The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/12/11

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MR. JUSTICE JACKSON: If the Tribunal please, the last
question which I asked last night referring to mobilisation
preparations in the Rhineland, as shown in the official
transcript, was this, "But of a character which had to be
kept entirely secret from foreign Powers?" The answer was,
"I do not believe I can recall the publication of the
preparations of the United States for mobilisation."

Now, representing the United States of America, I am
confronted with these choices - to ignore that remark and to
allow it to stand for people who do not understand our
system, or to develop at considerable expense of time its
falsity, or to answer it in rebuttal. The difficulty arises
from this, your Honour, that if the witness is permitted to
volunteer statements in cross-examination there is no
opportunity to make objection until they are placed on the
record. Of course, if such an answer had been indicated by a
question of counsel, as I respectfully submit would be the
orderly procedure, there would have been objection; the
Tribunal would have been in a position to discharge its duty
under the Charter and I would have been in a position to
have shortened the case by not having that remark recorded.

The Charter in Article 18 provides that the Tribunal shall
rule out irrelevant issues and statements of any kind
whatsoever. We are squarely confronted with that question;
we cannot discharge those duties if the defendant is to
volunteer these statements without questions which bring
them up. I respectfully submit that, if the ruling of the
Tribunal that the defendant may volunteer questions of this
kind is to prevail, the control of these proceedings is put
in the hands of this defendant, and the United States has
been substantially denied its right of cross-examination
under the Charter, because cross-examination cannot be
effective under this kind of procedure. Since we cannot
anticipate, we cannot meet -

THE PRESIDENT: I quite agree with you that any reference to
the United States' secrecy with reference to mobilisation is
entirely irrelevant, and that the answer ought not to have
been made, but the only rule which the Tribunal can lay down
as a general rule is the rule - already laid down - that the
witness must answer, if possible, yes or no, and that he may
make such explanations as may be necessary after answering
questions directly in that way, and that such explanations
must be brief and not be speeches. As far as this particular
answer goes, I think it is entirely irrelevant.

MR. JUSTICE JACKSON: I must, of course, bow to the ruling of
the Tribunal, but it is the second part. I quite recall the
admonition of the Tribunal that there shall be answers yes
or no. This witness, of course, made not the slightest
pretension to that, and I must say that I cannot blame him:
he is pursuing his interests. But we have no way of
anticipating, and here we are confronted with this statement
in the record, because when these statements are volunteered
they are in the record before the Tribunal can rule upon
them, and I have no opportunity to make objections and the
Tribunal have no opportunity to rule. And it puts, as I said
before, the control of these proceedings in the hands of the
defendant, if he first makes the charges and then puts it up
to us to ignore them or answer them by long cross-
examination in rebuttal; and I think the specific charge
made against the United States of America from the witness-
stand presents that.

                                                  [Page 245]

Your Honour now advises the United States that it is an
improper answer, but it is in the record and we must deal
with it. I respectfully submit that unless we have -

THE PRESIDENT: What exactly is the motion you are making?
Are you asking the Tribunal to strike the answer out of the

MR. JUSTICE JACKSON: Well, no; in a trial of this kind,
where propaganda is one of the purposes of the defendant,
striking out does no good after the answer is made, and
Goering knows that as well as I. The charge has been made
against the United States and it is in the record. I am now
moving that this witness be instructed that he must answer
my questions yes or no if they permit an answer, and that
the explanations be brought out by his counsel in a fashion
that will permit us to make objections if they are
irrelevant and to obtain rulings of the Tribunal so that the
Tribunal can discharge its functions of ruling out
irrelevant issues and statements of any kind whatsoever. We
must not let the trial degenerate into a bickering contest
between counsel and the witness. That is not what the United
States would expect me to participate in. I respectfully
suggest that if he can draw any kind of challenge -

THE PRESIDENT: Are you submitting to the Tribunal that the
witness has to answer every question yes or no and wait
until he is re-examined for the purpose of making any
explanations at all?

MR. JUSTICE JACKSON: I think that is the rule of cross-
examination under ordinary circumstances. The witness, if
the question permits it, must answer, and that if there are
relevant explanations they be reserved until later.

Now let me come back to the specific problem I have here
this morning. Here is an answer given which the Tribunal now
rules is irrelevant. But we have no opportunity to object to
it. The Tribunal had no opportunity to rule upon it. The
witness asks, "Did you ever hear of the United States
publishing its plan of mobilisation." Of course, we would
have objected. The difficulty is that the Tribunal loses
control of these proceedings if the defendant, in a case of
this kind, where we all know propaganda is one of the
purposes of the defendant, is permitted to put his
propaganda in, and then we have to meet it afterwards. I
really feel that the United States is deprived of the
opportunity of the technique of cross-examination if this is
the procedure.

THE PRESIDENT: Surely it is making too much of a sentence
the witness has said, whether the United States makes its
orders for mobilisation public or not? Surely that is not a
matter of very great importance? Every country keeps certain
things secret. Certainly it would be much wiser to ignore a
statement of that sort. But as to the general rule, the
Tribunal will now consider the matter. I have already laid
down what I believe to be the rule and I think with the
assent of the Tribunal, but I will ascertain -

MR. JUSTICE JACKSON: Let me say that I agree with your
Honour that as far as the United States is concerned we are
not worried by anything the witness can say about it - and
we expected plenty. The point is, do we answer these things
or leave them, apart from the control of the trial? It does
seem to me that this is the beginning of this trial getting
out of hand, if I may say so, if we do not have control of
this situation. I trust the Tribunal will pardon my
earnestness in presenting this. I think it is a vital thing.

THE PRESIDENT: I have never heard it suggested that the
counsel for the prosecution have to answer every irrelevant
observation made in cross-examination.

MR. JUSTICE JACKSON: That would be true in a private
litigation, but I trust the Tribunal is not unaware that
outside of this Court is a great social question of the
revival of Nazism and that one of the purposes of the
defendant Goering - I think he would be the first to admit -
is to revive and perpetuate it by propaganda from this trial
now in process.

THE PRESIDENT: Yes, Doctor Stahmer?

                                                  [Page 246]

DR. STAHMER: I just wanted to explain the following: The
accusation had been made as if we intended to make
propaganda here for Nazism or in any other direction. I do
not think this accusation is justified. Neither do I believe
that the defendant intended to make an accusation against
the United States. I believe we have to consider the
question that was put to him. That is, it was pointed out to
him by the prosecution that this document which was
submitted to him was marked "secret." Then he stated that he
had never heard that a document of that kind would have been
made public in the United States. If instead of the U.S.A.
he had said "any other nation," then the remark would have
been considered harmless.

In my opinion the answer was quite justified. The witness
should be given the possibility not only to answer yes or
no, but to give reasons for his answer, as ruled by the

THE PRESIDENT: Mr. Justice Jackson the Tribunal considers
that the rule which it has laid down is the only possible
rule and that the witness must be confined strictly to
answering the question directly, where the question admits
of a direct answer, and that he must not make his
explanation before he gives a direct answer, but after
having given a direct answer to any question which admits of
a direct answer, he may make a short explanation, and that
he is not to be confined simply to making direct answers yes
or no and leaving the explanation until his counsel puts it
to him in his re-examination.

As to this particular observation of the defendant, the
defendant ought not to have referred to the United States,
but it is a matter which I think you might we ignore.

MR. JUSTICE JACKSON: I shall bow to the ruling, of course.

I wish to make a statement to the Tribunal about one of the
documents. At the conclusion of the session yesterday we
were considering Document 405-EC. The defendant Goering
challenged the use of a word which he said should have been
translated "clearance" rather than "liberation." We have
since had the translation checked and find that the
defendant is correct. This document was introduced as
Exhibit GB 160 on 9th January, at Page 109 (Part 4) of the
Tribunal's records, and since it has already been received
in evidence and it is before the Tribunal, we think it
incumbent upon the prosecution to make that correction now
for the record.



Q. You stated yesterday that the minutes of the Reich
Defence Council with which you were presented were not
minutes of a meeting of the Reich Defence Council as such?

A. Yes, I said that.

Q. And your testimony, notwithstanding that document, still
stands, I take it, that the Reich Defence Council never met?

A. I said that also, yes.

Q. I now ask to have you shown a document which has just
come into our possession, the minutes of the second session
of the Reich Defence Council. I should have said, just come
to us for translation. We have not had it translated; we
have just discovered it among our great collection of

THE PRESIDENT: Could Dr. Stahmer have a copy in English or

MR. JUSTICE JACKSON: We have not even had a chance to get it
into English. I do not know what it says, except that it is
the minutes of their meeting. We have a photostat.

Q. Are those not the minutes of the second meeting of the
Reich Defence Council held on 23rd June, 1939?

A. I must read it first.

                                                  [Page 247]

I call your attention to the fact that the chairman is
Minister President General Field-Marshal Goering. You will
find that on Page 1.

A. I have never disputed that. It was fixed by law. This
deals with the second Reich Defence Council, not the first
one. Besides, I was not present at this meeting; and I point
out that on the left is a list of the offices which took
part in the meeting, and in my case it says, "Minister
President Field-Marshal Goering," and on the right, as
representative for him, "State Secretary Korner and State
Secretary Neumann." But I shall have to look through the
document first in order to find out whether I took part

Q. Does it not say on Page 1, directly under the place of
meeting, "Chairman: Minister President Goering"?

A. Yes. I have to read it first.

Q. Do you deny the authenticity of those minutes?

A. I have not yet looked them through.

It seems to be an absolutely authentic copy of the minutes.
I admit that. But here again we are dealing with a meeting
not, as I said when answering my counsel, of the Reich
Defence Council, but of a larger meeting in which many other
offices participated, and the second Reich Defence Council
which was set up after 1938, not a secret council, such as
was the case from 1933 to 1938.

Q. In other words, in interpreting your testimony, we must
understand that when you say there was no meeting of the
Reich Defence Council, you only mean that there were no
meetings at which no other people were present?

A. No, that is not correct. There were two Reich Defence
Laws concerning the Reich Defence Council, which I tried to
explain in my statement. The Secret Council of 1933 to 1938,
which was not made public, and the Reich Defence Council,
which was created in 1938 and converted into the Ministerial
Council in 1939; the latter held meetings which were in no
way confined to its own members.

Q. Then you say that this was not the Defence Council that
met under the ban of secrecy?

A. The prosecution want me to answer first, "Yes" or "No."
It is hard to answer this question with "Yes" or "No." I
assert that the Secret Defence Council, which was not made
public and which arose out of a meeting of Ministers in
1933, never met. After 1938 a new Reich Defence Law created
a new Council. At that time it was clear that "military
sovereignty" (Wehrhoheit) had already been declared. This
first Council, which the prosecution called the secret one,
never met, and the document of yesterday proved that.

Q. Will you refer to Page 19 of this document, please, and
tell me whether one of the very things with which this
meeting concerned itself was not the lifting of the secrecy
ban from the Reich Defence Law?

A. No, that is not the way it reads here. If I may translate
it, the last point on the agenda: Consequences resulting
from the lifting of the secrecy ban on the Reich Defence Law
and measures to expedite procedures have already been dealt
with by a letter from the Reich Defence Committee on 26th
June.... Consequences resulting from the lifting of the
secrecy ban with a view to expediting written

Q. You have stated that on the Jewish Question some of the
members of the Government were more radical than you. Would
you state who these were?

A. Broadly speaking, when we took over the Government, we
only demanded their removal from political and other leading
positions in the State.

Q. That is not what I asked you.

THE PRESIDENT: That is not a direct answer to the question.
The question was that you said some members of the
Government were more radical toward Jews than you were.
Would you tell us which of the members of the Government
were more radical than you were.

                                                  [Page 248]

A. Excuse me, I did not understand the question to mean who
were more radical, but in what way they were more radical.
If you ask who, then I would point out that those were
primarily Ministers Goebbels and Himmler.


Q. Do you also include your co-defendant, Streicher, as more
radical than you?

A. Yes, but he was not a member of the Government.

Q. He was the Gauleiter, was he not, for this very territory
in which we are sitting.

A. That is correct, but he had very little or no influence
on Government measures.

Q. What about Heydrich?

A. Heydrich was subordinate to Himmler. If I said Himmler, I
of course include Heydrich.

Q. Heydrich is, then, included in the list of the more
radical ones to whom you refer ?

A. That is right, yes.

Q. What about Bormann?

A. It was only during the later years that I observed that
Bormann was becoming more radical. I do not know anything
about his attitude in the beginning.

Q. Now, I want to review with you briefly what the
prosecution understands to be public acts taken by you in
reference to the Jewish Question. From the very beginning
you regarded the elimination of the Jew from the economic
life of Germany as one phase of the Four-Year Plan under
your jurisdiction, did you not?

A. The elimination, yes; that is partly correct. The
elimination as far as the large industries were concerned,
because there were continual disturbances due to the fact
that there were large industries, also armament industries,
still partly under Jewish directors, or with Jewish
shareholders, and that caused unrest.

Q. Now, do I understand that you want the Tribunal to
believe that all you were concerned about was the big Jewish
enterprises? That is the way you want to be understood?

A. I was not at first disturbed by the small stores. They
did not come into the Four-Year Plan.

Q. When did you become disturbed by the small stores?

A. When trade had to be limited, it was pointed out that
this could be done first by closing the Jewish stores.

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