He is in the volunteer class with his amnesia. In England, as the reports show, he is reported to have made the statement that his earlier amnesia was simulated. He came out of this state during a period in England, then went back to it. It is now highly selective. That is to say, you can't be sure what Hess will remember and what he will not remember. His amnesia is not of the type which is a complete blotting out of the personality, of the type that would be fatal to his defense.
So we feel that so long as Hess refuses the ordinary, simple expedients, even if his amnesia is genuine, that he is not in a position to continue to assert that he must not be brought to trial. We think he should be tried, not in absentia but in these proceedings.
THETRIBUNAL (Mr. Biddle): Isn't Hess asserting that he wants to be tried?
JUSTICE JACKSON:Well, I don't know about that. He has been interrogated and interrogated by us, as have the co-defendants, and I wouldn't attempt to say what he would now say he wants. I haven't observed that it is causing him any great distress. Frankly, I doubt very much if he would like to be absent, but I wouldn't attempt to speak for him.
THE PRESIDENT:Does Mr. Dobost wish to add anything?
DR. ROHRSCHEIDT:May just say a few words to the Tribunal to make my point of view clear once more?
As defense counsel of the defendant Hess this is my point of view. First, factually, the defendant Hess, according to the reports of the doctors which all agree, has a mental defect.
Secondly, the accused Hess is suffering from amnesia, which again all medical experts admit exists.
This is merely remarked in the report, whether this amnesia is paranoiac or psychogenetic. They are all agreed that this amnesia is on a pathological basis. The result is that the defendant is not insane but has a mental defect. From that emerges, I think, in a legal sense that the defendant cannot state that he cannot be made responsible for his actions, but presumably, when the deeds were committed he was certainly not mentally insane.
But there is a difference, according to German law at any rate, whether the defendant is at the moment in a position to follow the trial, that is, whether he is fit to plead. This question should, in my opinion, as I have already said, on the basis of the medical reports, be negativated. He is not capable of being tried.
The Tribunal may be doubtful of the answers of the experts. It is difficult to understand whether the defendant is actually restricted in his capability of defending himself or whether he can have an adequate defense. I think that possibly this point should be stressed: The loss of memory is affirmed by all the experts, and it would seem to me that he is not capable of making adequate defense.
One other point: He may be able to defend himself, and seem externally, he can follow the course of the proceedings, but he cannot defend himself adequately, that is, in the same way as a person who is in full possession of his normal senses.
May I perhaps add one word. I have already explained that the defendant has expressed the wish to me that he would like to attend the trial, as he does not feel himself unfit to plead, but that, in the opinion of the defense, is completely irrelevant.
In respect of the consequences as foreseen by the American prosecutor, that the defendant has refused to be treated by narcotic means, that is not a question of truculence, but he refused it because he was afraid that the intravenous injections at this particular moment might, in his weakened state, make him incapable of following the proceedings, which is exactly what he did not want.
I have already mentioned that he himself thinks he is sane, and therefore he did not need any intravenous treatment. The defendant Hess also told me that he has an internal abhorrence of such means, and Hess, in the unhappy times of the National Socialist regime, was always for the natural methods of healing. He even founded the Rudolf Hess Hospital in Dresden, which is conducted on natural, not medical, means.
JUSTICE JACKSON:May I make one observation, Your Honors?
THE PRESIDENT: Yes.
JUSTICE JACKSON:The argument illustrates the selectivity of the memory of which I spoke to you. Hess apparently can inform his counsel about his attitude toward this particular matter during the National Socialist regime. His counsel is able to tell us how he felt about medical things during the National Socialist regime, but when we ask him about anything in which he participated that might have a criminal aspect, the memory becomes bad.
I hope that the Court has not overlooked the statement of the matters that he does well recollect.
DR. ROHRSCHEIDT:May I make a correction?
THE PRESIDENT:It is unusual to hear counsel in a second reply, but as Mr. Justice Jackson has spoken again we will hear what you have to say.
DR. ROHRSCHEIDT:I would merely like to observe that I was misunderstood. It was not the defendant who told me that he was an adherent of natural medicine, and in such a way proved that he had retained his memory, but it was I who, from my own memory, ascertained this, and I knew that he was. I gave that as my opinion and my experience in order to show that he has an intellectual aversion to medical operations, but this remark was not based on memory of the defendant Hess but on my own memory.
THE PRESIDENT:Dr. Rohrscheidt, the Tribunal would like, if you consider it proper, that the Defendant Hess should state what his views on this question are.
DR. ROHRSCHEIDT:As his defense counsel, I have certainly nothing to say against it, and I think it would be the defendant's own wash, and the Tribunal would then be in a position to judge what mental state the defendant is in. He can speak as to whether he considers himself fit to plead from where he is.
THE DEFENDANT HESS: Mr. President, I would like to say this:
At the beginning of the trial of this afternoon's proceedings I gave my defense counsel a note that I am of the opinion that these proceedings could be shortened if one would allow me to speak myself. What I say is as follows:
In order to anticipate any possibility of my being declared incapable of pleading, although I am willing to take part in the rest of the proceedings with the rest of them, I would like to give the Tribunal the following declaration, although I originally intended not to make this declaration until a later point in the proceedings:
My memory is again in order. The reasons why I simulated loss of memory were tactical. In fact, it is only that my capacity for concentration is slightly reduced. But in consequence of that, my capacity to follow the trial, my capacity to defend myself, to put questions to witnesses or even to answer questions--these, my capacities, are not influenced by that.
I emphasize the fact that I bear the full responsibility for everything that I have done or signed as signatory or co-signatory. My attitude, in principle, is that the Tribunal is not competent-is not affected by the statement I have just made. Hitherto in conversations with my official defense counsel I have maintained my loss of memory. He was, therefore, in good faith when he asserted I lost my memory.
THE PRESIDENT:The trial is adjourned.
(Whereupon at 1830 hours the hearing of the Tribunal adjourned to reconvene at 1400 hours on 1 December 1945.
Official transcript of the International Military Tribunal, in the matter of:
The United States of America, the French Re public, The United Kingdom of Great Britain and Northern Ireland, and the Union of Sov iet Socialist Republics, against Herman Wilhelm Goering, et al, Defendants, sitting at Nurnberg, Germany, on 1 December 1945, 1000-1230, Lord Justice Lawrence, presiding.
THE PRESIDENT:I will begin the session by reading the judgement of the Tribunal upon the application made by Counsel for the Defendant Hess.
The Tribunal has given careful consideration to the motion of Counsel for the Defendant Hess, and it has had the advantage of hearing full argument upon it both from the Defense and from the Prosecution. The Tribunal has also considered the very full medical reports, which have been made on the condition of the Defendant Hess, and has come to the conclusion that no grounds whatever exist for a further examination to be ordered.
After hearing the statement of the Defendant Hess in court yesterday, and in view of all the evidence, the Tribunal is of the opinion that the defendant Hess is capable of standing his trial at the present time, and the motion of Counsel for the Defense is, therefore, denied, and the trial will proceed.
Now the witness under examination should come back to the witness box.
(ERWIN LAHOUSEN, resumed the stand and testified further as follows:)
MR. G. D. ROBERTS:May it please the Tribunal, Sir David Maxwell Fyfe said yesterday he had no questions to ask this witness. He has now requested me very shortly to cross examine this witness on one incident mentioned in the Indictment, namely, the murder of fifty R.A.F. officers who escaped from Stalag Luft 3 in March of 1944.
THE PRESIDENT:You said to cross examine.
MR. G. D. ROBERTS:I should have said examine. I realize that falls in the part of the Indictment, which is being dealt with by the Prosecutors for the USSR. My Lord, I have mentioned that matter to General Rudenko, who with his usual courtesy and kindness, has said that he has no objection to my asking some questions on that matter.
THE PRESIDENT:Very well.
BY MR. G. D. ROBERTS:
QMight I ask you this: Did you hear of the matter from any of your brother officers?
ANo. I heard nothing about it whatsoever.
QYou can't assist the Court at all with the matter?
ANo; in no way.
CROSS EXAMINATION BY DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen):
QWitness, you stated yesterday that you were an intimate friend and collaborator with Admiral Canaris. Since I cannot address my question directly to Admiral Canaris, I ask you to make reply to me, namely, as regards the following: Did Admiral Canaris know about von Papen's attitude toward Hitler's war policies, and how did Admiral Canaris express himself to you on that point?
AFirst, I should like to make a slight correction in the question addressed to me. I never asserted that I was an intimate friend of Canaris'. Pieckenbrock was a friend of Canaris'. To be sure I was one of his confidants. From this relationship, however, I recall as regards von Papen's and Canaris' attitude toward the question, that the Counsel has just brought up, that these attitudes were negative.
QWas this negative attitude directed only towards the war policies, or directed also toward all the violent methods used in the execution of this policy?
AI can and must, according to my best memory, answer this question in connection with a conversation that Admiral Canaris had with von Papen, at which I was present, and I car answer in the affirmative.
QDid you know that Papen made expressed opinions to Canaris that from the political side, opposition to Hitler's policies was not possible, and that such opposition would have to be sought in the ranks of the military?
AIn this connection, that is to say in the immediate connection as it was formulated later, I personally do not know anything. That is to say I, personally, was not a witness of any such conversation between Canaris and von Papen in which this question was touched on; and I cannot remember today whether Canaris ever told me anything regarding such conversations with von Papen.
It is quite possible, but I cannot recall it and consequently my oath as witness does not allow me to make any statment on it.
QDo you believe, to sum up, that Canaris' attitude toward von Papen was such that Papen stayed in his political capacity in order to be able to exercise a mitigating influence?
AI believe so, or to concretize it, according to the total impression that I have on this matter.
BY DR. OTTONELTE (Counsel for Defendant Keitel):
QLawyer Nelte, Counsel for Defendant Keitel. My client asked me to present you with the following questions: From what time on did you know Canaris and Pieckenbrock?
AI knew Canaris and Pieckenbrock from the year 1937 on, as a result of my previous activity in the Austrian intelligence service.
QDid there exist at that time, between Admiral Canaris' Abwehr Section and you, any relationships of a military nature?
AThere were no such connections with the Austrian intelligence service, but there were such with the Austrian federal army. The German armed farces had at that time a purely military communication for the exchange of information with Austria for the purpose of collaboration in the intelligence department. This happened with my knowledge. So far as I have been able to ascertain, this was purely military work, that concentrated on the exchange of military information regarding Austria and its neighboring countries.
QMay I ask if this contact between you and Canaris was also a personal matter, and to what extent you knew how the Austrian Army felt about the question of Anchluss?
A All questions of a political nature, particularly, the question of Anschluss, or the illegal Nazi Party, which at that time was a very acute problem, were completely excluded from the intelligence department.
These matters were handled by Graf Marogna, who was the official go-between with Canaris and Colonel General Beck.
QIf I understand you correctly, you wish to say that the personal touch, contact, did not take that direction, that the Austrian members of the General Staff informed you of anything regarding their attitude towards the Anschluss?
ASo far as this personal contact is concerned, it took place on one day, namely on the first day when I was on Austrian soil. It took place in the office of the War Ministry in Austria. He was then Chief of the General Staff, or a member of the General Staff in the German Army.
THE PRESIDENT:Can you not hear what was said?
DR. OTTO NELTE:No.
THE PRESIDENT:Would you please repeat the question.
BY DR. OTTO NELTE:
QI asked the witness to what extent the personal contact between the German General Staff, or intelligence section, existed with those in Austria.
AFirst of all, there was no such personal contact in the sense that the word is being used here. The contact, such as it actually was, and of which there are witnesses in this room here -- von Papen must be informed of this personally -- it had not to do with questions, which I spoke personally about with Canaris, but in which I acted on the commission of my chief. In none of these cases was the question of Anschluss or internal political Austrian problems discussed. So far as I am concerned, of course, it was not discussed, and so far as Canaris is concerned. He, of course, also avoided it.
QWhat was your activity in the Abwehr Office 2?
AIn the Abwehr Section 2, which I took over at the beginning of 1939, as I described it yesterday, I am willing to repeat it if you wish, this activity did not have its own designation actually; its function embraced various functions and actions, which I can define very precisely:
acts of destruction, acts of sabotage, or prevention of sabotage, or in general those activities that are carried out by commandos.
It was the function of this division to coordinate these activities and to bring them into relationship with the military necessities, or the plans of the General Staff.
QWho, in general, gave you your orders as regards coordinating these activities with the military activities?
AMy orders were received usually from my Chief, Canaris.
QI was referring to the office, whether it came from the OKH or the OKW?
AIt came from the OKW usually. Usually it came from the OKW, as represented by the Chief at that time of the OKW, Keitel, or the Chief of the Fuehrung Stab; and when the General Staff, or the Air Force Fuehrung Stab were involved in any undertaking, the order, so far as I can best remember was also transmitted by the Armed Forces Fuehrung Stab. All these orders, whatever their source may have been, came through the same channels to the Abwehr Section, and were thus transmitted to me.
QAre you now describing the official channels through which you received the orders, or are you defining where the orders came from, whether they came from the OKW, the Army, the OKH, or the Fuehrung Stab; or whether they were simply transmitted by way of or via the OKW?
ASo far as I personally can make a statement on this, I was simply in touch with my chief, Admiral Canaris. I know from him of his connection with the gentlemen in the Army Fuehrung Stab, occasionally; also with the gentlemen of the General Staff of the Army. I could mention specific cases from memory, but in general, the events were such as I described them.
QIs it true that Keitel, as the Chief of the OKW, at first every year, and then from 1936 on, in shorter periods, spoke to the officials and section chiefs of the OKW; and on such occasions pointed out to them, specifically, that everyone who believed that something was being asked of him that his conscience would not allow him to carry out, he would be so kind, as to tell him, namely, Keitel?
A It is true that the Chief of the OKW at that time would speak before this circle several times -- I cannot, of course, remember his precise words -- and that he did make this statement, which could be so interpreted.
As to run the risk in those cases to which I bore witness yesterday, the risk of speaking so clearly and openly, as acquaintances of Canaris were able to speak at any time, such an occasion was not presented by Keitel.
QDo I understand you correctly to mean that you do not wish to challenge, in principle, the fact that Keitel actually said these words?
AI can neither challenge it, nor can I add anything to it, because I do not precisely recall it. I do recall that these addresses or conferences took place, and it is altogether possible that the Chief of the OKW at the time used those words, or might have used them. I can only add what I have already said.
QIs it true that on several occasions, you, in the company of Admiral Canaris, as well as alone, were in the presence of the Chief of the OKW, in order to discuss plans or undertakings with Keitel, which were in the purview of your official duties?
AOf course, I said a great deal about that yesterday; and I do not feel I have the right to talk about such things unless I personally was there
QI had the impression, as if in many respects you were being used as a mouthpiece for Admiral Canaris, among other things, through your quotations in his diary.
AThe impression is completely fallacious. I am no mouthpiece, and as to that which I said then and now, I retain my complete independence. I have never allowed myself, nor shall I ever allow myself, to become the mouthpiece of any conception, or to make any statements that run contrary to my inner convictions and my conscience.
QYou misunderstood me if you believe that I used the word "mouthpiece" as a derogative. I simply wanted to bring attention to the remarks that have their source in Canaris' diary.
AYes, I did assist Canaris in his diary, in matters which Canaris was personally concerned, and in matters, since he was dead, he could make no statement. Since I knew of it, knew a great deal, and in great detail, I took it upon myself to say what I know.
Q Did the Defendant, Keitel, ever ask the question, or communicate with Abwehr Section, as regards whether or not there were Nazis in that section?
A He answered such questions in elaborate detail in the aforementioned conferences.
I know that in such an official position as the OKW, he tolerated in officers no attitudes of mind that ran contrary to a belief in a final victory, or to a complete obedience to the Fuehrer.
QCould not these statements be interpreted as requirements of a military nature, obedience in a military set, or must they be understood politically?
AOf course, they were military, but there could be no doubt that they were also political, since any discrimination was made in this matter or recognized. It was supposed to be a unit, the National Socialistic Armed Forces. That touches the basic problem.
QDo you then believe that the basic attitude was still essentially military?
AThe basic attitude was or should have been by first order, a National Socialistic; and only in second order, a military attitude, or any sort of attitude.
QYou said "should have been."
AYes, because that actually was not the case.
QYou said that in first line it was military and not National Socialistic.
AIt should have been, according to our interpretation, but according to the attitude represented by the Chief of the OKW at that time -- whether he received that as an order or not, I am not in a position to say, as I wasn't there--but according to his opinion then, it should be a question of absolute obedience in a National Socialistic sense.
QDo you know anything about the attitude of the generals towards this problem?
AOf course, I do, because immediately after such conferences, as have been mentioned here, this theme was discussed, and a lively exchange of opinions took place, and a large number of those who were present -- I can name them; some of them are here -- took a negative attitude to the requirement that the orientation should be so National Socialistic.
QYesterday, on the occasion of the discussion of the meeting that took place in the Fuehrer's train, in September of 1939, as regards the communication of the Chief of the OKW to you, you said that the Defendant, Keitel, had expressed himself to you, or rather had expressed himself to the gentlemen present: "These measures had been determined between the Fuehrer and Goering. He, Keitel, had no influence on them. The Fuehrer and Goering telephoned frequently back and forth. Sometimes he knew something about it; sometimes I did, too."
AYou have taken it down correctly. What I said then, I have reported in my notes; and I repeated it hers in the same way that it was registered in my notes.
QMay I ask whether your remark: "Sometimes I find out about it, sometimes I don't", relates to a concrete, specific case, or was that a general rule?
AThat is to be understood as a general statement, so far as I can bear witness to it today, to the best of my remembrance.
QAt this conference in the Fuehrer's train, on the 12th of September, 1939, you spoke further of the transmission of the political goals which, according to you, had their source in Ribbentrop.
AThat is correct.
QAnd you said that the Defendant, Keitel, transmitted these political goals to those who were present; and the same way with respect to the order regarding Warsaw, namely, the bombardment of Warsaw.
AWell, so far as the air bombardment of Warsaw was concerned, according to the best of my memory, and what I have reported in the files, I can say that in this regard, as also in regards the matter of the shootings in Poland, Canaris took the initiative in these matters, in that he pointed out the terrible political international repercussions that such behavior might have.
QI should now like to ask you whether Keitel, on the occasion when the order to bombard Warsaw was made known, whether Keitel didn't specifically point out that said action was planned only to take place if Warsaw did not surrender, after it had been approached through parliamentary ways; and that first of all, Warsaw should be given an opportunity to capitulate without being bombarded?
AI cannot recall the precise words in which such took place, but so far as my knowledge of that general situation is concerned, it is quite possible, indeed probable, that the Chief of the OKW, at the time, Keitel, did make this remark.
QDo you know that the Commander in Chief of the Army at that time, von Brauchitsch, and the Chief of the OKW, Keitel, before the Polish War began, specifically objected to the use of Commandos and Gestapo, and rejected their use; and in so doing, had the agreement of Hitler?
ANo, that was not known to me, and could not have been known to me, according to my subordinate position at that time. I do not wish to over-emphasize the importance of my official position.
QThere is also here a question of knowledge of a document, which was transmitted to all departments and sections of the OKW, as you probably remember from yesterday. They were the so-called directives; and in these directives, there appears, in contrary to what happened later -
THE PRESIDENT:I think you were re going a little bit too fast.
Q (continuing) I said that in connection with such military actions, the orders and directives were mimeographed and generally made known, no doubt.
ASo far as my specific department is concerned, such orders were not definitive, and I had nothing to do with them.
Q Since later you were brought into a discussion of these questions, and since you emphasize that the orders were not
AOf course, a great deal was known to me, because I heard it.
QFor that reason, I want to ask you whether you recall that the Gestapo and SD were used, contrary to the specific intentions and wishes of the OKW, in the matter of the Polish War?
AI do not remember that anymore. I can only speak of what I remember, and what is registered in the files, and in there, there is something regarding this theme, namely, a remark of Hitler's that was transmitted by Keitel at that time, namely, that the Armed Forces objected to that behavior, the Armed Forces and the OKH; and in this memorandum, there were indications of this objection, namely, that the Gestapo and the SD were doing such things. That is all that I know, because I was present at these discussions.
QDuring this conversation, were you not told that an objection to the behavior of the SS was brought up, on the part of General Blaskowitz?
AWhether or not this question was brought up in this conference, I cannot recall. I can hardly assume that it was so, because otherwise the question would be registered in the minutes of that conference. It was particularly General Blaskowitz, whose attitude in such matters was very clear, but aside from this conversation in the Fuehrer's train, I remember in its essence something about what was just brought up, namely, Blaskowitz, on that occasion -- I cannot say what form that objection took, whether it was in writing or in words, but I do remember the general theme; and I do recall that in a conference at which I was present, such matter was mentioned.
QWhat appears to me to be important in this matter, is the fact that actually the Armed Forces, the troops, protested, or at least had a negative attitude toward the behavior of the SS.
AThat the Armed Forces did object, is, of course, clear.
QThat is what I wanted to know.
AOne moment, please. When I say "the Armed Forces," I mean the masses of common soldiers, the ordinary human beings. Of course, there were in these Armed Forces -- I do not wish to be misunderstood. The concept "Armed Forces" does not include everybody--I mean, the great masses of common soldiers and thinking human beings.
QYou use the term "Wehrmacht" to differentiate between the common soldiers and the High Command.
ASo far as methods and conditions at that time were concerned, since at that time the broad masses of the Wehrmacht first made their historical appearance all together, independently of what I can say in my little sector of it.
QWho gave the order regarding the collaboration with the Ukranian Group? You spoke yesterday of that group.
AI must reiterate something here, and say first of all, that this group was composed of citizens from various countries, Hungarians, Czechs and Poles, who, because of their oppositionist attitude, were in some sort of unit, or had gone to Germany. Who ordered this collaboration, I cannot say, because at the time when these matters came up, in point of time, it is pretty far in the past, in the year 1938, and from then on, if I remember correctly. First of all, at that time, I was not even a member of the Abwehr Section, and was not in touch with the department, which I joined only in 1939, and took over as a functioning organism. I should like to add in this context, because it was also touched on yesterday, that in the question of these Ukranians, it was a question of human beings, who were in any way connected with Germany. To be specific, a great many of these people, also those with whom the Abwehr Division had anything to do at that time, were in German concentration camps, and a part of these people were fighting for their country in Soviet-Russian partisan groups.
Those are the facts.
QDid not Admiral Canaris say to you that the chief of the OKW, when the demand was made on him for Polish uniforms and equipment, demands made by the SS, that Keitel specifically ordered that the Abwehr Division should more or less let the matter drop?
AI mentioned this matter also yesterday, and as I said then it was treated altogether in a mysterious way. Until after the actual occurrence of the event no one seemed to know what had or was going to take place. It was finally brought out to expression when one day Keitel asked for so and so many uniforms for the operation called "Himmler." This I knew about, of course, via commands from Canaris; and so far as I understood the matter--and this is registered in the diary--as the officer who had the job of keeping this diary, I wondered how Mr. Himmler had so come in contace with Polish uniforms. And I was told that these uniforms would simply be picked up on such and such a day by somebody, and that was about the end of the matter so far as I was concerned.
Of course, at that moment this matter was not only mysterious but also very suspicious, particularly because of the name "Himmler." We were acquainted with that group of people from the top way down to the man who was going to pick these things up and deliver them to a Hauptsturmfuehrer of the SS. Of course, people had their opinions on this matter; that could not be forbidden then.
QYou also made statements yesterday regarding the treatment of war prisoners. In what regard was Abwehr Section II concerned with this problem?
AAbwehr II was simply there. Of course, it was of the greatest interest to see to it that these war prisoners were treated decently, the same as any intelligence service in the world has a similar interest.
QDo I understand you to mean that the division Abwehr it as such was not admittedly concerned with problems concerning war prisoners?
ANot at all Q You spoke of this problem of the treatment of war prisoners in connection with the talk that took place the end of July 1941.
AYes, and during this conversation I was not there as a representative of my division but of the whole section, "Ausland Abwehr," namely, the section that has to concern itself with all these larger problems. And Abwehr Section III, that had to deal with espionage, was of course interested in this matter because there were officers in these camps. And from the point of view of counter-intelligence it was important to know about these things, that is to say, my division, namely II, was not so concerned; it was interested in it only in connection with the whole problem, -- such questions as whether or not people should be killed or treated decently.
QYou said yesterday that the war prisoner camps in the eastern field were under the jurisdiction of the OKW.
AYes, the war prisoner camps as I said specifically yesterday -what I said about this problem I know from my talk with Reinecke and not from my knowledge of the orders themselves in the sense that I might have seen them personally; I did not. From this conversation with Reinecke the problem of war prisoners also was in the presence of those concerned in Abwehr, and Reinecke who was concerned with these things also.