MR. WALTON: When this official mail from either Berlin or from the 11th Army contained a matter which should be brought to the attention of one or more sub-units, would Mr. Seibert dispatch the contents of this order, or his own directive, or some comment, to one or more of the commandos?
DR. GAWLIK: Your Honor, I object to the question because it is hypothetical. If he asked whether the witness know of some incidents of some case,dependent on the defendant Seibert, to that I have no objection, but whether he would have done it, for that the defendant Seibert can not be punished for what he thought he might have done or for what he would have done, but what he had done in fact. If the witness testified to what the defendant Seibert did do in somecases, or what he dispatched in some case, I have no objection that question.
THE PRESIDENT: The present defendant, the witness involved, occupied the same office as did the defendant Seibert, soo therefore----
THE INTERPRETER: Will you please repeat that, Your Honor.
THE PREISDENT: The witness was in the same office with Seibert, so, therefore, it is not unreasonable to ask him what Seibert did. Now whether the witness actually knows what Seibert did, or not, is only within his knowledge, and the only way he can find out as to put the question to him, and if he knows then he will tell us. If he does not know naturally he can not tell us, and the only way to find out is to ask him, which Mr. Walton has done.
DR. GAWLIK: Yes, I agree to that, but not to the question what he would have done. To the question of what Seibert did, or to the question as put by Your Honor, I agree.
THE PRESIDENT: Yes. I presume the interpretation of the question was, what was the custom, what was the practice of the office, what would he have done meaning in the usual routine and course of affairs of what Seibert had done, what did he do, that is what was meant, or by any one else in the same position. What was the routine of the office; communications coming in from the Army, how were they routed, and Mr. Walton objectionable.
Very well, witness, if you remember now the question,
THE WITNESS: I think I understand it correctly, and I would like to answer it as,to that effect:
During the absence of Herr Ohlendorf in the group staff, Herr Seibert was the deputy for the group staff; then
MR. WALTON: Thank you, Mr. Schubert.
BY MR. WALTON:
prisoners of war, communist functionaries, etc.?
A No, Mr. Prosecutor, certainly not.
screening teams?
A No, neither that, Mr. Prosecutor.
Einsatzgruppe-D at Oberursel?
A May I have the question repeated please?
in Oberursel?
the Karaimians were Jews?
A I think if I remember correctly, Mr. Prosecutor, in the Fall of 1945 I made a statement which contained about the following:
When Ethnic groups were to be treated.
Thos were the Krimchaks and the Karai mians.
The principal question, or the basic question which had to be decided was whether these groups of persons were to be treated as Jews according to the Fuehrer Order, or not.
At the time sofar as I can recall I testified that at the time Herr Ohlendorf did not want to and could not define this order himself, and, therefore, a decision from Berlin had to be applied for by him. I think that is about the statement I made at the time.
Q I congratulate you on your most excellent memory. However, there is one point which appears in the affidavit that you omitted at this time, almost two years later, or a year and a half later. "Therefore the decision --" I shall read it to you and I am quoting now from your own affidavit: "Therefore, the decision was put up to the Reichsicherheits Hamptamt, Berlin, whereby the basic question was whether the Krimchaks or the Karaimians, or one of these two groups were to be considered Jews or not. In case - I am still quoting "In case that they would have been considered Jews, they would have come under the extermination regulations." Now this is only the point that you omitted, and I am still quoting: "Whether any decision or what decision arrived from Berlin is unknown to me. At that time I was absent from the Einsatzgruppe for some time in order to carry out these seizures of Russian POWs of Tartarian nationality at Nikolajew." Did you make that last statement?
A Mr. Prosecutor, I certainly didn't draw that conclusion, and I should like to look at my affidavit now. I am quite certain that I said I was absent because repeatedly I was on journeys in connection with recruiting Tartars as volunteers in the POW camps at Nikolajew. I don't know whether I also said in a few villages in the Crimea, and, if I may add now, I recall quite clearly the other explanations that were also made, Mr. Prosecutor, just quoted, and I do not intend to leave them out, but I merely thought I had to say this in order to clarify the matters we are talking about here, but as to the seizure of POWs of Tartarian orign, I could never had said that. This could have only been the recruiting of Tartar volunteers, and I am quite certain I said nothing else, Mr. Prosecutor.
the question and you have given an explanation. That is what I wanted. Now, did you ever make any statement concerning the commanding Officer of Sondercommando X_B, one, Alois Persterer? concerned, I made a statement.
Q Did you ever make this statement and I quote: "P" - the initial alluding to Pesterer, "Who always inclined a great deal towards great independance had always the best understanding with the local Wherm cht, which could not be said of the Einsatzgruppe as a whole.
In addition Pesterer - " except you had the initial "P", "-was a great friend of alcohol who had always worried Ohlendorf a little, obviously from fear of inconsiderations by Pesterer." Did you make that statement --- or I shall withdraw that question, and ask you this one. Is that statement true? in just those words. I said, that after Mr. Wartenberg asked me about Pesterer's personality ---
Q I withdraw that question, Mr. Schubert. I will ask you if that statement that I have just read to you is essentially ture. allowing for some differences in the translation?
A I do not want to answer this yes or no. I should like to make a brief statement. It is correct that Commando Leader presterer had much better relations with the local Wehrmacht than the Group-staff had. It is correct that Commando Leader Persterer had much better relations with the local Wehrmacht than the Group-staff had. It is correct that Herr Ohlendorf was not very enthusiastic about Herr Persterer during some meetings where the gentlemen of the Army took part in, when he took a little more alcohol than he should have done. ever was deputy to Persterer?
A No, Mr. Proseuctor, the co-defendant Ruehl did not work during
THE PRESIDENT: Mr. Walton, do you intend to introduce this document which you are reading from now into evidence?
MR. WALTON: Your Honor, please, this document is now being searched for.
I only have the English translation, This is a document which was taken from the files of the Interrogation Center in Oberursel.
I cannot c py by the defendant Schubert, or the original.
However, I believe
THE PRESIDENT: There is no question about the appropriateness and correctness and the relevency of your cross examination.
There was a but I don't know whether it ended with the meeting of the minds, or just what was said.
As I recall your quotation you used the word "seized" certain Russian prisoners of war, and the witness used the word "Recruiting," and of course, there is a vast difference between
MR. WALTON: I assume from my point of view he denied the statement
THE PRESIDENT: I see. Very well.
DR. KOESSL: Your Honor I merely would like to ask that on re is very important as part of the conten ts of the affidavit.
The witness
THE PRESIDENT: Well, Dr. Koessl, you can not be interested or concerned
DR. KOESSL: Your Honor, I am only interested in finding out whether contains exactly what the witness now said on the witness stand.
I assume
THE PRESIDENT: Well, Dr. Koessl, Mr. Walton has put certain questions and the witness has answered those questions.
Now in the absence of the probative value as the Prosecutor's questions, because Mr. Walton's questions are not evidence so Mr. Walton is really bound by the defendant's answers,
DR. KOESSL: Yes, I am only concerned with the contents of the affidavit, the translation of what Mr. Walton read is not sufficient for me to prove that it is the actual contents in the German affidavit.
Mr. Walton
THE PRESIDENT: Well, Dr. Koessl, you were asking for something that Mr. Walton has already promised, about which the Tribunal has indicated
MR. WALTON: Your Honor, if that does not come to light, his answer pointed out.
I see no reason for my surrender of my copy of a copy to Dr. Koessl at this time.
I would like a ruling on that if the Court please.
THE PRESIDENT: Dr. Koessl would you want to submit this affidavit
DR. KOESSL: No, Your Honor, I don't need it for that. I merely need concerned.
If the Prosecution accepts the reply of the witness, I agree to
THE PRESIDENT: Well, you have the right on your redirect examination
MR. WALTON: Just one final word. I accept, Your Honor, the statement he recruited Tartar prisoners.
I shall act on that in my brief and in the Maybe that will satisfy Dr. Koessl.
THE PRESIDENT: I think with that statement, Dr. Koessl, you can cons Mr. Walton as assistant defense counsel on this particular point.
Dr. KOESSL: For the time being I am satisfied.
THE PRESIDENT: Very well.
THE WITNESS: May I say something about this please?
MR. WALTON: Yes.
THE WITNESS: I am sorry that I am not quite satisfied as yet.
THE PRESIDENT: Well, it would be too much to expect that everybody
THE WITNESS: Your Honor, Mr. Walton just said that I testified that I dealt with recruiting matters.
I am quite certain that this is not contained in my affidavit, and I would like to correct it.
I believe that there is an in Nikolajew.
I was on my way to it but never was I personally in charge
THE PRESIDENT: Very well, that statement may stand.
BY MR. WALTON:
Q. Now I believe you testified this morning that you go some office copies of the reports from Mr. Seibert to file, and that these reports contained some information concerning executions.
Nearly every report you got from Seibert had Information concerning executions, didn't it?
A. "Nearly every one" is going rather too far, Mr. Prosecutor. I would like to re-word this.
A part of these reports contained such
Q. What percent of his reports would you estimate referred in some way to executions?
A. I can not tell you a percentage and I don't think it matters.
ab out executions which had been carried out. I can further say that in other
Q. Do you want to make an estimate as to the number of radio reports that referred to executions, would you say it was fifty percent?
A. Mr. Prosecutor, it does not depend on my good will or good intentions but I simply think I am unable to make such statement.
I would be
Q. Well, you were generally acquanited with what went on in head quarters, were you not?
A. In general, yes.
Q. Do you know what assignments were given to members of the staff other than yourself?
A. In general, the staff of officers of the staff I knew, of course.
Q. Did the Group-Physician ever have to inspect an execution by a gas-van?
A. I know nothing about gas vans.
THE INTERPRETER: There was a mistake in the translation, as was given "gas chambers" rather than "Gas-wagon" or gas-car.
THE PRESIDENT: Well, that is an important distinction between gasvan and gas chamber. So the witness may understand, you are referring to gas-wagons? BY MR. WALTON:
Q Do you understand that I meant "gas-wagon" instead of gas chambers
A. Yes, I think you are talking about gas-van, that is right. I can not say what definite orders the physician of the group received concerning this. I know nothing about that.
were you not?
A Yes, Mr. Prosecutor.
Q And it's been testified to repeatedly from that witness stand that for a time there was at least one gas van in the courtyard at Simferopol.
Q Did you ever dispatch this van anywhere? send a gas van there?
A No, I don't know of any. Headquarters dispatching the van from the courtyard to a Kommando territory?
A No, Mr. Prosecutor. cutions?
A During the executions in Simferopol, or in general?
Q In general, any executions. Do you know of anybody in the group staff who was given the special assignment to inspect executions besides yourself?
A Mr. Prosecutor, this is a question of great consequence which I have to answer here, I myself was never present when other members of the group staff were carrying out such inspections. Therefore, I cannot say who, when, and where the inspections were made.
Q You misunderstood my question. Did you ever learn - did you ever have any knowledge - did you ever hear it generally talked about did it ever come to your attention that some one besides yourself in the group staff inspected executions? cerned I know definitely that he carried out such inspections.
Q Did Seibert ever inspect an execution to you knowledge?
Q Did Siebert ever discuss the subject of executions with you? general. One could not avoid doing this, but not about any particular execution. I don't think so. Perhaps in connection with the Fuehrer order in general. in any way about executions?
A What are you referring to, Mr. Prosecutor. I said I talked to him in a general way.
Q Certainly. But, I asked you next, do you recall what was said in any of these conversations? Do you recall if Mr. Seibert expressed himself that he was for executions or against executions, if he liked them or didn't like them? Did he ever make any remark about his own feeling in the matter?
A I understand you now, Mr. Prosecutor. That is the subject of any discussion possible at all and I believe not only in as far as Seibert personally is concerned but concerning everyone. I can assure you here that there was not one man who agreed to these measures and agreed to this order. But whenever these matters were discussed everybody was seriously concerned. To be sure, we were very worried about these matters and yet we were helpless and that is perhaps, to put it quite briefly, what we talked about during such discussions. one had the intention of not carrying out the Fuehrer order, did you? one might have refused to carry out this order. I just said I understood the question to mean, whether I heard that Herr Seibert or any one else ever made statements to the effect that they would not carry out this order
Q Now in Seibert's affidavit, which is in Document Book III-D, page 34 and in your document book, Mr. Schubert, on page 60, document NO-2859, Prosecution Exhibit 158, in paragraph 2 of Mr. Seibert's affi davit he states that you prepared reports from time to time.
In your what you said.
Will you repeat for my benefit what type of reports you before you sent them off?
Mr. Seibert under figure 2 Of this affidavit, but that from time to concerned changes in personnel and location within the group.
How often I made such compilations, I cannot say.
Certainly it only occurred Mr. Seibert?
Did you ever have that task of all?
AA situation report?
Q What I mean by that, Mr. Schubert, is, did you ever have to port in view of the fact that Mr. Seibert was away on leave or some unusual reason why Mr. Seibert couldn't make this out, did you ever have to substitute for him in drawing up or compiling these reports?
AAt no time, Mr. Prosecutor.
the group chief before sending them on? Having him correct them or change them?
Did you submit it to the group chief?
A Mr. Prosecutor, May I say first these were not reports of my of a report and I really don't know in detail whether these matters I submitted to the chief or Herr Seibert before hand.
I rather think that these documents made out by me were used by the clerk exactly as they were and that the compiled report was then signed.
A Of course, Mr. Prosecutor. came of age to join did you? the time, I did not object to it. It never occurred to me. the first time. That's when you first went after you lef the lawyer's office. Did you apply for this employment or was this position offered to you?
A It was offered to me. I reported there. I was approved and I was promised the position and I did not object to it and on that occasion I joined the SD. the interview which proved mutually satisfactory you were given work in the SD, but you yourself went there, isn't that true.
A Mr. Prosecutor when joining the SD I did it on my own initiative.
THE PRESIDENT: The Tribunal will now take its afternoon recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. WALTON: With permission of the Tribunal I will conclude this
THE PRESIDENT: Proceed.
DIRECT EXAMINATION (Continued) BY MR. WALTON:
Q. Mr. Schubert, did you over make any attempt to get released from the party?
A. No, Mr. Prosecutor.
Q. Did you ever seek to be transferred from Amt III, which is the SD, to some other amt in the RSHA?
A. I could not have made such an attempt.
Q. You could have made such an attempt prior to the outbreak of the war, couldn't you?
A. Before the war and until 1943 I was a member of Office I. I had
Q. Did you ever object to being transferred from office I to Office II*
A. I raised no objection and could not have raised such.
Q. Now, you were a member of the SS, were you not?
A. I was a member of the special SS formation SD.
Q. Now, you knew when you became a member of the SD you would also become a member of the SS, didn't you?
A. At the time when I joined I did not, Mr. Prosecutor, not yet.
Hitler Youth. The membership in the SS formation SD was not an unconditional
Q. It didn't occur to you to object when they informed you that you were a member of the SD formation of the SS, did it?
A. Mr. Prosecutor, it never occurred to me to raise an objection
Q. Now, according to your service record -- May it please the court, I would like to give that citation again in case it is not before you. Document Book III-D, Page 99 of the English text, 146 of the German text, Document 3244, Prosecution's Exhibit 172. I am now about to make specific reference to page 102 in the document book, which is page 149 of the German text. It is the last page in the document book. Witness, will you indicate please, to me when you have found that page 149 of the German text?
A. I have got it, Mr. Prosecutor. It is the notice about my membership in the Hitler Youth.
Q. Well, maybe it is on a different page in your book, but I am specifically interested in the last column which says SS schools. Now, according to the information that is in my book you attended SS schools from 15 October, '36, and 26 October '38. Does that appear in your copy?
A. No, Mr. Prosecutor, this must be a mistake in the copy in your document book, because these are the dates which refer to my active service in the Army. In the original document it can certainly not be contained. I cannot imagine that it could be.
Q. Then this evidently is an error in copying, but these are the service schools or Wehrmacht schools which you attended, is that correct, and the dates, are they correct ?
A. The dates are correct, but those were no schools of the Army, but that is the Army unit with whom I served actively as a soldier.
Q. Look on page 150 of your Document Book. Now, on this page there are some dates given.
Is that a Wehrmacht school or an SS school?
A. Mr. Walton, it is neither an Army school nor an SS school, but it says here under the column "Reichs Heer" -- that is the Reich Army; and there it gives the date 15 October 1936 until the 29th of October 1938;with which I served -- that is, the Armored Signal Battalion 39.
This is
Q. I wanted to get that clear there for the benefit --- My document book and your document book are not in agreement on that point.
From my were not allowed to change.
When did you inform your counsel about these allegations which you made yesterday concerning changes in your affidavit?
A. I can not remember the date, Mr. Prosecutor, but at the latest it was before Mr. Wartenberg was examined here in the witness stand.
Q. Between the time you received your copy of the indictment and the time when Mr. Wartenberg was examined.
you are sure of that?
A. Yes. Yes, it must have been between those dates.
Q. And did you tell your counsel that the corrections which were made were dependent on the permission of Mr. Wartenberg?
A. I certainly told that to my attorney.
Q. And did you also tell your counsel that you intended to make certain corrections which were not approved by Mr. Wartenberg and were therefore not made?
A. Yes, I told him that, too.
Q. Well, you were present when it was determined by the Tribunal that Mr. Wartenberg would be called as a witness, were you not?
A. Yes, I was present.
Q. Did you confer with your counsel as to what questions your count should put to this witness in your behalf?
A. Yes, I discussed this with my attorney and I merely regretted very
Q. Well, why didn't you insist that your counsel bring out matters of this correction fully for Mr. Wartenberg?
A. Mr. Prosecutor, I believe that my attorney skid Mr. Wartenberg and Mr. Wartenberg about those changes which I wanted to make.
Mr. Wartenberg
Q. One question that -
A. I don't think it was only one question. Certainly there word two
Q. Well, you were present when Mr. Wartenberg was cross examined by your counsel, Were you not?
A. Yes.
Q. Well, why didn't you insist to your counsel that he go further at great length yesterday?
A. Mr . Prosecutor, I am of the opinion that here I am represented by an official attorney whom I can not force to do this or that.
This is exclusively a matter of confidence -- a confidential matter.
I have no Way
Q. Mr. Witness, it is your case, not your attorney's case. The responsibility for your defense rests on you.
However, we will leave that.
Isn't it a fact that these topics about these corrections were dis cussed most fully with you when you were preparing your direct testimony?
THE PRESIDENT: I would like to interrupt here to say from the Bench that there is nothing in the examination conducted by Dr. Koessl which would
MR. WALTON: May I continue, your Honor?
THE PRESIDENT: Yes, you may.
BY MR. WALTON:
Q. Didn't you discuss these topics most fully with your counsel when you were preparing your direct testimony?
A. I believe I told my attorney everything that I had to say about
Q. Were you satisfied with your attorney's direct examination of Mr. Wartenberg -- cross examination of Mr. Wartenberg when he was on the stand?
THE PRESIDENT: Well, Mr. Walton, I don't think that that is a question which the witness should be called upon to reply to.
He has confidence in his attorney, and his attorney presented his case.
Now, I
MR. WALTON: Your Honor, the only thing that puzzles the Prosecution asked -- put to Mr. Wartenberg when he was on the stand and they only came out when they know that he can't be recalled, when he is beyond the jurisdiction of the court.
Those are the matters which I want to probe into.
INTERPRETER LEA: Will you please repeat that. Just the last portion.
MR. WALTON: When the matters concerning these interrogations were brought out for the first time and were not sifted from Mr. Wartenberg when should come out at this opportunity when Mr. Wartenberg is now beyond the jurisdiction of the court.
And I desire to probe into them to see whether or the opportunity of the cross examination of Mr. wartenberg has passed.
That
DR. KOESSL: Your Honor, I want to just give an explanation to this.
I asked Mr. Wartenberg about everything. I knew about these interrogations.
Rather, what I knew about the interrogation I did ask Mr. Wartenberg here, which the witness was asked.
But we would have never asked these questions in such a crude form.
I was of the opinion at that time that it was completel Mr. Wartenberg the question whether he had threatened the witness or not.
MR. Walton: The point which I am not satisfied about and which that time an interrogatee concerning the changes in his affidavit.
I read last night -- I don't have it before me now -- the questions which Dr. Koessl asked the witness Warternberg.
They were germane, they were pertinent, but I saw nothing in there, sir, concerning the refusal of the Prosecution' agent for this witness to make changes in his affidavit.
And that is what
THE PRESIDENT: Mr. Walton, I know that you are disposed to be Dr. Koessl Proceeded with the material that he had at hand, and it must be admitted that Mr. Wartenberg was brought into court without notice of a Mr. Wartenberg.
At any rate, this is something which the Prosecution may argue at the proper time.
We doubt that much can be elicited from the ship between client and counsel.
Now, he has given the explanation that the wasn't much time allowed for a conference with his attorney on all features of the questioning.
Dr. Koessl did question at some length, and the record shows that.
I don't think that much can be gained by probing into "Why wasn't this question put?"
and "Why wasn't that question put?"
MR. WALTON: Sir, the Prosecution is only interested in knowning tha
THE PRESIDENT: He gave an explanation yesterday. The probative value Wartenberg it would still remain to the defendant to explain why he didn't make those changes in the affidavit.
Well, it is suggested by Judge Spade:
Of course, you have the right to inquire into it, and you have inquired into it; in your very cross examination you go into that.
If there