The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/25

SIR DAVID MAXWELL FYFE: If the Tribunal please, the
witnesses fall into four groups. The first group is three
witnesses from the Ministry of Economics. Nos. 1, 2 and 10
on the list. As I understand Dr. Sauter, he wishes to call
No. 2, Herr Hayler, as an oral witness, and to have
affidavits from the witnesses Landfried, No. 1, and Kallus,
No. 10. The prosecution have no objection to this course,
except that with regard to the witness Landfried they may
have some observations to make on the form of the
interrogatories, which could no doubt be settled with Dr.
Sauter, and then put to the Tribunal for their approval.
Secondly, they want to reserve the right to apply for
further cross-interrogatories. Apart from that, which I
submit are really minor points, they agree with that

The second group is two witnesses from the Reichsbank, No.
5, Herr Puhl, and No. 7, Dr. August Schwedler. Again, as I
understand Dr. Sauter, he wants an affidavit in the form of
answers to questions. The prosecution have no objection to
that, only again they reserve the right to apply for cross-
interrogatories, if necessary; if the answers take a certain
form, they might have to apply to the Tribunal that the
witness be brought for cross-examination. They simply want
to reserve that right but, of course, they cannot take up
their position until they have seen the form of the answers.

Then, the third group consists of one witness, who is Dr.
Lammers, who has been called by most of the defendants, and
there is no objection to that; the prosecution suggest that
Dr. Sauter will put his questions to Dr. Lammers when he is
called with the other witnesses.

Then, the fourth group is a general one. There is Herr
Oeser, who is an editor, No. 6; Herr Amann, No. 8; and No.
9, Herr Roesen; and lastly, No. 4, Frau Funk. As I
understand it, with regard to all these witnesses, Dr.
Sauter wished either an interrogatory or an affidavit. The
prosecution make no objection to that, with the same
understanding that they reserve their rights to put cross-
interrogatories or to ask the Tribunal to summon any of them
as witnesses, if any point emerges. Subject to the
reservation of these points, there is nothing between us,
because the result is, if I have understood it all
correctly, that Dr. Sauter is asking for two oral witnesses
and eight sets of interrogatories.

THE PRESIDENT: Sir David, do you not draw any distinction
between an affidavit and interrogatories?

                                                  [Page 163]

SIR DAVID MAXWELL FYFE: Well, I do, certainly. But, my Lord,
Dr. Sauter has shown in the case of most of the witnesses
the interrogatories which he is putting. Dr. Lammers will be
dealt with orally, because he is being produced as a
witness. I understand that when Dr. Sauter says "affidavit"
he means an affidavit in the form of answers to questions,
such as those he has set out in the appendix.

THE PRESIDENT: Well, then, Sir David, so far as the
prosecution are concerned, they would take the line that you
have suggested, meaning, by an affidavit, interrogatories
and if necessary, cross-interrogatories?


THE PRESIDENT: Very well. Yes, Dr. Sauter?

DR. SAUTER: Mr. President, I am in agreement with the
suggestions of the prosecution as to the individual
applications. As to the wording of the individual
interrogatories I shall come to an agreement with the

THE PRESIDENT: Just one moment. Dr. Sauter, perhaps you
could tell us, dealing, for instance, with No. 6: You say
there, "I have in hand an affirmation from this witness with
a supplement thereto." Does that mean answers to
interrogatories, or does that mean an affidavit, a
statement? Have you got the passage?

DR. SAUTER: Yes, I have an affidavit from this witness,
Albert Oeser, and this affidavit will be submitted to the
Tribunal, together with my document book. I am already in
possession of this affidavit.

THE PRESIDENT: Well, Sir David, that is not quite the same
as interrogatories. I do not know whether you have seen the
affidavit. I mean, it may be that at a later stage you would
want to cross-examine or to put cross-interrogatories to
that witness.

SIR DAVID MAXWELL FYFE: Yes, that would be so, your Honour.
I must reserve the right, until I have seen the affidavit,
to do that. The ones that are attached to Dr. Sauter's
application are all in the interrogatory form, but where the
document is in the form of a statement, the prosecution
would have to reserve these rights. Really, one cannot make
any declaration until one has seen that.

DR. SAUTER: Mr. President, before I put in evidence this
affidavit by the witness Oeser, No. 6, I shall, of course,
pass it to the prosecution so that they have ample time to
decide as to whether they wish to cross-examine this
witness. This goes without saying.

THE PRESIDENT: Where is that particular witness? Where is

DR. SAUTER: He is witness No. 6, my Lord.

THE PRESIDENT: Yes, but where is the man? Where is he at the
present moment? Is he in Nuremberg or where?

DR. SAUTER: Witness Oeser is at Schramberg in the Black
Forest, in the province of Baden, near the Rhine. It is some
distance from Nuremberg. Moreover, Mr. President, the points
to which the witness is to testify are comparatively so
insignificant that it would hardly be worth while to bring
the witness himself to Nuremberg. I personally do not know
the witness, but an acquaintance of mine mentioned him to me
as a person who could give favourable information on the
conduct of the defendant Funk. Thus we got to know about
witness Oeser, and obtained from him an affidavit which I
shall pass to the prosecution in good time.

SIR DAVID MAXWELL FYFE: With regard to the documents, my
Lord, the first one is a biography of the defendant Funk.
The extracts were submitted as part of the prosecution's
case. I ask that Dr. Sauter intimate what passages he
desires to use and then the prosecution can make such
objections or comments as may or may not be necessary.

                                                  [Page 164]

The second request is, I think, the same as we had
yesterday, namely for the record of the Dachau trial and of
the evidence of the witness Dr. Blaha. The American
prosecutors will be pleased to show Dr. Sauter the report
that they have of Dr. Blaha's evidence at that trial.

With regard to the speeches of the defendant Funk, there
again, if Dr. Sauter will intimate what they are and what he
intends to use, the prosecution will consider them. Prima
facie they would be a relevant matter.

And with regard to No. 4, the copy of the newspaper with a
report of the defendant's speech; that again would prima
facie be relevant and we shall look into it. It is very
unlikely that there would be any objection, but we shall
look into it, and, if necessary, deal with it when Dr.
Sauter makes his presentation.

THE PRESIDENT: Has Dr. Sauter the newspaper?

DR. SAUTER: Mr. President, the newspaper mentioned under No.
4, and also the speeches mentioned under No. 3, are now in
my possession. I shall not use the entire text of the
speeches in my brief.

THE PRESIDENT: Then you would be prepared to indicate to the
prosecution the passages in your Document 1, and the
passages in 3 and 4, which you wanted to use so that they
can have them translated.

DR. SAUTER: Yes, my Lord, I shall include in the document
book from the book mentioned under No. 1 only a few, I think
two or three pages, and from the speeches and newspaper
articles only those passages which I am going to use, and
shall submit these to the prosecution in time for
translation. As to the record of the Dachau trial, this
request is settled by what the prosecution stated yesterday
regarding the defendant Frick. I believe the Dachau
stenographic report is already available, I shall peruse it
so that this matter is settled.

THE PRESIDENT: Very well. Then I call upon counsel for Dr.

DR. Dix (counsel for defendant Schacht): I am very pleased
to be able to tell the Tribunal that I believe I am in
agreement with Sir David as to the compass of evidence to be
submitted by me, especially as to those applications which I
shall either withdraw or restrict. In order to facilitate
matters, may I, therefore, first tell the Tribunal which
applications on my list I withdraw and which ones I restrict
so that eventually those will be left which I maintain. I
withdraw application No. 5 for the examination of Dr.
Diehls. I heard yesterday that Dr. Diehls has been called
for as witness in another application. Should the Tribunal
grant yesterday's application and order Diehls to appear,
then I should like to reserve the right to examine. I myself
shall, however, not apply for him.

Then I should like to call your attention to applications
No. 6, Colonel Gronau; No. 7, Herr von Scherpenberg; No. 8,
State Secretary Carl Schmidt; No. 9, Consul General Dr.
Schniewind; No. 10 General Thomas of the Armament Staff; No.
11, Dr. Walter Asmus; No. 12, Dr. Franz Reuter; and No. 13,
Dr. Berckerneyer. For all these witnesses I am willing to
accept an affidavit. I quite realize that I have to pass
affidavits to the prosecution and that the latter have the
right to apply for these witnesses to be summoned for cross-

The following witnesses, therefore, remain to be called
before the Tribunal; witness No. 1, Dr. Gisevius; witness
No. 2, Frau Struenck; witness No- 3, the former Reichsbank
Director Vocke; and witness No. 4, the former Reichsbank
Director Ernst Huelse. In respect of these witnesses, I must
insist on my application for their personal appearance.
Schacht's defence cannot dispense with the oral examination
of these witnesses. May I put forward my reasons in each
case. The testimony of these witnesses is in no way
cumulative. One witness knows things the other does not
know. Vocke and Huelse were Schacht's closest collaborators
at the Reichsbank and at the International Bank at Basle.
They know of events and developments which Schacht may not
be able to recall in detail.

                                                  [Page 165]

The oral examination of these witnesses cannot therefore be
replaced by interrogatories because he is no longer
sufficiently versed to draw up the relevant questions. These
witnesses must be informed of the theme of the evidence and
be given the opportunity to make a comprehensive statement.

The same, namely that they still remember events in detail
which Schacht no longer recollects, applies to Frau Struenck
and Gisevius who can testify particularly as to the plans
for the various attempts on Hitler's life from 1938 to 1944,
This is all I have to say regarding my application for these

SIR DAVID MAXWELL FYFE: May it please the Tribunal, Dr. Dix
and Professor Kraus were good enough to indicate to me and
my colleagues yesterday their proposals which Dr. Dix
suggested be put before the Tribunal. The prosecution felt
that by limiting all the witnesses to the first and second
points, Dr. Dix was making a reasonable suggestion. The
prosecution, of course, reserve all rights as to the
relevancy of the various points set out as to these
witnesses, but they felt that that, as I say, was a
reasonable suggestion. On Nos. 3 and 4 it means that the
defence are limiting all the witnesses, on the general
economic course of conduct of the defendant, and again the
prosecution felt that that was a reasonable suggestion. With
regard to the others, the prosecution must, as I have said
and Dr. Dix agreed, reserve all rights by way of cross-
interrogatories or of asking that the witness should be
summoned, but the prosecution felt that they could only be
in a position really to decide what their rights and proper
course should be when they had seen the affidavits that were
put in. That is the reasoning of the prosecution in the

DR. DIX: Regarding the documents, I should like to make it
clear that wherever in my list I have referred to books,
published speeches and such like, especially under No. 2,
this does not mean that I intend to present to the Tribunal
long extracts from these books. Only short quotations will
be made and these quotations will be ...

(A defect developed in the interpretation system.)

THE PRESIDENT: The best course would be for us to adjourn
now and then this mechanical defect will be remedied.

(A recess was taken.)

THE PRESIDENT: Just one moment, Dr. Dix. I have one or two
announcements to make. In the first place, the application
which has been made on behalf of the defendants, for a
separate trial of the organizations named under Articles 9
and 10 of the Charter, is denied.

Secondly, with reference to the application made on behalf
of counsel for the defendant Bormann, the Tribunal have
considered the application dated 23rd February, 1946, by Dr.
Bergold, counsel for the defendant Bormann, in which he asks
that Bormann's case should be heard last, at the end of the
case of all the other defendants. The Tribunal have decided
to grant this application.

The Tribunal also rule that the hearing of Dr. Bergold's
applications, on behalf of Bormann, for witnesses and
documents, in accordance with Article 24-D, shall not take
place at the present time, when the Tribunal are hearing the
applications of all the other defendants, but at a later
date to be fixed within the next three weeks.

Thirdly, with reference to the business of the Tribunal, the
Tribunal will sit in closed session after the conclusion of
the applications on behalf of the four defendants who are
being heard today. Tomorrow, the Tribunal will continue the
applications on behalf of the next four defendants, and on
Thursday, the Tribunal will hear the case on behalf of the
defendant Goering.

Yes, Dr. Dix.

                                                  [Page 166]
DR. DIX : Before the recess, I was about to tell the
Tribunal as to No. 2 of the list of documents, that in my
presentation I would confine myself to really important and
quite short quotations, after having made them available to
the prosecution in our document book. This disposes of No.

No. 1 consists of extracts from copies already submitted by
the prosecution. I shall give but one example, namely, the
report by Ambassador Bullitt to the State Secretary in
Washington. The prosecution presented the last part of this
report, in which they were interested, whereas I wish to
reserve the right to present the first part, which deals
with Schacht's peaceful intentions and his lack of political
influence on Hitler, and which is, therefore, of importance
to the defence.

I now turn to No. 3, Sub-paragraph (a) which is the Schacht
memorandum to Hitler of 3rd May, 1935, concerning the legal
rights of Jews, dissolution of the Gestapo, etc.

May I again ask the prosecution to see to it as far as
possible that this document, which has not been introduced
so far, be procured together with Document 1168-PS, which
was produced at the time of Schacht's interrogation by
Colonel Gurfein. As I heard yesterday, the document has not
yet been found, but, perhaps Colonel Gurfein, who has
already gone back, can assist us in this matter. These two
documents are very important as they constitute parts of a
Schacht memorandum which can be understood and appreciated
only in its entirety.

Furthermore, here is a letter addressed by Schacht to
General Field-Marshal von Blomberg. It deals with
restriction of armaments, etc., and its relevancy is, I
think, obvious.

Still a word about Sub-paragraph (c). This is a Hitler
memorandum of August 1936, regarding the Four Year Plan.
This memorandum, in which Hitler reproaches Schacht most
bitterly, even with sabotage, is of decisive importance to
us. Contrary to what appears in the list, I am not in a
position to produce a reliable copy of this memorandum,
which under certain circumstances could replace the
original. What I have is an extract, which in no way can be
considered reliable, and thus cannot be submitted to the
Tribunal as evidence. In order to ascertain the exact
contents of this memorandum, we must have the original. To
my knowledge, the original was amongst the files of the
Dustbin Camp in Taunus, and again I ask the prosecution to
assist in procuring it.

Then there is the letter, written by Schacht to Goering in
November 1942. Goering's answer was to dismiss Schacht for
defeatism, or rather in consequence of this letter, Schacht
was dismissed for defeatism. A further consequence of this
letter was that Goering excluded him from the Prussian State
Council. A copy of this letter was last seen by Schacht in
the possession of one von Schlaberndorff, who worked with
General Donovan, but who is no longer here. Where
Schlaberndorff is now, I do not know. May I ask the
prosecution to assist us also in this matter. Furthermore,
there is a telegram of January 1943, from Goering to
Schacht, excluding him from the State Council.

As to Sub-paragraph (f), I have to ask the Russian
prosecution to assist us in procuring this item. It is made
up of miscellaneous notes, written monologues and letters
which were kept in a box at Schacht's country seat Guehlen,
near Lindow Mark, Brandenburg, that is in the Russian
Occupation Zone. According to information received, this box
has been confiscated by Soviet troops. I should be very much
obliged to the Russian Delegation if they would do their
utmost to procure the box with its contents.

The documents under No. 4 are already in our possession. I
do not think it necessary to enumerate and comment on them
here; they will be included in our document book, and the
prosecution will then have the opportunity of making
observations on their relevancy.

That is all I have to say now regarding the documents.

                                                  [Page 167]

SIR DAVID MAXWELL FYFE: With the approval of the Tribunal I
shall confine the very few remarks I have to make to
Paragraph 3 of Dr. Dix's memorandum. With regard to the
document for which Dr. Dix has made request, it is not yet
procured. I have asked my colleagues to make inquiries, but
at the moment they cannot find certain of these documents,
although a search has been made. For example, (a) the note
handed to Hitler on the same day, is Document No. 1168-PS.
Mr. Dodd tells me that an exhaustive search was made by the
American Delegation two months ago, and they are convinced
that that document is not in their possession, and the same
applies to the Soviet Delegation regarding (e).

THE PRESIDENT: Who was the interrogator, Judge Gurfein?

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