If Justice Jackson is concerned with the shock effect of the death of many Jews, these things happened outside the law and in the name of power, and this Tribunal is interested in outlining power and to put in justice in its place.
But justice must be clear and it must be sure.
SIR DAVID MAXWELL-FYFE: The Tribunal said earlier that certain questions had been asked of me. I am perfectly prepared to answer the three questions if the Tribunal desires their time to be occupied by my so doing.
THE PRESIDENT: I don't think the Tribunal wishes to hear any further arguments unless you particularly want to answer anything.
SIR DAVID MAXWELL-FYFE: I did not intend to argue at all. It was only that Dr. Dix put two questions on which he asked my view, and Dr. Servatius one, but I am in the hands of the Tribunal. I do not want it to be thought that the Prosecution is not prepared to answer the questions.
THE PRESIDENT: If you can answer them shortly, we should be quite glad to hear them.
SIR DAVID MAXWELL-FYFE: The first question that Dr. Dix asked me was to clarify what I had said about the Fuehrerprinzip in relation to the Reichsregierung. I can answer that in two sentences. I said that in addition to the ordinary support which members of the Reichsregierung in 1933 gave to Hitler under the Fuehrerprinzip, they entrusted their consciences and wills to him and adopted completely his points of view.
In order that Dr. Dix may be under no misapprehension with regard to his grant, the case for the Prosecution may be put in the words of Dr. Goebbels, one of the conspirators, on the 21st of November 1934, in a conversation with Dr. Schacht.
"I assured myself that he absolutely represents our point of view. He is one of the few who accepts the Fuehrer's position entirely." to the Treaty of Versailles and the Anschluss. Dr. Dix asked me to deal with those who desired to effect the aims of the Party program in a peaceful way. The Prosecution says that that does not arise: that the Party program must be considered in the background of Hitler and other publications as to the use of force and also as to the existing state of things in the relationship of Germany with the Western powers and also a treaty of obliga-tion to Austria and Czechoslovakia.
The third question that was put to me was by Dr. Servatius about the Leadership Corps. You will remember, my Lord, that in the statement of the Tribunal the Prosecution was asked, if they were making any limitation, to make it now. That is contained in the statement of the Tribunal. The limitation which we have made, that is only including the staff in the case of Reichsleitung, Gauleitung, and Kreisleitung, and excluding the staff in the case of the Ortsgruppenleiter, Zellenleiter, and Blockleiter, is the view to which the Prosecution adheres and which has been agreed by the different delegations. I wanted Dr. Servatius to know that that was the position. I do not intend to repeat the reasons for it which were given by my friend, Mr. Justice Jackson.
THE PRESIDENT: There is only one thing I should like to say. I think it might be useful to the Tribunal, if you have them, to let us have copies of the British statutes to which Mr. Justice Jackson referred and also the certified judgments of the German courts--if you have copies available.
SIR DAVID MAXWELL FYFE: They will be found for the Tribunal and the Tribunal will receive them within the shortest possible time.
THE PRESIDENT: Mr. Dodd, I understand that you have an affidavit-
MR. DODD: Yes.
THE PRESIDENT: -- which you wish to put in with reference to the High Command?
MR. DODD: Yes, we do have it. We located this affidavit on Thursday, the Tribunal had inquired about it on the afternoon of the day before, on Wednesday, I believe it was. We have prepared for the Tribunal a list of the offices comprising the German General Staff and High Command as defined by the Indictment in Appendix "B". The list was compiled from official sources in the Admiralty Office of Great Britain, the War Office of Great Britain, and the Air Ministry of Great Britain, and supplemental information was obtained from senior German officers, now prisoners of war in England and in Germany. The list is attached to this affidavit as we intended to submit it this morning to the Tribunal, and the affidavit describes the source from which "this information was obtained and it points out that the list does not purport to be exhaustive or necessarily correct in every detail.
It is, however, substantially a complete list of the members of the General Staff and of the High Command and of the High Command Group, and on the basis of this compilation there appear to have been a total of 131 members, of whom 114 are thought to be living at the present time. I wish to offer the list formally, together with this affidavit as United States Exhibit No, 778. I ask that it be accepted without it being read. However, of course, if the Tribunal would like tit read over the public address system, I should be glad to do so.
THE PRESIDENT: No, I don't think you need read it.
MR. DODD: I might say to the Tribunal that copies -
THE PRESIDENT: Copies have been given to the defense.
MR. DODD: Yes, they have, your Honor. They have been given to the defense.
THE PRESIDENT: Very well. Thank you.
MR. DODD: Colonel Smirnov, Your Honor, is prepared to read the document with reference to Stalag Luft 3. If the Tribunal would like, we will have him do so.
THE PRESIDENT: I think perhaps we will have him do that on Monday morning.
MR. DODD: Very well.
THE PRESIDENT: The Tribunal will now adjourn.
(The Tribunal adjourned until 4 March 1946 at 1000 hours.)
OFFICIAL TRANSCRIPT of the International
COLONEL SMIRNOV: Several days ago the Tribunal directed me to find out with reference to the reading of an official British report, as to the responsibility of the killing of fifty RAF officers who were prisoners. At the time it was suggested that it be read as soon as possible.
May I read into the record several paragraphs of this report? I shall read those parts of the document which, in general, give the characteristics of this criminal act and, on the other hand, it lays down the responsibility for the act.
THE PRESIDENT: Colonel Smirnov, you are offering the document, are you, in evidence? You are seeking to put the document in evidence?
COLONEL SMIRNOV: This document has already been presented in evidence and it has been accepted as such. I would like to read into the record certain parts of it. It has been submitted as USSR Exhibit 413.
THE PRESIDENT: Very well.
COLONEL SMIRNOV: I shall cite paragraph one of the official British report.
"On the night of the 24-25 March 1944, 76 RAFofficers escaped from Stalag Luft III at Sagan in Silesia where they had been confined as prisoners of war. Of these, 15 were recaptured and returned to the camp, 3 escaped altogether, 8 were detained by the Gestapo after recapture. Of the fate of the remaining 50 officers, the following information was given by the German authorities:
"(a) On 6th April 1944, at Sagan the acting Commandant of Stalag Luft III (Oberstleutenant Cordes) read to the Senior British Officer (Group Captain Massey) an official communication of the German High Command that 41 officers (unnamed) had been shot 'some of them having offered resistance on being arrested, others having tried to escape on the transport back to their camp.'
"(b) On 15 April, 1944, at Sagan a member of the German camp staff (Hauptmann Pieber) produced to the new Senior British Officer (Group Captain Wilson) a list of 47 names of the officers who had been shot.
"(c) On the 18th of May, 1944, at Sagan the Senior British Officer was given three additional names, making a total of 50.
"(d) On or about 12 June, 1944, the Swiss Minister in Berlin received from the German Foreign office, in reply to his enquiry into the affair, a note to the effect that 37 prisoners of British nationality and 13 prisoners of non-British nationality were shot when offering resistance when found or attempting to re-escape after capture. This note also referred to the return of urns containing the ashes of the dead to Sagan for burial." were shot while attempting to escape. It was established, however, by the investigating commission of British authorities that the officers were killed and they were killed by members of the Gestapo on direct orders from Keitel and Goering. of these two points, the official British report, that is point seven and eight.
"General Major Westhoff at the time of the escapes was in charge of the General Department relating to Prisoners of War and on 15 June 1945, he made astatement in the course of which he said that he and General von Graevenitz, the Inspector of the German POW organization, were summoned to Berlin a few days after the escapes and there interviewed by Keitel. The latter told them that he had been blamed by Goering in the presence of Himmler for having let the prisoners of war escape.
"Keitel said, 'Gentlemen, these escapes must stop. We must set an example. We shall take very severe measures. I can only tell you that the men who have escaped will be shot; probably the majority of them are dead already.' When von Graevenitz objected, Keitel said, 'I don't care a damn; we discussed it in the Fuehrer's presence and it cannot be altered.'" "Max Ernst Gustav Friedrich Wielen was then the officer in charge of the Criminal Police at Breslau, and he also made a statement dated 26 August, 1945, in the course of which he said that as soon as practically all the escaped R.A.F. officers had been recaptured he was summoned to Berlin where he saw Arthur Nebe, the Chief of the Criminal Police Head Office who showed him a teleprint order signed by Kaltenbrunner which was to the effect that on the express order of the Fuehrer over half of the officers who had escaped from Sagan were to be shot after their recapture.
It was stated that Mueller had received corresponding orders and would give instructions to the Gestapo. According to Wielen the Criminal Police, who were responsible for collecting and holding all the recaptured prisoners, handed over to the Gestapo the prisoners who were to be shot, having previously provided the Gestapo with a list of the prisoners regarded by the Camp authorities as troublesome."
"Flight Lieutenants Wernham, Kiewnarski, Pawluk and Skanziklas ----"
THE PRESIDENT: Colonel Smirnov, are you going to read now some of the evidence upon which the report is based?
COLONEL SMIRNOV: Now I would like to read into the record the text of the report and other parts of the report which deal with the methods of investigation in regard to individual officers. officers.
THE PRESIDENT: Paragraph 4?
COLONEL SMIRNOV: Yes.
THE PRESIDENT: Very well.
COLONEL SMIRNOV: I quote.
"On orabout the 26th of March, 1944, these officers were interrogated at the police station in Hirschberg and were then moved to the civil gaol in that town. On the morning of the 29 March Pawluk and Kiewnarski were taken away and later in the day Skanizklas and Wernham left. Both parties were escorted but their destination was unknown. They have not been seen since and the urns later received at the Stalag showing their names bear the date 30 March, 1944.
"Squadron Leader Cross, Flight Leiutenants Casey, Wiley and Leigh and Flight Officers Pohe and Hake.
"Between 26 and 30 March, 1944, these officers were interrogated at the Kripo Headquarters in Goerlitz and then returned to the gaol there. During the interrogation Casey was told that he would lose his head; Wiley that he would be shot and Leigh that he would be shot. Hake was suffering from badly frost bitten feet and was incapable of travelling for any distance on foot. On 30 March the officers left Goerlitz in three motor cars accompanied by ten German civilians of the Gestapo type. The urns later received at the Stalag bear their names and show them to have been cremated at Goerlitz on 31 March 1944.
"Flight Lieutenants Humphreys, McGill, Swain, Hall, Langford and Evans, Flight Officers Valenta, Kolanowski, Stewart and Birkland.
"These officers were interrogated at the Kripo Headquarters in Goerlitz between 26 and 30 March. Swain was told that he would be shot, Valenta was threatened and told that he would never escape again. Kolanowski was very depressed after his interview. On 31 March these officers were collected by a party of German civilians, at least one of whom was in the party which had come on the previous day. The urns later received at the Stalag bore their names and show them to have been cremated at Liegnitz on a date unspecified."
data also relates to different groups of British officers who were killed by the Germans in Stalag Luft III. to Flight Lieutenants Grisman, Gunn, Williams and Milford and Flight Officer Street and Lieutenant McGarr. The same information is given in regard to Flight Lieutenant Long, Squadron Leader Williams, Flight Lieutenants Bull and Mondschein, Flight Officer Kierath. The same kind of information is given with reference to Flight Officer Stower, Flight Lieutenant Tobolski, Flight Officer Krol, Flight Lieutenants Wallen, Marcinkus and Brettell, Flight Officer Picard, and Lieutenants Gouws and Stevens, Squadron Leader Bushell and Lieutenant Scheidhauer, Flight Officer Cochran, Lieutenants Espelid and Fugelsang, Squadron Leader Kirby-Green and Flight Officer Kidder, Squadron Leader Catanach and Flight Officer Christensen and Flight Lieutenant Hayter, from this official report. I refer to paragraph 6 of the official British report and also to paragraph 5.
THE PRESIDENT: I was going to suggest you should read paragraph
COLONEL SMIRNOV: I was going to read paragraph 5 of the British test.
"According to the evidence of the survivors there was no question of any officers having resisted arrest or of the recaptured officers having attempted a second escape. All were agreed that the weather conditions were against them and that such an attempt would be madness. They were anxious to be returned to the Stalag, take their punishment and try their luck at escaping another time.
"6. The Swiss representative, M. Gabriel Naville, pointed out on 9 June, 1944, in his report on his visit to Sagan, that the cremation of deceased prisoners of war was most unusual (the normal custom being to bury them in a coffin with military honours) and that was the first case known to him where the bodies of deceased prisoners had been cremated. Further, it may be noted that if, as the Germans alleged, these 50 officers who were recaptured in widely scattered parts of Germany had resisted arrest or attempted a second escape, it is probable that some would have been wounded and most improbable that all would have been killed. In this connection it is significant that the German Foreign Office refused to give to the Protecting Power the customary details of the circumstances in which each officer lost his life."
which I had the honor to relate to the Court.
THE PRESIDENT: I think it would perhaps be better if you also read the appendix so as to show the summary of the evidence upon which the report proceeded, Paragraph 9.
COLONEL SMIRNOV: I did not read the appendix because it was read. I shall read it once again.
"9. The Appendix attached hereto gives a list of the material upon which this report is based. The documents referred to are annexed to this report.
"APPENDIX "Material upon which the foregoing report is based;"1. Proceedings of Court of Inquiry held at Sagan by order of the Senior British Officer in Stalag Luft III and forwarded by the Protecting Power.
"2. Atatements of the following Allied witnesses:
"a. Wing Commander Day.
"b. Flight Lieutenant Tonder "c. Flight Lieutenant Dowse "d. Flight Lieutenant van Wymeersch "e. Flight Lieutenant Green "f. Flight Lieutenant Marshall "g. Flight Lieutenant Nelson "h. Flight Lieutenant Churchill "i. Lieutenant Neely "j. P. S. M. Hicks "3. Statements taken from the following Germans:
"a. General Major Westhoff "b. Oberregierungs und Kriminalrat Wielen (two statements) "c. Oberst von Lindeiner.
"4. Photostat copy of the official list of dead transmitted by the German Foreign Office to the Swiss Legation in Berlin on or about 15th June 1944.
"5. Report of the Representative of the Protecting Power on his visit to Stalag Luft III on 5th June 1944."
THE PRESIDENT: Then, for the purposes of the record, you had better read in the signature and the department at the bottom.
COLONEL SMIRNOV: The document is signed by H. Chapcott, Brigadier, Military Deputy, and is certified by Military Department, Judge Advocate General's Office, London, 25 September 1945.
THE PRESIDENT: Colonel Smirnov, so far as the Russian Chief Prosecutor is concerned, does that conclude the case for the Prosecution?
COLONEL SMIRNOV: Yes.
DR. NELTE (Counsel for the defendant Keitel): Mr. President, the report which the Prosecution has just read refers again to the documents which it has been said are attached to the report. In the appendix there are several documents listed upon which the report is based. I ask the Tribunal to decide whether the document USSR-430 would be acceptable without attaching the additional material which is definitely mentioned in the report, whether that document is relevant according to Article 21 of the Charter, and if it is not, I request that the Prosecution be asked to also give the appendix to the text.
THE PRESIDENT: Dr. Nelte, do you mean that you have only had the report made by the Brigadier and you haven't seen any part of the other evidence upon which the report proceeds?
DR. NELTE: Mr. President, the Tribunal, in a former case in this trial, once decided -
THE PRESIDENT: (interposing): Yes, but I didn't ask you what we had decided. I asked what you had received. Have you received from the Prosecution the whole of this document or only the report made by the Brigadier?
DR. NELTE: Only the report, without the appendix.
THE PRESIDENT: Well, the Tribunal certainly intended thatthe whole of the document should be furnished to defendant's counsel, and that must be done so that you may have all the documents before you.
DR. NELTE: Evidently that has not been done. In the appendix there was reference made to statements by Major General Westhoff and by Oberregierungs un Kriminalrat Wielen. I have not read either statement. They were not included in the report.
THE PRESIDENT: The Prosecution must see that the whole of this documen is furnished to the defense counsel.
SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I don't think the whole of it has been published, but if Dr. Nelte will let us know if he wants the whole of it, or a part, we will cooperate the best way we can. The last thing we desire is that he shouldn't have it. We want him to have everything he wants.
THE PRESIDENT: Well, Sir David, will you inform the Tribunal whether the Prosecution has now concluded their case.
SIR DAVID MAXWELL-FYFE: Yes, My Lord. That is the conclusion of the case for the Prosecution.
THE PRESIDENT: Very well. Then me will now proceed with the applications for witnesses and documents by the second four of the defendants, Kaltenbrunner, Rosenberg, Frank and Frick.
DR. KAUFFMANN (Counsel for the defendant Kaltenbrunner): The defendant Kaltenbrunner asks to call a number of witnesses which I will name now. First, Professor Dr. Burckhardt.
SIR DAVID MAXWELL-FYFE: My Lord, if the Tribunal approves, we will adopt the same procedure as was done on the first four defendants. Meyer, the interrogatories were granted on the 15th of December and submitted on the 28th of January. The Prosecution suggested that they might be made more precise. The Prosecution has no objection to interrogatories in principle, and I am sure that there wouldn't be much difference between Dr. Kauffmann and the Prosecution as to the form. That applies to the first three witnesses.
THE PRESIDENT: We are informed that none of these three witnesses have been located yet.
SIR DAVID MAXWELL-FYFE: Well, I respectfully agree, My Lord, That is the position of the Prosecution, that we have no objection in principle to these interrogatories, and if we can help the Court in any way to locate the witnesses, we should be glad to do so.
THE PRESIDENT: When were the interrogatories furnished to the Prosecution?
SIR DAVID MAXWELL-FYFE: The 28th of January, My Lord.
THE PRESIDENT: And were the Prosecution's objections communicated to the defense counsel shortly afterwards, or when?
SIR DAVID MAXWELL-FYFE: I'm sorry: I am afraid I haven't got that date, My Lord.
THE PRESIDENT: Wouldn't the most sensible course be for the Prosecutio* to try to agree upon a suitable form of interrogatory whilst the General Secretary is prosecuting further inquiries to find the witnesses?
SIR DAVID MAXWELL-FYFE: Yes. Well, if Dr. Kauffmann will communicate with me, I have no doubt that we could agree on a form that would be mutually acceptable.
THE PRESIDENT: Very well.
DR. KAUFFMANN: Therefore, I need not repeat the individual questions which I have mentioned in the interrogatory. I don't think that I have to repeat them now, do I?
THE PRESIDENT: No, certainly not.
DR. KAUFFMANN: The fourth witness is the former German Minister in Belgrade, Neubacher. At present he is in an internment camp, Oberursel, near Frankfurt, in American custody.
SIR DAVID MAXWELL-FYFE: No objection to this witness.
DR. KAUFFMANN: Does the Tribunal want me to specify the evidence?
THE PRESIDENT: Yes, if you would.
DR. KAUFFMANN: Neubacher will, in the opinion of the defendant Kaltenbrunner, be able to testify that the stopping of the persecution of Jews in October 1944, which was ordered by Hitler, really was done at the order of Kaltenbrunner or on the initiative of Kaltenbrunner. that Himmler had made the defendant the Chief of the Reichssicherbeitshauptamt and put him in charge of Officers 3 and 6. This seems to be an important point because so far the prosecution has always maintained -- and there is certain evidence for that that the defendant was also in a definite connection with Office No. 4, and this Neubacher is expected to clarify.
THE PRESIDENT: Dr. Kauffmann, if those are the questions which it is desired to interrogate Neubacher on, couldn't they be dealt with by interrogatories?
DR. KAUFFMANN: According to the information which I received from Kaltenbrunner, Kaltenbrunner stresses the personal presence of this witness for personal reasons. I believe that Kaltenbrunner considers this witness as one of his most Important witnesses, and he would like to see that this witness be called.
THE PRESIDENT: Well, the Tribunal will consider that.
DR. KAUFFMANN: The next witness is number 5, Wanneck, at present in American custody.
SIR DAVID MAXWELL-FYFE: The prosecution suggests that the witness Wanneck is cumulative. According to Dr. Kauffmann's application, he is going to deal with the point that the defendant Kaltenbrunner was actually occupied mainly with the task of the intelligence service, and that he objected to persecution of the Jews. That is already covered by Neubacher, and it is also covered by the cross examination of the prosecutions's witness Schellenberg, who was the Chief of Amt 6, which Dr. Kauffmann has set out in his note on the witness Neubacher, number 4, as being one of the Intelligence Amts.
DR. KAUFFMANN: I leave it to the Tribunal whether this witness could be dealt with by an interrogatory, but I think the matter is essential. In a certain sense it is cumulative, but in some points it will go beyond that.
I agree with an interrogatory.
THE PRESIDENT: Sir David, do you think it would be unreasonable to administer an interrogatory?
SIR DAVID MAXWELL-FYFE: No, My Lord. Generally I make no objection to interrogatories at all. defendant Kaltenbrunner's adjutant, and as such the prosecution would not make any objection. But I think it would be convenient if I were to draw the attention of the Tribunal to the fact that the next six witnesses, number 6 to 11 inclusive, all deal with concentration camps, and numbers 6, 8, 9, and 11 deal with Mauthausen. I want to give Dr. Kauffmann warning that I shall ask for some selectivity amongst these six witnesses. one, but it will be reflected in objections to later witnesses.
DR. KAUFFMANN: The defendant, of course, considers it very important that the adjutant, who has served him for many years, who was present at every individual thing, be called. He knows also, for instance, that the broadcast to Fegelein, which is a matter of evidence for the prosecution, was not issued by Kaltenbrunner. He also knows that Kaltenbrunner, particularly in Theresienstadt, had made all preparations to see that this camp should be made accessible to the Red Cross. but they do shed some light -
THE PRESIDENT: You are speaking now of Scheidler?
DR. KAUFFMANN: Yes THE PRESIDENT:
Sir David, the Tribunal would like you to deal with the while of that group together, and then Dr. Kauffmann can answer what you say.
SIR DAVID MAXWELL-FYFE: With pleasure, My Lord. secution. The situation as I have found it is that Dr. Kauffmann did cross examine the witness Ohlendorf on the defendant Kaltenbrunner's responsibility over concentration camps on the 3rd of January of this year, at page 2034 of the transcript. behalf of Kaltenbrunner by Dr. Kauffmann, would be the natural person to deal with that point. But, of course, if Dr. Kauffmann has any special point for the recalling of Ohlendorf, he will tell the Tribunal.
THE PRESIDENT: Dr. Kauffmann, if you had the opportunity of cross examining General Ohlendorf and actually availed yourself of the opportunity wasn't that the appropriate time for you to put any questions which you had on behalf of the defendant Kaltenbrunner?
DR. KAUFFMANN: Mr. President, may I remind you that Kaltenbrunner was sick for over 12 weeks and that I had almost no information fromhim? At that time, in the session of the 2nd of January, it was told to me, by the Court, that I could confer with the witnesses at a later date -- because, as the Court will remember, I had made a motion to call them later -and then I was permitted to cross examine the witnesses later, at a date which I could name. in theabsence of Kaltenbrunner, I would like to be able to cross examine them at this time. I am prepared to forego the cross examination if I could talk to the witnesses before. Perhaps it will be unnecessary to call one or the other witness.
THE PRESIDENT: What do you mean by one or the other witness? Which is the other? Wisliceny?
DR. KAUFFMANN: Number 7, Ohlendorf; then number 11; Hoellriegel;
number 12, Wisliceny; number 14, Schellenberg. All these witnesses have been called here and have been examined here, and Kaltenbrunner was sick at that time.
THE PRESIDENT: What do you say about it, Sir David?
SIR DAVID MAXWELL-FYFE: I should suggest that Dr. Kauffmann cross examine number 11, Hoellriegel, and number 12, Wisliceny, whom he has not cross examined so far. And then, if there is any special point which remains to be dealt with by the witness Ohlendorf, Dr. Kauffmann can make a special application to the Court.
THE PRESIDENT: Yes. Well, the Tribunal would like to know what position you take about the Defendants' Counsel seeing these witnesses and discussing with them before they call them. I mean, there is a distinction between crossexamination when Defendants' Counsel cannot see them and calling them as their own witnesses when they can see them.
SIR DAVID MAXWELL-FYFE: Well, the Prosecution feel that they ought simpl* to cross-examine witnesses that have been called by the Prosecution, unless there is very special circumstances. I think that Dr. Seidl showed special circumstances with regard to the case that he mentioned, of one witness in relation to the Defendant Hess. But as a general rule, the Prosecution submit that witnesses that they have called should be cross-examined without prior consultation.
THE PRESIDENT: Well, Sir David, the Tribunal would like to know your view. Of course, we are not deciding the point now, but we should like to know your view as to whether it would be a proper course to allow the Defendants' Counsel to see the particular witness in the presence of a representativ of the Prosecution, because it may be that that would lead to a shortening of the proceeding, because the Defendants' Counsel might after that not wish to cross-examine the witness any further.
SIR DAVID MAXWELL-FYFE: Well, I am afraid that would require discussions with my colleague, on each particular witness. I am afraid I haven't covered that point. Witness 11 and 12 were called by my American colleagues and although I have the general position which I put before the Tribunal, I haven't discussed that point, but I shall be preased to discuss it with them and perhaps to inform the Tribunal later on in the day. a special witness that may come up.
DR. KAUFFMANN: Perhaps I may give a clarification. As to the witness Ohlendorf, I was told I could cross-examine him later and an agreement with the Prosecutor of the United States has already been made that I forego the cross-examination of Ohlendorf and under that condition I could agree to Ohlendorf already. I think it would be quite fair if I could do that with regard to other witnesses. That would mean that I forego the cross-examinati and be able to speak to them.
Maybe in one of the other cases this could be done.
THE PRESIDENT: I am not quite sure that I understand the view being put to you Dr. Kauffmann. The view is that when a witness is called on behalf of the Prosecution the Defendants' Counsel certainly have the right to crossexamine the qitness, not to see the witness beforehand, but only to crossexamine him. If on the other hand they are entitled to call that witness as their own, then they are entitled to see him beforehand, which is -
DR. KAUFFMANN: Yes, sir, that is exactly what I mean. But if I can speak to the witness beforehand, then the Court will understand, in the presence of a representative of the Prosecution, that I would like to avoid that, if if is possible, because the reasons which may be reasons for me to forego the calling of the witnesses would then be known to the Prosecution, I believe that everybody will understand that, and if seems to be fair.
THE PRESIDENT: The Prosecution said that when the witness was called for the Prosecution the right of the Defendants is only to cross-examine. Can you help us further with respect to this group, Sir David.
SIR DAVID MAXWELL-FYFE: Certainly with regard to Eigruber, No. 8, he is no longer in Nurnberg, and he is being held as a probable Defendant in the Case concerning Mauthausen Camp, which will be dealt with by a military court, and therefore the Prosecution suggests that in the circumstances, as he is one of this group dealing with concentration camps in general and Mauthausen in particular, he ought to be dealt with by interrogatories.
Then with regard to Hoettl, No. 9, he deals with two aspects of one point, that is, that Kaltenbrunnen on his own initiative ordered the surrender of the concentration camp of Mauthausen and that he took steps to induce Himmler to release people from concentration camps. These seem to be general points that again might be conveniently dealt with by interrogatories. point that Kaltenbrunner is alleged not to have given an order to destroy the concentration camp at Dachau and that he did not give an order to evacuate Dauchau. The Prosecution suggest that there ought also to be interrogatories.
objection to further cross-examination, and respectfully suggest to the Tribunal that he will be able to deal with the question of Mauthausen which is one of the main questions that this whole group of witnesses are called to deal with.
DR. KAUFFMANN: Maybe I can say something to that -
THE PRESIDENT: Are you in agreement with No. 12, in the same group?
SIR DAVID MAXWELL_FYFE: No. 12 is not in the same group, because he deals with the question of Kaltenbrunner's relations with Eichmann and with reports he received regarding the action against the Jews. We have no objection to this witness being called for cross-examination, as Dr. Kauffmann did not cross-examine him.
THE PRESIDENT: Yes, sir. Dr. Kauffmann?
DR. KAUFFMANN: Concerning the witness Eigruber, No. 8, may I point out that this witness is here in Nurnberg. However, I agree that interrogatories should be sent. The subjects, it seems to me, are relevant. For what Eigruber is supposed to say is not more or less than the fact that the concentration camp, Mauthausen, was immediately supervised by Himmler through formed about any more deals concerning the camp of Mauthausen. Two witnesses-
THE PRESIDENT: You were in error in saying he was here in town. Sir David said he has been removed from Nurnberg for the purpose of trial by a military court. So perhaps you won't object to interrogatories in that case.
DR. KAUFFMANN: That's right. known that Kaltenbrunner is also accused of having participated in the conspiracy against the peace, and here I intend to prove that Kaltenbrunner since 1943 has conducted an active peace policy. An important name in this connection is Mr. Dulles. That is according to information received from Kaltenbrunner, they were confident that he was a friend of the late President Roosevelt. Mr. Dulles was in Switzerland and continuously, according to the information received from Kaltenbrunner, there were conversations in that direction. I believe that this subject is relevant.