and for the same grounds I have previously stated.
THE PRESIDENT: The objection will be sustained and the answer will be stricken.
BY DR. SCHILF:
Q Witness, now quite a different question. You were asked whether you and the defendant Klemm were members of the Political Leadership Corps on the basis of your work in the Party Chancellery, and as far as I can remember, your answer was not quite clear. You referred to diffic ulties to define the concept of the Leadership Corps.
Is it correct that only on the basis of an activity in the Party Chancellery alone, by dint of that alone a rank or an office in the organization of the NSDAP was connected with that?
A I already answered the question by saying that we were rank leaders, Rangsfuehrer, and according to that conception we did not have a political office. Our task was a purely state matter. We were civil servants and we remained civil servants.
Q You did not become political leaders by getting an honorary rank?
A The definition of the Political Leadership is not quite clear. According to the experiences which I made during my interrogations by the British offices, these Rangfuehrer were not regarded as political leaders in the closer sense. The prerequisite for being a political leader was the holding of a political office.
Q Both of you did not have a political office in Division III of the Party Chancellery?
A We had tasks which were purely questions, Mr President.
THE PRESIDENT: Does any other defense counsel desire to cross examine this witness. Is there any further redirect examination?
MR. LAFOLLETTE: There is no further redirect examination.
THE PRESIDENT: The witness may be excused.
MR. LAFOLLETTE: Mr. Wooleyhan will proceed.
MR. WOOLEYHAN: May it please the Court, on April 23 the Prosecution invited the judicial notice of the Tribunal to certain articles in the Hague Convention Regulations of 1907.
As was stated in the record, all of the articles which we read had been previously brought to the attention of both the Tribunal and the defense by enumeration of the article numbers in the indictment and again repeated in the opening statement. During the reading of those articles into the record on the 23rd of April it was inadvertantly omitted to read all of Section 23 of the Hague Convention Regulations. Only part of it was read. It has since been thought that in all fairness to defense counsel we should read all of that section, since all of it is referred to by citation number, but only a portion of it was read. At this time, if the Tribunal please, we should like to read the remaining portion of the section 23, which was inadvertantly omitted on the 23rd.
THE PRESIDENT: We see no objection to doing that.
MR. WOOLEYHAN: On 23 April we read subsections A and B of Article 23. We now propose to read subsection H of Article 23. They will not need a copy.
Subsection H provides:
"In addition to the prohibitions provided by special conventions, it is especially forbidden to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. A belligerant is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerant's service before the commencement of the war."
At this time, may it please Your Honors, likewise for purposes of judicial notice, and to make the record a complete document to which to refer, the Prosecution wishes to invite the judicial notice of the Tribunal to certain evidence presented to and accepted by the International Military Tribunal and a few brief excerpts from the findings and verdict of the International Military Tribunal relevant to the aforementioned evidence.
The evidence and findings to which we refer have as a common denominator of subject matter the concentration camps.
THE PRESIDENT: Mr. Wooleyhan, you say "the evidence and findings". We understand that only the findings of the International Military Tribunal become binding upon us in the absence of any evidence to the contrary.
MR. WOOLEYHAN: That is quite true, Your Honor. However, the evidence presented before the International Military Tribunal does come within the ambit of judicial notice for your consideration. Whether or not it may be binding is only relevant to the findings. However, we had hit upon this method as a short method of introducing evidence which otherwise would have to be done separately by document.
May I recapitulate: We offer for your judicial notice, and notice only, certain evidence offered and accepted by the International Military Tribunal. In addition to that we offer certain brief excerpts from the findings of the International Military Tribunal which we propose are binding upon this Tribunal insofar as evidence is concerned. In other words, our position is not that the evidence is binding.
JUDGE BRAND: Are you suggesting that in order to show that the findings were to be treated as findings, it is necessary to show that they were based on evidence and were therefore not irrelevant to the case, and that therefore the evidence is admissible in order to show that the findings were made upon evidence?
MR. WOOLEYHAN: Your Honor, that is the ultimate conclusion which we assumed the Court would draw. May I explain briefly that whatever evidence I may read from the record of the International Military Tribunal is, as you will see, quoted from certain documents which were offered and admitted before that court.
JUDGE BRAND: I am wondering why those documents are not available at this time. It could be introduced instead of reading from the evidence of those documents as they appear in the record of the IMT.
MR. WOOLEYHAN: Your Honor, the documents to which I will refer, if I am permitted, are available; however, we had thought that since the record of IMT is a genuine source of judicial notice, that it would be much shorter and more efficient to refer to them in this manner rather than introduce them as separate exhibits, inasmuch as it's purely a collateral matter anyway.
THE PRESIDENT: This is a novel question, to say the least, and it is now the usual recess time. We shall give thought to that. I think we understand your theory. No have your request in mind sufficiently to be able to consider it without further discussion at this time. We will recess now for 15 minutes.
(A recess was taken.)