Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg 14 November 1945-1 October 1946, Volume 08

by Various

Morning Session

MR. COUNSELLOR SMIRNOV: Sir, a few days ago the Tribunal issued instructions concerning the expedience of reading into the record the official British report on the responsibility for the slaying of 50 officers of the Royal Air Force coincidentally, as far as possible, with the proposed interrogatory of General Westhoff and the senior criminal counsel, Wielen. May I read into the record some of the more essential passages from this report of the British Government? I shall read into the record those parts of the document which, on the one hand, testify to the general character of this criminal act and, on the other hand, establish the responsibility for the crime.

THE PRESIDENT: Colonel Smirnov, you are offering the document, are you, as evidence? You are seeking to put the document in evidence?

MR. COUNSELLOR SMIRNOV: This document has already been presented in evidence and has already been accepted by the Tribunal. I wished only to read into the record certain extracts from this document. It has been submitted as Exhibit Number USSR-413 (Document Number UK-48).

THE PRESIDENT: Very well.

MR. COUNSELLOR SMIRNOV: I am quoting Paragraph 1 of the official British report:

“1. On the night of 24-25 March 1944, 76 R.A.F. officers escaped from Stalag Luft III at Sagan in Silesia, where they had been confined as prisoners of war. Of these, 15 were recaptured and returned to the camp, 3 escaped altogether, 8 were detained by the Gestapo after recapture. Of the fate of the remaining 50 officers the following information was given by the German authorities:

“(a) On 6th April 1944, at Sagan, the acting commandant of Stalag Luft III (Oberstleutnant Cordes) read to the senior British officer (Group Captain Massey) an official communication of the German High Command that 41 officers (unnamed) had been shot, ‘some of them having offered resistance on being arrested, others having tried to escape on the transport back to their camp.’

“(b) On 15th April 1944, at Sagan, a member of the German camp staff (Hauptmann Pieber) produced to the new senior British officer (Group Captain Wilson) a list of 47 names of the officers who had been shot.

“(c) On 18th May 1944, at Sagan, the senior British officer was given three additional names, making a total of 50.

“(d) On or about 12th June 1944, the Swiss Minister in Berlin received from the German Foreign Office, in reply to his enquiry into the affair, a note to the effect that 37 prisoners of British nationality and 13 prisoners of non-British nationality were shot when offering resistance when found or attempting to re-escape after capture. This note also referred to the return of urns containing the ashes of the dead to Sagan for burial.”

The official German version—the official version of the German authorities—indicated that these officers were shot allegedly while attempting to escape. As a matter of fact, as definitely proved by the documentation of the investigation carried out by the British authorities, the officers were murdered—and murdered by members of the Gestapo on direct orders from Keitel and with the full knowledge of Göring.

I shall, with your permission, read into the record in confirmation of this fact two paragraphs—or rather two points—from the official British report, that is, Point 7 and Point 8:

“7. General Major Westhoff at the time of the escape was in charge of the general department relating to prisoners of war, and on 15th June 1945 he made a statement in the course of which he said that he and General Von Graevenitz, the inspector of the German POW organization, were summoned to Berlin a few days after the escape and there interviewed by Keitel. The latter told them that he had been blamed by Göring in the presence of Himmler for having let the prisoners of war escape.

“Keitel said, ‘Gentlemen, these escapes must stop. We must set an example. We shall take very severe measures. I can only tell you that the officers who have escaped will be shot; probably the majority of them are dead already.’ When Von Graevenitz objected, Keitel said, ‘I do not care a damn; we discussed it in the Führer’s presence and it cannot be altered.’ ”

Point 8: I begin the quotation of the official British report:

“Max Ernst Gustav Friedrich Wielen was then the officer in charge of the Criminal Police (Kripo) at Breslau, and he also made a statement, dated 26th August 1945, in the course of which he said that as soon as practically all the escaped R.A.F. officers had been recaptured he was summoned to Berlin where he saw Arthur Nebe, the Chief of the Kripo head office, who showed him a teleprint order signed by Kaltenbrunner, which was to the effect that on the express order of the Führer over half of the officers who had escaped from Sagan were to be shot after their recapture. It was stated that Müller had received corresponding orders and would give instructions to the Gestapo. According to Wielen the Kripo, who were responsible for collecting and holding all the recaptured prisoners, handed over to the Gestapo the prisoners who were to be shot, having previously provided the Gestapo with a list of the prisoners regarded by the camp authorities as ‘troublesome.’ ”

I would also ask the Tribunal’s permission to read into the record that part of the text of the official report of the British Government which deals with the methods of investigation in regard to individual officers. This documentation has been systematized and divided into three parts. I take the liberty of reading into the record the data of the findings referring to the three separate parts. I quote Page 3 of the Russian text, beginning from Paragraph 2:

“Flight Lieutenants Wernham, Kiewnarski, Pawluk, and Skanziklas.

“On or about 26th March 1944 . . .

THE PRESIDENT: Colonel Smirnov, are you going to read now some of the evidence upon which the report is based?

MR. COUNSELLOR SMIRNOV: Mr. President, I should like to read out only from the text proper and particularly those parts of the report which testify to the methods of investigation applied in the case of individual officers. I should like to begin reading from the paragraph dealing with the three groups of officers.

THE PRESIDENT: Paragraph 4?

MR. COUNSELLOR SMIRNOV: Yes.

THE PRESIDENT: Very well.

MR. COUNSELLOR SMIRNOV: “On or about the 26th of March 1944 these officers were interrogated at the police station in Hirschberg and were then moved to the civil gaol in that town. On the morning of 29th March Pawluk and Kiewnarski were taken away and later in the day Skanziklas and Wernham left. Both parties were escorted, but their destination was unknown. They have not been seen since and the urns later received at the Stalag showing their names bear the date 30th March 1944.”

And now the next group of British officers:

“Squadron Leader Cross, Flight Lieutenants Casey, Wiley, and Leigh, and Flight Officers Pohe and Hake.

“Between 26th and 30th March 1944 these officers were interrogated at the Kripo headquarters in Görlitz and then returned to the gaol there. During the interrogation Casey was told that ‘he would lose his head,’ Wiley that ‘he would be shot,’ and Leigh that ‘he would be shot.’ Hake was suffering from badly frostbitten feet and was incapable of traveling for any distance on foot. On 30th March the officers left Görlitz in three motor cars accompanied by 10 German civilians of the Gestapo type. The urns later received at the Stalag bear their names and show them to have been cremated at Görlitz on 31st March 1944.

“Flight Lieutenants Humpreys, McGill, Swain, Hall, Langford, and Evans; Flight Officers Valenta, Kolanowski, Stewart, and Birkland.

“These officers were interrogated at the Kripo headquarters in Görlitz between 26th and 30th March. Swain was told that ‘he would be shot,’ Valenta was threatened and told that ‘he would never escape again.’ Kolanowski was very depressed after his interview. On 31st March these officers were collected by a party of German civilians, at least one of whom was in the party which had come on the previous day. The urns later received at the Stalag bore their names and show them to have been cremated at Liegnitz on a date unspecified.”

I wish to draw the attention of the Tribunal to the fact that similar data also relate to different groups of British officers slain by the Germans in Stalag Luft III.

The following page of the text includes identical data relating to Flight lieutenants Grisman, Gunn, Williams, and Milford, Flight Officer Street and Lieutenant McGarr. Similar information is given concerning Flight Lieutenant Long, Squadron Leader J. E. Williams, Flight Lieutenants Bull and Mondschein, and Flight Officer Kierath. The same information is given with reference to Flight Officer Stower, Flight Lieutenant Tobolski, Flight Officer Krol, Flight Lieutenants Wallen, Marcinkus, and Brettell, Flight Officer Picard and Lieutenants Gouws and Stevens, Squadron Leader Bushell and Lieutenant Scheidhauer, Flight Officer Cochran, Lieutenants Espelid and Fugelsang, Squadron Leader Kirby-Green and Flight Officer Kidder, Squadron Leader Catanach and Flight Officer Christensen, and Flight Lieutenant Hayter.

I shall, with your permission, read into the record one more paragraph from this official report. I refer to Paragraph 6 of the official British report and also to Paragraph 5, because it is of essential importance.

THE PRESIDENT: I was going to suggest you should read Paragraph 5.

MR. COUNSELLOR SMIRNOV: I am going to read Paragraph 5 of the British text:

“According to the evidence of the survivors there was no question of any officers having resisted arrest or of the recaptured officers having attempted a second escape. All were agreed that the weather conditions were against them and that such an attempt would be madness. They were anxious to be returned to the Stalag, take their punishment, and try their luck at escaping another time.

“6. The Swiss representative (M. Gabriel Naville) pointed out on 9th June 1944 in his report on his visit to Sagan that the cremation of deceased prisoners of war was most unusual (the normal custom being to bury them in a coffin with military honors) and that was the first case known to him where the bodies of deceased prisoners had been cremated. Further it may be noted that if, as the Germans alleged, these 50 officers who were recaptured in widely scattered parts of Germany had resisted arrest or attempted a second escape, it is probable that some would have been wounded and most improbable that all would have been killed. In this connection it is significant that the German Foreign Office refused to give to the protecting power the customary details of the circumstances in which each officer lost his life.”

Those are the parts of the official report of the British Government which I had the honor to communicate to the Court.

THE PRESIDENT: I think it would perhaps be better if you also read the appendix so as to show the summary of the evidence upon which the report proceeded, Paragraph 9.

MR. COUNSELLOR SMIRNOV: I refrained from reading the appendix because it had already been read in due course by Sir David Maxwell-Fyfe. I shall read it once more with pleasure:

“9. The appendix attached hereto gives a list of the material upon which this report is based. The documents referred to are annexed to this report.

“Appendix.

“Material upon which the foregoing report is based:

“(1) Proceedings of court of inquiry held at Sagan by order of the senior British officer in Stalag Luft III and forwarded by the protecting power.

“(2) Statements of the following Allied witnesses: (a) Wing Commander Day, (b) Flight Lieutenant Tonder, (c) Flight Lieutenant Dowse, (d) Flight Lieutenant Van Wymeersch, (e) Flight Lieutenant Green, (f) Flight Lieutenant Marshall, (g) Flight Lieutenant Nelson, (h) Flight Lieutenant Churchill, (i) Lieutenant Neely, (k) P. S. M. Hicks.

“(3) Statements taken from the following Germans: (a) Major General Westhoff, (b) Oberregierungsrat und Kriminalrat Wielen (two statements), (c) Oberst Von Lindeiner.

“(4) Photostat copy of the official list of dead transmitted by the German Foreign Office to the Swiss Legation in Berlin on or about 15 June 1944.

“(5) Report of the representative of the protecting power on his visit to Stalag Luft III on 5 June 1944.”

THE PRESIDENT: Then, for the purposes of the record, you had better read in the signature and the department at the bottom.

MR. COUNSELLOR SMIRNOV: The document is signed by H. Shapcott, Brigadier, Military Deputy, and is certified by the Military Department, Judge Advocate General’s Office, London, 25 September 1945.

THE PRESIDENT: Colonel Smirnov, so far as the Russian Chief Prosecutor is concerned, does that conclude the case for the Prosecution?

MR. COUNSELLOR SMIRNOV: Yes.

THE PRESIDENT: Thank you.

DR. NELTE: Mr. President, Paragraph 9 of the report which has just been read by the Prosecution mentions the documents which served as a basis for it and says that they are attached to the report. The individual documents on which the report is based are listed in the appendix. I ask the Tribunal to decide whether Document USSR-413 satisfies the requirements of Article 21 of the Charter, since the material on which it was based, and which is expressly mentioned in the report, has not been produced along with it. I request that the Prosecution be asked to make the appendix available to the Defense as well.

THE PRESIDENT: Dr. Nelte, do you mean that you have only had the report made by the Brigadier and have not seen any part of the other evidence upon which the report proceeds?

DR. NELTE: Mr. President, the Tribunal decided during an earlier phase of this Trial . . .

THE PRESIDENT: [Interposing.] Yes, but I did not ask you what we had decided. I asked what you had received. Have you received from the Prosecution the whole of this document or only the report made by the Brigadier?

DR. NELTE: Only the report, without the appendix.

THE PRESIDENT: Well, the Tribunal certainly intended that the whole of the document should be furnished to defendant’s counsel, and that must be done so that you may have all the documents before you.

DR. NELTE: But that has obviously not been done. The appendix expressly mentions statements made by Major General Westhoff and by Oberregierungsrat Wielen. I am not acquainted with either of these statements. They were not attached to the report.

THE PRESIDENT: You must have them. The Prosecution must see that the whole of this document is furnished to the Defense Counsel.

SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I do not think the whole of it has been copied, but if Dr. Nelte will let us know if he wants the whole of it, or a part, we will co-operate the best way we can. The last thing we desire is that he should not have it. We want him to have everything he wants.

THE PRESIDENT: Well, Sir David, will you inform the Tribunal whether the Prosecution have now concluded their case.

SIR DAVID MAXWELL-FYFE: Yes, My Lord. That is the conclusion of the case for the Prosecution.

THE PRESIDENT: Very well. Then we will now proceed with the applications for witnesses and documents by the second four of the defendants: Kaltenbrunner, Rosenberg, Frank, and Frick.

DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): The Defendant Kaltenbrunner wishes to call a number of witnesses whom I will name now. First, Professor Dr. Burckhardt.

SIR DAVID MAXWELL-FYFE: My Lord, if the Tribunal approves, we will adopt the same procedure as was done on the first four defendants.

With regard to the three Swiss witnesses, Burckhardt, Brachmann, and Meyer, the interrogatories were granted on the 15th of December and submitted on the 28th of January. The Prosecution considered that the interrogatories were rather on the vague side and suggested that they might be made more precise. The Prosecution have no objection to interrogatories in principle, and I am sure that there would not be much difference between Dr. Kauffmann and the Prosecution as to the form. That applies to the first three witnesses.

THE PRESIDENT: We are informed that none of these three witnesses has been located yet.

SIR DAVID MAXWELL-FYFE: Well, I respectfully agree, My Lord. That is the position of the Prosecution, that we have no objection in principle to these interrogatories, and if we can help the Court in any way to locate the witnesses, we should be glad to do so.

THE PRESIDENT: When were the interrogatories furnished to the Prosecution?

SIR DAVID MAXWELL-FYFE: The 28th of January, My Lord.

THE PRESIDENT: And were the Prosecution’s objections communicated to the Defense Counsel shortly afterwards, or when?

SIR DAVID MAXWELL-FYFE: I am sorry, I am afraid I have not got that date, My Lord.

THE PRESIDENT: Wouldn’t the most sensible course be for the Prosecution to try to agree upon a suitable form of interrogatory whilst the General Secretary is continuing his inquiries to find the witnesses?

SIR DAVID MAXWELL-FYFE: Yes. Well, if Dr. Kauffmann will communicate with me, I have no doubt that we could agree on a form that would be mutually acceptable.

THE PRESIDENT: Very well.

DR. KAUFFMANN: Mr. President, I think there is no need for me to repeat the individual questions which I have listed in the interrogatory. There are 19 of them. I do not think that I need repeat them now.

THE PRESIDENT: No, certainly not.

DR. KAUFFMANN: The fourth witness is the former German Minister in Belgrade, Neubacher. At present he is in the internment camp Oberursel near Frankfurt, in American custody.

SIR DAVID MAXWELL-FYFE: No objection to this witness.

DR. KAUFFMANN: Does the Tribunal want me to specify the evidence?

THE PRESIDENT: Yes, if you would.

DR. KAUFFMANN: Neubacher will, in the opinion of the Defendant Kaltenbrunner, be able to testify that the order given by Hitler in October 1944 to stop the persecution of the Jews was really given at Kaltenbrunner’s suggestion.

Furthermore, in the opinion of the defendant, he will be able to testify that when Himmler was appointed Chief of the Reichssicherheitshauptamt he put the defendant in charge of Amt III and VI. This seems to me to be important, since so far the Indictment has always been based on the defendant’s definite connection with Amt IV, which is, indeed, borne out to a certain extent by the evidence. Neubacher is expected to be able to testify to this.

THE PRESIDENT: Dr. Kauffmann, if those are the questions which it is desired to interrogate Neubacher on, couldn’t they be dealt with by interrogatories?

DR. KAUFFMANN: According to the information given to me by Kaltenbrunner, Kaltenbrunner attaches importance to the personal appearance of this witness for reasons which are easy to understand. I believe that Kaltenbrunner considers this witness one of the most important witnesses, and he would like to see this witness called.

THE PRESIDENT: Well, the Tribunal will consider that.

DR. KAUFFMANN: The next witness is Number 5, Wanneck, at present in American custody in Heidelberg.

SIR DAVID MAXWELL-FYFE: The Prosecution suggests that the witness Wanneck is cumulative. According to Dr. Kauffmann’s application, he is going to deal with the point that the Defendant Kaltenbrunner was actually occupied mainly with the task of the intelligence service and that he objected to persecution of the Jews. That is already covered by Neubacher, and it is also covered by the cross-examination of the Prosecution’s witness Schellenberg, who was the chief of Amt VI, which Dr. Kauffmann has set out in his note on the witness Neubacher, Number 4, as being one of the Intelligence Ämter.

DR. KAUFFMANN: I leave it to the Tribunal to decide whether this witness could be dealt with by means of an interrogatory. But I do consider the evidence material relevant in the case of Wanneck as well. In a certain sense it is cumulative, but some points in it go further. But I agree to an interrogatory.

The sixth witness is Scheidler.

THE PRESIDENT: Sir David, do you think it would be unreasonable to administer an interrogatory?

SIR DAVID MAXWELL-FYFE: No, My Lord. Generally I make no objection to interrogatories at all.

With regard to Scheidler, he was, as I understand the application, the Defendant Kaltenbrunner’s adjutant, and as such the Prosecution would not make any objection. But I think it would be convenient if I were to draw the attention of the Tribunal to the fact that the next six witnesses, Numbers 6 to 11 inclusive, all deal with concentration camps, and numbers 6, 8, 9, and 11 deal with Mauthausen. I want to give Dr. Kauffmann warning that I shall ask for some selectivity among these six witnesses.

The Prosecution feel that the application for an adjutant is a reasonable one, but it will be reflected in objections to later witnesses.

DR. KAUFFMANN: The defendant naturally considers it important that the adjutant who served him for many years and who accompanied him on every single trip, as Kaltenbrunner told me himself, be called. He knows also, for instance, that the wireless message to Fegelein, which is part of the accusation, did not come from Kaltenbrunner and that his radiogram was never sent. He also knows that Kaltenbrunner had made all preparations for the Theresienstadt camp to be made accessible to the Red Cross. These are things which have not been mentioned by previous witnesses, but which shed some light on the person of the defendant.

THE PRESIDENT: You are speaking now of Scheidler?

DR. KAUFFMANN: Yes.

THE PRESIDENT: Sir David, the Tribunal would like you to deal with the whole of that group together, and then Dr. Kauffmann can answer what you say.

SIR DAVID MAXWELL-FYFE: With pleasure, My Lord.

The next witness is Ohlendorf, who was called as a witness for the Prosecution. The situation as I have found it is that Dr. Kauffmann did cross-examine the witness Ohlendorf on the Defendant Kaltenbrunner’s responsibility on concentration camps on the 3rd of January of this year, at Page 2034 of the transcript (Volume IV, Page 335).

The witness Wisliceny, Number 12, who has not been cross-examined on behalf of Kaltenbrunner by Dr. Kauffmann, would be the natural person to deal with that point. But, of course, if Dr. Kauffmann has any special point for the recalling of Ohlendorf, he will tell the Tribunal.

That is the position.

THE PRESIDENT: Dr. Kauffmann, if you had the opportunity of cross-examining General Ohlendorf and actually availed yourself of the opportunity wasn’t that the appropriate time for you to put any questions which you had on behalf of the Defendant Kaltenbrunner?

DR. KAUFFMANN: I should like to remind you that Kaltenbrunner was ill for more than 12 weeks and that I could get almost no information from him. At the session of 2 January the right of cross-examining the witnesses at a later date was expressly granted me by the Tribunal. I had, as the Court will remember, made a motion to adjourn, and then I was permitted to cross-examine the witnesses at a given time which would suit me.

That appears in the transcript of 2 January 1946.

As these witnesses have all been called in Kaltenbrunner’s absence, I should like to cross-examine now in his presence. I am, however, prepared to forego the cross-examination, if I can talk to the witnesses beforehand. Perhaps it will not be necessary to call one or the other witness.

THE PRESIDENT: What do you mean by one or the other witness? Which is the other? Wisliceny?

DR. KAUFFMANN: Number 7, Ohlendorf, and then Number 11, Höllriegel, and Number 12, Wisliceny, also Number 14, Schellenberg. All these witnesses have been heard here, and Kaltenbrunner was ill at the time.

THE PRESIDENT: What do you say about it, Sir David?

SIR DAVID MAXWELL-FYFE: I should suggest that Dr. Kauffmann cross-examine Number 11, Höllriegel, and Number 12, Wisliceny, whom he has not cross-examined so far. And then, if there is any special point which remains to be dealt with by the witness Ohlendorf, Dr. Kauffmann can make a special application to the Court.

THE PRESIDENT: Yes. Well, the Tribunal would like to know what position you take about the defendants’ counsel seeing these witnesses and discussing with them their evidence before they call them. I mean, there is a distinction between cross-examination when defendants’ counsel cannot see them and calling them as their own witnesses when they can see them.

SIR DAVID MAXWELL-FYFE: Well, the Prosecution feel that they ought simply to cross-examine witnesses that have been called by the Prosecution, unless there are very special circumstances. I think that Dr. Seidl showed special circumstances with regard to the case that he mentioned of one witness in special relation to the Defendant Hess. But as a general rule, the Prosecution submit that witnesses that they have called should be cross-examined without prior consultation.

THE PRESIDENT: Well, Sir David, the Tribunal would like to know your view. Of course, we are not deciding the point now, but we should like to know your view as to whether it would be a proper course to allow the defendants’ counsel to see the particular witness in the presence of a representative of the Prosecution, because it may be that that would lead to a shortening of the proceeding, because the defendants’ counsel might after that not wish to cross-examine the witness any further.

SIR DAVID MAXWELL-FYFE: Well, I am afraid that would require discussions with my colleagues on each particular witness. I am afraid I have not covered that point; witnesses 11 and 12 were called by my American colleagues and although I take the general position which I put before the Tribunal, I have not discussed that point; but I shall be pleased to discuss it with them and perhaps to inform the Tribunal later on in the day.

Of course, you will appreciate the fact that there may be a special point relating to a special witness that may come up in this connection.

DR. KAUFFMANN: Perhaps I can explain this. The witness Ohlendorf was reserved for me for cross-examination. In accordance with an agreement made with the American Prosecution, I dispensed with a cross-examination of Ohlendorf and on this condition was allowed to speak to him. I think it would be quite fair if I could do the same with other witnesses. I forego the cross-examination and can speak to the witnesses beforehand. Perhaps one or the other will turn out to be unnecessary.

THE PRESIDENT: I am not quite sure that you understand the view being put to you, Dr. Kauffmann. The view is that when a witness is called on behalf of the Prosecution the defendants’ counsel certainly have the right to cross-examine the witness, not to see the witness beforehand, but only to cross-examine him. If on the other hand they are entitled to call that witness as their own, then they are entitled to see him beforehand, which is. . .

DR. KAUFFMANN: Yes, that is what I mean. But if I am allowed to speak to the witness beforehand, then the Court will understand that I should like to avoid as far as possible the presence of a representative of the Prosecution, since the reasons which might cause me to forego the calling of a witness would then be known to the Prosecution. I think everyone will understand that, and I also think it is fair.

THE PRESIDENT: I wanted to clarify what the difference in view between you and the Prosecution is. The Prosecution said that when the witness was called for the Prosecution the right of the defendants is only to cross-examine. Can you help us further with respect to this group, Sir David?

SIR DAVID MAXWELL-FYFE: Certainly. With regard to Eigruber, Number 8, he is no longer in Nuremberg, and he is being held as a probable defendant in the case concerning Mauthausen Camp, which will be dealt with by a military court, and therefore the Prosecution suggests that in these circumstances, as he is one of this group dealing with concentration camps in general and Mauthausen in particular, he ought to be dealt with by interrogatories.

Then with regard to Höttl, Number 9, he deals with two aspects of one point, that is, that Kaltenbrunner on his own initiative ordered the surrender of the concentration camp of Mauthausen and that he took steps to induce Himmler to release people from concentration camps. These seem to be general points that again might be conveniently dealt with by interrogatories.

And the same applies to the witness Von Eberstein, who deals with the point that Kaltenbrunner is alleged not to have given an order to destroy the concentration camp at Dachau, and that he did not give an order to evacuate Dachau. The Prosecution suggest that these ought also to be interrogatories.

With regard to the next witness, Höllriegel, the Prosecution make no objection to further cross-examination, and respectfully suggest to the Tribunal that he will be able to deal with the question of Mauthausen, which is one of the main questions that this whole group of witnesses is called to deal with.

DR. KAUFFMANN: [Interposing.] Maybe I can say something so that. . .

THE PRESIDENT: [To Sir David Maxwell-Fyfe.] Are you in agreement with Number 12, in the same group?

SIR DAVID MAXWELL-FYFE: Number 12 is not in the same group, because he deals with the question of Kaltenbrunner’s relations with Eichmann and with reports he received regarding the action against the Jews. We have no objection to this witness being called for cross-examination, as Dr. Kauffmann did not cross-examine him.

THE PRESIDENT: Yes, Dr. Kauffmann?

DR. KAUFFMANN: Concerning the witness Eigruber, Number 8, may I point out that this witness is here in Nuremberg. However, I agree that interrogatories be sent. The subject of the evidence itself seems to me decidedly relevant, for what Eigruber is supposed to testify is neither more nor less than the fact that the concentration camp at Mauthausen was directly supervised by Himmler through Pohl and the commander of the camp. Kaltenbrunner denies the possession of exact knowledge regarding Mauthausen. The witness Höttl. . .

THE PRESIDENT: You were in error in saying he was here in town. Sir David said he has been removed from Nuremberg for the purpose of trial by a military court. So perhaps you would not object to interrogatories in that case.

DR. KAUFFMANN: Yes. The witness Höttl is, in my opinion, an important witness. As we know, Kaltenbrunner is also accused of having participated in the conspiracy against the peace. Here I intend to prove that Kaltenbrunner conducted an active peace campaign ever since 1943. An important name in this connection is Mr. Dulles. He is, according to Kaltenbrunner, the late President Roosevelt’s confidential agent. Mr. Dulles was in Switzerland. According to Kaltenbrunner, meetings between them constantly took place with this object. I believe that this subject of evidence is relevant.

THE PRESIDENT: You mean that you want Dr. Höttl in person, not by way of interrogatories?

DR. KAUFFMANN: Yes, if I may ask for that.

THE PRESIDENT: The Tribunal will consider that.

DR. KAUFFMANN: Witness Number 10, General of the Police Von Eberstein, is called to prove that the statement of another witness by the name of Gerdes is untrue. The Tribunal will perhaps remember that the Prosecution submitted an affidavit by a man named Gerdes who was an important figure in Munich. He was the confidential agent of the former Gauleiter of Munich. In his affidavit, Gerdes accuses Kaltenbrunner of ordering the destruction of Dachau through bombing. Kaltenbrunner emphatically denies that.

THE PRESIDENT: That is a matter which could be clearly dealt with by interrogatories, whether or not Kaltenbrunner did give an order to destroy a concentration camp, or an order to evacuate Dachau. Surely those are matters which admit of proof by interrogatories.

DR. KAUFFMANN: I agree. The same problem arises in connection with the next witness, Number 11, the witness Höllriegel, who has already been heard. Am I to have the opportunity of speaking to this witness before he is cross-examined? Kaltenbrunner denies that he ever saw gas chambers, et cetera.

THE PRESIDENT: Dr. Kauffmann, isn’t Number 11 really cumulative to Number 6, whom you particularly wanted to call?

DR. KAUFFMANN: Yes, Mr. President, certainly.

THE PRESIDENT: Anyhow, the Tribunal will consider the question whether you ought to be given the right merely to cross-examine or to recall as your own witness, with reference to Numbers 11 and 12.

DR. KAUFFMANN: Yes. Just a word about witness Number 12. Eichmann, as is well known, was the man who carried out the whole extermination operation against the Jews, and Kaltenbrunner’s name has been mentioned in connection with this operation. Kaltenbrunner denies it. For that reason I consider Wisliceny a relevant witness.

THE PRESIDENT: That concludes that group. What about the other ones, Sir David? Are they in the same category?

SIR DAVID MAXWELL-FYFE: Not quite, but I think it might be convenient if I deal with them.

Dr. Mildner, Number 13, is sought to testify that Kaltenbrunner did not authorize the chief of the Gestapo to sign orders for protective custody or internment, and I should submit that in view of the previous evidence, of Scheidler and Number 4, Neubacher, Dr. Mildner’s evidence is cumulative and that interrogatories would suffice.

As to Schellenberg, Number 14, I have already said that the Prosecution make no objection to his recall for cross-examination.

Finally, Dr. Rainer. We do object to that request, because the object of his testimony, that Kaltenbrunner recommended to the Gauleiter of Austria not to oppose the advancing troops of the Western Powers and not to organize Werewolf movements, is in our submission irrelevant to the issues before this Tribunal.

THE PRESIDENT: Yes. Dr. Kauffmann?

DR. KAUFFMANN: The witness Dr. Mildner, Number 13, is here in Nuremberg, in custody. I have asked to call this witness because he has submitted an affidavit containing certain accusations against Kaltenbrunner which Kaltenbrunner denies. I do not think that an interrogatory can clear up these difficulties.

Now, Number 14 . . .

THE PRESIDENT: Dr. Mildner had submitted an affidavit?

DR. KAUFFMANN: Yes, Sir. There is a reference in the Indictment to an affidavit made by Dr. Mildner. I believe it was on 3 January. The witness’ name was mentioned in connection with the charges against Kaltenbrunner. There are one or two affidavits. . .

THE PRESIDENT: But if the affidavit has not been produced to the Court, what have we got to do with it? We have not seen it, at least in my recollection. You know about it, Sir David?

SIR DAVID MAXWELL-FYFE: I have not been able to trace this affidavit of Dr. Mildner’s. I do not remember it, but I will willingly check the reference that Dr. Kauffmann has given.

THE PRESIDENT: Of course, if the Prosecution have used the affidavit, then you would have no objection to the witness being called for cross-examination?

SIR DAVID MAXWELL-FYFE: Well, in general, no. The reason why I am rather surprised is that usually that point has been taken when it is sought to use the affidavit. The Defense Counsel involved has asked for the production of the witness—but I will have it looked into, this particular point; but in general the Tribunal may take it that unless we put forward a special point, where an affidavit has been given, and where we have not argued to the Court previously, it is a very good case for the witness’s being brought here, if it is convenient.

THE PRESIDENT: I did not understand that Dr. Kauffmann was saying that the affidavit had actually been put in by the Prosecution, but there was some reference made to it. Is that right, Dr. Kauffmann?

DR. KAUFFMANN: It would not take me long to look it up. I have the files for 3 January here.

THE PRESIDENT: Dr. Kauffmann, we will give you an opportunity for looking that up. We will adjourn now for 10 minutes.

[A recess was taken.]

DR. KAUFFMANN: The name of Mildner appears in the transcript of 2 January, not in the form of an affidavit but in the form of a letter written by a third person and this letter is only mentioned in connection with Mildner’s name; it is not an affidavit. I should like to request that Mildner be interrogated in writing.

Now turning to witness Number 15 . . .

THE PRESIDENT: Fourteen?

DR. KAUFMANN: We have already dealt with Number 14.

THE PRESIDENT: Oh, you have already dealt with that? Very well, then 15.

DR. KAUFFMANN: Witness Number 15 is Rainer, who was a Gauleiter. I should like to request that this witness be heard as well. He is in Nuremberg. The subject of the evidence seems important to me. In the case against Kaltenbrunner, he is not expressly charged with the contrary; but if we are dealing with peace and violations of peace, an effort on the part of the defendant to prove that he has done everything in his power to prevent further bloodshed seems to me relevant.

THE PRESIDENT: Would an interrogatory satisfy you for that witness?

DR. KAUFFMANN: Yes, My Lord.

THE PRESIDENT: Yes.

DR. KAUFFMANN: I have not yet submitted any documents, Mr. President. Later on, I may present some affidavits, but, as I have not yet received them, I cannot present them at the moment.

THE PRESIDENT: The Tribunal understands, Dr. Kauffmann, that you wish to reserve for yourself the right to apply to put in documents at a later stage.

DR. KAUFFMANN: Yes, I request that.

THE PRESIDENT: The Tribunal will consider that and let you know when they make the order.

Yes, Dr. Thoma?

SIR DAVID MAXWELL-FYFE: Dr. Thoma suggests that we deal with the document list.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL-FYFE: On the first six documents, which are quotations from various books on philosophy, the Prosecution submit that they are irrelevant to the question of the ideology propounded by the Defendant Rosenberg, which the Prosecution make part of the case against him.

Of course, if the purpose is merely that Dr. Thoma would quote from such books in making his speech, and if he would let us know the passages he wants to quote so they can be dealt with mechanically, we do not make any anticipatory objection.

I think that takes us up to Number 6—which are purely general books on philosophy. The Prosecution view with some dismay all these books being put in evidence and the Prosecutors having to read them.

I think I have made the position quite clear that if Dr. Thoma wishes to use them to illustrate the argument, and if he lets us know the passage, we make no general objection, but we object to their being put in as evidence, as not being relevant to the matters before the Court.

DR. THOMA: I do not think that it is possible without a consideration of world philosophy before Rosenberg’s time to understand the morbid psychological state of the German people after their defeat in the first World War. Unless this psychological condition is appreciated, it is impossible to understand why Rosenberg believed that his ideas could help them. I am extremely anxious to show that Rosenberg’s theories were representative of a phase of contemporary philosophy taught in similar form by many other philosophers both at home and abroad. I am extremely anxious to refute the charges made against Rosenberg’s ideology as degenerate and—I must quote the expression—a “smutty ideology.” I have to bear in mind that the members of the Prosecution, especially M. De Menthon, who has made a special study of the National Socialist ideology, made the very natural mistake of confusing the extravagances and abuses of this ideology, usually dubbed “Nazism,” with its real philosophic content. The French Revolution of 1789 was in the same way, I believe, represented by neighboring peoples as a disaster of the first magnitude, and all the rulers in Europe were called upon to fight against it.

I believe that the Court was specially impressed by M. De Menthon’s statements, which represented the Nazi ideology as having no spiritual value and described it as a dangerous doctrine. I think we must allow the possibility of its being taught in other countries as well at that time. I should like, therefore, to ask permission to present the philosophical systems of the time in question, by which I mean the views expressed by other philosophers on Rosenberg’s main concepts, especially the question of blood or race, the soil as a fact of nature and as political and economic living space. Science declares that these ideas are based on the irrational presentation of natural and historical facts. They cannot be dismissed for that reason as unscientific, although they may be disturbing to rationalism and humanism.

I should like, in particular, to prove that these ideas have been respected and developed by rational and empirical science on account of their significance, and that they have been put into practice by other countries in their policy—a fact which I think is important. I need only remind you of the U.S.A. immigration laws, which also give preference to particular races.

SIR DAVID MAXWELL-FYFE: As I understand Dr. Thoma, he wants to use the teachings of other philosophers as illustrations and arguments. If he is going to quote from them, then all that the Prosecution ask is that he tell us which passages he is going to quote, but we suggest that it is not relevant for us to go into an examination of, say, M. Bergson’s book as a matter of evidence.

It is a perfectly clear distinction, and I suggest that Dr. Thoma will be well able to develop the point which he has just put with the limitation which I have just suggested.

THE PRESIDENT: Dr. Thoma, the Tribunal would like to know what it is that you actually propose. Are you proposing to put in evidence certain passages from certain books and that the Tribunal should read them or are you simply asking for the production of books so that you may consult them, read them, and then incorporate in your argument certain ideas which you may gather from the books?

DR. THOMA: I ask the Tribunal to note—officially, at least—the contents of the books which I shall submit. I shall not read all these quotations from the books, but I shall ask the Tribunal to note the outlines. I think it is important for the Tribunal to have the passages quoted from these books actually before them, so that they may have a clear picture of the philosophical—and particularly of the ethical situation—of the German people after their defeat in the World War.

THE PRESIDENT: But the books are not books of any legal authority. You can only cite, surely, to a court of international law, books that are authorities on international law. You can, of course, collect ideas from other books which you can incorporate in your argument. You cannot cite them as authorities.

DR. THOMA: Gentlemen, by submitting quotations from the works of well-known philosophers who presented ideas similar to Rosenberg’s, I propose to prove that this ideology is to be taken quite seriously. In the second place I want to prove that those features of Rosenberg’s ideology which have been branded as immoral and harmful are extravagances and abuses of this ideology; and in my opinion it is most important for the Tribunal to know from a consideration of the history of philosophy, that even the best ideas—such as the French Revolution—can degenerate. I should like to point out these historical parallels to National Socialism and to Rosenberg’s ideology.

I also need these books to prove that Rosenberg was concerned only with the spiritual combating of alien ideology and that he was not in a position to protest any more energetically against the brutal application of his ideology in National Socialism, but that as a matter of principle he allowed scientific discussions of his works to proceed freely and never called in the Gestapo against his theological opponents.

He assumed that his ethnic ideas were not to be carried through by force, but that every people should preserve its own racial character and that intermingling was only permissible in the case of kindred races. He believed that this ideology was for the good of the German people and in the interest of humanity generally.

For these reasons I believe that the Tribunal, in order to have a vivid picture of the background of the development of National Socialism, should inform itself of the spiritual conditions of that time.

THE PRESIDENT: The Tribunal will consider the argument you have addressed to it.

SIR DAVID MAXWELL-FYFE: With regard to Document Number 7, that is, excerpts from certain books, the first five are from Rosenberg’s own works, and the last is a book by another author on Hitler.

Again I submit that if Dr. Thoma wants to support the thesis contained in the first half of his note—that “the Defendant Rosenberg does not see individual and race, individual and community, at contrast but represents the new romantical conception that the personality finds its perfection and its inner freedom by having the community of the racial spirit developed and represented within itself”—if Dr. Thoma will give any of the extracts from Rosenberg’s works on which he bases that argument, then he can present them at whatever part of his case is convenient; and similarly, with regard to the specific points set out in the second part of his note—there again, if he will give the relevant extracts, they can be considered and their relevancy for the purpose of this Court dealt with when he introduces them in his presentation. But again I take general objection to the fact that either the Court or the Prosecution should read all these works and treat them as evidence. I developed that about the previous document.

DR. THOMA: Gentlemen, if I quote Rosenberg’s actual words and ask the Tribunal to take official notice of them, I shall be in the fortunate position of being able to show that Rosenberg’s philosophy and ideology differ basically from the extravagances and abuses which were attributed to him and to which he took exception.

I am in a position to show that it is clear from his works that Rosenberg intended the Leadership Principle to be restricted by a special council exercising an authoritative, advisory function. I shall also be able to show that the Myth of the Twentieth Century was a purely personal work of Rosenberg’s which Hitler did not by any means accept without reserve. More especially, I am in a position to prove that Rosenberg, as his works will show, would have nothing to do with the physical destruction of the Jews and that, as far as his writings show, he took no part in the psychological preparations for war and that, as far as his writings show, he worked for a peaceful international settlement, especially between the four great European powers of the period. Therefore I beg the Tribunal to allow me to submit the real, genuine quotations from his writings as evidence material.

THE PRESIDENT: Dr. Thoma, the Tribunal will consider the whole question of the production of and the citation from these books.

SIR DAVID MAXWELL-FYFE: Number 8, My Lord, falls into a rather different field. The first 11 documents seem to be books and writings containing Jewish views of an antinational basis. The Prosecution reminds the Tribunal that the questions at issue are: Did the defendants as co-conspirators embark on a policy of persecution of the Jews; secondly, did the defendants participate in the later manifestations of that policy, the deliberate extermination of the Jews? Within the submission of the Prosecution, it is remote and irrelevant to these important and terrible accusations that certain Jewish writings, spread over a period of years, contained matters which were not very palatable to Christians.

DR. THOMA: Gentlemen, I should like to reply to this point as follows: I am not interested in showing that the Nazi measures against the Jews were justified. I am interested only in making clear the psychological reasons for anti-Semitism in Germany; and I think I am justified in asking you to listen to some quotations of this kind taken from newspapers, since they must by their very nature offend the patriotic and Christian susceptibilities of very many people.

I must go rather more deeply into this question, too, in order to show the reason for the existence of the so-called Jewish problem in history and religion and the reason for the tragic opposition between Jewry and other races. I should like to quote both Jewish and theological literature on the point.

THE PRESIDENT: The Tribunal will consider the question.

SIR DAVID MAXWELL-FYFE: My Lord, I think the Tribunal can take the remaining documents, 9 to 14, together. They seem to deal with specific and, if I may say so without the least intention of offense, more practical matters, in that they deal with the government of the Eastern territories, for which this defendant was responsible; and the Prosecution has no objection to my friend’s using these documents in such a way as it seems fit to him.

DR. THOMA: I should like to mention the following points in connection with the documents:

I have had four additional documents allowed in part by the Tribunal. I have not been able to submit them, because they have not yet been handed over to me; but I would like to tell the Tribunal what they are: First, a letter written by Rosenberg to Hitler in 1924, containing a request by Rosenberg not to be accepted as a candidate for the Reichstag; second, a letter written by Rosenberg to Hitler in 1931 regarding his dismissal from the post of editor in chief of the Völkischer Beobachter, the reason being that Rosenberg’s Myth of the Twentieth Century created a tremendous stir among the German people. Rosenberg asked at the time that his work be considered a purely personal work, something which it actually was, and that if his writing was in any way detrimental to the Party, he would ask to be released from his position as editor of the Völkischer Beobachter; third, I should like to include a directive from Hitler to Minister for the Eastern Occupied Territories Rosenberg, dated June 1943, in which Hitler instructs Rosenberg to limit himself to matters of principle; fourth, an eight-page letter from Hitler to Rosenberg, written by hand and dating from the year 1925.

THE PRESIDENT: And the fourth one? Will you state the fourth one, the fourth document?

DR. THOMA: I am coming to that.

Point 4—a letter written by Hitler to Rosenberg in 1925, in which Hitler stated his reasons for refusing on principle to take part in the Reichstag elections. Rosenberg’s view at that time was that the Party should enter the Reichstag and co-operate practically with the other parties.

I have just learned that this letter is dated 1923.

Gentlemen, this is something of decisive importance. From the very beginning, Rosenberg wanted the NSDAP to co-operate with the other parties. That could constitute the exact opposite of a conspiracy from the start. May I present to the Court a copy of my four applications?

SIR DAVID MAXWELL-FYFE: My Lord, these seem to be individual documents whose relevancy can be finally dealt with when Dr. Thoma shows their purpose in his exposition. I do not stress that the Tribunal need not make any final decision on them at the present time.

DR. THOMA: I should like to refer to the fact that I have already asked the General Secretary to admit these documents.

THE PRESIDENT: Dr. Thoma, have you the documents in your possession?

DR. THOMA: Yes, My Lord. The only documents that are lacking are the four I have just mentioned. They are still in the hands of the Prosecution.

THE PRESIDENT: They are in the hands of the Prosecution, are they?

DR. THOMA: Yes.

SIR DAVID MAXWELL-FYFE: I have not appreciated that. If Dr. Thoma wants the documents we will do our best to find them. The first time I heard of them, of course, was when Dr. Thoma started speaking a few minutes ago. If the Prosecution have them or can find them, they will let Dr. Thoma have them or have copies of them.

THE PRESIDENT: May I ask you, Dr. Thoma, why it is that you have not put in a written application for these four?

DR. THOMA: I have made such a request, My Lord, several days or a week ago. I made the first request already in November.

THE PRESIDENT: For these four documents?

DR. THOMA: It is like this: The first two documents were granted me already in November or December 1945, but I have not as yet received them.

THE PRESIDENT: Very well, we will consider that. Well, that finishes your documents, does it not?

DR. THOMA: Yes.

SIR DAVID MAXWELL-FYFE: My Lord, with regard to the witnesses, it might be convenient if I indicated the view of the Prosecution on the, say, first six. The Prosecution has no objection to the first witness, Riecke, the State Secretary of the Ministry of Agriculture, or to Dr. Lammers, who is being summoned for a number of the defendants, or to Ministerialrat Beil, who was the deputy chief of the Main Department of Labor and Social Policy in the East Ministry.

With regard to the next one, Number 4, Dr. Stellbrecht, the Prosecution suggests that that is a very general matter which does not seem very relevant, and they say that Dr. Stellbrecht should be cut out, or at the most that that point be dealt with by a short interrogatory.

We also object to 5 and 6, General Dankers and Professor Astrowski. General Dankers is sought to say that certain theaters and museums of art in Latvia remained untouched, and that hundreds of thousands of Latvians begged to be able to come into the Reich.

There are papers about certain laws. The Prosecution submits that that evidence does not really touch the matters that are alleged against the Defendant Rosenberg and again they make objection.

Professor Astrowski, who is alleged to be the Chief of the White Ruthenian Central Council and whose whereabouts are still unknown, who was last in Berlin, is to be called to prove that the Commissioner General in Minsk exerted all efforts in order to save White Ruthenian cultural goods. There again the Prosecution says that that is a very general and indefinite allegation and, if the defendant and certain of his officials are called to give evidence as to his policy and administration, it is suggested that the witnesses 5 and 6 are really unnecessary.

I might also deal with Number 7, because the first seven witnesses are the subject of a note by Dr. Thoma. Number 7 is Dr. Haiding, who is the Chief of the Institute for German Ethnology, and it is sought to call him in order to prove that in the Baltic countries cultural institutions were advanced and new ones founded by Rosenberg. That witness, the Prosecution submits, falls into the same category as Dankers and Astrowski. But, with regard to him, if there is any general point, they say that he could be dealt with by interrogatories but certainly should not be called.

It is relevant for the Tribunal to read the note under Number 8 dealing with these witnesses. Dr. Thoma says:

“The witnesses can present evidence for the refutation of the Soviet accusation that Rosenberg participated in the planning of a world ideology for the extermination of the Slavs and for the persecution of all dissenters.”

The Prosecution submits that the three witnesses that they have suggested, coupled with the interrogatories, if necessary, in the case of Stellbrecht and Haiding, should cover these points amply.

DR. THOMA: I agree with Sir David that as far as Dr. Haiding and Dr. Stellbrecht are concerned an interrogatory will be sufficient. Regarding witnesses Numbers 5 and 6, I was interested in bringing in as witnesses people who actually lived in these countries and who have their personal impressions of Rosenberg’s cultural activities; and I request that these witnesses be granted.

THE PRESIDENT: Very well, the Court will consider that.

SIR DAVID MAXWELL-FYFE: The witness Scheidt comes into the story of the Defendant Rosenberg’s connection with Quisling, and this has been dealt with by interrogatories by the Defense and by certain cross-interrogatories by the Prosecution. This is obviously an important part of the case, and I suggest that the Tribunal does not decide as to the personal summoning of Scheidt until the answers to the interrogatories are before the Tribunal.

Number 10 is Robert Scholz, the department chief in the Special Staff of creative art, and roughly the evidence is to show that the defendant did not take the works of art for his personal benefit. The Tribunal ordered the alerting of this witness on the 14th of January, but on the 24th of January the application for this witness was withdrawn and it is now renewed by Dr. Thoma. If the Tribunal will look at the way in which it is put in Dr. Thoma’s application, which is limited and guided by certain specific acts on which Mr. Scholz can speak—the Prosecution suggest that the Tribunal might think the most convenient way was again to get a set of interrogatories on Mr. Scholz, and see how he can deal with the many individual points put to him.

DR. THOMA: Gentlemen of the Tribunal, the case of the witness Wilhelm Scheidt touches the question of Norway. Scheidt is the decisive witness as to the reports made by Quisling of his own volition without being invited to do so, either through the Amt Rosenberg for foreign policy or through the Reich Ministry for Foreign Affairs. I believe that a personal hearing, a cross-examination, of this witness Scheidt is extremely important, because he can give a great deal of detailed information which is decisive for the question of whether or not Hitler conducted a war of aggression against Norway.

I have been granted an interrogatory for the witness, Departmental Director Scheidt, and I have already taken steps to confer with the Prosecution in this connection. The witness Wilhelm Scheidt has not made an affidavit; but I must point out to the Tribunal that I should have to be present when the affidavit is made and that I should be allowed to question the witness myself, in common with the Prosecution. I should like to repeat my request to cross-examine this Wilhelm Scheidt as a witness.

THE PRESIDENT: Dr. Thoma, if the witness was granted to you as a witness to give evidence in court, it would not be necessary for you to have any representative of the Prosecution when you saw the witness wherever he might be. The advance of a witness would entitle you to see him yourself and to obtain proof of his evidence. Is that clear?

DR. THOMA: So far I have been granted only an affidavit. I have not been granted him as a witness as yet.

THE PRESIDENT: Yes, I only wanted to make clear to you the difference between interrogatories and being allowed to call a witness to give all the evidence. Of course, if you are submitting to written interrogatories, you would not see the witness; but if, on the other hand, you were going to call the witness as a witness or to present an affidavit from him, you would then be at liberty to see the witness before he made his affidavit or before he drew up his proof.

DR. THOMA: Then I should like to put the request that Wilhelm Scheidt be called as a witness.

THE PRESIDENT: I understand that you are making that request.

DR. THOMA: As far as Robert Scholz is concerned, I should like to point out to the Tribunal that Scholz was the director of the Special Staff entrusted with the practical application of measures to be taken for the safekeeping of works of art in both eastern and western districts and I should like to draw the special attention of the Tribunal to the fact that a number of learned German experts were members of this Special Staff and that they did a great deal of very conscientious work in safeguarding, restoring, and protecting these works of art and in preserving them for posterity. The way in which this Special Staff did its work is of decisive importance, therefore, for a good many men. Robert Scholz knows every detail of the procedure. Robert Scholz can testify, in particular, to the fact that Rosenberg did not appropriate for himself a single one of the enormous wealth of art treasures that passed through his hands and that he kept a careful record of those that went to Hitler and Göring. He also knows that all these works of art—or, at least, the greater part of them—were left where they were at first, especially in the East, and were only brought to the Reich when it was no longer safe to delay.

I beg the Tribunal to hear this important witness.

THE PRESIDENT: Dr. Thoma, can you explain why the application was withdrawn on the 24th of January?

DR. THOMA: It was said then—I think by the British or American Prosecution—that the Special Staff would not be mentioned again during the proceedings. The French Prosecution, however, have now given detailed accounts of the looting of France; and so this witness is once more required.

THE PRESIDENT: That concludes your witnesses, I think?

DR. THOMA: I have one other request. I want to call a further witness, and I have already filed a request with the General Secretary for this witness, ministerial Subdirector Bräutigam. Bräutigam was Junior Assistant Secretary in the Ministry for the Occupied Eastern Territories, and he is to be called as a witness to prove that Rosenberg, in his capacity of Reich Minister for Occupied Eastern Territories, did not persecute the churches but granted freedom to all religious sects by the issue of an edict of tolerance; that, further, Rosenberg himself consistently opposed the use of force, supported a policy of promoting culture and represented the view that the peasant class should be strengthened and established on a healthy basis. Further—and this seems to me to be particularly significant—that very many letters and telegrams of thanks from the clergy in the Soviet Union arrived at the ministry for Occupied Eastern Territories addressed to Rosenberg. Gentlemen, if Dankers and Astrowski are not granted as witnesses, then I request permission to go back to Bräutigam.

And then I have one further witness. To show how Rosenberg behaved towards his academic opponents, I should like to call one of these academic opponents, to wit, Dr. Kuenneth, a university professor who wrote an important book attacking the Mythos. He will testify that those who disagreed with Rosenberg’s philosophy were not at all afraid of the Gestapo and that they had no cause to fear the Gestapo.

THE PRESIDENT: Yes. Sir David, did you want to review those last two?

SIR DAVID MAXWELL-FYFE: My Lord, in my submission these last two witnesses are not really relevant to the charges against this defendant which have been developed by the Prosecution. They are general witnesses, and if I may put it—I hope the Tribunal will not think it flippant to put it this way—they are really witnesses who say that the Defendant Rosenberg would not hurt a fly; we have often seen him doing it—not hurting flies. That really puts it quite briefly as to what this class of evidence amounts to, and I respectfully submit, on behalf of my colleagues, that that should not be the subject of oral evidence, and it should be disallowed; or if there is any special point raised, it should be dealt with by an affidavit.

THE PRESIDENT: Does the Indictment allege that he instigated the persecution of churches?

SIR DAVID MAXWELL-FYFE: The Indictment says that he took part in antireligious teaching. I am speaking from memory. That is one of the matters. And I think there was certain correspondence between him and the Defendant Bormann, which was directed towards his antireligious views. I do not remember at the moment that there was any evidence that he had personally participated in physical destruction of churches. That is my recollection.

My Lord, I am reminded that there is a general allegation in Appendix A that he authorized, directed, and participated in the War Crimes and Crimes against Humanity, including a wide variety of crimes against persons and property.

THE PRESIDENT: Very well; those matters will be considered.

DR. SEIDL: The first witness that I ask be summoned is Dr. Hans Bühler, State Secretary with the Chief of the Administration in the Government General. This witness is detained here in Nuremberg, pending trial; and he is the most important witness for the Defendant Dr. Frank. He is called for Dr. Frank’s whole policy in the Government General, since he was head of the government during the entire period from the establishment of the Government General up to the end.

THE PRESIDENT: Sir David, have you got any objection to Dr. Bühler?

SIR DAVID MAXWELL-FYFE: No, I have not, My Lord. The only point that I want to make clear is that the Defendant Frank calls an enormous number of witnesses from his own officials; he calls something like 15. And I am not going to object to Dr. Bühler; I am going to ask the Tribunal to cut down substantially the witnesses who were officials of the Government General. And it might help Dr. Seidl if I told him before the adjournment that my suggestion would be that the Tribunal would consider allowing Dr. Bühler, an affidavit from Dr. Von Burgsdorff, and that they might consider allowing Fräulein Helene Kraffczyk, the defendant’s secretary, and Dr. Bilfinger, and Dr. Stepp, but not the succession of officials from the Government General.

THE PRESIDENT: Sir David, you say your suggestion is to allow Dr. Bühler?

SIR DAVID MAXWELL-FYFE: Dr. Bühler.

THE PRESIDENT: And affidavits from. . .

SIR DAVID MAXWELL-FYFE: Affidavits from Burgsdorff, allow Dr. Lammers—he is in the general list. . .

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: Allow the private secretary, Fräulein Kraffczyk, Number 7, and allow Numbers 9 and 10.

THE PRESIDENT: What are the names?

SIR DAVID MAXWELL-FYFE: Dr. Bilfinger and Dr. Stepp.

THE PRESIDENT: Wait a minute.

SIR DAVID MAXWELL-FYFE: And if these are allowed, I should suggest that Numbers 13 to 20, who are various officials from the office of the Government General, should not be allowed. If I may say so, with the submission of the Prosecution, the height of irrelevancy will be Number 18, Dr. Eisfeldt, who is chief of the Forestry Department.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: I thought it might be convenient for Dr. Seidl to know what the views of the Prosecution were. Of course, if he has any suggestions of any alternatives we should be pleased to consider them.

THE PRESIDENT: We will continue with that after the adjournment, Dr. Seidl.

Before the Tribunal rises, before the adjournment, I want to say that the Tribunal will rise this afternoon at 3:30.

[The Tribunal recessed until 1400 hours.]