The obligation apparently is fixed by Ordinance 7 upon the Secretary General. I only make this statement because we cannot do that which we haven't the power to do, that is, to produce all these witnesses in any orderly schedule. I do think that a commissioner appointed by this Court would exercise more authority and obtain access to more facilities even than are presently enjoyed, so I don't think that would injure matters.
JUDGE BRAND: May I ask you a question?
MR. LA FOLLETTE: Yes, Your Honor.
JUDGE BRAND: On your proposal for the appointment of a commissioner you would contemplate that the testimony be transcribed verbatim?
MR. LA FOLLETTE: Yes.
JUDGE BRAND: And submitted to both Prosecution and defense and the Court in the proper language for their convenience?
MR. LA FOLLETTE: Exactly, Your Honor, exactly. And it might be that the Prosecution might care to be present at some of those cross examinations before the commissioner, which I think would be quite proper. But the complete transcript would be made available.
Otherwise this Tribunal and both defense counsel and the Prosecution are confronted with a period of three or four weeks, possibly, in which these witnesses could be assembled and examined here before the full Tribunal.
Now I want to make myself clear again. I don't offer this as a motion. The Prosecution does not desire to injure anyone. I am simply confronted with the practical situation, which I am calling to the attention of the Court, and also of other proceedings which have taken place in IMT and of the provisions of the ordinance which governs our conduct. I am sure possibly defense counsel want to be heard, although, as I say again, this is not a motion but a statement of what I think is an expeditious manner of procedure.
Court No, III, Case No. 3.
THE PRESIDENT: We have passed the usual recess time, and we will hear from defense counsel upon reconvening.
(A recess was taken).
THE MARSHAL: The Tribunal is again in session.
TEE PRESIDENT: We'll be glad to hear iron the defense counsel now in the Hatters that were discussed by the prosecution, more particularly, this matter of commissioners.
DR. KUBUSCHOK (Counsel for defendant Schlegelberger): From the statements made by the prosecutor I understand that we quite agree that cross examination by the defense concerning an affidavit given for the prosecution is a definite right for the defense according to general rules. The question arises, however, whether a simplification by way of the time required is possible. The suggestion made by the prosecution, in order to save time, to establish a commission does not seem possible to me, but it does not seem to me either that this would mean a saving of time. Legally, to transfer the cross examination to a conmission is not possible for the following reasons:
The presentation of evidence to this extent consists of two carts, the reading of the affidavit before the entire plenum of this Court and all persons concerned and then the cross examination.
The suggestion made by the Prosecution amounts to the fact that the second part of the presentation of Defense that is to say, the cross-examination - should be held before another plenum. That is to say, before a commissioner or several commissioners. That, according to general legal principles, is impossible. Presentation of evidence can not be performed in part before different groups of people. The group of persons which has witnessed the first part and gained a personal impression from this first part must have the opportunity also to be present during the second part in order to complete the impression gained or to correct it; and to see the person and to hoar the person who, by the words read from his affidavit, has spoken to the Court so far.
It is quite impossible to transfer that entire complex of questions to another group of people. That can be seen from the general principles as well as from Article IV, Article 5, No. E. It is pointed out that the possibility exists to delegate the gathering of evidence. It is not expressed there however that part of the evidence can be gathered by delegates. Therefore, the institution of a commission is not possible for legal reasons, according to my opinion and does not serve in any way to provide an objective impression to the Tribunal.
I also do not believe that a saving of time would be brought about. The Defense can only begin its case in chief and can only draw conclusions as to what witnesses arc required after the entire case in chief of the Prosecution has been concluded. By the cross examination to the extent of the hearing of the defendant as a witness and the calling of further witnesses can and will be determined. Therefore, the Defense could only start its case in chief after the commission also had finished with its work.
By establishing a commission no doubt time would be used. The hearings before the commission where the presence of the Defense Counsel is required - would be required - there would be no limitation as far as time is concerned, no reduction of the time needed....
At any rate, it does not seem possible that the work of the commission could continue while here the proceedings continue in the court room.
One last word in order to mention an occurrence before the IMT: The case was different there; there, the entire gathering of evidence for one subject was put into the hands of a commission - not part of it. There, the IMT, the hearing of the witnesses presented a saving of time, a considerable saving of time because hundreds of witnesses could be heard at the same time while the proceedings were going on since those witnesses were concerned only with the various organizations under indictment - but not with the individual defendants.
Therefore, a possibility of establishing a parallel working at the same time in the court and in the commission and therefore saving time - existed. I believe, therefore, that we will neither save time, nor that it is legally possible to transfer the cross examinations before a commission. I believe that the concern on the part of the Prosecution about the use of time is too far-reaching. I do not believe that the hearing of the individual witnesses who have made out affidavits will amount to such an extent of time as were the witnesses who have appeared heretofore.
A majority of the witnesses live in Nurnberg - or can be reached there. Therefore, I believe that also the beginning of the cross-examination does not have to be put off for any length of time.
THE PRESIDENT: I assume that Dr. Kuboschok speaks for the entire group of Defense Counsel, Am I right in that?
We will make no ruling. We will make no announcement on this at this time. We will take up other matters if the Prosecution has some other matters to take up at this time.
MR. KING: Prosecution will call at this time the witness Lt. Col. McLendon. It will be a matter of a moment or so before Col. McL. don arrives.
LT. COL. JOHN C. MCLENDON, a witness, took the stand and testified as follows:
JUDGE BRAND: Do you solemnly swear that the testimony you shall give in the issue now pending shall be the truth,the whole truth, and nothing but the truth?
LT. COL. MCLENDON: I do.
JUDGE BRAND: You may be seated.
DIRECT EXAMINATION BY MR. KING:
Q For purposes of the record, Colonel, will you state your name and official position?
A John C McLendon, Lieutenant Colonel, Field Artillery, Chief of War Crimes Liaison Detachment W, 7708 War Crimes Group, APO 178.
W By "Liaison Officer" you mean that you coordinate various matters of interest and concern between the War Crimes Group in Dachau, Augsburg and OCCWC here in Nurnberg?
A That is correct.
Q That is correct. Have you had occasion to inquire as to whether or not numerous persons have been indicted, tried and sentenced for the crime of murdering parachuted and downed allied fliers?
A I have.
Q Can you tell us how you came to acquire the information you are about to give, and at the same time answer in so doing these questions: Approximately the number of cases tried by the war Crimes Group in Dachau, the number of individuals accused in those trials, the number of allied fliers alleged to have been murdered, and the breakdown of sentences of the individuals indicted as a result of those trials, and the sentences given to the individuals so tried?
A I was requested by the Prosecution to got this information. I immediately contacted the Chief of the Counsel Section at Dachau, and discussed it on the hone, and requested that he send me a cable - commonly known as a TwX-
THE PRESIDENT: Will you raise your voice a little, please? Raise your voice a little; it is not quite distinct.
Witness: Very well, sir. I have a cable -- commonly known as a TWX -- from the Chief of Counsel at Dachau which is a detachment of the 7708 War Crimes Group. And I shall read it.
"From Dachau Detachment 7708 War Crimes Group, U.S.Army, APO 407. To: Liaison Detachment E, 7708 War Crimes Group, Office of Chief of Counsel for war Crimes, U.S. Army, APO 696A."
BY MR. KING:
Q Colonel, I think you are reading just a little too fast for the translators.
A "Attention: Lieutenant Colonel McLendon. Breakdown of flier cases tried Dachau Detachment 7703 War Crimes Group, U.S. Arny, APO 407. The following information is certified to the Prosecution in the Ministry of Justice case. 57 individual cases have boon tried involving the assault of murder of more than 100 American fliers:
The death sentence, 48; life sentence, 23; over 50 years sentence, None; 26 to 50 years' sentence, None; 11 to 25 years' sentence, 16; 6 to 10 years' sentence, 10; 5 years or less sentence, 48; acquitted, 24; Nol. pros., 5. Total number of perpetrators tried: 174."
"Originator: Lieutenant Colonel Durst, Counsel Section Signed Brazai."
Q. Colonel, just one more question. Do you have knowledge that the summary of cases involving the murder of allied flyers were tried for crimes committed on or after June 1, 1944?
A. I have discussed that specific question with Colonel Durst and requested his answer, and he says that the great majority were for crimes committed after June 1, 1944.
Q. The prosecution has no more questions of this witness.
THE PRESIDENT: Will defense counsel care to cross examine?
CROSS EXAMINATION
DR. SCHILF: Schilf for the defendants Klemm and Mettgenberg. With the permission of the Tribunal, I should like to put one question by way of cross examination to the witness. Colonel, is it known to you that before the court at Dachau, the objection was sustained by the defense when stating that in the case of air attacks by allied flyers violations of international law had been committed, and that therefore that was in favor of the defendants. Is it known to you that a sentence or a decision was reached by the court at Dachau according to which that statement was considered justified?
MR. KING: One moment, please, I, for one, do not understand the question, and I think that I am entitled to understand it before the witness is permitted to answer it. I understood Dr. Schilf to say that the objection made was that international law had been biolated and that that in some way accrued to the benefit of the defendants. Now if that is not what he said, I apologize, but I would like to have the question restated. I have this far failed to understand it.
DR. SCHILF: I repeat my question, and I shall speak very slowly. Is it known to you, Colonel, that the Tribunal at Dachau accepted the statement made by the defendants to the effect that the allied flyers, themselves, had violated international law by, for instance, shooting with machine guns on women who were in the fields, and that as a reaction on their part, the population, after these flyers had been downed or parachuted, lynched them; that, in other words, the Court considered that statement on the part of the defendants relevant and drew the conclusion there from that the defendants could present proof for these facts -- evidence, that is to say, for the fact that the allied flyers themselves violated international law?
MR. KING: May I ask Dr. Schilf if he intended that question to be answered, yes or no, since it was a knowledge question put to the witness.
THE PRESIDENT: That seems to be a direct question, and first of all at least must be answered by either yes or no. The question is do you know certain things, and the answer is either yes or no.
THE WITNESS: No, I have no knowledge of that specific question.
DR. SCHILF: I have no more question.
THE PRESIDENT: Does any other defendant counsel desire to cross examine this witness?
(No replies)
Will there be redirect?
MR. KING: NO. May we ask that this witness be excused?
THE PRESIDENT: The witness may be excused.
MR. KING: May we ask the Court and defense counsel to turn to Supplement Book No. 4. The first of the two documents in Supplement No. 4 is NG-612 and will become, when admitted in evidence, Exhibit 444. This document is apparently a summary of reports to be made by various officials in the Ministry of Justice at meetings held at least two different times. On page 2 of the English and German versions, we find the defendant Joel scheduled for two reports at a meeting held on Thursday, 19 November, and this is presumably based on other information in the document of 1942.
On page 3 of the English and on 4 of the German, the defendant Joel is listed as either to make or having made a report on the treatment of Jews and Poles as well as Russians in connection with the internal order of the Reichsfuehrer-SS.
Then on page 3, the bottom of page 3 of the English text and the top of page 4 of the German, there is a calendar for another meeting on the 17th of December 1942 in which we find on page 5 of both English and German that the defendant Joel is scheduled to report on the transfer of a Pole from criminal custody, having been originally sentenced to three years, to the State Police.
Then on page 6, there are other reports to be made or made by Joel in connection with another matter. We offer the Document KG-812 as Prosecution Exhibit 444.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: The second and last document in Supplement 4 is the Document NG-895, to be found on page 7 of both the English and German, which will become when received in evidence, Exhibit 445.
This is a letter to an SS-Gruppenfuehrer, signed Dr. Freisler, and dated 26 June, 1942, in which Dr. Freisler agrees to turn over to the police two Russians for -- the English translation at present is duly authorized; " that perhaps may be translated as, appropriate treatment." We offer the document NG-895 as Exhibit 445.
THE PRESIDENT: The document will be received in evidence.
MR. KING: May I ask the court and Defense Counsel to turn now to Supplement Book VI; the first document on page 1 of both the English and German texts is NG-222, which will become, when received in evidence, Prosecution's Exhibit 446. This is a letter dated Berlin, 18 January, 1944, to the Reichsfuehrer SS, and Chief of the German Police, from the Reich Ministry of Justice. It is not clear, as to who may have signed this letter, but it is clear that a copy of it was routed to the defendant Mettgenberg. The letter concerns the transfer of jurisdiction of Nacht and Nebel prisoners to Breslau because of the heavy air attacks at Cologne. This transfer was with regard to the Nacht and Nebel prisoners from the French occupied territories. We offer the Document NG-222 as Prosecution's Exhibit 446.
DR. SCHILF: (Attorney for Defendants Mettgenberg and Klemm.)
May it please the Court, in the copy in the German Document book several words are emitted. I do now know whether these omissions are also in the English document book. The omissions are probably based upon the fact that the person who made the German copy for the document book could not read these words in the original document. It would lead to misunderstandings if these words were not put in. Possibly after aanother examination of the original document, and also supplementing the English document book, the original document, it seems to me, can be read read with a magnifying glass, so that it should be possible for the Prosecution to supplement the book in case they should also be in the English document book.
MR. KING: The English text, as the Court has undoubtedly already noted, is complete and presumably an accurate translation, so Dr. Schilf's assumption that the document can be read is entirely correct.
It is true, as he points out, that there are some emissions in the German Text, but if it can be read, and the Defense has a photostatic copy of the original, I should think that it would be sufficient to enable them to complete the several blanks or omissions, as is evident from looking at the German copy. I would suggest that if Dr. Schilf did not get the, German copy promptly, that we undertake to have one made up and sent to him . As I understand it, the Defense Center has got the photostatic copies, and I conclude from that that he has it available to him, I think, therefore, that there is no reason to trouble the Court at this time to receive the document conditionally.
THE PRESIDENT: Is it the position of Defense Counsel that there are some material omissions in the German translation which do not appear in the original document?
DR. SCHILF: May it please the Tribunal that is quite possible, I have not stated that there are, but I only expressed the probability; that with a magnifying glass it may become readable--that is the original.
THE PRESIDENT: We suggest a further examination of this document to see if the Prosecution and Defense Counsel can agree on what the facts are, and if you are not able to agree, refer at back.
MR. KING: I believe the translator did not get your statement.
THE PRESIDENT: The suggestion is that the Prosecution and the Defense Counsel further examine the original document to see if they can work out these parts that seem to be different; if they can give a satisfactory account on both sides they should do that without further bringing it before the Tribunal, If they are not able to do that, then we will listen to you further.
MR. KING: In the meantime, what is the Court's suggestion as to the question whether or not it should be offered in evidence at this time?
THE PRESIDENT: We see no reason why it shouldn't retain its exhibit number; and may he the better plan will be to receive it in evidence conditionally.
That will be the ruling.
MR. KING: Tho next document is to be found on page 2 of Supplement Book VI; also on page 2 in the German text. There are several letters --or exactly two letters--contained under this document number; and they relate to the transfer of Nacht and Nebel cases from Cologne because of the severe air attacks there. We note only in passing that on page 4 of the English and on page 5 of the German; the second of the two letters is signed by both Mettgenberg and von Ammon. We offer the Document NG-237 as Exhibit 447.
THE PRESIDENT: The document will be received in evidence.
MR. KING: The next document, from the document book supplement 6 is to be found on page 6 of both the English and German text, and is document NG 294, which will become when received, in evidence, exhibit 446. This is a letter dated, Hamm in Westphalia, December 29, 1934, addressed to the defendant von ammon; and it concerns, generally, the arrangement for trying the Nacht and Nebel prisoners in the Specie 1 Court in Essen, which originated in the Netherlands.
We offer the document NG 294 as exhibit 448.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: There is one remaining document in the supplement 6, which will not, at the moment, be offered.
May we ask the Court to turn now to document book, supplement 7.
The first document in supplement 7 consists of several letters and several lists of prisoners who either are awaiting execution or have been executed. The series of letters concerns the question of accelerating the executions of sentences of death, following the pronouncement of the sentences. We will not summarize each individual letter, except to point out certain names which appear on the letters.
On page 3 of both the German and English text, we find the name Mettgenberg in two places. I should point out that the signature indicated to be "M" at the bottom of page 3 in the English text as of 17 August 1938, does not appear in the German mimeograph text; that is an omission, but as the original will show, the English version is an accurate copy of the original.
On page 7 of the English text -
THE PRESIDENT: (Interposing) Is it claimed that the letter "M" means Mettgenberg?
MR. KING: Yes, the original shows that to be the initial of Mettgenberg.
On page 7 if the English text, page 8 of the German, we find again the initial of Mettgenberg as of 15 March. In the English text, the Court will note three initials in the bottom right hand corner of the page. The first of those initials, "M" is that of Mettgenberg.
On page 10 in the English text, page 11 in the German, we note there that the letter was submitted to the State Secretary, Dr. Schlegelberger for information. I am informed that portions of this document does not appear in the mimeographed version of the German text. This is an inadvertance as the original will show the English is an accurate copy.
JUDGE BRAND: What page is that, please?
MR. KING: That is on page 10 of the English, and the equivalent page in the German, is 11.
Beginning on page 12 and continuing through page 19 in the English, that is 13 through 20 in the German, we find a long list of prisoners on whom sentences have been passed, and execution of those sentences either performed or waiting. The list is of interest since it forms the basis of the preceding letters.
We offer the document NG 606 as -- no, I am sorry, the document NG 284 as exhibit 449.
THE PRESIDENT: May we inquire as to what classification these are?
MR. KING: I do not understand your question, your Honor?
THE PRESIDENT: What classification are they? Are they Nacht und Nebel cases?
MR. KING: These two documents fall in the general classification of prison treatment -- treatment in prisons of prisoners, and the general matter of penal administration.
The PRESIDENT: We understood that exhibit 448, referring to NG 294 refers to NN prisoners in Holland, and I am wondering whether exhibit 449, NG 284, also refers to NN prisoners?
MR. KING: No, no, not specifically; there may be NN prisoners among those listed, but the document is not offered to show them as NN prisoners; as to whether they are NN prisoners or as to how many there may be, we do not know. The document is not offered for that purpose.
DR. SCHILF: May it please the Tribunal, in the case of this document, I have to make the same reservation as I did in the case of the previous document, when I spoke about the fact that in the German document book there is a number of omissions, apparently words which could not easily be read.
In this case also, I do not know whether the English document book is complete or has the omissions, but I assume that we could turn to their document in the same manner as happened in the previous one.
THE PRESIDENT: We hope that the Counsel may be able to do that, and we will, therefore make the same ruling -- admitting the documents conditionally.
DR. KUBOSCHOK: The Prosecution mentioned that on page 10, the indication was included that the letter was supposed to be submitted to the Under-Secretary, Dr. Schlegelberger. The German copy, however, --the photostatic copy shows a stamp to that effect. Across that stamp, however, there is a line drawn. If one looks at that photostatic copy one really has to come to the conclusion that line voids the disposition indicated by the stamp. There is a confirmation for that fact because on that letter, there is no indication from where it could be seen that the letter had really been submitted to Schlegelberger. It was customary that anybody to whom a letter had been submitted made clear by initialing it, that in effect it ad been submitted, and he had seen it. Therefore, I believe that the document does not represent sufficient evidence for the fact that the letter had been submitted to Schlegelberger.
MR. KING: I think it is purely a question of argument whether the line drawn through the stamp in a diagonal manner indicates that information contained in the stamped message was to be voided or not, that is certainly not clear. Dr. Kuboschok may be right, but I think it is a matter of argument, and I do not think we are going to gain anything by arguing it at the present time.
THE PRESIDENT: About all we need to say is that we will take that into consideration of each document.
We have now reached the point for adjournment for the noon recess, and we will adjourn until 1:30 o'clock. (Recess was taken 'till 1330 hours AFTERNOON SESSION.
THE MARSHAL: Persons in the court room will please find their seats.
The Tribunal is again in session.
MR. KING: Just before our recess we were discussing the Document NG--284. I recall that I had offered it for receipt in evidence but I do not believe that it was actually received by the Court. There were objections by Dr. Kubuschok and Dr. Schilf, and I believe the Court stated the Document would be received conditionally, subject to clearing up the difficulties in translation which were pointed out by Dr. Schilf.
THE PRESIDENT: That's correct. The objections that were made by Dr. Kubuschok will not be recognized as objections toward the receipt of the Document. That is a matter for the Tribunal to examine. -- Well, this switch is off again. -- As I said a moment ago, the objections that were made by Dr. Kubuschok were not valid. The Tribunal can examine the Document and do as well on that examination as counsel can do by helping, but the objections made out by Dr. Schilf will be the same as the other one, and the same ruling -- conditionally.
MR. KING: Yes.
I take it that 449 has been received in evidence by the Court?
THE PRESIDENT: That is correct. Conditionally.
MR. KING: I invite the Court to turn now to page 20 in Supplement Book 7, to the Document Book 7, to the Document NG 606, that is page 22 in the German text. This Document when received in evidence will be Exhibit 450. I first wish to point out to the Court that the first six pages of Document NG-606 have been previously introduced in evidence. However, because there apparently was a duplicate set of these names contained in the file, in which NG-606 was found, the first six pages are presented again with this Document.
I will leave it to the discretion of the Court as to whether to receive again the first six pages of NG-606. The remainder of the Document --
JUDGE BRAND: May I ask you a question. In what previous exhibit did they appear before... do you remember?
MR. KING: This question I anticipated the Court would ask, and I neglected to make that check.... until just a few moments ago I did not have time... I will supply that information, however.
The balance of the Document is a series of lists -plural, lists -- of death sentences either passed or carried out. Occasionally explanatory notes appear but we do not refer to those to any greater extent than we already have. We offer the Document NG-606 as Exhibit 450. But, we do not offer it for that purpose at this time.
THE PRESIDENT: According to my usual habit I will inquire if it is known what class of cases these are?
MR. KING: This Document, so far as we are aware, does not deal with the Nacht und Nebel prisoners. There may -- and primarily are Nacht und Nebel prisoners contained in the lists but we do not offer it for that purpose at this time for the reason that we do not know, and are not sure.
THE PRESIDENT: The Document will be received in evidence.
MR. KING: I might say that so far as possible we have tried to arrange the numbering of the Supplemental Books to correspond with the subject matter in the main Document Books.
May I ask the Court and defense counsel--
THE PRESIDENT: One moment please.
MR. KING: Excuse me.
THE PRESIDENT: You may proceed. I had already ruled.
MR. KING: May I ask the Court and defense counsel to turn now to the Document Book - to the Document Supplement 8.
The first document in Supplement Book 8 is NG-636, which will become Exhibit 451 when received in evidence.
The document is a summary of measures suggested, and, at least partially, we know put into effect for increasing the efficiency, eliminating absolutely -- eliminating unnecessary activities of the Reich Ministry of Justice during the war due to a shortage of personnel and, in general, wartime conditions. A conference concerning these matters was held at Kochem on the 23rd and 24th of August 1944. This Document is concerned with the matters discussed at this conference at that time. We do not at this time wish to point out any particular aspects of the matters discussed at the conference, but do reserve the right, which we do in all these documents, to argue, to draw conclusions, from any or ail of it, at some later time in argument before the Court.
The Document NG-636 we now offer as Exhibit 451.
THE PRESIDENT: The Document will be admitted in evidence.