Q You said that was an institution of the Party, an office of the Party. Was the Gaugruppenwalter for judges and prosecutors a function in an affiliated organizations, as to say the Nation Socialist Lawyers League?
A Well, I mean the Party in general including all the affiliated organizations.
Q Is it correct that Rothaug also as presiding judge of the Special Court was to be heard about the evaluation of his assistants in political respect and as far as their services were concerned?
A Well, as presiding judge of the Special Court, at most he was he was supposed to evaluate them as far as their official services were concerned, maybe because the President of the District Court of Appeals who had finally make the final evaluation of judges and prosecutors have asked him about them, as far as political evaluation was concerned -- I do not know what to say about that. The presiding judge of the Special Court had no political functions.
Q Was every suggestion for evaluation contained in a small box where the question could be found, as to the official political reliability?
A That was a question to be put to the immediate superior. The immediate superior as far as I can judge it, on the basis of my many years of experience in general made only a brief statement on that point. For instance, the man is politically reliable. At least in my many years of experience, I have hardly heard of any case where an immediate superior would have said about a man who was his subordinate that he was not politically reliable, even though that man was not a member of the party.
Q Can you confirm that it occurred frequently that in the Reich Ministry of Justice evaluation were received from various party offices COMMISSION:
III CASE III where the case of one person was judged in an opposite manner?
A That is very well possible. I believe that actually happened; that was why a directive came out from the Party Chancellory which was told to us in the Ministry of Justice, in particular, that the Party Office should channel their requests to Reich agencies only through the Party Chancellory. In my opinion that was based on the fact that different definitions between the evaluation of various party institutions existed.
Q On the basis of your general experience in the personnel matter, is it known of you that the Gau administrative office, did get their material not only from the National Socialist Lawyers League, but also perhaps from various other affiliated organizations of the party before they rendered a complete political evaluation of a person?
A I have no positive knowledge of that. After all that was a Party matter, but I believe that was the case, for where should the party get the information from, it had to inquire at various offices.
THE PRESIDENT: I think this will be a suitable time for the usual adjournment until tomorrow morning at the usual time 9:30.
DR. KOESSL: May I put one question to the Commission. I ask to be permitted to cross examine the witness Kassing. The witness Kassing is easily to be taken care of by an affidavit, thus it is not necessary to call him here. Therefore, I ask for permission by the judges of this High Commission to submit an affidavit from the witness Kassing, signed by the witness Kassing in the place of cross examination.
THE PRESIDENT: Has he been brought to Nurnberg already?
DR. KOESSL: He lives in Nurnberg.
THE PRESIDENT: Is there any objection, Mr. Wooleyhan?
MR. WOOLEYHAN: I would like to leave it until tomorrow morning before I say. I may want to be uniform and state. If the witness is not brought and made available, I would or might object to an affidavit.
COMMISSION III CASE III
THE PRESIDENT: He has not been brought here, he lives in Nurnberg.
MR. WOOLEYHAN: Yes, the point being he is available. I may want to object to the affidavit because he was not put on, I do not know yet. I will see in the morning.
THE PRESIDENT: We will postpone the decision until tomorrow morning. We will now again recess until tomorrow morning at 9:30.
(The Court then adjourned until 0930, 4 June 1947.)
Court No. 3 (Commission III) Official transcript of the Commission of American Military Tribunal III, in the Matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 4 June 1947, 0930-1630, The Honorable James T. Brand, presiding
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, tho Commissioners of Military Tribunal III. The Commission is now in session. God save the United States of America and this Honorable Commission. There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you please ascertain if all of the defendants are present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: Proper notation will be made. The defendant Engert has been excused.
You may proceed.
WILHELM MIETHSAM - Resumed CROSS EXAMINATION - Continued BY DR. KOESSL (For the defendant Rothaug):
Q. I ask to be permitted to continue the cross examination of the witness Miethsam.
Do you know, witness, that Rothaug was not aware that he was selected to be vice-president, and that he rejected and refused that immediately when he found out about it?
A. It is not known to me whether Rothaug was aware of the fact that he had been suggested for that position. This is how it happened. The Reich Ministry of Justice received a letter from the Party Chancellery in which it was said that tho Gauleitung of Franconia suggested for the position of vice-president of the Court in Nurnberg the able presiding judge f the Special Court Rethaug. We were supposed to react as to whether that suggestion could be accepted. It is not known to me who initiated that suggestion on the part of the Gauleitung and the Court No. 3, Commission III Party Chancellery -- that is, the suggestion to appoint Rothaug as vicepresident.
In particular, I do not know whether Rothaug initiated it himself.
Q. Do you know, witness, that Rothaug also later always rejected the suggestion made by the Party, that is the suggestion to take over the position of Doebig?
A. That is not known to me. I only know, at least I believe that my recollection is correct, that Gauleiter Holz suggested Rothaug as successor for Doebig, who at that time was President of the District Court of Appeals in Nurnberg.
Q. Did you over find out that the Lawyers' League was requested by the Gauleitung to give an opinion of the person of Doebig because then at that time, 1942 to 1943, all top officials of the various authorities were re-examined by the Party?
A. I don't know whether any such general instructions came from the Party to reexamine the top officials of the authority along political lines. The way I understood it at that time was that the change from Schlegelberger to Thierack was to be utilized to bring about also a change in the person of the President of the District Court of Appeals at Nurnberg; neither do I know whether the National Socialist Lawyers' League at the Gauleitung of Francenia gave an order to reexamine the person and character of Doebig.
Q. Do you know that Rothaug demanded explicitly that such an opinion on the part of the National Socialist Lawyers' League should be brought to the attention of Doebig in order to give him a possibility to justify himself?
A. The President of the District Court of Appeals, Doebig, at the time and still now, assured me that the reproaches made by the Gauleitung, the Gau Executive Office of Franconia against him were made known to him and that he had an opportunity to justify himself toward tho Party. He, himself, called that a Party court procedure. What the former conclusion of that procedure was, I would not know.
Court No. 3, Commission III.
Q. Do you happen to know whether the Party in such cases usually gave an opportunity for people to answer to these reproaches?
A. Usually the Party raised charges or objections against judges and prosecutors to the superior officers of these officials. That is the way it usually happoned. We demanded, that is the Ministry of Justice demanded, that we were to be informed about facts which would show the political unreliability of the official or prove other charges against him. Then we investigated upon these charges, and depending upon the result of the investigation, we gave our opinion or decision. As far as possible, we tried to protect the judge or prosecutor.
Q. Could you still tell us the wording of the letter of the Gauleitung concerning the tapping of telephone conversations?
A. In my affidavit, I have stated that at the time the Gauleiter Holz demanded that the director of the District Court of Appeals, Doebig, be recalled, and that was abut the text of the lot or, because he was the greatest obstacle for the carrying out of National Socialist administration of justice in the Gau Franconia. There was an expose attached to that letter of the Gauleiter.
Q. One moment, witness, I only asked you about the tapping of telephone conversations.
A. Yes. Well, in my opinion I believe I have to give you the facts in the basis of which I came to make that statement, otherwise, it would not be possible to understand what I mean.
Q. All right.
A. There was also an expose attached to that letter. It was signed by Oeschey. And according to his statement -- Oeschey's statement that had been exposed by Rothaug -- that expose listed the individual charges against Doebig. One cf the charges was that the President of the District Court of Appeals, Doebig, had suggested Dr. Grueb, who was politically not reliable for promotion, to be Oberlandesgerichtsrat. Then it went on, if I remember correctly, "in order to achieve the promotion of Herr Grueb, Doebig called his friend at Court No. 3, Commission III.
the Ministry of Justice, Dr. Miethsam" and then it specified the man who also in other cases took care of his matters in the Ministry of Justice." Then it was expressed, I do not remember by what words, that ho also knew of other long distance telephone conversations on the part of Doebig which Doebig had had with me. The conversation which Doebig had had with me concerning Grueb actually took place; also, the contents were correct. Therefore, I had to conclude that Rothaug by some means had found out about this conversation and other conversations, and I also came to the conclusion that there was some plan which made that possible. I don't mean to say that he has found out about these conversations by some sort of survey answer by the Gestapo SD. It is quite possible that he found out about them by having some good friend in the telephone exchange or somebody who was around the District Court of Appeals who directed President Doebig.
Commission 111 Case 111 In vertue of this statements which were known to me, I had used the expression in my affidavit.
Rothaug had had somebody listen in to these telephone conversations.
Q You confirmed, didn't you, that no written complaints were filed against Rothat? Didn't Rothaug have to come to the conclusion, from the entire situation, that there were intrigues brought into play against him by way of personal conversations?
A That is difficult to say. At any rate, on the basis of his rather extraordinary decisions, that is, jurisdiction, he had to expect that charges would be raised against him.
Q Wasn't it possible for Rothaug to come to the conclusion, from the entire situation, that Doebig at least had something to do with the attempt at transferring him to the cast?
A It is possible that Rothaug suspected Doebig to be the instigator of that measure because he did not know the internal connections.
Q Wasn't that attempted transfer of Rothaug, which was based upon reasons cf his activity as a judge, wasn't that a violation of the principle cf the independence of the judge?
A No; for during the war any official, also any judge, with or without his consent, could be transferred. That was no punishment. It was just a different disposition on the basis of an official necessity or emergency.
Q What you have just mentioned -- and I believe you also stated that in your first examination--was that it was definitely his activity as a judge which was given as the reasons to try to have him transferred to the cast?
A The facts were the following: We that is, the people in the personnel office, were instructed that for the occupied eastern territories, per district, we had to find two or three judges or prosecutors which would be likely to be useful there, and at the nominate these. From the District of Nuernberg, I also selected two or three judges or prosecutors. When I ran through the lists I found the name Rothaug and I used Commission 111 Case 111 the opportunity to take care of my duty--to nominate an official as well as to pick out the man whose manner of conducting trials in Nuernberg was so much in the center of public interest and to get him out of there.
That was the connection.
Q Could you confirm that in Nuernberg, a long time before Rothaug appeared the most desagreable personnel conditions existed so that the saying existed to the effect that "The walls of the palace of Justice had cars." "The walls of the Palace of Justice in Nuernberg had cars?"
A Nuernberg, for a long time was hot ground, politically speaking. Also, in the field of the administration of Justice Nuernberg was one of the most difficult districts, politically speaking. It was particularly the manner cf the Gauleiter Streicher and his deputy that contributed to that fact.
The conditions with regard to personnel, also before 1937, before Rethaug came to Nuernberg, offered great difficulties, apart from that, Nuernber was known for the fact that in the Court building there was much gossiping in around. The saying was that "The walls of the Court building had cars."
DR. KOESSL; Thank you. I have no further questions.
CROSS EXAMINATION BY DR. WANDSCHNEIDLR (for the defendant Rothenberger)
Q Witness, you were in apartment 1 of the Reich Ministry of Justice?
A Yes.
Q What did that department deal with?
A Matters of organization, matters of personnel and the general task of the administration.
A The man in charge was changed frequently from the first of March 1935 until 1942. It was Dr. Nadler, Ministerial Director Dr. Nadler. After Thierack's taking office he had to leave. His successor was Ministerial Director Letz and he was in charge until shortly before the collapse.
Commission 111 Case 111
Q Could you tell us what kind cf man Ministerial Director Letz was and where he came from?
A Ministerial Director had been vice-president of the District Court of Appeals at Ramburg. He had very good qualifications for his job. He was an upright man and personnally a very pleasant man.
Q Do you happen to know whether he had worked with Dr. Rothenberger for a long time in Hamburg?
A I don't know how long, Letz worked with Rothenberger but I assume that as vice-president he must have worked as his subordinate for several years, at leats.
Q You mentioned in your affidavit, Dr. Miethsam, the tendency of equalization, Gleichschaltung, which started as Thierack took ever his office. What did that mean to you as far as you were concerned? What did you mean to say? What did you mean by Glichschaltung?
A By the expression of Gleichschaltung I intended to explain that after the many attacks against the administration of justice also, in this sphere a national socialist tendency was introduced. The mission which Thierack had received from Hitler was-- and that nine years after the seizure of power, to establish to built up a national socialist administration of justice.
Q Is it correct to say that the task of Gleichschaltung was to try to come very close to the personal principles cf the party at least?
A These who worked with Letz, who worked in the personnel Department, thought that as far as out field was concerned -
Q Well, I will come to that very soon. I just want to say was the task of Gleichschaltun to have meant that the policy of personnel should be made as similar as possible to those of the national socilaist party?
A Well, at any rate, leading positions should be covered by people, by judges, which were according to the principles of the party. That is how we understood it.
Commission 111 Case 111
Q I what manner did Director Letz, that is to say you, carry on with personnel policies after Thierack came into office? Could you tell the Court any examples from your experience.
MR. WOOLEYHAN: May it please the Commission, I object to this question as being repetitious and irrevelant and completely beyond the scope of the affidavit. All these questions lately have been.
DR. WANDSCHNEIDER: I believe I should be permitted to answer that there is a connections, for the witness has stated in the affidavit that the moment Thierack came into office higher officials were relieved from the office for reasons of party politics and that by Department I which was competent to do that. Therefore, it goes without saying that I have a primary right, by referring to that statement, to put a question to the witness which merely should clarify how personnel policy worked out in the competent department and was handled in the competent department after Thierack came into power.
THE PRESIDENT: The objection is overruled.
BY DR. WANDSCHNEIDER:
Q I ask you, witness, to explain briefly concerning this question: what the personnel policy was in Department I and to give us, if possible some definite examples.
Court No. 3, Commission III.
A. A short time after Thierack come into office a number of presidents of the district court of appeals wore retired or transferred. These were measures which, according to my observations, were initiated by Minister Thierack, at any rate, without taking into account the opinion of his assistants.
Q. Witness, in this connection I shall later rafer to the cases of the presidents of the District Court of Appeals. May I ask you to explain how it was in the case of Segelking and Lenz, with regard to the personnel policy.
A. I only wanted to say that these cases were decided in a dictatorial manner by Thierack himself, rather than to hear his assistants on them. In other cases where the men in charge of a department had a possibility to state their opinion about the recall of officials, the chief of Department I and his assistants tried to hold officials who had been attacked in their positions wherever this was possible. I remember that among others there was a referent in our personnel department, the then Ministerialrat Lenz, not a party member; he was considered a very religious man, against whom, just as before, so after Thierack came int power, attacks were launched with the purpose to have him removed from the Ministry, at any rate from the personnel department. Lenz was hold in office until about October, 1944. I believe that was on the initiative of Under Secretary of State Rethenberger that he was held. Then it was intended that a position of Ministerial Director was to be filled by a Mr. Segelking from Hamburg. As far as I know, charges of a political nature were raised against that man on the part of the party, and, as far as I know, it was Under Secretary Rethenberger at the time who achieved the appointment of that man to the position of Ministerial Director against these attacks which came from the party.
Q. Thank you. Witness, you told us about the Doebig case. Could you tell the Court in what manner you, at the time when Dr. Rethenberger became State Under Secretary and came to Nurnberg a few months after on an official trip, found out that the party offices Court No. 3, Commission III were against Dr. Doebig.
Could you please answer that?
A. Under Secretary of State Rothenberger, after he assumed office, visited the individual areas of the District Courts of Appeal. Generally tho way in which this was handled was that at this opportunity he addressed the judges and also officials of the party, and in that way introduced himself to the district. In October or November, 1942, he had his adjutant prepare a trip through the Austrian district courts of appeal and after that a trip to Nurnberg and Banberg. The man in charge of the personnel matters of that region, as a rule, had to accompany the Under Secretary on that trip. As far as the adjutant of Under Secretary Rothenberger told me, for Nurnberg it was intended that a meeting should take place where Under Secretary Rothenberger, as well as Gauleiter Helz, were to make speeches. It was intended that judges, prosecutors, officials of tho Administration of Justice, officials of the National Socialist Party, etc., were to attend this meeting. A few days before Under Secretary Rothenberger was to come to Nurnberg -- I was still in Berlin at that time -- I was called on the phone by tho President of the District Court of Appeals, Doebig, who said that on the initiative of the party, that meeting had been cancelled. He could not ascertain the reasons; the competent officials of the NSDAP and so on did not want to say anything about it. I asked the Oberlandesgerichts-President to try at least to hold a meeting in which judges and prosecutors should take part without the attendance of the party; that failed. Oberlandesgerichts President Doebig informed me that the party wanted a large public meeting with Gauleiter Helz, etc., to take place, but that at the time that was not possible. I reported these facts to the chief of the department and to the Minister, and received instructions that I was to notify Under Secretary of State Rothenberger, who at the time, I believe, was in Linz. I did so and was instructed to travel to Nurnberg and to wait there for Under Secretary Rothenberger. Then, when Under Secretary Rothenberger arrived in Nurnberg, quite contrary to the custom on the part of the National Socialist Lawyers' League, only a menor official Court No. 3, Commission III.
was sent to receive him, in the place of the Senior Prosecutor Engert, and one could see that there was some animosity against the Administration of Justice; it was quite apparent. Under Secretary Rothenberger, as far as I remember, on the very same day spoke to Gauleiter Helz in the evening in order to find out what was the matter. I was not present during, that conversation. When Under Secretary Rothenberger returned he was very excited. He told us that it had been very rough; that Holz and he had shouted at each other; and then he found out also that the entire matter had arisen from the charges against the President of the District Court of Appeals, Doebig. I had the impression from the statements made by Under Secretary Rothenberger that he had protested to the Gauleiter against the charges, and the demand for transfer of Doebig, and, at any rate, that he had demanded an investigation of these charges.
Q. Is it correct, therefore, witness, that the large meeting in the presence of the party and so on was only supposed to take place if the demand on the part of the Gauleiter Helz to have Doebig transferred would be granted on the part of the Ministry of Justice?
A. I had the impression that that was the condition.
Q. Then, you said that you had explained to the Minister the difficulties after Doebig had called you about this matter by telephone in Berlin. Did the Minister do anything thereafter in order to remove or straighten out these differences between the party and Rothenberger, or the Ministry?
A. He didn't tell me anything; he did not give me any instructions or oders; he only asked whether I happened to know what the reason for these possible differences could be, and besides instructed me to notify Under Secretary Rothenberger.
Q. Then, when you received Under Secretary Rothenberger in Nurnberg, was there any representative of the party present?
A. I said before there was, as I put it to Kingly, a little man from the National Specialist Lawyers' League, a minor official.
Court No. 3, Commission III.
Q. I see. Now, after Nurnberg there were two trips made by Under Secretary Rothenberger to Bamberg and Wurzburg. About these trips, which were also events of the nature of personnel politics, can you toll us anything about these trips?
A. After the trip to Nurnberg, Under Secretary Rothenberger went to Bamberg; there also a similar meeting had been prepared, as in Nurnberg, but that meeting really took place. Under Secretary Rothenberger told us afterwards while we stayed at Bamberg that also here in Bamberg there was a demand to have the President of the District Court of Appeals transferred, a man by the name of Dr. Duerig; that gentleman a gainst the will of the party, that is against the will of both Gauleiters, had been appointed to that position under Schlegelberger.
Case 3 Commission 3 Ane, for that reason he was suspected from the outset, that was also the cause for these charges.
When on the way back to Berlin I discussed the results of the trip, Undersecretary Rothenberger said, if I remember correctly, that man, Dr. Duerig, who has excellent qualifications, cannot be dropped; he was in fact kept in that position until summer 1944 when he was transferred to Leitmeritz.
Q. Was it Gauleiter Wrechtler who demanded his transfer?
A. I cannot say that. It could be assumed that in view of previous attacks against him, it was both the Gauleiters in Bamberg and Bayreuth.
Q. And, what was the case of the President of the District Court of Appeal, Dr. Dietl, in Wuerzburg?
A. In Wuerzburg there was a President of the District Court of Appeals by the name of Dr. Dietl, who was a similar type to Dr. Duerig, who against the will of the Party, had been appointed, had excellent qualifications, and maintained an attitude against the Party. Either during the trip of Under-secretary Rothenberger to Bamberg or later on the occasion of his trip to Wuerzberg, when I was not present, also the recall of that President of the District Court of Appeals as a politically unreliable man was demanded by the Gauleiter; that I know from information received from Under-Secretary Rothenberger, and from letters from the Gauleiter. The recall of that gentleman was rejected by Under-Secretary Rothenberger; in the same manner as for Duerig, he intervened and tried to held him in his position; he remained there until the collapse.
Q. Is it correct that in the latter case, Deitl, the Gauleiter made several attempts demanding that the Reich Ministry of Justice transfer the President of the District Court of Appeals, Dietl, and that in spite of that Case 3 Commission 3 Dr. Rothenberger stated there was no cause to have that man recalled?
A. I believe I can remember that, in several instances letters or even telegrams, to that effect came in from the Gauleiter at Wuerzburg. At that time as far as I remember, a very brief answer was made, that there was no cause to have Dietl transferred.
Q. Now, the last question. You have told us quite in general terms, that the Presidents, Duerig and Dietl were men of an attitude contrary to the Party. Can you give us mor detailed, a more clear description of these men so that the Court can see the type these men were?
MR. WOOLEYHAN: May it please the Commission, the present line of questioning goes far beyond any interpretation or clarification of the affidavit. It is my position, at the present time, that this witness has been made a Defense witness. I object to this line of questions as irrelevant, repetitious, and beyond the scope of the affidavit.
DR. WANDSCHNEIDER: Gentlemen of the Commission, may I say the following quite briefly: The subject, without doubt exists in the affidavit, that is the personnel policy after, Thierack came into office. And, in a very strictly objective manner, I only dealt with questions of personnel policy of the Ministry of Justice; that is to say, of Undersecretary Rothenberger, who was particularly competent for that, who was in charge of that department and, therefore, I believe that question is definitely pertaining to the subject because the attitude with respect to personnel policy on the part of Dr. Rothenberger is clearly to be seen from the answers given to my last question. And, that ought to be something which is of interest to the Court, Commission 3 Case 3 and is definitely in connection with the affidavit.
THE PRESIDENT: We have allowed a very wide scope in your cross examination already in order to permit you to develop the relationship between the defendant Rothenberger to the personnel policy. In that connection, we have allowed general statements concerning the character of men which the witness has indicated were supported by Rothenberger against the opposition of the Party. Your last question, however, seeks details as to the character and conduct of thest judges who have been characterized as good men. The Commissioners feel that we have extended as wide a scope to your cross examination as is proper, and the objection is sustained.
DR. WANDSCHNEIDER: Thank you. I have no further questions.
THE PRESIDENT: Is there any re-direct examination?
MR. WOOLEYHAN: Yes, very brief your Honor.
EXAMINATION BY MR. WOOLEYHAN:
Q. Dr. Miethsam, I understood you to say that at the beginning of the Thierack regime in 1942, your boss Nadler was discharged and replaced by Letz; is that correct?
A. Yes.
Q. Now, you also stated that this replacement, Letz, previous to that had worked for a number of years with the defendant Rothenberger in Hamburg; is that correct?
A. Letz had been Vice-President of the District Court of Appeal in Hamburg, and in that position was subordinate to Dr. Rothenberger, who was President of the District Court of Appeal in Hamburg.
Q. Dr. Miethsam, did Rothenberger bring Letz to Berlin with him when he assumed his position as Under-Secretary?
Commission 3 Case 3
A. He came to Berlin a short time after Rothenberger became Under-Secretary, and, therefore, I think I can say that the answer is yes.
Q. (Interposing) Without giving any names, Dr. Miethsam, just mentioning numbers, if you happen to know them how many other officials did the defendant Rothenberger bring to Berlin with him in 1942 at the beginning of his and Thierack's term of office?
A. In the Ministry of Justice one spoke jokingly of an invasion from Hamburg, but that is just a joke. With him, of course, came the Adjutant, who, of course is always a confidential assistant. As I said before Mr. Segelkemp came--names I can remember at the moment, there was a man by the name of Bugatzki, I believe another----
THE PRESIDENT: Let us not go into details on matters of minor importance.
MR. WOOLEYHAN: I have no further questions, your Honor.
THE PRESIDENT: The witness is excused.
(The witness was then excused and withdrew from the court room.)
THE PRESIDENT: Call your next witness.
DR. KOESSL (for defendant Rothaug): May I take advantage of this short intermission in order to ask the judge for a decision as to whether the witness Kassing is to be heard in person or whether the submission of an affidavit is to be approved. I discussed that question yesterday late in the afternoon.
THE PRESIDENT: Are there any objections Mr. Wooleyhan to the presentation of an affidavit by the witness Kassing, and his being excused from attendance at this time?
MR. WOOLEYHAN: Yes, your Honor, I insist that the witness, Kassing, be cross examined here in preference to Case 3 Commission 3 any affidavit that he may make.
THE PRESIDENT: I understand he is at present in Nurnberg.
MR. WOOLEYHAN: That is correct.
THE PRESIDENT: That will be the ruling.
Perhaps I should state more accurately. We are ruling that is is preferable when possible, that witnesses who have given affidavits should be crossexamined in open court. This witness is available, an objection has been made to the receipt of an affidavit, and therefore, we will follow the preferable rule, that he shall be cross examined in open court or rather in open commission hearing.