which I have in front of me. It is dated 29 June 1947. That is the same day when the affidavit, NO-4145, was signed. I now ask you, witness, is it possible that the original letter, on the way from the prison to the Prosecution, might have got lost?
A I cannot answer that question. I do not have the mentioned letter. is not contained in the documents of the Prosecution?
A I am sorry; I have no other material, with the exception of an affidavit from Dr. Walter Blume, made on the 23 - made on the 25th of June in Iselheide, of which I have a copy; but, I have not a letter of the Defendant Blume.
DR. LUMMERT: These interrogations in Iselheide occurred before that date, didn't they? I have no further questions now. I only ask the witness to look in the documents of the Prosecution on Case 9 to have another look no at the documents you have here, but perhaps at other documents, to see whether or not the letter may have been received after all. I reserve the right to make an application to the Tribunal to ask the Prosecution to submit that letter.
THE PRESIDENT: When you return to your office, Mr. Wartenberg, you may look for any such document and then when you come into Court tomorrow, you may report on the result of your search.
THE WITNESS: Right, sir.
MR. WALTON: One question, please.
THE PRESIDENT; Yes, Mr. Walton. BY MR. WALTON:
Q Mr. Wartenberg, have you from time to time received letters or notes from witnesses and defendants in the jail in Nurnberg? and I am keeping those letters always in the file which has the name of the writer, together with other papers. a letter that you never received?
DR. BELZER (Attorney for the defendant Mathia Graf): With the permission of the High Tribunal, I would like to address a question to the witness, referring to an affidavit of the defendant Graf, submitted by the Prosecution in Document Book III-C. It is Document NC-4855, Exhibit No. 146. It is in Document Book III-C, German page 123. I am afraid I don't know the English page. It is the document before the last in the Document Book III-C. After this document there is only one more document.
THE PRESIDENT: Page 74.
DR. BELZER: Document 4855. BY DR. BELZER: defendant Mathias Graf at the and of July, 1947, in my presence? and submitted to the defendant Mathias Graf? which reads, "In the year 1933 I joined the Party. My membership number is about 3,700,000. In 1933 I joined the Allgemeine SS. My membership number is 77,431." I would now like to ask you whether you can remember that the defendant Mathias Graf in that connection asked you to and to enter into the affidavit that in the year 1936 he had left the SS? to the defendant that he was not necessary to make any additon here, because there was the possibility that while the defense of the defendant was being brought up, this fact would be mentioned then?
DR. BELZER: I have no further questions then. BY DR. FICHT (Attorney for the defendant Biberstein):
DR. FICHT: Your Honors, this concerns the affidavit of the defendant Biberstein, which is contained in Document Book I on the English page 111.
made? front of me, could you give me the date of the affidavit you mentioned? you only make statements based on the documents in front of you? from 1000 hours until 1115. I have the stenographic record of this affidavit in front of me. ments in front of you concerning that affidavit? Iselheide in front of me.
Q Did you take that in Iselheide yourself?
Q How was this affidavit of 2d of July made? If I may say in short, in order to make the answer more easy, was the affidavit of 2 July 1947 based on the questions mentioned by you on 29 June or was it based on the questions of the interrogation of 25 June? had also at that time knowledge of the affidavit of 25 June, and it is possible that I have used certain statements out of that affidavit, to which the defendant Biberstein had sworn to. Iselheide of 25 of June, which you mentioned last, was much more detailed and also cites certain reasons which might be in form of the defendant? affidavits again and check line against line. The information, as far as I recall, which is contained in the affidavit of 2 July is contained in the interrogation of 29 June, 1947.
Q May I for that reason ask a more precise question? Did the defendant, when signing this affidavit of 2 July 1947, did he not ask you that further circumstances contained in the Iselheide affidavit be recorded here also? Do you remember something like that?
A It is possible, but I do not recall that fact. I cannot deny it, but I don't recall it. contained in the Iselheide affidavit, then there would be an opportunity later on to record those?
A No. Basically, I never made these statements in an interrogation, unless I intend to take another affidavit from a defendant. That happens only if during that last interrogation, additional material has been given by the defendant. You don't particularly remember how you acted in this case?
Q Now I have a few other questions. Did you ask the defendant before he signed this affidavit of 2 July 1947 and inform him that he could refuse to give evidence which would incriminate him?
A.- At that time the Defendant Biberstein had not been handed an indictment - and as such I did not consider him a defendant. I did not inform him that he can refuse to answer.
Q.- Is it correct that you swore in the Defendant Biberstein at the very beginning, as stated in the affidavit?
A.- That is correct.
Q.- On your previous statement that you did not inform the defendant that he did not have to give evidence, I presume you did not inform him either that he could refuse to swear an oath?
A.- I did not inform him to that effect.
Q.- You did not inform him, either, in what capacity he is making those statements - as a defendant or as a witness -- or, -- I withdraw my question. It is not correct. Did you explain to the defendant that he had to make his statement as a witness, or did you point out to him that he could expect an indictment?
A.- I did not inform the Defendant Biberstein that he was a defendant; I did not know it myself at that time; and any person who has not received the indictment is usually sworn in as to the correctness of the statements unless that person objects against it.
DR. FICHT: Your Honors, I have no further questions. I like only to reserve the right to address another question to the witness - if the affidavit of Iselsheide, for which I have asked the Tribunal in writing when I have looked at it, in case the witness Wartenberg is still available at that time.
DR. HORLICK-HOCHWALD: If the Tribunal please, Dr. Bergold's office has received a copy of this affidavit on the 3rd of October, so that Dr. Ficht must have in his possession a copy of the affidavit by now.
DR. FICHT: I am sorry I cannot confirm that. Perhaps there is some mistake - but Dr. Bergold could only look into the other documents; but concerning the other documents for which he has asked he did not get a copy.
He could only look at them - but the Iselsheide affidavit he did not have an opportunity to look at. That is why I wanted to reserve the right to ask.
DR. HORLICK-HOCHWALD: The Prosecution is not adviced that Dr. Bergold has had the right to look into the interrogations of the Defendant Biberstein. If that happened, it happened by mistake..... of course, we would object to the surrender of transcripts of interrogations, but the Prosecution has in its possession a slip, a note, from Dr. Bergold's office that the copy of this affidavit was received on the 3rd of October.
DR. FICHT: I cannot make any further explanations to this because I have already done so.
THE PRESIDENT: In any event, Dr. Ficht, please inform yourself when the Court recesses today whether you do, or do not, have this document. If you have it, be prepared to ask any questions that you intend to ask, tomorrow morning. If you do not have it, then contact the Prosecution's office to see if you can get another copy of it. In any event, tomorrow morning will be your last opportunity to question Mr. Wartenberg on this or any other document.
DR. FICHT: Very well.
THE PRESIDENT: Mr. Wartenberg, I understand that you did not inform the defendant that He could refuse to answer your questions. Did you in any way suggest to him by word or act that he was compelled to answer your questions and to make a sworn statement?
THE WITNESS: Your Honor, after the defendant, whom at that time I considered only as a witness, entered the room I asked his name, and I took him under oath. Then I asked him the questions; and at no single moment did he say he would refuse to answer at question. Then, after I had prepared the affidavit, I showed it to him and he made five corrections on the affidavit.
THE PRESIDENT: Would you say, then, that his attitude throughout the entire interrogation was a wiling one?
THE WITNESS: Yes, Sir.
THE PRESIDENT: Very well.
Does any other defense counsel desire to question Mr. Wartenberg, this afternoon?
DR. LINK (For the Defendant Ruehl): May it please the Court, I would like to address a few questions to the witness Wartenberg. I refer to Document NO-4149, an affidavit of the Defendant Ruehl, in Document Volume III-D, German Copy page 121, Exhibit 169.
THE PRESIDENT: Dr. Link, - this is not of any great importance but I would like to repeat to you what I said to the prosecution counsel several days ago - that when you refer to a document try to give us firts the document book number, because when you give that last, by the time we look at the book we have forgotten the exhibit number, the document number, and what it is all about.
DR. LINK : Yes, Sir.
May I start?
THE PRESIDENT: Proceed. BY DR. LINK:
Q.- Witness, may I ask you, do you have this affidavit in front of you, the affidavit of the defendant Ruehl? It is in the German and English document book, shown with the date, 26 May, 1947.
A.- No, I do not have that document in front of me.
Q.- Do you, perhaps, have an affidavit of the 26th of June, - or don't you have any documents concerning the Defendant Ruehl at all?
A.- I have at present no documents concerning the Defendant Ruehl here.
MR. WALTON: May it please the Tribunal, the message that I received from the Tribunal was to the effect that Mr. Wartenberg should bring with him the records which he has in his office concerning the Defendants Blume and Biberstein.
I repeated that message, and so he did not come prepared. Also, he felt that tomorrow morning he could have his records with him; and it would be necessary, if counsel for the Defendant Ruehl goes on, that we obtain these records on the Defendant Ruehl before he asks questions.
THE PRESIDENT: Neither did the Tribunal know that Ruehl was going to be the subject of inquiry.
DR. LINK: Certainly, Your Honor, it is my mistake. I was merely encouraged to address these questions already today because my colleague, Belzer, who - as far as I know - didn't report either, - came to the desk; - so I came to the conclusion that the witness had brought all documents with him. I will then take the liberty of asking questions tomorrow morning.
THE PRESIDENT: Yes. Mr. Wartenberg, that will be all this afternoon. We shall appreciate your being here tomorrow morning at nine thirty will all necessary documents that may be required going into.
WITNESS: Yes, Sir.
THE PRESIDENT: "We will take up the next opening statement now.
DR. LUMMERT (For the Defendant Blume): Your Honors, I ask for permission that the Defendant Blume be excused tomorrow morning from session so that I can discuss and prepare his defense with him tomorrow morning.
THE PRESIDENT: Only for tomorrow morning, or all day?
DR. LUMMERT: For all day, please.
THE PRESIDENT: Yes, the Defendant Blume will be excused from attendance in Court all day tomorrow.
DR. LEIS (For the Defendant Eugen Steimle): Your Honors, may it please the Court.
at the first glance so unambiguous and clear that the Defense seems to be deprived of every chance to make even one single defendant appear in a light different from the one in which he has been put by the Prosecution. No objection can be made to the statement of the Prosecution, that the law must not remain silent where persecution is carried out on a national scale and makes life intolerable to large groups of human beings or is even intended to exterminate them. But I believe that we must not overlook that today - two and one-half years after the end of the second World War - we are certainly in a quiet position to ascertain in retrospect, clearly and objectively, the terrible results and the facts leading to them, but that at the time when the acts were committed no such glance into the future was possible. Not even for the defendants who did their duty not as leaders, but as subordinates. For, though, it is admitted that some of the defendants were high SS-leaders, the orders which they had to obey did not emanate from their own spehre of power but from the highest authority of the state and were de facto to be regarded as laws according to the character of the Dictatorship prevailing in Germany. We must try to imagine ourselves back in the period spoken of by the reports submitted in order to examine from this standpoint the question of guilt or innocence of the individual defendants. Only an accurate knowledge of the actual facts can create the conditions for a just judgment. I completely agree with the Prosecution's opinion that we must know and convict the motive, if we want to fight the crime. of the motive does not touch the defendants, but those in whose brains the plans and commands originated, and who today can no more be made responsible because they either punished themselves or have already been convicted by a Tribunal. It is equally clear that in the last resort the defendants were only tools, and in this respect we must only put the question whether they were willing instruments or not.
For they could in no case prevent the orders given to them from being carried out, even if they wanted to risk their personal destruction. In this connection, the Prosecution's reference to German Military Penal Law is out of place, by which the assertion is to be proved that even according to German law a person renders himself liable to punishment by carrying out an order for the commission of a crime. For the quoted provision of the Military Penal Code has a meaning and is applicable only under the obvious condition that the man who receives such an order knows himself protected by a higher authority by which he is inthis particular case secured against the otherwise resulting consequences of a refusal to obey an order. But in our case the defendants know clearly that they could expect no such protection on the part of anyone, since, these orders originated from the highest authority of the Reich as their immediate source. It is evident that at that period the refusal to carry out an order of the Fuehrer or the attempt to frustrate the execution of such an order would have meant the death penalty for every one who would have dared to make such attempts. Moreover, there must be no doubt that whoever would have been prepared for this risk could have done this only while knowing exactly that the sacrifice of his person would have meant no change in the carrying out of the order. The conflict of conscience arising out of this fact for everybody reflecting on those things, was probably so terrible that it is today hardly possible to conceive it adequately.
But it arose only for him who did not work himself spontaneously and in full accord with the aims of his leaders. I therefore consider it to be my task as counsel for the defense of the defendant Steimle to explain from what social background the defendant comes, in what ideas he was educated, and what his opinion was concerning his task as Chief of the SS-Leitabschnitt (SS Administrative District) Stuttgart, I think it is necessary in submitting evidence to show the Tribunal also, as briefly as possible, the field of activity of the defendant Steimle in this SS Administrative District, In this way it will be seen that Steimle when he was sent to Russia, was transferred to a world that was entirely foreign to him not only externally, but particularly also as far as the essence of his task was concerned, He tried, therefore -- also in the new field of his activity -- to put into the foreground his intelligence service which he had given up at Stuttgart, I want to show hereby, in what conflict of conscience particularly he was bound to come when, after taking over his Kommando 7a in the Einsatzgruppe B, he got to know the existing orders, and in what way he tried to find a solution compatible with his conscience. led by the defendant only from 7 September 1941 to 10 December 1941, because at that moment he was given leave of absence to Germany, From this leave Steimle did not return any more to Kommando 7a. He cannot be charged any more with the events that took place after his departure to Germany because he had, of course, no influence insofar -- apart from other possible points - for purely external reasons. Hereby it is interesting to state that Steimle who, for the period of his leave, with the approval of his superiors handed over the Kommando to a deputy, was definitely superseded as leader of the Kommando in the days between 10 and 15 January 1902, Nevertheless, he is still mentioned as Kommando leader 7a in the report on events No. 186 dated 13 February 1942, Exhibit No. 107. This can easily be explained by the fact that the appointment of another Kommando leader was delayed by some weeks, that the Kommando was led by a deputy, and that during this period Steimle remain registered -- merely formally on paper -- as leader of the unit.
Only by the way it may be said that the documents submitted must only lose part of their probative value by the statement of such facts. place while he was Kommando leader -- as far as they can be ascribed to him -- concerned partisans and saboteurs. Before, by detailed interrogations, the fact which, without any doubt, was punishable according to War and International Law, had been ascertained in detail. Hereby it will become clear that the main task of the Sonderkommando 7a under Steimle had to consist just in safeguarding the German troops - engaged in serious fights -- and their rear communications from the continuous partisan raids. The special nature of the fight in the East, which was particularly characterized by a partisan war -- organized systematically by the Red Army - made other tasks of the Sonderkommando 7a less important during this period. Above all, the plan of the enemy had to be thwarted who made use of the whole population in the rear area and, in this way, intended to create an intolerable situation for the German troops. The frustration of this intention was a justified security measure and cannot be called a crime by saying that there had been only camouflage of an extermination policy concerning anti-social elements, or elements that were, racially, of inferior value. in which, the defendant Steimle was Chief of Sonderkommando 4a in Einsatzgruppe C. Steimle had commanded the Sonderkommando from about the end of August 1942 to 15 January 1943. On the witness stand he will give a truthful explanation of the tasks carried out by his Kommandos (Detachment) during this period. value of the reports on events (Ereignismeldungen) presented by the Prosecution. In this we will have to pay special attention to the fact that these reports contain no description of the facts by the defendant himself, but that they are combined reports written in the Reich Main Security Office, which were based on individual reports of the Einsatzgruppen, which, in their turn, were summaries of the reports of the Kommandos.
At least in the Reich Main Security Office this work of utilizing reports was done by men unfamiliar with the local combat area and who already for this reason were prone to mix things up, often in the crudest manner. Therefore, if we want to ascertain to what extent each single defendant took part in all the actions in question, it is of decisive importance to examine whether, and how far, he had altogether any share in the events described in the reports concerning him. The mere contents of reports on events can by no means be of decisive importance in this connection. difficulty. On the one hand we find horrible and cool figures which cannot be explained away though they are not correct in every single case; on the other hand we see the men in the dock who, enmeshed in the net of the machinery of a Dictatorship, were put in their position by an inexorable order and are now made responsible for things they have not devised and which did not originate in their own responsibility. May the Defense in its case in chief succeed in establishing the facts in accordance with the truth, and thus assist in facilitating a just verdict of the Tribunal.
THE PRESIDENT: In view of the lateness of the hour, I doubt the succeeding counsel would be able to finish his opening statement before recess time, which is 4:30, so the Tribunal will now be in recess until tomorrow morning at 9:30 o'clock.
THE MARSHAL: The Tribunal is in recess until 0930, tomorrow morning.
(The Tribunal adjourned until 0930, 7 October 1947)
THE MARSHAL: The Honorable, the Judges of Military Tribunal No. II-A.
Military Tribunal No. II-A, is now in session. God save the United States of America and this Honorable Tribunal.
THE PRESIDENT: Will the Marshal ascertain if the defendants are present in Court?
THE MARSHAL: May it please your Honors, the defendants Rasch and Strauch are absent because of illness. The defendants Ohlendorf, Jost, Schulz and Blume are absent at their own request.
THE PRESIDENT: Very well. The record will so indicate.
MR. WALTON: Your Honors, yesterday during the session it was stated by counsel for the defense that they had not received a copy of the affidavit of Biberstein, which the Prosecution contends was served on them by specified date, in obedience to direction of the Tribunal. I am ready to produce a signed receipt by an employee of the office of Dr. Bergold, with a copy in the German language that the affidavit of Ernst Emil Heinrich Biberstein made on the 25th day of June 1947 at Iselheide, has been received by that office on the 3rd day of October. I shall be glad to show this to the representative of Dr. Bergold's office, or Dr. Bergold if he is present.
THE PRESIDENT: Yes.
MR. WALTON: If the Court desires to see it I will present it to the Court.
THE PRESIDENT: It will not be necessary for us to see it. Your word is sufficient. I think both Dr. Bergold and Dr. Ficht are absent this morning. In fact they asked me to allow them to present their opening statements at a later order.
When their representatives do arrive I will appreciate your showing it to them.
MR. WALTON: Yes.
THE PRESIDENT: Now we are ready to proceed with the further interrogation of Mr. Wartenberg by counsel who desire to avail themselves of that privilege.
DR. HEIM: (For the defendant Blobel). German text, there is Document No. NO-3824, Exhibit 31, an affidavit by defendant Blobel of 6 June 1947.
Q (By Dr. Heim) Witness, did youcheck this affidavit of defendant Blobel on the 6th of June 1947. 6 June 1947, signed by Paul Blobel. interrogation of defendant Blobel? gation, make this affidavit yourself, or rather had it made by another gentleman of the Prosecution?
Q Witness, did you make it yourself? Blobel to sign, is that correct? state that he wished to alter this affidavit submitted to him on various points, or rather to complete it?
I am just looking for my record. On the 6th of June 1947, the day when that affidavit was signed, I had the defendant Blobel in my office, I checked his identity, and then I told him that I consolidated his interrogations of 26 and 27 May, and I told him to read it. through, to make all corrections he wanted to, and to sign it. This was in the morning between ten and eleven hundred. My record further shows that the witness read it and trade corrections, and because of a number of additions this declaration was rewritten and presented to the defendant Blobel on the very same day at fourteen thirty for signature I want to indicate by that, that the defendant Blobel had all possibilities to make changes. I have changes of this particular interrogation in my files. text as it stood should not be changed in principle?
A I doubt that I have made such a statement; and I want again to refer to my record - that between ten and eleven hundred this statement was presented to the defendant Blobel as I first put it down; that he made his corrections; that I had it rewritten; with all his alterations; and in the afternoon of the same day it was again presented to him. I think that shows to you that the defendant Blobel had every chance of making the alterations he wanted to make.
Q Witness, you did not answer my question. I asked you, did you explain to defendant Blobel that the affidavit as submitted to him should not be changed in principle? I ask you to answer this question. just said: That I presented him an affidavit in the morning, when he did make the changes. If I would have told the defendant Blobel that he was not permitted to make any changes in that affidavit there would not have been any reason to rewrite it and present it to him the afternoon of the very same day.
to defendant Blobel that also according to American law He had the right to refuse to sign as witness concerning statements which would incriminate himself? defendant Blobel, he was for me just an interrogatee, and I never have instructed an interrogate that he may refuse testimony. law-- it is not the same as in German law that a witness may refuse to act as witness if he incriminates himself by his testimony?
MR. FERENCZ: He is asking Wartenberg questions about American law which he is not qualified to answer.
THE PRESIDENT: That may be. Very well, what did you want to say? Dr. Heim?
DR. HEIM: In my opinion it was the duty of Mr. Wartenberg, to inform the defendant that according to procedure practized here, i.e., to American law he had the right to refuse testimony concerning facts which might incriminate himself. If Mr. Wartenberg interrogated Blobel American law and he should know about it.
THE PRESIDENT: Dr. Heim, this is a legal argument which in due time you may present to the Tribunal.
You have Mr. Wartenberg here for the purpose of ascertaining the facts. Ascertain just what physically and objectively happened. And if, from these facts, you fell that you have been aggrieved - well, of course in due time you will address yourself to the Tribunal. But this is not the time to argue a question
DR. HEIM: Thank you.
Q (By Dr. Heim) Witness, if I understood you correctly, the defendant Blobel was not informed by you of the right to refuse testimony? testimony?
testimony, but the defendant Blobel did not refuse to answer any questions I put to him.
THE PRESIDENT: Was there at any time, Mr. Wartenberg, any indication from the interrogatee that he was reluctant to converse with you on any subject which you introduced for discussion?
WITNESS: At the first interrogation I had with the defendant Blobel, according to my information he was lying. He did not give me the proper indentification of his units, and so on. During the second interrogation he changed his mind and gave me his full story of the units, without any reservatiob, as taken down in the affidavit.
THE PRESIDENT: You did not answer my question. I said, during the time that you talked with the defendant - at that time not a defendant - did he indicate, or evince any reluctance to converse with you on any subject which you presented for the purpose of discussion?
WITNESS: No, Sir, he did not.
BY DR. HEIM: defendant Blobel a swear word such as "pig"?
A I told him that in my opinion he is a liar. I do not recall having used the word "pig." did you explain to him that the points mentioned were taken out of the context by you, and that further explanations were still necessary?
taken, an additional interrogation; and after that additional interrogation a further affidavit had been prepared. So the defendant Blobel had ample time to add, for the preparation of the second affidavit, any points not covered in the first one. entirely with the so-called Action Water Cases, that is, the action of the Foereign Office No. 5. It has nothing to do with the first affidavit of 6 June.
I would like to ask you, at the time did you explain the defendant Blobel that he would still have an opportunity to correct the affidavit of 6 June; and if so, did you give Blobel the opportunity to make the corrections Blobel requested?
additions; but even in case he did he could have requested to put certain questions which have not been properly explained, into the affidavit of 18 June 1947. mentioned, also an except of a longer interrogation of the defendant Blobel?
Q Did you also make out this affidavit of the 18th of June? did you ask defendant Blobel, about the facts which were subjects of the interrogation, for the affidavit of 6 June 1947? chance to speak up and tell me if he wanted to have any additional points in it.
Q That will be enough. Witness, under figure 7 of the affidavit of 6 June, on page 162 of the German document book No. 1, it reads in the second line, and I quote:
"In September or October 1941 1 received from Einsatzgruppe C under Dr. Rasch, a gas van, and execution was carried out by means of a gas van." to you that the gas van of SK 4a was never used, but that he, that is Blobel - had seen the gas van used with another unit?