Thus I did not think of Naumann purely in personal terms.
Q. One final question on this affidavit, Witness. Your affidavit of July 2, 1947, do you confirm the statements made in that affidavit?
A. Of the 2d of July?
Q. 2d of July, yes.
A. I confirm the statements in this affidavit with the addition that I have supplemented and made statements in the second affidavit , according to the possibility granted me by Mr. Wartenberg.
Q. I am speaking only of the affidavit of July 2 divorced completely from any other statement with the exception of the affidavit of August 27, in which you change one date. This document standing alone, do you confirm it or not?
A. The document as it is, I cannot confirm without reservations.
Q. Why did you not tell Wartenberg the whole truth when he interrogated you and why did you give him statements which you now seem to refute? Why did you tell him things which according to your statements now are not true?
A. Your Honor, at the time I was interrogated I was in a very excited state of mind.
Q. Very well.
A. And I was very briefly interrogated so that I had no possibility to think thoroughly of these matters, which had happened so long ago.
Q. All right, let's look at this affidavit. You say that you were excited and that the events discussed happened six years before and therefore they were vague in your mind, is that correct?
A. Yes.
Q. Now, how is it that you recall that back in 1923 you worked in a bank for nine months, is that statement correct?
A. Yes.
Q. Were you excited when you said you were a banker for nine months?
A. Your Honor -
Q. Answer that question. Were you excited when you said that you had worked in a bank for nine months?
A. Yes, of course, I was in the same state of mind; that was quite clear.
Q. But you told the truth, didn't you? Even though excited, you did state the correct number of months you worked in a bank?
A. Yes.
Q. Then you told Wartenberg that in 1927 you started on a concert tour, is that correct?
A. Yes.
Q. Were you excited when you said that?
A. I was in the same state of mind.
Q. But you told the truth?
A. Yes.
Q. In 1928 you received a State Certificate as a voice teacher. Were you excited when you said that?
A. Yes.
Q. But the statement corresponds with the truth, doesn't it?
A. Yes.
Q. In the Spring of 1935 you became an opera singer in Kassel?
A. No, that was in the Spring of 1932, 1932, 1933.
That's a mistake in the affidavit, which I also overlooked.
Q. So you were too excited to indicate when you became an opera singer in Kassel?
A. No, no, Your Honor. That is a typographical error, evidently.
Q. A typographical error? All right. In 1935 you became a co-worker of the SD in Kassel and two years in 1934 you took over the Department Culture III-C in Kassel and you held all this until September 1939, That's all correct, isn't it?
A. Yes.
Q. And you gave that statement also under the stress of excitement?
A. Yes.
Q. So that everything in this affidavit which has nothing to do with the Russian operation is correct?
A. Yes, that's correct.
Q. And you only made mistakes when you told about these operations in Russia?
A. Your Honor, that's quite clear. May I explain that?
Q. You have explained it. You were excited and this excitement did not prevent you from telling the truth about your whole life up until 1939 or until 1941, but the excitement was such that you constantly fall into error after 1941?
A. I remembered my biography so well, because I already had to report about it from ten to twenty times before, but as for the events in the East were concerned, they were mentioned practically for the first time in this form in this interrogation. That is why I still had some lapses when I was interrogated in this respect.
Q. Do you want the Tribunal to believe that you remembered more vividly all the facts of your scholastic career then you did the facts which involved blood and death in Russia.
A. Your Honor, I don't know what to answer. These events in my life were, of course, very impressionable and they were firmly in my memory, but, as for the events in the Russian assignment, I tried to forget them and to get over this period and this is the reason why I perhaps did not remember all the details.
12 Dec 1947_A_MSD_Gallagher (Juelich ) 23_1_ the Reich had collapsed? its aims of the conquest of Europe?
A Your Honor. I don't know whether the aims of the Reich were to make conquest of Europe? I don't know that. But of course, I would have been happy if Germany had won the war. That is quite natural. the expense of its present condition, two million Germans killed, the nation in utter ruins, all of Europe devastated. You would have still been happy if Germany had won the war?
Q Would you?
A Yes. Well, that is quite natural. That is a matter of course.
THE PRESIDENT: Maybe it may be a matter of course for you, but I don't think it is for the rest of mankind. Dr. Mayer, any other questions?
DR. MAYER: Yes, Your Honor.
RE_DIRECT EXAMINATION BY DR. MAYER: (Dr. Mayer for the defendant Klingelhoefer) tion prepared by Mr. Wartenberg to the witness, and the witness has stated at the time that he told Mr. Wartneberg there were detailed facts which were not taken into the affidavit. It seems that this interrogation also contained exonerating points for the witness. After the Tribunal has expressed that the Prosecution must also submit the exonerating circumstances, I would like to suggest that the interrogation of Mr.
12 Dec 1947_A_MSD_23_2_Gallagher (Juelich) Wartenberg in its entirety be submitted, or be read.
MR. FERENCZ: Your Honor I shall introduce the interrogation because it has been asked for. However, I would not like to see a ruling that it is a matter of law or a requirement that every interrogation be introduced. The defendant is on the stand, he can be asked about the interrogation, he can be asked by the Tribunal and by any of the counsel about the interrogation. The interrogator was on the stand, and has testified, and could have been asked at the time. There is no necessity why an interrogation will have to be intorduced. However, I shall voluntarily introduce the complete interrogation as an exhibit in the Prosecution's rebuttal document book to show that the defendant made false statements on the stand both this morning and this afternoon.
THE PRESIDENT: No ruling is required in this case, and even if it were every ruling pertains to the particular set of circumstances before it, and it could not be expected that because a certain thing is done in one instance, it necessarily would have to be done again in a similar buy yet vitally different set of circumstances.
MR. MAYER: In this case, Your Honor, where the contradictions in the first and second affidavits, and testimony have been repeatedly pointed out, it would be useful if I could ask the defendant about this; if the interrogation will be submitted later, then I won't have any opportunity to ask him, or I shall ask the Tribunal to reserve the right for me that in case this interrogation is submitted, I may again ask the witness questions.
THE PRESIDENT: We will never close the door on relevant and vital facts, and if it appears when you get the interrogation, that it is entirely fair that you should be allowed to call the defendant for a few questions, that privilege will be accorded you.
DR. MAYER: I thank the Tribunal. BY DR. MAYER:
12 Dec 1947_A_MSD_23_3_Gallagher (Juelich) I think I can gather that it has not been clarified that twice, at different times, you were in Tatarsk. Please tell us in what connection that you were in Tatarsk that first time, and when was this? on the occasion of the requisition of winter clothing. At this occasion Noack received the order from the Chief of the Einsatzgruppe, the then Chief of the advance Commando to undertake a anti_Jewish action in Tatarsk and Mstillawl, and during this drive to Tatarsk and Mstislawl I was in Tatarsk for the first time. Tatarsk?
Q What happened the second time in Tatarsk?
THE PRESIDENT: Well, he has told us the second time what happened. He has told what happened the second time at Tatarsk at great length, hasn't he?
DR. MAYER: Yes.
THE PRESIDENT: You certainly don't want him to tell us that whole story again?
DR. MAYER: All right. BY DR. MAYER: to Tatarsk the second time?
THE PRESIDENT: Dr. Mayer, now you have gone over that, the Tribunal has questioned him on it, and the Prosecution at great length. If there is still some outstanding complexity which must be cleared up, then, of course, a question will be in order.
DR. MAYER: Yes.
THE PRESIDENT: But to ask what order he received is going into the whole episode again.
DR MAYER: I shall go right to the next question, and I shall come to those question which are still in doubt.
12 Dec 1947_A_MSD_23_4_Gallage(Juelich) BY DR. MAYER: in regard to the Jews, as it had existed previously, still to be carried out?
Q Then what purpose did the preceding action of Noack have? on the order of the Chief of Advance Commando_Moscow, with the limitation that at that time only those Jews unfit to work were to be shot, while the others were to be sent to a Ghetto.
Q Yes, did this order still exist when you came to Tatarsk?
A I don't know exactly. the execution on the basis of the Fuehrer Order? alive any longer. opinion? Tatarsk with the intention to work for the Partisans, and to be "stoogies" for the Partisans. interrogation, were in the Ghetto in Tatarsk before the Munity? hundred and twenty, about at that time, and that was the figure before they left the Ghetto. if you would have come to the conclusion that none of the Jews apprehended by you in Tatarsk, and in the vicinity, was in contact with the Partisans? because I had an order.
12 Dec 1947_A_MSD_23_5_Gallagher (Juelich)
THE PRESIDENT: Now you told us that. He already said that. Now is he going to tell the whole story again. He would send them back to the Ghetto. BY DR. MAYER:
Q Why wouldn't you have shot the Jews anyway?
Q Did the thirty Jews participate in threatening the Mayor? part in your decision? the Partisans, because the promise of help by the Partisans encouraged them.
THE PRESIDENT: Dr. Mayer, now don't you agree that it is unnecessary for him to tell the story all over again. The purpose of redirect examination is not to re-emphasize facts, it is only to clear up what may have been obscurated by the cross examination.
DR. MAYER: I am afraid, Your Honor, that in the excitement of cross examination, it was not possible for the defendant to describe the events correctly. By a few individual questions I would like to clarify it once more.
THE PRESIDENT: Well then put it this way, Dr. Mayer. Ask the witness if he wants to make any correction in a statement he has made because to repeat what he has already told us two or three times serves nobody at all. Ask him if he wants to make any correction or to point out where you think a correction is in order. BY DR. MAYER: been shot regardless of the result of the investigation. What did you mean to say by this? Was this also true of the time while you were busy with investigations in Tatarsk during your mission? the special assignment of the investigations about the sentences. time? Nebe had intended such an action?
THE PRESIDENT: Dr. Mayer, you see the difficulties you are going to get into. Now he told us only ten or fifteen minutes ago that the only reason Nebe sent him out there was that he had no other officer. Now he is telling you that if it had been purely an action of execution that some other officer would have been sent, some other officer who didn't exist.
Witness, didn't you say to the Tribunal that the reason you were sent out was because no other officer was available? and the road to Tatarsk.
THE PRESIDENT: Now why do you tell counsel that if it had been a different king of an action one purely involving executions they would have sent another officer. It would still have been the same roads, wouldn't it? You would still have to go over the same roads?
necessary because this action on the basis of the Fuehrer order had already been carried out in Tatarsk in the beginning of September by Noack. There would have been no reason to send me for an execution action.
THE PRESIDENT: You see the circle you get into. He now says it would have been impossible because there wouldn't have been such an action. do with the execution of the Fuehrer order would you have been sent there. You replied "No, they would have sent another officer."
THE PRESIDENT: Well I think it is simpler if you just go right ahead, Dr. Mayer. BY DR. MAYER:
Q Witness, didn't you also say that your linguistic knowledge was the decisive thing because Nebe knew investigations had to be carried on? been necessary if the mission was carried out purely according to the Fuehrer order?
Q Now I come to another point. You said that the leader of Kommando VII-B Rausch held roll call in the moment of the Russian assignment and he reported that the leadership assumed that the Russians would not adhere to the rules of war. From what did they conclude that Russians would not adhere to the rules of war? recognize the Geneva Convention and the Hague rules of land warfare.
Q And what was the reaction of the German leadership to this fact? carried on ruthlessly and therefore had to act accordingly.
Q What did the German leaders revoke?
Q Thus the rules of war were not revoked on the German side? assignment the Kommando was distributed in such a manner that two execitive detachments and one SD detachment were set up. When did this organization occur? departments were evidently mixed up. When was this change? belonged to Kommando VII B because afterwards, as I knew as a member of the staff, the tactics of the Kommandos was completely changed. Kommando. as a member of Kommando VII B.
DR. MAYER: Your Honor, my attention is called to the fact that "stangericht"is translated by jurisdiction. I assume that the correct translation for "standgericht"is emergency military law.
THE PRESIDENT: I don't know the German word.
INTERPRETER: I think it is court martial, your Honor.
DR. MAYER: I beg your pardon, Your Honor, I do not know the English language so well and another defense counsel may clarify this. May I suggest Dr. Leist.
THE PRESIDENT: I don't think it can mean court martial because court martial only comes into play when a member of a military organization is accused of having committed an offense and then officers of that same military organization try him. It is not international. It is purely national. So it cannot be court martial.
DR. MAYER: Well, I think so, too, your Honor. The translation court martial doesn't translate the word "standgericht".
THE PRESIDENT: Of course, if the member of an Armed Force, let us say, A German soldier violates one of the international rules of land warfare then he could be tried by German officers for this offense against International law and that would be a court martial. Is that what you had in mind?
DR. MAYER: No, not a court martial buy a summary court.
THE PRESIDENT: Well, a military court set up by the Germans, by German officers, to try German soldiers? Well, no, well you see there's where the trouble comes. If a German court made up of officers tries a German soldier or a German officer that's a court martial. If a German court tries a civilian of another nation then it may be called a Military Commission. Well, that's what you are referring to, I see. BY DR. MAYER: Yes. who were identified from lists or other material which you found in the NKVD building could be shot if they were considered to be endangering the security and if they were apprehended. Do you know of any case that on the basis of your capture of material a man was apprehended and shot?
Q Another point. Witness, when did you try to commit suicide? letter off to Mr. Wartenberg. first affidavit through Mr. Wartenberg?
A No that was after the first affidavit was made out. I signed the first affidavit on 2 July and I sent off the letter to Mr. Wartenberg on 4 July as far as I remember.
Q Did you repudiate the first affidavit in you second affidavit?
A Yes, I repudiated the first affidavit in your second affidavit?
THE PRESIDENT: Dr. Mayer, suppose you call that the third affidavit so as not to get this confused. We have the first affidavit of July 2, then we have that very fragmentary correction of 27 August and there was the third affidavit.
Of course, if you call it the second large affidavit that might cover it.
DR. MAYER: Yes, I mean by second affidavit the one of 17 September whereas the one of 27 August is merely a correction of a date.
A final question, witness. During the noon recess today did a member of the Prosectuion speak to you?
A In the recess?
Q Before the beginning of the afternoon session?
Q What was discussed?
A Nothing special was discussed. Mr. Ferencz merely admonished me to tell the truth. Thereupon I told him that I was doing that to the best of my knowledge. That was all. That was about the content of the discussion.
DR. MAYER: Your Honor, I thank you. I have no further questions and I am at the end of the case until I submit my Document Book.
THE PRESIDENT: The Tribunal will now take a recess until tomorrow morning and we will be in session all day. Everyone will remain in their seats at the present moment until the judges have actually left the bench then the defendant will be returned to the defendant's box and then the Tribunal will actually be in recess.
THE MARSHAL: The Honorable, the Judges of Military Tribunal II, Military Tribunal II is now in session.
God save the United states of America and this Honorable Tribunal.
THE PRESIDENT: The Tribunal has been informed that the Defendants Braune, Ott, Nosske, Seibert, and Six were taken ill yesterday evening and for that reason will not be in court today. The record will show this.
It was reported that you were ill. I am glad that you are better.
LOTHAR FENDER, a witness, took the stand and testified as follows:
JUDGE SPEIGHT: Witness raise your right hand and repeat after me: pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE SPEIGHT: You may be seated.
THE PRESIDENT: You may proceed.
DR. FRITZ (Attorney for the Defendant Fendler): Your Honor, the Document Book of Fendler has already been submitted for some time, both in the German and in the English versions. Therefore, it is my intention to use the documents during the direct examination of Fendley, partly to refer to their contents and to read several important passages to the record.
THE PRESIDENT: You may do so. BY DR. FRITZ (ATTORY FOR THE DEFENDANT FENDLER)
Q. Mr. Fendler, give me your personal data.
A. My name is Lothar Fendler. I was born on the 13th of August, 1913, in Breslau. My father was a dentist. I am married.
Q. Briefly describe your education.
A. In Breslau I attended primary and high school and in 1932 I graduated.
Q. What profession did you choose?
A. I started the study of dentistry and in the fall of 1934 I took my examinations as a dentist. In order to do that I served one year in the Army voluntarily. At the end of 1935 I was released as a sergeant in the Reserve.
Q. Why did you report voluntarily at that time during your studies?
A. My financial means had been exhausted and I had to interrupt my studies. Furthermore, it had been announced at the university that one had to count on a law requiring military service of two years. After I had passed my first examination, I was able to interrupt my studies at that point for the period of my military service and this also freed my parents from supporting me. Therefore, I voluntarily reported for military service.
Q. Did you continue to study dentistry after you were released from the military service?
A. No, because of an illness of my father, the financial situation of my parents had become worse. Therefore, I had to try to earn my money by working part time. A comrade in the Army called my attention to the fact that the SS Agency in Breslau was looking for people. Through one of his relatives I came to the South East Sector of the SD in Breslau.
Q. What did you know about the SD at that time?
A. Nothing. I did not even know it existed.
Q. When did you join the SD?
A. In January 1936.
Q. Did you continue to study dentistry later?
A. No, when I joined the SD, it was my intention, as I have already said, to earn my own expenses in order to continue my studies. In August 1936 my father died. My mother remarried behind without any resources and I had to support her. I could not save enough money to continue my studies at that time, because I only earn ed 115 Marks a month, Therefore, I remained with the SD.
Q. What was your first activity in this SD Sector South East?
A. In the beginning I was a guard, a telephone operator, and I worked on the files. Later on I worked on the files and in the office in the then Department 3 of the SD Counter-Intelligence, After that I was used in the Department 321 -- that is Counter-Intelligence -- where I issued messages and prepared reports to the then SD Main Office. In April 1937 I was sent to the then SD Sector Breslau as an expert for Counter-Intelligence
Q. What do you mean by this, "Counter-Intelligence"? Do you mean the protection of industrial plants?
A. Yes, we had to support important industrial plants in their prevention measures against sabotage and espionage and we had to advise them in this work, This was done practically by organizing a kind of plant protection unit order to guard the plant and the organization of technical controls.
Q. Did you have any executive powers in this respect?
A. No, the work was done as result of voluntary agreements with the responsible managers.
Q. How long did you remain in this position?
A. Until the spring of 1939, with one interruption, during the time that the Sudetenland was occupied. At that time I was called upon to organized the department for Counter-Intelligence for a few weeks in the newly organized SD Sector in Troppau.
DR. FRITZ: Your Honor, at this point I would like to offer two affidavits: First of all, Fendler Document No. 2, Affidavit Schoenborn on page 3 of the Document Book. I want to offer this as Fendler Exhibit No. 1. I would like to read the second paragraph of this into the record and I quote:
"From 1936 on, I was in charge, in an honorary capacity, of legal question for the SD in Breslau. Through this I often saw Mr. Fendler privately. H e was active in the SD Sector Breslau in 1937 in a full time capacity He worked in the Department III, Counter-Intelligence information Service."
Furthermore, I would like to offer Affidavit Hanke. This is the next affidavit in the Document Book Fendler. I would like to offer this as Fendler Exhibit 2. From this affidavit I would like to read paragraph 2 an part of 3. I quote:
" In the year 1935 I became an employee of Security Service Administration East District Breslau through the Labor Exchange Breslau. I worked in the "Counter Intelligence Department" and, to be precise, in sub Department "Intelligence from abroad," where information of a political and economic nature or intelligence material from the southeastern States was evaluated, i.e., dispatched to the Security Service Main Office in Berlin through business channels in the form of a news report. Questions of "Plant Security" were handled in the other sub department.
"I learned to know Herr Lothar Fendler approximately at the beginning of the year 1936. He was born in Breslau, if I remember correctly, and started to work at that time in the same Security Service Administration District "Southeast". At first he worked in the capacity of an assistant for the guard in the file-room and as a sideline worked as a coach for sport activities. Later on he worked in the Sub-Department "Plant Security" which activity was, just like the "Intelligence from Abroad", purely reportorial, and did not extend to executive and police measure as executive authority was in any case not proper to a Security Service employee. Fendler was transferred to the Security Service Sub-District Breslau approximately a year later where he also worked in the Plant Security Sector. Fendler has to my knowledge not displayed any political activity for the Party, by giving talks or by writing articles."
THE PRESIDENT: Dr. Fritz, it is entirely probable to call our attentions to the essential parts of affidavits submitted but I do not believe it is necessary for you to read such material as where the defendant was born and it certainly isn't necessary to read the curriculum vitae or the man who has given the affidavit, because now that first paragraph you read told about the affiant. Then it isn't until you get into the second paragraph that you began to talk about the defendant and much of you read is known already. He has mentioned he was born in Breslau and so on.
Now I don't want to curtail you in the presentation of any material but we will lose a great deal of time if you are going to read matters which can't be or much assistance in the disposition of this case. necessary for you to emphasize as that the defendant worked in the Sub-Department Plant Security and his work there did not extent to executive and police measures. Then the fact that according to the party by giving talks or by writing articles.
I only call this to your attention now because if we didn't say something about it now you might follow the same procedure in other affidavits and you would be emphasizing what is not of great essential value in the final appraisement of the questions involved in the indictment.
Q. (By Dr. Fritz) Dr. Fendler, what activities were you given in March of 1939? Olmuetz of the SD with an Einsatzkommando. It was the job of this kommando to organize SD agencies and to take up the work of the SD. At that time, I was Scharfuehrer. That is the same as a sergeant.
organize a local agency together with the confidence men. I became the director or this agency. This agency had to do the same jobs as the SD Office III. Thus I had to gather material and reports from all domestic spheres about the morale of the population and from that material I had to make out reports for my superior agency. or was your agency active as a Counter agency of the Gestapo?
A No, neither I nor my assistants had any executive powers. The agency was completely independent. It had no connection with the Gestapo.
DR. FRITZ: Your Honor, at this point I would like to offer the affidavit of Remmers, Fender Document 21. This is the last document in Document Book Fendler on page 66. I offer it as Fendler Exhibit No. 3. Remmmers was also the director of an agency in the Sudetenland. He describes the work of the SD in the Sudetenland and he essentially confirms everything which the Defendant Fendler has just stated about his activity.
Q (By Dr. Fritz) Mr. Fendler, how long were you the Director of this agency in Olmuetz? examination, I became a candidate for the so-called "Executive Service" and thus I got the possibility of studying law.
Q And how did your training proceed? attended my first semester there. Until the end of 1940 I continued to direct the agency at Olmuetz. Then I left the professional work of the SD and was transferred to the Office of the RSHA, that is to say, the Personnel and Training Office. Then in the beginning of 1941 I attended the University of Frankfurt on Main for one semester and then moved to Berlin where I finished my studies at the university.