The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-Fourth Day: Tuesday, 5th March, 1946
(Part 2 of 3)

[Page 162]

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 suggestion.

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 prosecution.

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 he?

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. Schacht.

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- examination.

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 witnesses.

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 matter.

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. 2.

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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