The Defense Counsel only had the hours in the evening between 1800 and 2000 hours to talk to their clients and because of the heat prevailing the whole time of Prosecution's case it proved of a special hardship to the elder defendants. During the evening hours only those questions could be discussed which followed from the matters discussed during the day. Proper preparation for the defense during that time was made extremely difficult. I believe, your Honor, that the extent of this obstacle can only be properly judged by those who know by personal experience, the rooms in which these discussions are carried out. These rooms, without wanting to exaggerate, develop the hear of incubators especially in the evening.
2. Already in the beginning of this trial I had pointed out that the defense had difficulties in procuring evidence material because of the fact that several camps have been dissolved, and people interned there have been released and transferred to other camps. Many witnesses had different addresses making it difficult to find out their right addresses. For instance, I had a letter yesterday from a witness who in the meanwhile had been released and a letter sent to him by me in the Middle of July was received by him only on the 14th of August. Witnesses who live in Austria have so far answered in only one case. As to witnesses in Jugoslav capacity I do not know whether they will appear here also this has been approved by the Court. If that is not the case I must try to met substitute witnesses.
Your Honor, all these reasons which I only summarize will clearly show to the Tribunal the situation in which the Defense finds itself. For that reason it seems fairly justified that the Defense must count on presenting its case at least four weeks after the return of its deputies from Washington.
That is all I have to tell the Tribunal regarding this point. I assume that one of the other of my colleagues want to say something concerning this problem - I don't know that.
DR. GAWLIK: Your Honor, regarding your ruling about this motion I should be grateful if if you would especially consider my position. For I have only taken over the defense of the defendant General Dehner a couple of weeks ago. Without any preparations I entered these proceedings. I did not make a motion for postponement at the time because I did not want to delay the presentation of the Prosecution's case although I could hardly reconcile this with my duty as a Defense Counsel. Now, however, it is not possible for me to act as Defense Counsel in a proper way if the motion moved by my colleague Laternser is not granted. I now have to acquaint myself with the whole material contained in these proceedings.
THE PRESIDENT; Does the Prosecution have any statement to make? And, in connection with any comments that you mint make, Mr. Denney, I think the Tribunal would be interested in knowing what, if any decision may have been reached relative to the ruling as to the production of documents which we here before made.
MR. DENNEY: Well, with reference to the document, that goes through the Secretary General, your Honor. And, as I understood the Tribunal's ruling it varies somewhat from Dr. Laternser said. I understood that there were two primary alternatives, one that the people be allowed to go to Washington, or, two, that the documents which they asked for be brought here. Dr. Laternser throughout his statement this morning, at least as I listened to it, assumed that the people were going to Washington, the people were going to get into G-2 Section of the Pentagon Building.
That is something we don't have anything to do with. We just don't go to G-2 in the Pentagon Building and that application was made, the Tribunal approved it, and the order was sent to the Secretary General. As I understand it they are inquiring into the matter now and I would like to clarify it that we can't say, "let them in", and they will let them in. That is something to be decided by them.
JUDGE CARTER: I wonder, Mr. Denney, if you really have the right conception of this. I don't think the submission to the Secretary General is the answer. The Prosecution here has produced part of these instruments and when the Prosecution does that I think it is to be assumed that it is the duty of the Prosecution to produce the whole instrument and unless the Prosecution does that the presumptions referred to in the order will be indulged in and I don't think it's a complete answer that the Secretary General has been asked to pass judgment on it or to see what he can do. I think it is deeper than that. When the Prosecution brings in portions of an instrument I think it's their duty to make available the whole instrument to the Defense and it is the Prosecution's duty to see that this thing is done. I don't see it is contingent upon favorable action by some other group or individual. Do you see what I mean.
MR. DENNEY: I understand what Your Honor said and I will be very glad to take it up with General Taylor.
THE PRESIDENT: In other words there has been no decision. Is it in the process of being considered what action is to be taken, whether you endeavor to work out some plan or let the chips fall where they may.
MR. DENNEY: As far as I know, Your Honor, they are trying to ascertain what the document is that would be necessary to bring over here, whether or not it can be brought over, or an alternative whether some arrangements can be made to take people over there. I heard last night possibly there may be some microfilms some place in Europe in connection with these documents. I heard it for the first time last night. We have never seen any microfilm copies and if those microfilm copies prove to be here and if they are adequate perhaps arrangements can be made. It is my understanding that they are in the hands of another government. So far as I know, they are doing everything they can to develop that as well as possible.
THE PRESIDENT: May I ask Dr. Laternser another question. If the documents are not brought to Nuernberg or if the arrangements are not made for counsel to go to Washington, how much time do you feel that counsel for the defense should have?
DR. LATERNSER: Your Honor, have I understood you correctly that if we did not obtain the documents and that we could not go to Washington, how much time defense would require, if I understood you correctly?
Your Honor, may I ask you to repeat this question in order to obviate any misunderstanding?
THE PRESIDENT: If arrangements are not made for the production of the documents in question by their being brought to Nuernberg, or if arrangements are not made for counsel representing the defense to go to Washington, then how much time would you feel you should have between the close of the prosecution's case and the beginning of the defense?
DR. LATERNSER: Your Honor, I must quite frankly say that I have not reckoned on these accumulated refusals and therefore have not thought about the possibilities because I took it to be quite certain that either one way or the other could be taken.
If those possibilities would be closed to us, first of all I would have to determine whether I would be in the position to continue my defense because I then must arrive at the assumption that if defense and prosecution do not enjoy the same rights the Court in view of the defense can never arrive at a just judgment. In that case I would have to think whether I could continue with my defense at all.
THE PRESIDENT: I think it should be kept in mind, Dr. Laternser, that there was a third alternative in connection with the Court's ruling relative to the matter of the consideration which the Court would give to the documents which have been presented. And, as to your last statement, I don't know what the attitude or responsibility of counsel is in a German court but in an American court a counsel cannot leave a case and we would hot look with favor upon such procedure or such an attitude. As has been suggested by Judge Carter in a brief conference here, the third alternative is in the nature of a penalty to prosecution and is really more beneficial to the defense than you apparently appreciate.
DR. LATERNSER: Your Honor, may I thank you for pointing this out to me. In that case I would have to confer with my colleagues about the third possibility on which we certainly did not count.
THE PRESIDENT: I am wondering if perhaps ten days time after the adjournment of prosecution's case would be sufficient time for you to prepare for the opening of the defense.
DR. LATERNSER: I am afraid ten days would not be sufficient. In that case, in my view, four weeks would have to be considered.
DR. SAUTER (Counsel for the Defendants Lanz and von Geitner): Your Honors, I am now considering the third possibility of which your Honor was just talking. I am thinking of the case that the Prosecution cannot procure the missing documents and, apart from that, none of the delegation of the defense counsel can go to Washington in order to obtain the material. I am thinking of the case of the Court's covering the incompleteness and incompetence of the document army evidence of the prosecution on which it has to draw its conclusions; and I am asking myself now, if we consider this third possibility, how much time will be needed in order to enable the defense counsel and the defense for preparing themselves.
Now, we have to consider the following. In view of the fact that the whole case is concerned with happenings in the Balkans, we are forced, to a great extent, to procure our evidence by correspondence with foreign countries. That means tremendous slowing up in the preparation of our case. It goes without saying that we defense counsel worked on this preparation not today and yesterday; that we started on this preparation when the proceedings started the replies from abroad, at least as far as my experience goes, arrive late and an extraordinary time elapses, and experience has taught me that the material which we received from abroad cannot be used in the form it is sent.
Then considerable correspondence starts to and fro because the material sent by the witnesses has to be put into the shape of affidavits and that uses up a great amount of time. We defense counsel, because of our personal interests and the interests of the defendants who have been imprisoned for two and a half years now, would demand that from our side, too, the trial is speeded up as much as possible and were personally would be glad if we could conclude this trial as quickly as possible; but in apportioning the time which the Court will grant to the defense counsel, would ask you to consider these particular difficulties because they result from the peculiarities of our case.
May I point out something else, your Honors. We all, the Tribunal and we, are interested that the defense of every individual defendant is presented in an absolutely uniform way and complete form. If we hurry the proceedings there is the danger that important evidence is procured. Weeks after the case of List, for example, is concluded, there is a formal possibility to present later on such evidence which arrives later but, in the interests of the matter and in order to make everything as clear as possible, it is not right if the complex of the defense of one of the defendants is torn up in so and so many parts.
For that reason, Your Honors, I believe it would be in the interests of a certain speeding up if in apportioning the time which you are now granting to the defense you would be a bit more generous in order to enable us sooner to present the material to you in a complete way.
THE PRESIDENT: Dr. Sauther, you may have misunderstood me. I did not make any definite ruling concerning a period of postponement. I merely made an inquiry and suggestion. I think perhaps we should have some statement from the prosecution as to when, if at all, they are going to be in a position to state or elect as to what courses they are going to follow.
MR. DENNEY: I believe, your Honors, I can advise the Court, possibly at the beginning of this afternoon's session, with reference to what is planned so far as the documents are concerned.
THE PRESIDENT: I do not know that that early an answer would be necessary. Perhaps by tomorrow morning it would give you more time to confer with the authorities with whom you will have to deal.
MR. DENNEY: Very well, your Honor. I will be glad to do so.
THE PRESIDENT: And with that in mind the court will not make any decision until such time as the prosecution may care to make any further statement.
We will pass on to another matter at this time and the Tribunal, wishes to read a statement which was presented to me just this morning. It is a communication from LeRoy H. Watson, Brigadier General, United States Army, Commanding the Nurnberg Military Post, Office of the Commanding General.
"Subject: Policy of Confinement of all Prisoners in the Nurnberg Prison.
"To: Colonel E. J. Ray, Secretary General for Military Tribunals, APO-696-A, U. S. Army."
Paragraph 1: "It has come to my attention that you sent a letter to my office with reference to the policy of confining German prisoners in the Nurnberg prison and that in the reply sent to you some of the statements made with reference to our policy in this matter were in error. Furthermore, the reply of this office to your letter was read to the prisoners in one of the cases now being tried and included in the written record of the case."
Paragraph 2: "I am, therefore, writing this letter to you in order to clarify this matter and to make perfectly clear to all concerned the policy regarding confinement of prisoners in the Nurnberg prison. I request that a copy of this letter be given to the judge concerned and that it be read into the evidence of the trial over which he is now presiding in order to correct the error made and to clarify the policy."
Paragraph 3: "The policy is as follows. It is my desire not to place more than one prisoner in a cell except under the conditions stated below:
"(a) If it is necessary to care for more prisoners in this prison than I have cells, obviously I will have to place more than one prisoner in some of the cells.
"(b) If the evidence presented to me indicates or if I have reason to suspect that a prisoner who has been indicted might commit suicide, I will place another prisoner in the cell with him in order to aid in preventing his suicide.
"(c) Most prisoners do not like solitary confinement. Accordingly, is any prisoner desires to be placed together in the same cell with another, he may submit an application to the prison officer and this application will receive due and humane consideration by me."
Signed: "LeRoy H. Watson, Brigadier General, U. S. Army Commanding."
This communication is read for the purposes of the record.
THE PRESIDENT: You may proceed, Mr. Denney, with the presentation of further documentary evidence.
MR. DENNEY: May it please your Honors, we are still in Document Book 21 and I believe the last exhibit yesterday was 486. The first exhibit today is on page 57 of the German and page 70 of the English and is 1279PS. These are various papers in draft having to do with an order which was ultimately issued from OKW concerning the treatment of foreign military missions who were captured with partisan groups.
The first one is from the General Staff of OKW. That is the operational staff of OKW and is dated 22 July 1944.
"Subject: Treatment of members of foreign "military missions" captured with partisan groups.
"Minutes of a meeting.
"The Fuehrer has decided that members of Anglo-American and Soviet-Russian so-called "military missions" captured in the partisan fighting in the Southeast arc to be treated in the same way as those taking part in a commando operation and not as prisoners of war."
This is No. 487, your Honors. It is on page 70 of the English, 57 of the German, and the document number is 1279-PS.
"Independently of the above, the AG. Ausl. the following inquiries made by the RSHA-Military Section -- has put forth for decision the question of how British and American soldiers, captured with the partisan groups should be treated.
"The following are the resulting opinions:
"a) Commander-in-Chief Southeast "The members of Allied military missions arc to be handed over to the SD, should the opinion below (b) be inapplicable.
"Supreme Command of the Armed Forces/Prisoners of war general in conjunction with Supreme Command of the Army/Army General Staff/Allied Armies in the West and Armed Forces Operations Staff.
"Treatment as prisoners of war" -- and this is the "b" part here, the one that is in the original. It appears out in parenthesis to the left in the English copy.
"Treatment as prisoners of war in accordance with Order: Armed Forces Operation Staff/OP (Army)" and it gives the date.
"Treatment as prisoners of war in accordance with Order: Armed Forces Operation Staff dated 8.7.43. which disregards differences of nationality. The only exception made is in the case of commando operations (then they are handed over to the Security Service SD).
"RSHA Section IV.
"Fundamentally treatment as prisoners of war under the directives mentioned in B and c) but a more definite ruling is required to decide whether and in what circumstances they are to be handed over to the Security Service (SD) And then we have the Military Section:
"Considers that the Commando-Order cannot be applied to partisan fighting in the south East, that to do so would be dangerous in that it night imperil those taking part in our own operations (Brandenburg).
"No opinion on the question of foreign missions."
And then the next one:
"Fundamentally, treatment as prisoners of war, that implies that members of missions were taking part in a commando-operation."
AAnd the next one:
"Armed Forces Ops Staff "Treatment as the members of partisan groups themselves, i.e. as prisoners of war if they are in uniform and are captured or surrender in open battle, or executed if they arc in civilian clothes or arc captured in a sabotage-or commando-operation."
And it is noted at the left: "The whole of this paragraph 'g' is crossed out".
"Opinion and proposal of the Armed Forces Ops Staff "According to the orders issued to date, even for example, the British captured in the "Rosselsprung" operation must be treated as prisoners of war.
This is especially evident in the Op. Order dated 18.8.43" And then it is noted:
"(This last sentence is put in parenthesis, underlined, Op (Army) crossed out and a large query inserted in the margin).
"The Commando Order has never yet been applied to such missions, its extended application to cover them has not yet been ordered. If the missions are to be treated otherwise than in accordance with the orders to date, it must first be decided whether a foreign mission acting with the partisan groups in the South-East is to be called a commando-operation and therefore treated as such. Such a decision seems to be indicated even if it does not correspond completely to the wording of the commando-Order or to the previous definition of a commando operation (as an especially under-hand and still unusual form of warfare which must be combatted with the appropriate counter measures). The principle must be adopted from the start that all members of partisan groups, even in the South East are fundamentally guerrillas. Indeed they are treated as prisoners of war for reasons of expediency in order to obtain the largest possible number of deserters and workers. There is no reason for this with reward to the members of foreign missions who are not numerous. There is therefore no necessity to treat them, in every case, in the same way as the members of partisan groups themselves. Basically, it would be far more appropriate to consider Anglo-American as well as Soviet-Russian military missions as commando-operations and to treat their members accordingly.
"The appended Order is therefore proposed".
And that bears the initial of General Warlimont of the OKW Operations Staff.
Now, the next document, which is on page 60 in the German and 72 in the English, is substantially the same as the one we have just road. However, it is dated five days later, 27 July-and the first one is 22 July-and it now has an order number, and if your Honors will look at the original it will be seen that the original bore an earlier number and then that the number of this later order, of 27 July, is inserted in pencil on the first order and then typed on this order, and when we get along a little farther we will have more occasion to refer to The order here, it can be seen, when compared with the earlier one, has certain deletions, particularly paragraph "g", which was crossed out in the original, and other than that it is substantially the same; the first two paragraphs, numbered "I" and "2". "The following are the resulting opinions:"
and then:
"Commander-in-Chief Southeast" (who at that time was the defendant Weichs).
"The members of allied military missions arc to be handed over to the SD, should the opinion below (b) be inapplicable"-is the same; and, other than minor alterations in form, which I believe are apparent, it is not necessary to read this order again.
There is one additional fact, that this order of 27.7 is initialed by Keitel, who was, of course, Chief of OKW.
Now, in the copy in the English, there is a note at the bottom of the page 73 which is not in the German, and all this does is refer to the second copy of this order or this communication, rather-of 27.
7.1944. It's identifical--defense counsel may see it in the exhibit -- it's just the second of two copies. Your Honors will notice at the top of the first copy it says "2 copies, first copy, "and the second one is merely the other copy of these two. It has some penciled notes on it. It bears Warlimont's initial, whereas the first copy is signed by Warlimont: and the distribution is to be noted on the first copy, that the Chief of the Supreme Command of the Armed Forces via the Deputy Chief of the Armed Forces Operations, Staff and the Quartermaster gets the second copy. Both copies are here; and then the third is a memorandum dated 22 July 1944 and is a draft again. It bears the original number and then is changed to the later number in pencil, as may be seen in the photostat, and it has the final order number of 009074/44, and tho subject again is the "Treatment of members of foreign 'military missions' captured with partisan groups", and this again has been worked over in draft.
The Text is:
"The Special Orders for the treatment of captured members of partisan groups do not apply to members of foreign so-called "military missions" (Anglo-American or Soviet Russian) captured in the fight against partisan groups in the areas under the command of the Cin-C South East and South West. They are therefore to be treated, not as prisoners of war, but in accordance with the Fuhrer's Order on the extermination of terrorist and sabotage troops, dated 18.10.1942 003830/Most Secret).
This order is not to be distributed beyond the divisional or equal-ranking staffs of the other branches of the Armed Forces. Any papers distributed to Army Headquarters and equal-ranking staffs of the Armed Forces are to be recalled, when read, and destroyed) (This last sentence is changed in the original to 'This order is not to be distributed beyond General Headquarters and equal ranking staffs of other branches of the Armed Forces and is to be destroyed when read).
That can be seen from looking.
And then annexed to this was a distribution list which appears at the bottom, the first copy going to the Commander-in-Chief Southeast, who was the defendant Weichs, and the various other offices listed there. It is to be noted that Copy 6 went to the Reichsfuehrer SS and Chief of the German Police, Headquarters Staff of the Reichsfuehrer SS for the attention of SS Brigadefuehrer and Major General of the Waffen SS Rohde, also for RSHA, and, of course, the purpose of sending that there is so that the SD could be advised of it.
And the last part of this document is not in the original. However, we are submitting it. That is, it is not in the English, but we are submitting it in the German original.
The, turning to the next document, which is 537-PS, page 75 of the English and 65 of the German, this is offered as 488 in evidence. Again there are some further drafts which we have not put in here. The Tribunal can look at then and see the way it has gone through. The order is finally issued. It is to be noted in the first copy in this second exhibit that it was submitted with a blank date for July, and then the date was filled in, and the final copy which we have here, which is the only one we have reproduced, is signed by Keitel as the Chief of the High Command of the Wehrmacht, and this final copy appears at page 75, and again it has the same order number, 009074/44, and it is dated 30 July 1944, Fuehrer Headquarters.
"Treatment of members of foreign 'Military Missions' captured together with partisans.
"In the areas of the High Command Southeast and Southwest members of foreign so-called "Military Missions" (Anglo-American as well as Soviet-Russian) captured in the course of the struggle against partisans shall not receive the treatment as speculated in the Special orders regarding the treatment of captured partisans. Therefore they are not to be treated as Prisoners of War but in conformity with the Fuhrer's order are the elimination of terror and sabotage troops of 18 October 1942.
"This order shall not be transmitted to other units of the Armed forces via the High Commands and equivalent staffs and is to be destroyed after being made of record.
"The Chief of the High Command of the Wehrmacht Signed KEITEL" Again the distribution is the same as it was in the various draft copies that were being marked over in the earlier exhibit.
487, the first copy again going to the Commander-in-chief Southeast, the defendant Weichs, and the sixth copy again going to Himmler's units.
In this connection I should like to direct the Court's attention to a document which has formerly been placed in evidence as Exhibit No. 225. This is the communication of 18 October, 1942, which is referred to here, the Hitler order with reference to the treatment of commandoes and that is at page 28 in the English Document Book 9, and it appears at page 41 in the German Document Book 9. And if your Honors will read the present order, the one of 30 July, 1944, and then refer to Exhibit 225, it is submitted that it is clear what the context of this order is.
I should also like to direct your Honors attention to the date here of 30 July, 1944, and recall to the Court the fact that it was early in June, 1944, at which time the first Allied landings were effected in the west, that is, the operation that commenced with the Normandy invasion.
On page 66 of the German, and 76 of the English, MOKW 1377, offered as Prosecution's Exhibit 489,- this is a directive of the Commander of the Fortress Crete, dated 14 August, 1944:
The subject is reprisal measures.
1.) The numerous raids on German motor vehicles, small detachments, etc. together with considerable own losses in the last period of time necessitate vigorous action by our divisions in order to force our will upon the Greek population and in order to prove that we can assert our power on the whole island. To this end discretion can no longer be observed towards innocent men, women and children. Quick action is the first condition for a successful vigorous accomplishment.
2.) In case of new raids on German soldiers, the villages concerned which are located in the vicinity are to be fired on by concentrated surprise fire bursts of the artillery. It may be useful to encircle the villages with our own troops sometime after the firing in order to capture the bandits who may come to the rescue from the mountains.
3.) As a further measure the complete evacuation and levelling to the ground of villages with an especially hostile population may be considered. Intentions to this effect are to be reported promptly to the Commandant of the Fortress Crete in order that the economical affairs may be put in order.
Extension of the prohibited areas, the respecting of which is to be guaranteed by severe measures based on random surveys, and which has as its aim the limitation of freedom of movement for the Greeks. Proposals are to be submitted to the Commandant of the Fortress Crete.
4.) Extension of the curfew, jointly with the District Commandant, is at the discretion of the Division."
5.) "In Short, by quick and thorough action it must be made clear to the Greek population that the terror of the bandits will be answered by still stronger terror in reprisal.
A drive to enlighten the people is being started in the Greek press. By ruthless actions we must succeed in reducing essentially the activity of the bandits. (initial illegible) (signature) Muller."
The next appears on page 69 of the German and page 78 of the English, and is a series of extracts from daily reports of the OKH. The only part of the first one that we are concerned with is paragraph No. 3. This is dated as of 26 February 1944, and is a situation report. It is directed to the various Army groups, "A", "South", "Center", "North", etc., and here with reference to the Balkans:
"In the area of LXVIII Corps 200 hostages shot dead in reprisal for attack on one of our trucks." The LXVIII Corps at that time was commanded by the defendant, Felmy.
The next entry-
PRESIDENT WENNERSTRUM: It is Exhibit 490 is it not? MR. DENNEY: Yes, your Honor. 490.
PRESIDENT WENNERSTRUM:NOKW 1557?
MR. DENNEY: 1557, yes, your Honor.
Then turning to page 70 in the German, and 79 in the English, there is an entry again from the OKH to the same addresses, and this is Situation information as of 13 March, and again concerning the Balkans, and then under that, there is a note, "Army Group E" and under that;
"LXVIII Corps; In reprisal for band attack Southeast of Tripoli, a state of emergency was ordered for the civilian population, and 200 Communist hostages were shot dead."
Turning to page 71 in the German, and 81 in the English, both still in the same document, and Exhibit 490, the reports arc still from OKH and they are directed to the same people, and this is a report again from the Balkans of the situation as of 23 March:
"Situation Island of Solta: 264th Division succeeded in landing two companies on tho Island. The combing through of the Island has started.
Situation Island of Hvar: Since landing on 22 March, bitter fighting. The enemy has landed apparently 800 men on tho South Coast and after Artillery fire from the sea on the Northwest Coast near Starigrad. Our own forces on the Western part of the Island fought their way through in stiff battles to the Eastern part. The occupation Battalion was reinforced by a company (landing Eastern tip of the Island.)
The enemy stopped the advance of the 2nd and 5th Communist Division in Southwest Serbia in face of our counter-measures."
On page 72 of tho German text, page 82 of the English, the situation report for 2 May, still in 1144, still from OKH, and still addressed to the same people, again the Balkans, Army Group E, LXVIII Corps, under:
"Army Group E: Enemy losses during the past week: 526 dead, 163 prisoners."
The LXVIII Corps which is still, at that time, under the command of defendant Felmy.
"In reprisal for the killing in action of the Commanding Officer of 1st Fortress Infantry Division, 325 Communists shot dead."
Then I should like to direct your Honors' attention to the first line of that:
"In reprisal for the killing in action", to the words, "killing in action".
Turning then to page 73 of the German, and 84 of the English, still the same source for the document, and addressed to the same people, -- this is for 5 May, 1944, -- there is a note here that 2nd Panzer Army is listed under the Balkans, and then for Serbia;"Situation Southwest Serbia: