THE MARSHALL: The Honorable, the Judges of Military Tribunal No. 2. Military Tribunal No. 2 is now in session. God save the United States and this Honorable Tribunal.
There will be order in the courtroom.
DR. BERGOLD: May it please the Tribunal, I am very sorry that today again I have some trouble but it isn't my fault though the following thing happened; the witness Generalarzt Dr. Hippke upon my suggestion of the 21st of December 1946 was granted for me on the 8th of January as a witness. I found him in Hamburg at his private address at first. Then I found out that he was in British custody and a prisoner now in Altona near Hamburg. A similar request was made by my colleague Dr. Sauter before Tribunal No. 1. Dr. Sauter and myself were of the opinion that Dr. Hippke is a witness of the defense. I spoke with Dr. Hippke several times. Yesterday afternoon Dr. Sauter wanted to speak to Hippke. Thereupon, Lieutenant Garrett called us up that the interrogation had to be stopped right away because the witness would not be at the disposal of the defense for a period of eight days. If it please the Tribunal, that is the difficulty. Before the International Military Tribunal and as we heard here before this Tribunal, too, the rule was that a witness who was called upon by one of the defense counsel, and was granted to the defense counsel by the Tribunal, was only at the disposal of the defense counsel and nobody else. We have had the agreement that the prosecution would only examine these witnesses with the permission of the defense counsel before a commission. For the time being I am of the opinion that this procedure cf the prosecution--Mr. Denney has nothing to do with that--I am speaking of somebody else--that the prosecution does not follow the rules which have been set up by this Tribunal.
The trouble is, furthermore the following: The witnesses granted me for the greatest part have not today, appeared yet. The witness Raoder, for instance, whom in case we finished earlier I wanted to examine today.
711a Due to a mistake of the prison administration he was taken back to Garmisch day before yesterday although he was granted me as a witness.
Therefore, I have to begin with the prosecution tomorrow as far as dealing with the Dachau experiments. The main witness Prof. Dr. Hippke, whom I wanted to call to the witness box tomorrow morning. This Tribunal will understand that I wanted to speak to him yesterday and, of course, I have to speak to him today. I would appreciate, therefore, if the Tribunal would rule, if this procedure of the prosecution is correct, and I wish the Tribunal would rule that the witness be put at my disposal tonight for examination, because I want to call him to the witness stand and I must call him to the witness stand tomorrow, unless a long recess should occur. That is the start of this new trouble of mine, which I have to present to this Tribunal. Yesterday I tried to settle the matter with the Secretary General Mr. *******. Mr. ******* told me, however, that this matter would be taken up with the Tribunal for a decision today.
MR. DENNEY: If your Honor please, with reference to the application of Dr. Bergold concerning the witness Hippke I would like to say this about the attitude of the prosecution staff, at least so far as I am concerned, and I believe Mr. McHancy would agree with the matters that I am about to state. Hippke has been searched for at least seven months. He were unable to find him. He was in the British zone. He was arrested sometime in December. I believe approximately the 21st. It was a few days before Christmas. We made every effort to get him here as soon as we could. Now, it's submitted, that if the defense are able to foreclose us from talking to men when we are certainly looking for by merely submitting their names as witnesses and have us approve them, then the ends of justice aren't being served. Dr. Bergold submitted Hippke as a witness. I assume that he didn't know where he was, but in the interest of his client he was trying to produce him. I don't question that Dr. Bergold submitted his name in good faith. I approved the application, as your Honors recall.
I made no objection to it, but Hippke still has some value to us from the standpoint of being a subject of interrogation and just because Dr. Bergold or Dr. Sauter or any other German defense counsel submits an application for a witness, who is a man in that category, I submit they should not be allowed to foreclose us. Now, Hippke has been here for quite some time. It is only as of, I believe, Saturday of last week, that the Tribunal ruled that he would be available to the prosecution for purposes of examination, I don't know of my own knowledge but I am told that he has been interrogated, I don't know how extensively, by defense counsel. Now, I certainly am not opposed to Dr. Bergold being allowed to talk to him before he puts him on the stand, but I did want to put these remarks in the record with reference to his application in order that, what I think would be an injustice to the prosecution in cases similar to this, won't be a matter of normal procedure as a result of the ruling the court might make.
THE PRESIDENT: Well, I can see some difference between a witness whom the defense procures voluntarily and brings here from civil life to testify, and a witness who is a prisoner of war or who is sought by the United States, and is needed by the United States in its investigation, possibly as a witness or possibly even as a defendant. In the latter category it seems to me the witness belongs to the United States, rather than to the defense, even though the defense has asked that he be produced. You wouldn't contend, Mr. Denney, that if Dr. Bergold had secured an order for the attendance of a witness off the street who was not a prisoner, that you would have the right to examine him for any period before Dr. Bergold did?
MR. DENNEY: Not if the witness was not -
DR. BERGOLD: May it please the Tribunal -
MR. DENNEY: If Your Honor please, you asked me a question. Not if the witness was not in the first category which Your Honor mentioned. Certainly if he wants to go out and get some one named John Smith, who was a master welder, who was not a subject of search, not some one we want, some one to testify, that is his business. I submit that I can go out and talk to the man, but I certainly can't keep Dr. Bergold from going to see him.
DR. BERGOLD: May it please the Tribunal, may I add the following: The case is very peculiar, because the Prosecution would not have found out the address without the defense. On the 13th of December my colleague Sauter told me the address, and I informed him on the 21st that I had found it also independently. In other words, after my colleague Sauter had found out the address, he was arrested. Without our efforts the Prosecution wouldn't have found this man even today. It is like that, although Mr. Denney tells me I can speak to him, however there is an order from the Prosecution and the witness room that for eight days no defense counsel can speak with Hippke, and I am of the opinion that even in the American law this is forbidden.
If I would have known that Hippke was being sought for, then of course I would have made this application to the Tribunal to grant me the witness and to give him free transportation to this place. I couldn't understand why the Prosecution didn't charge him in the first case, but I am sure that there was no reason to indict him. Had I known that at the time, then I and colleague Sauter would have 714a asked safe transportation to Nuremberg before we divulged the address, which, of course, I am sure would have been granted me.
Therefore I am of the opinion that he is our witness, and that we have the right to examine him, even if the Prosecution wants to indict him later on.
MR. DENNEY: Well, first, I know nothing about Dr. Bergold's statement of what Dr. Sauter did. I do know that we have searched high and low for this man since last summer. As to why he wasn't produced in Case 1, the answer is that they couldn't find him. And as to whether or not we got the information of his address from Dr. Sauter, I don't know. I saw nothing that I recall in the application that indicated what his address was. Now, it may have been there, but I assure the Court that I didn't take the application, look it over, and then call somebody up and say, "Arrest this man." That was not done, and I have no present recollection of ever having seen what his address was.
DR. BERGOLD: I am convinced of that. That is what the Prosecution probably did in the first trials. In any case, Your Honor, I have to call the man as a witness tomorrow, and of course it is natural that I have to speak to him once more. I found a document which I would like to discuss with him. I would appreciate it if the Tribunal would rule that in spite of the fact that there was an order by the Prosecution that the witness should not be spoken to, that they make an exception in my particular case.
MR. DENNEY: First, just so the record will be clear about the order, it is not a prosecution order, as has been stated by Dr. Bergold. It is an order of this Tribunal and Tribunal No. 1, based on an application by the Prosecution made in Tribunal No. 1.
DR. BERGOLD: I didn't know that, Your Honors.
MR. DENNEY: I just want to have the record clear.
THE PRESIDENT: Yes, I know that to be a fact that the Presiding Judges of the two Tribunals signed such an order.
Well, Mr. Denney, approaching this practically, has the Prosecution questioned Dr. Hippke?
MR. DENNEY: Yes, Your Honor.
THE PRESIDENT: Well, then, is there any objection now to Dr. Bergold following with his interrogation?
MR. DENNEY: No, no objection so far as I am concerned. I could perhaps talk to Mr. McHaney and see if he has any objection, because Hippke is also involved in the case concerning the SS medical men, but I certainly would think, as a practical matter, that he would have no objection to making him available for this afternoon, if that is what Dr. Bergold has in mind. I could go up and see Mr. McHaney at the recess this morning.
THE PRESIDENT: All right, will you do that, please? And if he has concluded his questioning of Hippke then Dr. Bergold may examine the witness this afternoon or this evening and be ready tomorrow morning. We will let the matter stand that way until after the eleven o'clock recess.
DR. BERGOLD: May it please the Tribunal, I would now like to call Fritz Schmelter as a witness.
THE PRESIDENT: The Marshall will produce the witness.
FRITZ SCHMELTER:a witness, took the stand and testified as follows:
JUDGE MUSMANNO: You will raise your right hand and repeat this oath after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE MUSMANNO: You may be seated.
DIRECT EXAMINATION
BY DR. BERGOLD:
Q. Witness, will you give us your first name and you last name?
A. Fritz Schmelter.
Q. When were you born?
A. On the third of March, 1904.
Q. What was your position at the end of the war?
A. At the end of the war, I was Central Department Manager at the Ministry of Armament. (Ministerial dirigent)
Q. Do you know the Defendant Milch?
A. Yes.
Q. Do you see him in the courtroom?
A. Yes.
Q. Please point to him.
DR. BERGOLD: I wish the record to show the witness recognized the Defendant Milch.
THE PRESIDENT: The record will show that the witness has recognized the Defendant.
Q. Witness, how long have you known Milch?
A. From sight, I have known him for a long time. I know him personally after I joined the Ministry in 1944.
THE PRESIDENT: Will you have the witness repeat the position held at the end of the war?
DR. BERGOLD: I do not understand the question, Your Honor.
717(a)
THE PRESIDENT: Will you have the witness repeat what position he held at the end of the war?
DR. BERGOLD: Yes.
Q Witness, what was your position at the end of the war?
A I was manager of Central Management. It concerned labor assignments and the distribution of labor in the Ministry of Armament.
Q Witness, you just said that you became a member of the Speer Ministry in 1944. What were your positions before that?
A From May, 1942, up until the end of 1943, I was with the Organization Todt in Berlin. From 1938 to 1942, I was working for the Economy District Administration Hossen in Frankfurt am Main as Trustee. From 1934 until the end of 1937 I was in Berlin with Reichtrustee of Labor. Before that I had been an Assessor.
Q Thank you. Witness, when and in what position did you have to do official business with the Defendant?
A I had some dealings with him on official business after 1944 when I became Chief of the Amtsgruppeneinsatz in the Ministry of the Armament. I saw him again after the Jaegerstab was formed, that is, after March, 1944.
Q In your position in the Ministry of Armament, did you have anything to do with the Central Planning Board?
A I had something to do with them insofar as the Chief of Staff of the Armament office was concerned. He was my chief. I had to write down the necessary figures concerning labor assignments when I accompanied him at certain sessions of the Central Planning Board as assistant.
Q What time was that? Approximately.
AAs far as I can remember the first session in which I participated was in February or March, 1944. I did not always participate in these sessions, only in a few of them when I accompanied the man I mentioned before.
Q Did the sessions of February and March, 1944, deal with labor assignments?
A. Yes.
Q. During these conferences, were they trying to clear the numbers or the figures which were announced by Sauckel?
A. In one of the conferences which I can remember, they wanted to make Sauckel a proposition concerning the distribution of labor which he wanted to provide. I remember that the Central Planning Board had a written proposition submitted to him. Sauckel said that he would acknowledge this proposal, but would take care of the distribution himself, personally.
Q. Did they, during these sessions, try to find out whether the numbers and figures Sauckel reported were correct? If he mentioned figures which were too high, did they speak concerning these matters in this conference?
A. I do not remember that day. But I know in various conferences, the question of reliability of the figures played a great part. There was always a difference between what Sauckel reported in the figures and what Speer reported.
Q. Did this apply to both figures which Sauckel mentioned as having already happened, or did it apply to these figures which were from which laborers were to come?
A. That applied particularly to the numbers of laborers who had already been brought. It was not possible to try to control the number of laborers wanted because it was only something that was being planned, nothing else.
Q. That is correct, but from previous experiences, weren't they in a position to find out that Sauckel's promises were not being kept?
A. At the time, they doubted that the figures which Sauckel reported could ever be brought up.
Q. It is known to you that Sauckel during one of these conferences declared that out of five million foreign workers, only 200,000 came to them voluntarily?
A. I cannot remember that.
Q. Do you think that such a statement that out of 5 million workers. only 200,000 came voluntarily, could have been made by Sauckel at one of these conferences?
A. According to my knowledge of the happenings, I do not believe that the figures could be correct.
remember the figure in this case. If the number had been mentioned in my presence, I am sure it would have stuck me. Sauckel constantly stressed the point that the laborers who came to Germany came legally. In other words, I would have noticed it if Sauckel would have mentioned such a low number for those who came voluntarily.
Q. Is it correct that in your position, as a member of the Speer Ministry, or in your capacity as a member of the Organization Todt, you very often participated in the staff meetings of Sauckel?
A. Every month Sauckel would call such a staff meeting where representatives of the most important labor assignment ministries took part. I almost always participated in those meetings.
Q. What other ministries apart from the Ministry of Armaments participated in those conferences?
A. The Air Aviation Ministry, the OKW, the Economy Ministry, the Agricultural Ministry and I do not think I can remember anything further.
Q. Was the Traffic Ministry there too?
A. I do not remember that.
Q. Did the Defendant Milch ever participate in those sessions?
A. No. Those were conferences where the experts of the ministries took part; not the leaders and not their representatives either.
Q. Who was the chief of the Air Aviation Ministry?
A. Goering.
Q. At this staff conferences, did Sauckel ever make any statements saying he brought the laborers voluntarily to the Reich?
A. I remember that Sauckel repeatedly said approximately the following:
"They say that I am forcing laborers to come to Germany. Once somebody said I went to foreign countries with a lasso and caught people and brought them over to Germany. They said I forced them to come to Germany."
Furthermore, he said, "I declare all those things are not true. The laborers are brought to Germany by me on the basis of contracts with other governments, as far as there are governments in those occupied territories; or on the orders of the local military commanders or other local German agencies."
He asked us to tell our superiors his opinion on that question.
Q. Did you ever talk about foreign laborers who came to Germany on a voluntary basis, I mean on the basis of recruitment?
A. Yes.
Q. Has he ever mentioned that those were small figures or large figures?
A. He said that the laborers who came to Germany should be recruited. The number of people who came on a voluntary basis decreased. The number became smaller and smaller. He said the recruitment of labor was ordered by the French Government itself according to age groups.
Q. Is it known to you that there was an agreement with the French government according to which for two laborers, one prisoner of war would be released to France.
A. Yes.
Q. Is it known to you that the French workers during their activity in Germany got leave once in a while?
A. Yes.
Q. A leave to France?
A. Yes.
Q. Did they ever return from their leave or did they just stay there?
A. A greater part of them came back from their leave; quite a number did not come back. Part of the laborers who went on leaves did not come back. Some of them came back.
Q. Was that the larger part that came back or the smaller part?
A. I did not hear any figures concerning that. As far as I know the greatest of them came back. According to the factory manager, the larger part always came back, but of course I have no exact figures.
MR. DENNEY: If Your Honor please, I have been lenient with Dr. Bergold on this.
In this whole line of questioning he has been testifying. He can ask the witness "Was there an agreement with the French Government?" The witness can say "Yes," and then he can ask what the contents was. I submit that the Doctor is testifying and the witness is not.
THE PRESIDENT: Your objection is he -
MR. DENNEY: -- is leading the witness.
THE PRESIDENT: Yes.
DR. BERGOLD: May I say something to this? There were several, agreements with the French government which could not be known by the witness. If I ask the question the way Mr. Denney suggests, I happen to know there were four or five agreements-
THE PRESIDENT: The objection is that you are putting the answers into the witness's mouth. When you ask the question you indicate to him the answer you expect. In American law that is termed a leading question and is objectionable. The Tribunal will dispose of the objection by warning you, Dr. Bergold, not to testify yourself, but to simply ask questions of the witness and let him give the answers.
Q The Plenipotentiary General for Labor Assignment, Sauckel, during the session of the first of March, 1944, said in France there was never a contract on a voluntary basis.
A. I do not know that.
Q. Is that statement made by Sauckel correct?
A. No. I do not think it is. It is not correct in respect to the other statements which he made. I never heard any other statements by him.
Q. Witness, then he joined the Jaegerstab. Do you know anything about the creation of the Jaegerstab?
A. Approximately on the first of March, I do not remember the exact date, I was asked by my Chief of Staff, to go to the Air Aviation Ministry where Milch and Mr. Sauer were present. He said the Air Armament was so badly damaged by the airraids, that there had to be a fighter program.
For that purpose a staff needed to be developed to hold daily conferences which would be necessary in order to increase the fighter production or at least bring it to the same level that it used to be. A number of gentlemen from the Air Aviation, as well as from the Armament Industry, were designated to take part or participate in these sessions, and to report to their offices what had taken place and put orders into effect.
As a representative of the Armament Ministry, I was chosen to represent labor assignment. Later on I heard that this Jaegerstab Fighter Staff - was under the management of Speer and Milch and that Sauer was the manager of the Jaegerstab. Later on there were conferences almost daily, first at the Air Ministry and later on at a barracks at the Tempelhof, near Berlin. They dealt, first of all, with the production of the fighters and with all the questions in connection with the fighters and also with labor assignment.
Q. Who directed these conferences?
A. At the beginning Milch participated almost regularly in those sessions and he was the one that actually led or presided over the conferences; formally, that is. Mr. Sauer was the speaker most of the time. Mr. Speer very seldom, according to my recollection perhaps three or four times, participated in those sessions, which in those days were transferred to the Armament Ministry.
Q. You just said that Milch at the beginning had the formal leadership. From what time on did that cease?
A. After the transfer into the Armament Ministry, or rather, into the Caserne at Tempelhof. I don't remember the date. Milch did not participate as regularly as he did before. At those conferences after the change of the fighter staff into the Armament staff, he only participated there once or never.
Q. Who was the chief or manager of the Fighter Staff?
A. I don't remember that exactly. It was either Speer or Sauer. I don't remember that.
Q. Who mostly led the conferences in practice?
A. Sauer.
MR. DENNEY: If Your Honor please, that translation came through as, "Who was the chief of the Fighter Staff", and Dr. Bergold used the word "Ruestungsstab". He was not talking about the Jaegerstab - these last three questions.
THE PRESIDENT: Do you want a correction made on the record?
MR. DENNY: If Your Honor please.
DR. BERGOLD: Yes. I was speaking of the Ruestungsstab, which replaced the Jaegerstab.
There is one more thing to be mentioned here. My colleague tells me that the word "Formally" was translated with "actually", which is not correct.
BY DR. BERGOLD:
Q. Witness, was it known to you that before the creation of the Fighter Staff there existed certain differences between Milch and Sauer concerning the use of the contingents that were at their disposal?
A. No. Before the creation of the Fighter Staff - that is, in the months of January and February - I participated at the conferences concerning the production of the Air Ministry once or twice which were initiated by the Armament Ministry, the same conferences took place with the Navy Ministry, and I never heard of any differences which they had there.
Q. Witness, concerning the conferences of the staff, there were always minutes or records taken. Is that known to you?
A. Yes.
Q. Apart from those minutes, were any other minutes taken?
A. Yes, the verbatim record - I want to call it a "result record" was compiled and these records were sent to all of the offices which were interested in those conferences. Those verbatim records were taken down by stenographers during the session and according to my knowledge were sent only to Mr. Speer, and of course they remained with both Sauer and Milch. In other words, very few copies were made.
Q. Were these verbatim records ever controlled?
A. No, I don't think so. I don't believe that the large records were read or checked by someone else.
Q. Can one say then that the decisions of the Jaegerstab were contained in the result records?
A. Not only the decisions but also the more important deliberations that took place. However, when decisions were made, then they were in the records and the result records.
Q. During these conferences did it ever occur that the participants were not always present?
A. That happened very often because the sessions lasted for a long time and it happened many times that I, for instance, was called out and ordered to take care of my business, at least by telephone, and the members of the Fighter Staff did not always participate in the conferences, but later on - that is, from May on - they had representatives or deputies replace them.