When considering the documents submitted by the prosecution as evidence, we have first of all a reason to discuss these docu ments in general and especially to raise considerable scruples which could be brought up against the unrestricted admitting of these documents as evidence.
Without doubt, every written article is a document which can be used as evidence, that is to say every article on which a human being expressed in writing, handwritten, typed or printed, an idea. Thus the documentary evidence consists of the setting-up of ideological contents. In its function as evidence, a document has either the Character of an ordinary report document or that of a constitutive document. There is an additional viewpoint which is important in the classification of documents. A document may either designate somebody as the person from which the statement originates as his own, especially if the signature appears on it - the so-called signatory or signed documents-or it is submitted anonymously if the writer of the document cannot be identified - so-called anonymous documents. In the first case the document is "genuine" if it really originates from the person who is, in the document, said to be the writer; if it is not so, the document is "false." In the second case it cannot be inquired whether it is "genuine "or "false " as long as the identity of the person who has drafted the document has not been established.
Most of the documents which were submitted as evidence and
which are to prove the guilt of. the individual defendants concerning the punishable acts set forth in the indictment are the so-called situation reports U.S.S.R. and the so-called situation reports of the Chief of the Security Police and the SD (Reich Security Main Office).
According to the explanation given at the beginning, we are here concerned with report documents of the Reich Security Main Office; these documents attempt to furnish a survey of the activity of the units operating in the East---especially of the Einsatzgruppen, Einsatzkommandos, and Sonderkommandos--after 22 June 1941. Which units in this connection are concerned in detail will be discussed more thoroughly later on.
It will not and cannot be denied that the documents submitted are "genuine " evidence, that is to say, that the documents in question were actually drafted by the Reich Security Main Office. However, this does not exclude the established fact that the reported incidents may not be the pure truth, and actually all the defendants who up to now have testified under oath on the witness stand stated that these situation reports and operational situation reports of the Reich Security Main Office are highly unreliable, inaccurate and faulty, and that not only with regard to figures, but also with regard to the contents and the actual wording. (Tr. PP. 484 ff., 587 ff., 624 ff., 1104-05, 2684, 8102 ff., 8490-91, 8495-96.) It is comprehensible, if, at least on the part of the prosecution, it is tried to invalidate the objection of the incorrectness of the documents by saying that if the defendants make statements to that effect, these statements cannot be true, because the documents speak for themselves and their value as evidence is established beyond any reasonable doubt. In view of the fact that the documents submitted constitute, with the exception of the affidavits made by the defendants themselves, nearly the entire evidence, such a defense which is directed against the trustworthiness and correctness of documents could be understood and perhaps could be considered as the only defense which would be of any purpose. However, the general objection is not based on technical reasons of expediency in connection with the procedure, but it is justified and was made in order to be able to master at all the highly responsible task of finding the objective truth.
In order to be able to judge the documents submitted in a objective manner, the following question must be raised and answered: How were the "Situation Reports U.S.S.R." and the "Operational situation reports "of the Reich Security Main Office drafted? And the additional question: What sources of mistakes were thus provided and what effect did they have?
According to the result of the evidence taken up to now, especially the definitely trustworthy statements of the defendant Nosske as witness in his own case (Tr. PP. 3490-91, 8495-96), the following picture is given. The reports submitted as prosecu tion exhibits were drafted by the suboffice IV A 1 -communism, war crimes, enemy propaganda- of office IV of the Reich Security Main Office in Berlin. Until about the end of April 1942 suboffice IV A 1 was the Collection and evaluation center of all information and reports submitted by the Einsatzgruppen operating in Russia. In nearly daily reports -nearly 200 reports from July 1941 to April 1942- the original reports submitted to the Reich Security Main Office were summarized into the so-called operational situation reports U.S.S.R. The persons who were employed with the handling of the east reports were the suboffice chief Lindow and as collaborators Dr. Knobloch and Fumy. Only the Einsatzgruppen reported to Berlin and they sent either telegrams or written reports. (NO-4327, Pros. Ex. 6.) The reports which were sent by the Einsatzgruppen to suboffice IV A I for evaluation covered field III (living space [Lebensgebiete] ) as well as IV (executive). This fact alone, namely that the suboffice specialized on executive matters in the Reich Security Main Office (IV) was thus forced to handle also fields which were completely unknown to it and also, in addition, were covering an extensive sphere, had to lead to insufficiencies and mistakes. To this the fact is added that suboffice IV A 1, having only a small staff of personnel, was not in a position to handle such an extensive additional task and besides that the technical facilities which in doubtful cases would have permitted to consult a map or to inquire at the unit concerned did not exist. As additional source of deficiencies the insufficiency of the communication installations should not remain unmentioned. Frequently the stations and Einsatz-areas were more than 1,000 kilometers distant from Berlin and therefore the transmission was rendered more difficult. It is true that a report transmitted by telegram or courier does not change its contents because it is being transmitted over a few additional hundreds of kilometers or is perhaps 2 weeks longer on its way. But in this connection the decisive fact is that according to experience, sources of mistakes cannot be eliminated completely where teletypes are concerned and that the transmission of
written reports is to a great extent subject to the contingencies of more or less rapidly functioning transport communications. The irregular arrival of the report which was a consequence thereof had to lead to considerable distortions and misrepresentations. In this connection the possibility that reports arrived by teletype and the same reports arrived a second time later on by courier also existed. The taking of evidence showed several ex- amples of the fact that reports with a later date were registered earlier than reports which on account of their being longer on the way were received at a later time by the evaluation center. In cases of doubt it was considered better to use a figure twice, in any case always the higher one. On no account were the Einsatz gruppen and their detachments to represent a bad picture, because the reports in the Reich Security Main Office were compiled by order of Heydrich. It should be obvious that such insufneiency impairs the evidence value of documents drafted under such conditions to a considerable degree. But neither should a psychological element be overlooked. These insufficient conditions, which finally, in April 1942, brought about an essential change in the evaluation of the reports (Tr. pp. 3495-96) were known to all the persons handling these matters. In this way is it a surprise if they, on arcount of the hopelessness of being able to do away with these insufficiencies, being completely aware that only half of the material was to be shown anyway, simply did not care? They entered no risk -at least from the viewpoint of the conditions at that time- that any undesirable and unpleasant consequences should arise. Russia was far way. Furthermore, who was to cheek the reports and who was to complain? Third persons had no insight and the chief of the Einsatzgruppen with his detachment chiefs had other troubles and perhaps only a favor was done to him, because nobody was to be left out in case of promotions and awarding of orders. But it is irrelevant whatever the reasons for an untrue reporting may have been; it is a fact that during the course of the war this untrue reporting increased more and more. Himmler's statements in his Posen speech on 4 October 1943 are an important proof for that and nobody will be able to say that this warning was given without reason and and was not to be taken seriously. I quote:
"I now come to a fourth virtue which is very scarce in Ger- many-truthfulness. One of the major evils, which developed during the war, is untruthfulness in reports, statements, and informations, which subordinate offices send to their superior offices in civilian life, in the state, Party, and armed forces. Reports or statements are the base for every decision. The
truth is that in many branches one can assume in the course of this war that 95 out of 100 reports are plain lies or only half true or half correct." (Blobel 11, Blobet Ex. 10.)
The statements made hitherto were concerned only with the working conditions which existed in suboffice IV A 1. If the unsatisfactory conditions which prevailed there were already enough to cause this office to turn out piece work and incomplete results only, the sources of deficiency were further extended by the socalled report or information channel from subordinate to superior offices. We established -suboffice IV A 1 received the reports directly from the Einsatzgruppen. However, these reports were again only a summary of that which the individual detachments reported in writing, orally, or by teletype; added to this were other sources which, in case of measures to be taken by other, independently working units, or in case of Cooperation of several units, were supplied. There is no doubt that the evaluation of the reports collected by the Einsatzgruppen was handled differently and was subject, to a great extent, to the attitude of the group chief and his departmental assistants. But this had taken place once already in a similar manner in most of the Einsatz- or Sonderkommandos, because it was not expedient to have the reports sent directly from the Teilkornmando to the Einsatzgruppe, which might have resulted from a particularly difneult task or from special conditions of the area of operations. It was a rule to send the reports of the Teilkommandos first to the Kommando chiefs. He based his activity report to the Einsatz- gruppen on the reports received by him, or he had them drafted by his assistant [Sachbearbeiter], according to the distribution of task which was in force in his detachment. If the exhibits submitted by the prosecution were identical with the above mentioned original reports and if they perhaps even bore the signature of the Kommando chief concerned, then objection against their correctness would have little hope to be successful; then the fact that the author of the document would have lied either when drafting the document or now in the trial because he is not brave enough to state the truth would be established.
The defense too -its interest in the establishing of the unrestricted truth is just as great as that of any other party in the trial -regrets that it is not possible to submit the original reports of the Einsatzgruppen and Einsatz or Sonderkommandos as documentary evidence.
December 26, 1998