Archive/File: people/i/irving.david/libel.suit/transcripts/day016.16
Last-Modified: 2000/07/20

   Q.   The ordinary police under Daleuge?

.          P-114

   A.   Yes.
   Q.   He telephones Heydrich and the content of the telephone
        conversation are the four lines on the right column?
   A.   Yes.
   Q.   And the first one is Verhaftung Dr Jekelius.
   A.   Yes.
   Q.   So far as we can read it.  The second one is
         "Angebl[icher] Sohn Molotow", "apparent son of Molotow",
        is that correct?
   A.   Or "alleged son of Molotow".
   Q.   "Alleged son of Molotow".  Then can you read the next two
        lines, please?
   A.   "Judentransport aus Berlin.  Keine Liquidierung".
   Q.   You are reading the handwriting?
   A.   Yes, I am looking at the handwriting right here.
   Q.   Do we know with a reasonable degree of probability what
        transport of Jews from Berlin was concerned, where it was going?
   A.   This was going to Riga.  The first transport to Riga.
   Q.   Reference to a train load of Jews?
   A.   Yes.
   Q.   Stopping you there for a moment, Professor:  if you knew
        nothing of the surrounding countryside of documentation at
        all, would any other interpretation of that line or those
        lines be possible without our 20:20 hindsight?
   A.   It would be an instruction not to, well, as I look at it,

.          P-115

        it would be an instruction not to liquidate that transport
        from Berlin.
   Q.   Is there any other way which ----
   A.   Which I would also then say strongly indicates there is a
        prior policy that this has to ----
   Q.   That liquidation is in the air, so to speak?
   A.   Well, that, in fact, it had been ordered and now it has to
        be countermanded is a possible -- I would say -- that one,
        I would say, is the likely interpretation.
   Q.   That liquidation of Jews or German Jews or that
        liquidation of transports of Jews was in the air or that
        liquidation of Jews at the other end was in the air?  We
        cannot say or can we?
   A.   Well, if it is "Judentransport aus Berlin Keine
        Liquidierung", it would imply that previous transports
        were being liquidated.  In this case we know that five to
        Kovno were from documents that were also available at the
        time, the Einsatzgruppen report in which it is reported
        that those five transports had been liquidated in Kovno.
   Q.   I appreciate it is difficult to answer these questions
        from memory, but do you recall if there had bee transports
        from Berlin to the East before this one?  Was this the first or?
   A.   No, there is a group of transports first that goes to
        Louche(?) and then there is a group of transports that
        goes to Minsk.  Neither of those were liquidated.  Then

.          P-116

        the third set of transports goes to Kovno.  Those five are
        liquidated.  This is the first train of the fourth batch,
        the one that is going to Riga.
   Q.   The ones that went to Kovno, what date were they?
   A.   I believe they were the 25th and 29th.
   Q.   25th and 29th?
   A.   That is my memory.
   Q.   Was that the date they departed or the date they arrived?
   A.   I believe that is when the Einsatzgruppen reports them
        having been liquidated.  Those would be arrival date.
   Q.   Would that fact have been known in Berlin at that time, do
        you think?  First of all, in Berlin, would that fact of
        the liquidation have been known in Berlin?
   A.   My guess is it was ordered in Berlin, that it would not
        have happened without instruction from Berlin, so, yes, it
        would have been known in Berlin.
   Q.   Notwithstanding that the trains had been properly provided
        with all the provisions for starting a new life?
   A.   Yes, because it was standard operating procedure for all
        the four transports, that if one at a certain point
        switched what was going to happen at the other end, the
        process of preparing the transports would not necessarily
        have been immediately changed.  So that you would have had
        a situation where the people preparing the transports (and
        this had to be done days, if not weeks, in advance) would
        have been proceeding by the normal guidelines while the

.          P-117

        order to do something at the other end could have been
        given almost instantaneously.
   Q.   By the people on the spot?
   A.   No, by Berlin, not necessarily from on the spot.
   MR JUSTICE GRAY:  Were the Kovno, the Jews shot in Kovno German
        Jews?
   A.   Those were German Jews, yes.  Five transports of German Jews.
   MR IRVING:  You mentioned it was standard operating procedure.
        How do we know that?  Are there any documentations or is
        this presumption on your part?
   A.   It is inference from two facts.  One is that it is
        reported openly in the Einsatzgruppen report, so that it
        certainly is no indication that it was done against orders
        or that he had any inclination that reporting this might
        get him in trouble; and from this the fact that the six
        transports, keine liquidierung, would indicate that he
        would not have said this if he had no idea what had
        happened in Kovno if there was no standing policy at that
        time to be killing Jews, and that this would indicate that
        he was reversing a policy, and I would infer that that
        policy began with Kovno after Louche and Minsk had sent
        without killing.
   Q.   Would the policy be described in German as "Richtlinien"
        guidelines?
   A.   That is possible.

.          P-118

   Q.   So when Himmler sends a message to Jeckeln on December 1st
        (as we know he did now from the intercepts) saying, "Your
        action in Riga has overstepped the guidelines", then in
        what way had that overstepped the guidelines if the
        guidelines were, as you have just presumed, that they were
        going to be liquidated when they arrived?  Surely,
        exactly the opposite is the inference to be drawn from
        Himmler's messages?
   A.   No.  If, in fact, you were not to be doing -- if you were
        supposed to be taking your guidelines from Berlin and he
        has sent a message "Keine Liquidierung", and it was
        liquidated, he is saying, "In principle, that what happens
        in the East happens under my guidelines".  If there is not
        to be local decisions about who is killed or is not killed  ----
   Q.   Is not a more reasonable assumption the following, that
        when Berlin or when Hitler's headquarters learned that the
        earlier train loads of Jews to Kovno had been liquidated,
        an urgent message was sent when the fifth train went on
        30th November, saying, "Not to be liquidated" because it
        was realized at headquarters that things were going too
        far.  Is that not an equally reasonable presumption on the
        balance of probabilities?
   A.   Not an equally reasonable presumption because otherwise,
        if that were the case, Jager would not have reported it in
        the way he did in Einsatzgruppen reports, making it clear

.          P-119

        that he thought he had been following what was expected.
   Q.   But then, of course, the message came "not to be
        liquidated", so Jager had obviously got it wrong?
   A.   No, not Jager.  Jeckeln -- the policy of killing the Kovno
        Jews, I think, was approved from Berlin; that they then
        decided to reverse that with the situation, the sensation
        of killing German Jews was more delicate than they had
        anticipated and, therefore, they temporarily backed off,
        and then we have the Jeckeln/Himmler conversation, "I have
        not yet decided how we shall kill them", but this was,
        I would say it was a trial balloon and it turned out to be
        too sensitive an issue at that point.
   Q.   A trial balloon floated by the people on the Eastern Front?
   A.   No, by Himmler.
   Q.   Floated by Himmler?
   A.   Yes.
   Q.   Just to remind the court of the hierarchy.  Jager is, so
        far as we are concerned, on the bottom rung.  Above him
        comes Stahlecker, as far as the killing operations goes,
        and although in a different headquarters, Jeckeln is the
        one who calls the shots?
   A.   Of course, everything is not quite that neat in Nazi
        Germany in the sense that Stahlecker could report directly
        to Heydrich because the Einsatzgruppen had been sent out
        by him.  Jackeln would report directly to Himmler because

.          P-120

        the SS and police leaders had been sent out by him.  You
        get sometimes straight lines and sometimes crossed lines
        in terms of this, but Jeckeln is of a higher rank than Stahlecker.
   Q.   But, fortunately, for the purposes of this action, we are
        only really concerned with what happens from Himmler
        downwards.  So although it is a terrible tangle of
        guidelines and crossed lines below Himmler and below
        Jeckeln, above Himmler it becomes relatively plain because
        above Himmler there is just Hitler?
   A.   Yes.
   Q.   Am I right in presuming that we have nothing to indicate
        any kind of systematic link between Hitler and Himmler
        apart from inferences?
   A.   That is where there is no documentation and one acts from
        inferences and circumstantial evidence.
   Q.   Thank you very much.  Does your Lordship wish to ask any
        more questions on that?
   MR JUSTICE GRAY:  Yes, just on that last answer.  When you say
        there is no documentation, are you excluding from
        consideration (and it may be it is not relevant) the notes
        that Himmler made on  the----
   MR RAMPTON:  December 18th.
   MR JUSTICE GRAY:  --- agendas?  Yes.
   MR IRVING:  Shall we take December 18th?
   A.   Yes.  No documentation would be too strong.  We do not

.          P-121

        have regular documentation, but we have the diary now that
        shows the December 18th meeting that they discussed this.
   MR JUSTICE GRAY:  That is what puzzled me about your answer.
   A.   I am sorry.  I would stand corrected on that.  You are
        perfectly right.

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