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Last-Modified: 2000/02/28

                                                  [Page 263]

               HUNDRED AND TWENTY-SIXTH DAY
                  FRIDAY, 10th MAY, 1946

THE PRESIDENT: Sir David, I understand there are some
supplementary applications for witnesses and documents,
which would probably not take very long to discuss. Is that
so?

SIR DAVID MAXWELL FYFE: My Lord, I have not actually
received the final instructions. I can find out in a very
short time. I will get Major Barrington up. I am told that
is so.

THE PRESIDENT: The Tribunal, therefore, proposes to sit in
open session tomorrow until a quarter to twelve, dealing
with the trial in the ordinary course, and then to take the
supplementary applications at a quarter to twelve, and then
to adjourn into closed session.

SIR DAVID MAXWELL FYFE: My Lord, we shall be ready for them
at a quarter to twelve tomorrow.

THE PRESIDENT: Very well.

KARL DONITZ - Resumed.

CROSS-EXAMINATION - Continued.

BY SIR DAVID MAXWELL FYFE:

Q. Defendant, the first document that I want you to look at
with regard to the Fuehrer commando order of 18th October,
1942, is on Page 65 of the English Document Book and on Page
98 of the German Document Book. It is Document 178-C,
Exhibit USA 544. You will see that that document is dated
11th February, 1943. That is some twelve days after you took
over as Commander-in-Chief and, you will see from the
references that it went to 1 SKL 1. That is the
international law and prize law division of your operations
staff, isn't it - Admiral Eckhard's division?

A. No. It is addressed to the first section of the Naval War
Staff, that is, the operational section. It originates with
Eckhard and is sent to the first section - i.e., to the
section head.

Q. But I think I am quite right - the reference about which
I asked you - 1 SKL 1 i - that is, Admiral Eckhard's
department. That is, the reference for Admiral Eckhard's
international law department?

A. No, no, no. It is the department in which Admiral Eckhard
was also an official. Admiral Eckhard was an official in
that department.

Q. And the third SKL in the next line is the first
department as you said, is it not?

A. No. The third section of the SKL collected information
sent in for the Navy and reported on
it.

Q. I note it was Intelligence and Press. Is that right or
not?

A. Yes, it was Intelligence and Press.

Q. Now, I just want you to help the Tribunal on three points
in this document. You remember I asked you yesterday about
the secrecy standard of the original

                                                  [Page 264]

Fuehrer order of 18th October. If you will look at the
second paragraph you will see that it says:

  "The first Fuehrer order of 18th October was given the
  protection of top secret merely because it is stated
  therein (1) that sabotage organization may have
  portentous consequences, and (2) that the shooting of
  prisoners in uniform, acting on military orders, must be
  carried out even after they have surrendered
  voluntarily."

Do you see that?

A. Yes, I have read it.

Q. You agree that that was one of the reasons for giving the
order top secrecy?

A. This exchange of notes between  Eckhard and the section
head was not submitted to me, as is obvious from the
initials noted in the book -

Q. Is that the reason for you not answering my question? Do
you agree that that is the reason for giving top secrecy to
this document?

A. I do not know. I cannot tell you that, because I did not
issue this commando order. It says in the commando order
that on the one hand these people had killed prisoner's -
that is the way I had read it as C.-in-C. Submarine Fleet -
and on the other hand -

Q. I shall give you one more opportunity of answering my
question. You were Commander-in-Chief of the German Navy. Do
you say that you are not able to answer this question? Is
the reason stated in paragraph 2 of this document a correct
reason for attaching top secrecy to the Fuehrer order of
18th October? Now you have this final opportunity of
answering that question. Will you answer it or will you not?

A. Yes, I will do that. I consider it possible, particularly
as the legal expert here thinks so. I do not know if it is
correct, because I did not issue the order. On the other
hand, it says in the order that particulars are to be
published in the army orders.

Q. That was the next point. The next paragraph says that
what is to be published in the army orders is the
instruction relating to annihilation of sabotage units in
battle, not, of course, if they are shot - as I would say,
murdered - quietly, by the SD after battle. I want you to
note the next paragraph. The next paragraph raises the
difficulty as to how many saboteurs were to be considered as
a sabotage unit, and suggests that up to ten would certainly
be a sabotage unit.

Now, if you look at the last paragraph - I will read it to
you quite slowly:

  "It is to be assumed that Security III is acquainted with
  the Fuehrer order, and will therefore reply accordingly
  to the objections of the army general staff and the air
  force operations staff. As far as the navy is concerned,
  it remains to be seen whether or not this case should be
  used to make sure" - note the next words - "after a
  conference with the Commander-in-Chief of the Navy, that
  all departments concerned have an entirely clear
  conception regarding the treatment of members of commando
  units."

Are you telling the Tribunal that after that minute from
Eckhard's department, which was to be shown to 1 SKL, your
chief of staff's department, that you were never consulted
upon it?

A. Yes, I do say that, and I will prove by means of a
witness that there are no initials or distribution list
here; and this witness will prove quite clearly that I did
not receive a report on it.

Q. Admiral Wagner was your chief of staff?

A. Yes.

Q. All right, we will not occupy further time.

A. He was not my chief of staff; he was chief of this
section. He was Section Chief 1 SKL, to which this order was
directed. He knows beyond doubt that no report was made to
me. The circumstances are perfectly clear.

Q. Well, I will leave that, if you say that you have not
seen it, and I will ask you to look at Document 551-PS.

                                                  [Page 265]

SIR DAVID MAXWELL FYFE: My Lord, I will pass the Tribunal a
copy. This is Exhibit USA 551, and it was put in by General
Taylor on 7th January.

Q. Now, that is a document which is dated 26th June, 1944,
and it deals with the Fuehrer order, and it says how it will
apply after the landing of the Allied forces in France, and
if you will look at the distribution, you will see that
Number 4 is to the OKM, 1 SKL. That is the department on
which you were good enough to correct me a moment ago. Now,
were you shown that document, which says that the Fuehrer
order is to apply to commando units operating outside the
immediate combat area in Normandy? Were you shown that
document?

A. No, that was not shown to me in any circumstances - and
quite rightly, as the Navy did not take part in the affair.

Q. You told me yesterday that you were concerned with the
matter and that you had small boats operating in the
Normandy operations. That is what you told me yesterday
afternoon. You have changed your mind since yesterday
afternoon?

A. No, not at all. But these midget submarines were floating
on the water, and had nothing to do with commandos on the
land-front. That is clear from this document, too - I do not
know if it is the original of the 1 SKL because I cannot see
the initial. I am convinced, however, that it was not
submitted to me because it had nothing to do with the Navy.

Q. I see. Will you just look at Document 537-PS, which is
dated 30th July, 1944.

SIR DAVID MAXWELL FYFE: My Lord, that is Exhibit USA 553,
also put in by General Taylor on 7th January.

A. Where is it?

Q. The Sergeant-Major will point to the place. That is the
document applying the commando order to military missions,
and you will see again later that the distribution includes
OKM, Department SKL. Do you see that order?

A. Yes, I can see it.

Q. Did you see it at the time that it was distributed, at
the end of July, 1944?

A. It is quite certain that this order was not submitted to
me because again it has nothing to do with the Navy. The
Navy had nothing to do with combating bandits.

Q. I want you now just to look very quickly, because I do
not want to spend too much time on it, at Document 512-PS.

SIR DAVID MAXWELL FYFE: My Lord, that is Exhibit USA 546,
which was also put in by General Taylor on 7th January.

Q. Now, that is a report dealing with the question of
whether members of commandos should not be immediately
murdered, in order that they could be interrogated, and the
question is whether that is covered by the last sentence of
the Fuehrer's order, and I call your attention to the fact
that it refers, with regard to interrogations, in the second
sentence:-

  "The importance of this measure was proven in the case of
  Glomfjord, two-men torpedoes at Trondheim, and glider
  planes at Stavanger."

A. I cannot find it at the moment.

Q. It is Document 512-PS.

THE PRESIDENT: Sir David, perhaps you ought to read the
first sentence.

SIR DAVID MAXWELL FYFE: If your Lordship please.

A. This document dates from 1942. At that time I was C.-in-
C. Submarine Fleet from the Atlantic Coast to the Bay of
Biscay. I do not know this paper at all.

Q. That is your answer, but it is 14th December, 1942, and
the point is put up, which is raised in the first sentence
which my Lord has just directed me read:-

                                                  [Page 266]

  "Top secret: According to the last sentence of the
  Fuehrer order of 18th October, individual saboteurs can
  be spared for the time being in order to keep them for
  interrogation."

Then follows the sentence I have read. That was the point
that was raised, and what I was going to ask you was, did
that point come up when you took over the commandership in
chief of the navy in January, 1943? Just look at the last
sentence.

  "The Red Cross and the BDS protested against the
  immediate carrying out of the Fuehrer order."

A. I beg your pardon, but I still cannot find where that is.
I have not yet found the last sentence. Where is it?

THE PRESIDENT: Our translation says "after the immediate
carrying out ..."

SIR DAVID MAXWELL FYFE: "After," my Lord: I am sorry. It is
my fault.  I am greatly obliged to your Lordship. "Protested
after the immediate - " I beg your Lordship's pardon. I read
it wrongly.

A. That dates from December, 1942.

Q. It is only six weeks before you took over.

A. Yes, that is correct, but I do not know this teleprint.
In any case, that will not be the Red Cross; but probably
Reiko See (Reichskommissar fur Seeschiffahrt - Reich
Commissar for Shipping) - or so I assume. BDS is probably
the SS leader in Norway.

Q. But the point that I thought might have had some interest
for you was the two-marl torpedoes. I thought that might
have been referred to you as a matter of navy interest.
However, if it was not I will come to a document, that is,
after you took over. Give the defendant Document 526-PS, of
10th May, 1943.

SIR DAVID MAXWELL FYFE: My Lord, that is Exhibit USA 502,
and was put in by my friend Colonel Storey on 2nd January.

Q. You see that that is an account - it is from the
defendant Jodl's department, and it is annotated for the
defendant Jodl's department - of an enemy cutter which
carried out an operation from the Shetlands, a cutter of the
Norwegian Navy, and it gives its armament, and it says that
it was an organization for sabotaging strong points, battery
positions, staff and troop billets, and bridges, and that
the Fuehrer order was executed by the SD. That was a cutter
which was blown up by the German Navy, I suppose after they
were attacked, and ten prisoners were murdered. Was that
brought to your attention?

A. This was shown to me during an interrogation, and I was
also asked if I had not had a telephone conversation with
Field Marshal Keitel. It was afterwards found to be the C.-
in-C. of the area who contacted the Supreme Command. It was
a matter for the Army and for the SD, not for the Navy.

Q. If you deny that you ever heard about that, will you turn
to Page 100 of the Document Book?

SIR DAVID MAXWELL FYFE: My Lord, it is Page 67 of the
British Document Book.

Q. And that is a summary, a summary of the trial of the SD -

A. Where is it? I cannot find it.


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