Afternoon Session
DR. SAUTER: Mr. President, I have two more questions which I wish to put to the Defendant Dr. Funk.
[Turning to the defendant.] Dr. Funk, before the recess we stopped at Document 3894-PS, the testimony of your State Secretary Posse. I should like to read one passage on Page 7 of the German text and ask you whether you agree with it. The witness Posse was asked by the Prosecution whether he, as Deputy Plenipotentiary for Economy, knew about the international relations, especially about the war situation and so forth, and he says, on Page 7, in the middle:
“We never knew anything about the international situation and we never heard anything about it, and if the international situation was mentioned in our discussions we could always voice merely our personal opinions.”
And a few lines further down:
“We”—he means apparently himself and you, Dr. Funk—“We always hoped that there would be no war.”
Do you agree with this opinion of your former State Secretary Posse?
FUNK: Yes. I have said repeatedly that until the end I did not believe that there would be a war, and the same is true of my colleagues, and everyone who spoke to me at that time will corroborate this. Herr Posse was, of course, still less informed about political and military events than I was. Consequently, that also applies to him.
DR. SAUTER: Then I have a final question to put, Witness. You have seen the film which the Prosecution has presented. Now, you were the President of the Reichsbank. Consequently you are familiar, possibly only superficially with the conditions in the vaults of the Reichsbank, at least, I assume, in Berlin, if not in Frankfurt, where the film was taken; and you also know how, especially during the war, these items which had been deposited with the bank in trunks or packages and the like were safeguarded. Possibly, Dr. Funk, on the basis of your own knowledge of the conditions you can make a statement regarding this short film which we have seen.
FUNK: I was completely confused by this film and most deeply shocked. Photography and especially films are always very dangerous documents because they show many things in a light different from what they really are. I personally have the impression, and I believe the Prosecution will probably corroborate this, that all these deposits of valuables and this entire collection of valuable items came from the potassium mines where, at my instigation, all gold, foreign currency and other valuables of the Reichsbank had been stored away when, because of a terrific bombing attack on Berlin, we were no longer able to work in the Reichsbank. The Reichsbank building alone in this one raid on 3 February 1945 was hit by 21 high explosive bombs; and it was only by a miracle that I was able to reach the surface from this deep cellar together with 5,000 other people. Gold, foreign currency, and all other deposits of valuables were then taken to a potassium mine in Thuringia and from there apparently to Frankfurt, I assume. So this concerns, to a large extent, normal deposits by customers who had placed their valuables, their property, in these safe deposits which could not be got at by the Reichsbank. Consequently I cannot tell from this film which of these items were deliveries by the SS and which were genuine deposits. The Prosecutor certainly is correct when he says that no one would deposit gold teeth in a bank. It is, however, quite possible that certain functionaries of concentration camps made genuine deposits in the Reichsbank which contained such articles, to safeguard them for future use. I think that is possible. However, in conclusion I must say once more that I had no knowledge whatsoever of these things and of the fact that jewelry, diamonds, pearls, and other objects were delivered from concentration camps to the Reichsbank to such an extent. I knew nothing about it; it was unknown to me, and I personally am of the opinion that the Reichsbank was not authorized to do this kind of business. It is certainly clear from one document, which contains an account for the Minister of Finance, that most likely everything from the concentration camps was first brought to the Reichsbank and then the unfortunate officials of the Reichsbank had to sort it, send it on to the Minister of Finance—or rather to the pawnbroker who was under the Minister of Finance—and prepare a statement of account. Therefore, I must request that someone be examined on these matters—first of all Herr Puhl himself, and perhaps someone else who was concerned with these things—in order to explain what actually took place and above all, to show that I personally had no knowledge whatsoever of these matters except for the few facts which I myself have described to the Court.
DR. SAUTER: Mr. President, I have finished my interrogation of the Defendant Funk, and I should now like to ask permission to examine the only witness whom I can call at this time, the witness Dr. Hayler.
THE PRESIDENT: Very well.
MR. DODD: [Interposing.] Mr. President, may I raise one matter before the witness is excused? This Document 3894-PS, that we have quoted from and that the defendant has quoted from, contains a number of other quotations and I think it would be well if we submitted the whole document in the four languages; and I shall be prepared to do that so the Tribunal will have the benefit of the whole text. So far we have both been quoting from it, but I think it would be most helpful to the Court if it had the whole text.
And may we ask, Mr. President, shall we make arrangements or should I do anything about getting the witness Puhl here?
THE PRESIDENT: Dr. Sauter, have you any request to make with reference to the witness Puhl, who made an affidavit?
DR. SAUTER: Regarding the witness Emil Puhl I beg to request, Mr. President, that he be brought here for cross-examination. I was going to make that request in any case.
THE PRESIDENT: Yes, certainly, Dr. Sauter, the witness Puhl should be brought here. He will be brought here as soon as possible.
DR. SAUTER: Thank you.
THE PRESIDENT: Now the defendant can return to the dock.
[The witness Dr. Hayler took the stand.]
THE PRESIDENT: Will you state your full name?
HAYLER (Witness): Franz Hayler.
THE PRESIDENT: Will you repeat this oath after me: I swear by God—the Almighty and Omniscient—that I will speak the pure truth—and will withhold and add nothing.
[The witness repeated the oath.]
THE PRESIDENT: You may sit down.
DR. SAUTER: Dr. Hayler, how old are you?
HAYLER: 46 years.
DR. SAUTER: Are you a professional civil servant, or how did you get into the Ministry of Economics under Dr. Funk?
HAYLER: I was an independent business man and merchant and as such first became the head of the “Economic Group Retail Trade” within the organization of industrial economy. In this capacity I had very close contact with the Ministry of Economics. After Minister Funk had been appointed Minister for Economics I reported to him regarding the scope of my work, and on that occasion I made his acquaintance. When I was then put in charge of the “Reich Group Trade,” the working relations between the organization directed by me and the Ministry, especially between the then State Secretary Landfried and the Minister himself, became very friendly.
After the separation of the ministries in the autumn of 1943, the main task of the Ministry of Economics was to provide for the German people, that is, the civilian population. As head of the trade organization I was the person responsible for the sale of merchandise, that is, for the procurement of supplies, and during a conference with Minister Funk regarding the co-operation between trade and the Ministry, Herr Landfried, who was then State Secretary, made the suggestion that Minister Funk call me into his Ministry and make me his deputy. Herr Landfried believed that under the existing conditions he himself was not strong enough to carry out this difficult task since the Ministry had been deprived of its influence on production. Then, when Minister Funk told him in reply to his suggestion that he, Landfried, was the deputy of the Minister, Landfried replied that he could not continue to carry out these tasks and that he asked to be permitted to retire and proposed that I be his successor. About two or three weeks later I was put in charge of the affairs of the State Secretary.
DR. SAUTER: When was this conference?
HAYLER: This conference took place in October 1943; my appointment came on 20 November 1943.
DR. SAUTER: So that until the autumn of 1943, Dr. Hayler, you were employed in your organizations only in an honorary capacity?
HAYLER: Yes.
DR. SAUTER: That was, I think, retail trade?
HAYLER: Yes, trade.
DR. SAUTER: And as from 1943 you became official in the Reich Ministry of Economics in the capacity of State Secretary?
HAYLER: I became an official with this position of State Secretary on 30 January 1944.
DR. SAUTER: In this position you were one of the closest collaborators of Dr. Funk?
HAYLER: I was his deputy.
DR. SAUTER: Dr. Hayler, during a conference that we had on the day before yesterday, I discussed with you the question of whether the Defendant Dr. Funk was a particularly radical man or whether, on the contrary, he acted with moderation and consideration toward others. What do you have to say to this question which may have certain importance in forming an opinion on the personality of the Defendant Funk?
HAYLER: Funk is above all very human, and always has been. Radicalism is quite foreign to his entire character and being. He is more of an artist, a man of very fine artistic feeling and scholarly ideas. I believe one can say that at no time was he a doctrinaire or dogmatic. On the contrary, he was conciliatory and anxious to settle disputes. For this reason, in Party circles in particular, he was considered too soft, too indulgent, in fact he was accused many times of being too weak. He tried to protect domestic economy from political encroachment and from unnecessary severity; and because of his respect and his regard for enterprising endeavor and out of his own responsibility to economy and to the people, he fought against unnecessary intervention in various enterprises even during the war. He protected industry against mergers and closures. This finally led to his being deprived of the responsibility for production in the decisive phase of the war.
I recall from the time of my collaboration with him, when I was still in charge of the trade organization, that Funk on various occasions interceded for men in the industrial world who were in political difficulties. I believe, however, that because of these individual cases, such as his intervention on behalf of Consul General Hollaender or of Herr Pietsch, and because of his attempts to promote peace, he at that time had to expect grave consequences; also because of his intervention in the case of Richard Strauss, as is surely known, and in similar cases. I do not think these individual cases are of such importance as perhaps the following: After the catastrophe of 9 November 1938 the process of Aryanization was to be intensified in the Ministry of Economics; and at that time a few political men were forced upon the Ministry, especially Herr Schmeer. I remember distinctly that at that time Landfried in particular, as well as Funk, slowed down considerably this radicalization of the Ministry; and Funk and the Ministry were blamed for doing so.
After 8 and 9 November I once had a conference regarding the events of that date with Himmler, in which I voiced my complaints. Himmler on that occasion finally reproached both Funk and myself by saying, among other things:
“Finally, you people on the economic side and connected with the economic management are also to blame that things have gone too far. People like Herr Schacht cannot be expected to do anything except go slow all the time and oppose the will of the Party; but if you and Funk and all you people on the economic side had not slowed things down so much, these excesses would not have happened.”
DR. SAUTER: Yes, Dr. Hayler; another question. You also worked with Dr. Funk in matters concerning the economy of the occupied territories. Dr. Funk is accused of having played a criminal part in despoiling the occupied territories as well as in destroying their currency and economic systems. Could you enlighten the Court as briefly as possible on the Defendant Funk’s attitude and activities? As briefly as possible.
HAYLER: I believe two facts must be stated first of all: First, the influence of the Ministry of Economy on the occupied territories was relatively limited. Secondly, during the year in which I was in the Ministry these questions were no longer particularly important.
Generally speaking, the position was as follows: Funk was constantly accused of thinking more of peace than of war. The opinions he proclaimed both in his speeches and in print referred to a European economic policy; and I assume that these talks and publications or articles are before the Court.
DR. SAUTER: Yes, they are here.
HAYLER: Funk looked at the occupied territories from exactly the same point of view. He raised repeated objections to the over-exploitation of the occupied territories and expressed the view that wartime co-operation should form the basis of later co-operation in peace. His view was that confidence and willingness to co-operate should be fostered in the occupied territories during the war. He expressed the view that the black market cannot be combated by the black market and that, since we were responsible for the occupied territories, we must avoid anything likely to disturb the currency and economic system of these territories.
I think I remember that he also discussed the question with the Reich Marshal and defended his own point of view. He also repeatedly opposed unduly heavy occupation expenses, and always favored the reduction of our own expenditure, that is, of German expenditure in the occupied territories. In other words, he regarded the occupied territories in exactly the same way as other European countries; and this attitude is best illustrated by the speech he made in Vienna, I believe, in which he publicly acknowledged as genuine debts the clearing debts, the high totals of which were due mainly to differences in price, that is, inflationist tendencies, in the countries which delivered the goods.
DR. SAUTER: Dr. Hayler, the Defendant Funk is furthermore accused of playing a criminal part in the enslavement of foreign workers. This accusation applies particularly to the period during which you were a co-worker of Dr. Funk. Can you tell us briefly how Funk thought and acted in regard to this point?
HAYLER: There can be no question of Funk’s co-operation in questions regarding the employment of foreign labor at this time, but only within the scope of his responsibility in the Central Planning Board. But it remains to be seen whether the Central Planning Board was at all responsible for the employment of workers or whether the Central Planning Board did nothing more than ascertain the manpower needs of the various production spheres. However, regardless of what the tasks of the Central Planning Board may have been, Funk’s position in the Central Planning Board was the following:
Funk, as Minister of Economy, was responsible for the supplies for the civilian population and for export. In the period following the separation of the ministries, no additional foreign worker I believe was employed in the production of supplies for civilians or for export. On the contrary, Funk was constantly confronted with the fact that during that time German and foreign workers were continually being removed from the production of consumer goods and put into armament production. Consequently, I cannot imagine that an accusation of this sort can be made against Funk with reference to this period of time.
On this occasion I should like to emphasize another point which seems important to me. Provisioning the foreign workers was a very serious question. I believe that even Herr Sauckel will corroborate the fact that, when this question came up, Funk was at once ready—even though there was already a great scarcity of provisions for the German people due to many air raids and destructions—to release large quantities of supplies and put them at the disposal of the foreign workers.
DR. SAUTER: If I understand you correctly, he tried to see to it that the foreign workers who had to work in Germany were supplied as well as was possible with consumer articles: food, shoes, clothes, and so on.
HAYLER: Particularly shoes and clothing; Funk was not the competent authority for food.
DR. SAUTER: Shoes and clothing?
HAYLER: Yes, I have specific knowledge of this. And as a result Funk had considerable difficulty; for the Gauleiter, in view of the great scarcity of goods, did their best to secure supplies for the inhabitants of their own Gaue for whom they were responsible, and in so doing used every means which came to hand. Funk constantly had to oppose the arbitrary acts of the Gauleiter, who broke into the supply stores in their Gaue and appropriated stocks intended for the general use.
DR. SAUTER: Dr. Hayler, do you know whether Dr. Funk—I am still referring to the time when you worked with him—represented the viewpoint that the foreign worker should not be brought to Germany to work here but that rather the work itself should be taken from Germany into the foreign countries so that the foreign worker could perform his work in his home country and remain at home? Please answer that.
HAYLER: I know very well that Funk represented that viewpoint; and it is in accordance with his general attitude, for the political disquiet and dissatisfaction which accompany the displacement of such large masses of human beings temporarily uprooted was in opposition to the policy of appeasement and reconstruction which was definitely Funk’s goal.
DR. SAUTER: I now come to the last question which I wish to put to you, Dr. Hayler. When the German armies retreated and when German territories were occupied by enemy armies, difficulties arose regarding the supplying of these territories with money. At that time Hitler is supposed to have planned a law according to which the acceptance and passing on of foreign occupation money was to be punished even by death. I am not interested now, Dr. Hayler, in finding out why Hitler planned to do this; but I am interested in finding out, if you can tell me, how the Defendant Funk reacted to this demand by Hitler and what success he had.
HAYLER: Two facts can be established in regard to this point, which should be of interest to the Tribunal. I have rarely seen Funk as depressed as at that time, after he had received information about the so-called “scorched earth decree.” I believe he was the first minister to issue at that time two very clear decrees, one from the Ministry of Economics, in which he gave definite instructions that wherever German people were an administration of economy in some sort of form must remain; where it is necessary that people be provided for, the State must continue to provide for these people.
The second decree was issued at the same time by the President of the Reichsbank, in which he decreed that the money market had to be cared for by the remaining offices of the Reichsbank in the same way that economy was to be cared for.
Regarding your question itself, I recall very distinctly that the Führer himself, it was said, had demanded of the Ministry of Economics the issuing of a legal regulation according to which the acceptance of occupation money was forbidden to every German on pain of death. Herr Funk opposed this demand very energetically, I believe with the help of Herr Lammers. He himself telephoned headquarters repeatedly and finally succeeded in having the Führer’s directive withdrawn.
DR. SAUTER: Have you finished, Dr. Hayler?
HAYLER: Yes.
DR. SAUTER: Mr. President, I have no further questions to put to the witness.
THE PRESIDENT: Do the other Defendants’ Counsel wish to ask any questions?
[No response.]
Does the Prosecution wish to cross-examine?
MR. DODD: When did you join the Nazi Party, Mr. Witness?
HAYLER: Did I understand you correctly—when did I become a member of the NSDAP?
MR. DODD: That is right.
HAYLER: December 1931.
MR. DODD: Did you hold any offices in the Party at any time?
HAYLER: No; I never held office in the Party.
MR. DODD: You were the head of a trade group in 1938, the Reichsgruppe “Handel”?
HAYLER: I was the head of the Economic Group “Retail Trade” from 1934 on, and from 1938 on, head of the Reich Group “Trade.” This organization was a part of the organization of industrial economy and was under the Reich Ministry of Economics.
MR. DODD: Membership in the group that you were the head of was compulsory, wasn’t it?
HAYLER: Yes.
MR. DODD: When did you join the SS?
HAYLER: I joined the SS in 1933, in the summer.
MR. DODD: That was a kind of Party office, wasn’t it, of a sort?
HAYLER: No, it was not an office. I became connected with the SS because of the fact that in Munich 165 businessmen were locked up and because I knew Himmler from my student days—I had not seen him again until then—the businessmen in Munich asked me to intercede for them in the summer of 1933. But I had no office in the Party or in the SS.
MR. DODD: When did you become a general in the SS?
HAYLER: I never was a general in the SS. After I had been appointed State Secretary, the Reichsführer bestowed on me the rank of a Gruppenführer in the SS.
MR. DODD: A Gruppenführer—isn’t that the equivalent of a general in the SS?
HAYLER: Yes and no. In the SS there was the rank of Gruppenführer and there was the rank of Gruppenführer and general of the Police or of the Waffen-SS; but the Gruppenführer was not a general if it was only an honorary rank. This could easily be seen from our uniforms, because we did not wear a general’s epaulets or a general’s uniform.
MR. DODD: You know Ohlendorf pretty well, don’t you?
HAYLER: Yes.
MR. DODD: He worked for you at one time. He was under your supervision. Isn’t that so?
HAYLER: I worked with Ohlendorf from 1938 on.
MR. DODD: You know, he has testified before this Tribunal that he supervised the murdering of 90,000 people; did you know that?
HAYLER: I heard about that.
MR. DODD: Did you know about it at the time that it was going on?
HAYLER: No.
MR. DODD: Did you know Pohl, the SS man—P-o-h-l?
HAYLER: May I ask you for that name again?
MR. DODD: Pohl—P-o-h-l?
HAYLER: I do not remember knowing an SS man Pohl.
MR. DODD: Do you know a man called Obergruppenführer Pohl of the SS?
HAYLER: No—Yes, I know an Obergruppenführer Pohl. Obergruppenführer Pohl was the chief of the administrative office of the SS.
MR. DODD: Did you have conversations and meetings with him from time to time?
HAYLER: Officially I had a few conversations with Pohl. Usually they were very unpleasant.
MR. DODD: Well, that’s another matter. How often would you say, between 1943 and the end, the time of your surrender, that you met with Pohl to discuss matters of mutual interest between the SS and your own Ministry of Economics? Approximately, because I don’t expect you to give an accurate account, but about how many times, would you say?
HAYLER: I must give a short explanation about this. Between the...
MR. DODD: Give that afterwards. Give me the figure first.
HAYLER: Yes. Perhaps three or four times, perhaps only twice. I do not know exactly.
MR. DODD: Are you telling us three or four times a year or three or four times during the whole period between 1943 and 1945?
HAYLER: During my time in office, yes, three or four times; it was only one year.
MR. DODD: Did you talk to him about the Reichsbank’s or the Ministry of Economics’ co-operating in the financing of the building of factories near the concentration camps?
HAYLER: No.
MR. DODD: You know about that, do you?
HAYLER: No. This question was never discussed with me.
MR. DODD: What did you talk to him about?
HAYLER: A great controversy had arisen between the Ministry of Economics and the SS because after I had taken over the State Secretariat in the Ministry of Economics, Himmler had instructed me to turn over to the SS a factory which belonged to the Gau Berlin. I fought against this and did not obey Himmler’s instructions. The files about this must surely still be in existence. I then was instructed to discuss this matter with Pohl. In these conferences and in a personal conversation which Himmler requested and ordered, I still fought against Himmler’s instructions, because I was fundamentally against the SS having industrial enterprises of its own.
MR. DODD: Did you talk to the Defendant Funk about this difficulty with Himmler and Pohl?
HAYLER: Yes, because these difficulties resulted in Himmler’s writing me a letter in December in which he told me that he ceased to have confidence in me and that he had no desire to work with me any more. I reported this to the Defendant Funk in December.
MR. DODD: Did Funk tell you that his bank was helping Himmler out in the building of factories near the concentration camps?
HAYLER: I know nothing about that.
MR. DODD: You never heard of that before now?
HAYLER: Up until now I have never heard anything about Funk’s or the Ministry of Economics’ co-operation in the financing of such buildings or about anything of the sort.
MR. DODD: It is perfectly clear, I think, but I want to make certain, that from 1943 to 1945, while you were the deputy to Funk in the Ministry of Economics, the questions of purchasing on the black market, and so on, in the occupied countries ceased to be of any real importance, didn’t they? You said that; I understood you to say that a few minutes ago yourself.
HAYLER: In 1944—and my time in office virtually did not start until 1944, since in December I had a Ministry which was totally bombed out and we did not get started working again until January 1944—these questions were no longer of decisive importance, since a process of retrogression had already set in.
MR. DODD: All right. You also were, Mr. Witness, at the Vienna speech to which you referred, which was made in 1944; and it had nothing to do with the occupied countries but was directed only at the satellite states. Are you aware of that or not?
HAYLER: The speech in Vienna?
MR. DODD: Yes, the speech in Vienna in 1944.
HAYLER: Yes, it is true; I have already said that. Both the speech in Königsberg and the speech in Vienna did not deal directly with the occupied territories, but with Europe as a whole. I...
MR. DODD: Did it deal with the occupied territories directly or indirectly? Now, have you read that speech?
HAYLER: I heard the speech. Quite definitely it had nothing to do with them directly.
MR. DODD: Finally, in view of your testimony concerning Funk and what he thought about forced labor, you know, don’t you, that he took an attitude of unconcern about the forcing of people to come to Germany? Do you know that?
HAYLER: No.
MR. DODD: Well, you know he has said on interrogation that he didn’t bother his head about it, although he knew that people were being forced to go to Germany against their will. Are you aware of that?
HAYLER: No, I am not aware of that. I had with Funk...
MR. DODD: All right. If you did know it, would that make some difference to you; and would you change your testimony some?
HAYLER: I am not aware of the fact that Funk is supposed to have had this attitude or...
MR. DODD: Very well. Perhaps I can help you by reading to you from his interrogation of 22 October 1945, made here in Nuremberg. Among other things, he was asked these few questions and made a few answers:
“As a matter of fact, you were present at many meetings of the Central Planning Board, were you not?”
Funk answered and said:
“I was present at the meetings of the Central Planning Board only when something was required for my small sector; that is to say, something which had to do with the export and consumer goods industries as, for example, iron. I had to put up a fight on each occasion to get just a few thousand tons for my consumer goods industry.”
The next question was:
“Yes, but during those meetings you attended, you heard, did you not, discussions concerning forced labor?”
Funk answered: “Yes.”
“Question: ‘And you knew from those meetings that the policy was to bring in more and more foreign workers to the Reich against their will?’ ”
Funk answered: “Yes, certainly.”
“Question: ‘And you never objected to that, I take it?’ ”
Funk answered:
“No, why should I have objected? It was somebody else’s task to bring these foreign workers into the Reich.
“Did you believe it was legal to take people against their will from their homes and bring them into Germany?” was the last question that I want to quote to you. He answered: “Well, many things happen in wartime which aren’t strictly legal. I have never racked my brains about that.”
Now, if you know that to be his attitude from his statements made under oath on an interrogation here, would that change your view about Funk and would it cause you to change the testimony which you have given before the Tribunal here today?
HAYLER: I can testify only to those things which I myself know. I cannot remember any such statements by Funk. I do know and I remember distinctly that we frequently spoke about the occupied territories, about the later development in Europe which was to, and could, result from co-operation. We also spoke about the procuring of workers and that Funk fundamentally had a viewpoint different from the one that prevailed and that he was not in agreement with these things. I can merely repeat this and if you question me here as a witness, I can say only what I know.
MR. DODD: Did you go over all of your questions and answers with Dr. Sauter before you took the stand? You knew what you were going to be asked when you came here, didn’t you?
HAYLER: Dr. Sauter gave me an idea what he would question me about and what he was interested in.
MR. DODD: I have no further questions.
THE PRESIDENT: Do any other members of the Prosecution wish to cross-examine? Dr. Sauter, do you want to re-examine?
DR. SAUTER: No.
THE PRESIDENT: The witness can retire.
[The witness left the stand.]
DR. SAUTER: Mr. President, there are a few interrogatories missing, some of which have already arrived and are being translated. I request that at a later occasion, perhaps after the case against Defendant Schirach, I be permitted to read these interrogatories. And then, Mr. President, I should like to say something of a general nature. I have already read extracts from various documents and requested that all of them be admitted as evidence and I should like to repeat this request for all these documents. With that I shall have finished my case for Funk.
Mr. President, may I make another request of you at this moment, namely, that during the next few days the Defendant Von Schirach be excused from being present at the sessions in Court so that he can prepare his case. In his absence I shall look after his interests or else, when I am not here, my colleague Dr. Nelte will. Thank you very much.
THE PRESIDENT: Who is appearing for the Defendant Schirach?
DR. SAUTER: I am; and when I cannot be present, then Dr. Nelte will. One of us will always be in Court and look after his interests.
THE PRESIDENT: Yes, very well, Dr. Sauter. Now the Tribunal will adjourn for 10 minutes.
[A recess was taken.]
THE PRESIDENT: Dr. Sauter, there was a document which you didn’t refer to. I think it was an affidavit of a witness called Kallus. Were you offering that in evidence? It was an interrogatory of Heinz Karl Kallus.
DR. SAUTER: The Kallus interrogatory, Mr. President, has already arrived and at the moment it is in the process of translation, I shall submit it as soon as the translation has been received by the Prosecution.
THE PRESIDENT: Well, we have got a translation into English.
DR. SAUTER: I believe, Mr. President, that what you have is an affidavit by Kallus, and in addition there is a Kallus interrogatory, which is in process of translation and which I shall submit later.
THE PRESIDENT: This takes the form of an interrogatory, questions and answers, what I have in my hand. I am only asking whether you want to offer that.
DR. SAUTER: Yes, I offer that in evidence. I request that judicial notice be taken of it.
THE PRESIDENT: Very well; you gave it a number then, did you? What number will it be?
DR. SAUTER: Exhibit Number 5, if you please.
THE PRESIDENT: Very well.
DR. SAUTER: Thank you very much.
THE PRESIDENT: Now, Dr. Kranzbühler.
FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for Defendant Dönitz): Mr. President, first I should like to ask the permission to have a secretary, in addition to my assistant, in the courtroom, in order to facilitate the submission of documents.
With the permission of the Tribunal, I shall first submit a number of documents; and I shall use the document book of the Prosecution and the document books which I have submitted. These document books consist of four volumes. The table of contents is in Volume I and in Volume III.
In the first document of the document book of the Prosecution, Exhibit USA-12 (Document Number 2887-PS), I should like to correct an error in translation which may be of significance. It says there, in the German text, under “1939,” “Konteradmiral, Befehlshaber der Unterseeboote,” and that in the English text has been translated by “Commander-in-Chief.” The correct translation should be “Flag Officer of Submarines.” That point is of importance in regard to the fact that Admiral Dönitz, until his appointment as Commander-in-Chief of the Navy in 1943, was not a member of the group which the Prosecution terms criminal.
I should like to call the attention of the Tribunal back to Exhibit GB-190 (Document Number D-652 (a-b)). That is a sea-chart which the Prosecution has submitted. This chart shows the position of the German submarines to the west of England on 3 September 1939, and the Prosecution uses that chart as evidence for the question of aggressive war.
The Prosecution says, rightly, that these U-boats must have left their home bases at an earlier date. The first document, which I offer as Dönitz-1, is to prove, first, that this belongs in the category of measures resorted to in times of crisis such as were taken by every nation in Europe at this time, and that they were in no way preparatory measures for an aggressive war against England, because such a war was not planned.
I shall read from this document—document book, Page 1. It is an excerpt from the War Diary of the Naval Operations Staff of September 1939, and I read the entry of 15 August:
“Prepared (for Case White) the following measures:”
THE PRESIDENT: What page?
FLOTTENRICHTER KRANZBÜHLER: Page 1 of the document book, Volume I.
THE PRESIDENT: Yes.
FLOTTENRICHTER KRANZBÜHLER:
“15. 8. Prepared (for Case White) the following measures:
“On 15. 8. Spee and all Atlantic submarines ready to sail.
“On 22. 8. Transport Westerwald ready to sail.
“On 25. 8. Deutschland ready to sail.”
And then we find the list of these ships:
“21. 8. Report B-service about emergency measures of French fleet.
“23. 8. Report B-service: Continuation of French emergency measures of fleet to 3rd grade. English and French blockade measures off ports.
“25. 8. B-service reports: German and Italian steamers are being watched and reported by France.”
And then the instructions:
“31. 8. Arrival Order I of OKW for conduct of war: Forcible solution in the East, attack against Poland 1 September, 0445 hours. In the West responsibility for starting hostilities unequivocally to be left to England and France. Strictly respect neutrality of Holland, Belgium, Luxembourg, Switzerland. The western border not to be crossed. At sea no hostile actions or such that could be interpreted as hostile. Air Force only in defense.
“In case of opening of hostilities by Western Powers: Defense only, economical use of forces. Reserve start of aggressive operations. The army to hold the ‘Westwall.’ Naval economic war concentrated against England. To augment effect probable declaration of zones of danger. Prepare these and submit them. The Baltic to be safeguarded against enemy invasion.”
So far this document. With the next document, Dönitz-2, I should like to prove that the British submarines, too, were active before the start of the war and appeared in the Bay of Helgoland at the very beginning of the war. It is on Page 2 of the document book. I probably need only point out that as early as 1 September electric motor noises were heard in the Bay of Helgoland and that on 4 September several reports arrived concerning English submarines sighted in the Bay of Helgoland.
I come now to the document with reference to which Admiral Dönitz is accused of participating in the planning of the attack against Norway. That is Exhibit GB-83 (Document Number C-5). The Prosecution has submitted it as proof of the fact that Admiral Dönitz played a decisive part in the occupation of Norway. I shall refer to this document in more detail when examining the witness. I merely want to establish certain dates now. On the document—and I am about to submit the original to the Tribunal—there is a stamp which establishes when the document was received at the High Command. This stamp shows the date 11 October 1939.
THE PRESIDENT: You are speaking of GB-83?
FLOTTENRICHTER KRANZBÜHLER: Yes. And I refer now to Exhibit GB-81 (Document Number C-66), Page 6 of my document book. According to this the decisive report by Grossadmiral Raeder to the Führer had already been made on 10 October 1939, that is, a day before GB-83 was received at the High Command.
With the next document I should like to prove that considerations as to bases had nothing to do with the question of an aggressive war, as far as the Flag Officer of Submarines, Admiral Dönitz, was concerned. I am submitting Documents Dönitz-3 and Dönitz-4. They are on Page 3 and 5 of the Document Book. Dönitz-3 is a war diary of the Flag Officer of Submarines of 3 November 1939, and I read from the second paragraph, the 10th line from the top:
“At the same time Naval Operations Staff reports that there are possibilities for the establishment of a ‘Base North’ which seem to be very promising. In my opinion the immediate introduction of all possible steps in order to arrive at a clear judgment of the existing possibilities is of the greatest importance.”
And then there follows a discussion of the advantages and disadvantages of such a base, which is absolutely identical with the considerations mentioned in GB-83. It is a question of Murmansk in connection with Base North, as can be seen from Document Dönitz-4; and it is known that these considerations were in full accord with the Soviet Union.
Furthermore, I should like to show that the question of bases continuously comes up in enemy navies without reference to...
THE PRESIDENT: Dr. Kranzbühler, you are going a little bit fast over these documents and I am not quite sure that I am quite following what use you are making of them. This base mentioned in the report is Murmansk?
FLOTTENRICHTER KRANZBÜHLER: Yes; Murmansk. And I want to use it as proof, Mr. President, that the question of bases has nothing to do with the question of whether one wants to wage aggressive war with the country in which these bases are situated. The considerations as to Murmansk were taken in full accord with the Soviet Union, and in the same manner Admiral Dönitz took the question of Norwegian bases into consideration. That is the subject of my proof.
THE PRESIDENT: But the fact that Murmansk was suggested as a base, to be taken with the consent of the Soviet Union—if it was the case—doesn’t have any relevance, does it, to taking a base in Norway without the consent of Norway.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, the relevancy seems to me to exist in the fact that Admiral Dönitz, as Commander of U-boats, in both cases received merely the order to state his opinion about bases in a certain country but that in the last analysis he had as little to say in the case of Narvik and Trondheim as in the case of Murmansk.
COLONEL Y. V. POKROVSKY (Deputy Chief Prosecutor for the U. S. S. R.): In Document Number 3, the one just being referred to by the defense counsel for the Defendant Dönitz, mention is definitely made of the northern bases; but nothing is said in this document of any plans of the Soviet Union. And to discuss, here and now, some plan or other of the Soviet Union is in my opinion quite out of order, since there are no plans of the Soviet Union in connection with the northern bases, and there never have been.
FLOTTENRICHTER KRANZBÜHLER: If the representative of the Soviet Union has any doubts that these bases were considered in full accord with the Soviet Union, then I shall prove that by calling a witness.
THE PRESIDENT: Anyhow, the document doesn’t say anything about it.
FLOTTENRICHTER KRANZBÜHLER: The document says nothing about it.
THE PRESIDENT: The Tribunal doesn’t think you ought to make statements of that sort without any evidence; and at the moment you are dealing with a document which doesn’t contain any evidence of the fact.
FLOTTENRICHTER KRANZBÜHLER: May I perhaps read Document Number Dönitz-4?
THE PRESIDENT: It is Dönitz-3, isn’t it?
FLOTTENRICHTER KRANZBÜHLER: I have already come to Dönitz-4. I had read from Dönitz-3. I shall now read from Dönitz-4 the entries for 17 April 1939:
“Commander of U-boats receives instructions from Naval Operations Staff to try out Base North. Naval Operations Staff considers the trying out of the base by U-36 due to sail within the next days, highly desirable. Supply goods for tanker Phoenizia in Murmansk going with fishing steamer to Murmansk on 22 November.”
It seems to me that this entry very clearly shows that that could have happened only in accord with the Soviet Union. Furthermore, I want to show that considerations as to bases...
THE PRESIDENT: Wait a minute. Dr. Kranzbühler, the Tribunal thinks you oughtn’t to make these observations on these documents which really don’t support what you are saying. Document Number 3, for instance, doesn’t bear any such interpretation, because it refers to attacks which it was suggested should be made against ships coming from Russian ports, in Paragraph 2. And equally the other document you referred to, Dönitz-4, on Page 5, doesn’t bear the interpretation which you are putting upon it.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, I am afraid that the contents of both documents have been presented too quickly by me. For anyone who is familiar with such war diaries, many things are self-evident which otherwise are not so easy to understand.
Document Dönitz-3 states in that part which I have read that possibilities for the establishment of a Base North exist. These possibilities can be only political possibilities, because one can establish a base in a foreign country only if that country agrees. Document Dönitz-4 shows that the base in question is Murmansk and that this base is being tried out with a supply ship, a fishing steamer, and a U-boat. That convincingly shows in my opinion...
THE PRESIDENT: The objection the Tribunal was raising was to the statement by you that the Soviet Union had agreed, and these documents do not bear out any such statement.
FLOTTENRICHTER KRANZBÜHLER: I am of the opinion that in Document Dönitz-4 that can clearly be seen. It is not possible...
COL. POKROVSKY: I definitely protest against the fact that, apart from what has been stated in the documents, certain unfounded conjectures or assertions have been made with a view to interpreting the documents in the manner in which Dr. Kranzbühler has endeavored to interpret them from the initial stages of his defense. I do not belong to the category of fortune tellers and palmists. I cannot conjecture what hypothetical conclusions may be drawn from one or another of the documents. I am a lawyer and I am accustomed to operate with documents such as they appear, and I am accustomed to operate with the contents of a document such as they are expressed.
I consider that the Tribunal has quite correctly expressed to the defense counsel the absolute impossibility of drawing the conclusions he is attempting to reach, and I would ask that counsel for the defense be reminded of his duty to limit himself exclusively to such interpretations as may be deduced from the document.
SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom): Your Honor, I would be grateful if the Tribunal would consider a general point of procedure. We have a number of objections to a considerable number of Dr. Kranzbühler’s documents. I have got out a short list grouping, as far as is possible, our objections, which I can hand to the Tribunal and, of course, to Dr. Kranzbühler, now. It is a matter for consideration by the Tribunal whether it would be useful to see that list before the Tribunal adjourns tonight, and maybe here tender certain observations of Dr. Kranzbühler upon them. Then the Tribunal might be able to give a decision with regard to certain of the documents before sitting again tomorrow and thereby save some time. I suggest that to the Tribunal for their consideration as perhaps the most profitable procedure under the circumstances.
THE PRESIDENT: Are you suggesting that at a certain point of time we should adjourn for the consideration of your list and then hear Dr. Kranzbühler on it?
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: That is what you suggest?
SIR DAVID MAXWELL-FYFE: Yes, Sir. I was going to explain my list, put my list to the Tribunal, and explain it; and then the Tribunal could hear Dr. Kranzbühler upon it and adjourn at whatever time it is suitable.
FLOTTENRICHTER KRANZBÜHLER: May I make a statement in that regard, Mr. President?
THE PRESIDENT: Certainly.
FLOTTENRICHTER KRANZBÜHLER: I do not agree with such a proceeding, Mr. President. Before this Tribunal I have said very little as defense counsel so far; but I am of the opinion that it is my turn now and that I have to be granted permission to submit my documents in that order in which I plan to and which I consider correct for my defense.
I ask the Tribunal just to imagine what would have happened if, before the presentation of their case by the Prosecution, I had said that I should like to speak about the relevancy of the documents of the Prosecution. I believe that this comparison shows that I should not have thought of proceeding in this way. I shall try, before submitting my documents, to explain their relevancy to a greater extent than I have thought necessary until now. But I ask the Tribunal to grant that I present my case now and to limit the Prosecution to making their suggestions when I submit my documents individually.
SIR DAVID MAXWELL-FYFE: The inconvenience of that course, My Lord, is that I shall then be interrupting Dr. Kranzbühler every two or three documents and making a specific objection to an individual document, which will take a great deal of time. I thought it would be more convenient if I indicated to the Tribunal my objections to the documents in the usual way by classes rather than individually.
I put it to the Tribunal to rule on whatever method they think would be most convenient for them. The last thing I want is to interfere with Dr. Kranzbühler’s presentation; but, on the other hand, the method that he suggests will mean individual objections, because, of course, an objection is useless if it is put in after Dr. Kranzbühler has developed the document. Or, if it is not useless, it is at any rate of very much less weight.
THE PRESIDENT: Dr. Kranzbühler, supposing that Sir David presents his objections to the documents now, whether in groups or in whatever way he likes, and you then answer him individually upon each document, pointing out the relevance in your view of each document; how does it harm you? The Tribunal will then consider your arguments and will rule upon them, and then you will know what documents the Tribunal has ruled out, and you can then refer to any of the other documents in any way you please.
The only object of it and the only effect of it is to prevent the Prosecution’s having to get up and interrupt, put on the earphones, and take the time for an individual objection to each document to which they wish to object as it turns up. I cannot see that it can interfere with you in the least.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, I have no objection to the Prosecution’s stating their objections now. I merely wish to avoid my having to reply to each individual objection. If I am permitted to state my views when each individual document comes up, then I have no objection to the Prosecution’s stating their objections now to individual documents.
THE PRESIDENT: Sir David, the Tribunal would like you to state now your objections to these documents. They will then allow Dr. Kranzbühler to proceed with his discussion of the documents, answering your argument as to the admissibility of each document that you object to when he comes to it.
SIR DAVID MAXWELL-FYFE: If Your Lordship please. Will Your Lordship just allow me a moment to get my papers? I am afraid I have only the Prosecution’s objections in English, but it may help those of the Tribunal who do not understand English to have the numbers, at any rate, in front of them.
My Lord, the first group are documents which the Prosecution submits have no probative value. These are D-53. My Lord, the “D” in this case stands for Dönitz Document Book 53, Page 99; and D-49, Pages 130 and 131; D-51 and D-69.
My Lord, the first of these, D-53, is a letter from a prisoner-of-war camp, purporting to be signed by 67 U-boat commanders and in purely general terms. The Prosecution submits that that is not helpful, either from its form or from its material.
My Lord, D-49, which is at Pages 130 to 131, is again in entirely general terms and contains no indication of the moral or legal basis for the opinion expressed.
D-51 and D-69 are both newspaper reports.
THE PRESIDENT: Wait a minute, Sir David. 130? I have not got a Page 131. Is it an affidavit, or was it called an affidavit?
SIR DAVID MAXWELL-FYFE: Yes, My Lord.
THE PRESIDENT: “On the basis of the documents of the Navy Court archives at...”
Oh yes, I think the Document Book has got a bit out of order.
SIR DAVID MAXWELL-FYFE: Yes, My Lord, maybe so.
THE PRESIDENT: Is it a sworn affidavit by somebody or other?
SIR DAVID MAXWELL-FYFE: Yes, My Lord. 130 comes immediately before.
THE PRESIDENT: I have got it now, yes, 131 comes somewhere before 130.
SIR DAVID MAXWELL-FYFE: That is it, My Lord. It is an affidavit by a former fleet judge, and Your Lordship sees that the description which the Prosecution gives of it as being in entirely general terms is, I submit, justified by the wording of the document, and it is difficult to see the basis which the learned opponent seems to profess for his statements.
My Lord, D-51, Page 134, is an extract from the Völkischer Beobachter of March 1945, and the Prosecution submits that the topic on which it is is irrelevant to the matters developed against the Defendant Dönitz. Number 69 is another newspaper report from the same paper of 14 November 1939, giving a list of armed British and French passenger ships. Now, My Lord, the second group which we developed are those irrelevant documents, D-5, D-9, D-10, D-12, D-13, D-29, D-48, D-60, D-74.
Now, My Lord, the first of these, D-5, on the subject of Norway, seeks to introduce by way of a footnote a summary of the documents which the Tribunal dealt with when considering the documents in the case of the Defendant Raeder, with regard to which the Tribunal expressed its doubts, although it allowed them to be translated. The Tribunal will remember that with regard to the Dönitz documents it was thought convenient to have them translated without a preliminary argument. Now, My Lord, the same argument applies to a footnote, to a speech of the Defendant Von Ribbentrop, a summary of documents which came into German possession long after the speech of the Defendant Ribbentrop was made. The Prosecution submits it is irrelevant.
And the documents 9, 10, 12, and 13 deal with the rescue of Allied survivors in the years 1939 to 1941 inclusive.
THE PRESIDENT: Oh, yes.
SIR DAVID MAXWELL-FYFE: My Lord, that last statement, “and all apparently unsworn,” is an error. It ought to be that D-13 is apparently unsworn.
Now, My Lord, with regard to that the position is that whereas it is quite true that a nonrescue order was issued by the defendant before 27 May 1940, the really important period is round about 17 September 1942. It seemed to the Prosecution unnecessary to go into these details for the earlier period. There is no real doubt that there were some rescues. The only point which the Prosecution is putting against the defendant is that he did issue an order, which the Prosecution has proved, forbidding rescue when there was any danger.
THE PRESIDENT: What was the date you gave us, 17 November 1942?
SIR DAVID MAXWELL-FYFE: My Lord, the nonrescue order is before 27 May 1940. We cannot give the exact date, but we know from a reference in another order that it must have been before 27 May 1940. And the order with regard to the destruction of the crews of merchant ships is 17 September 1942.
Now, My Lord, the Document Number 29 contains four documents dealing with the evidence of the witness Heisig. The first purports to be an affidavit by a witness who speaks to the sort of statements the Defendant Dönitz usually made and does not remember what was said on the particular occasion referred to by the witness Heisig; and it contains a good deal of argument.
The second is a letter sent to counsel for the Defendant Dönitz, and, with the exception of one sentence, denying that the defendant spoke in the sense alleged by Heisig; the remainder of the statement which, of course, is unsworn, is either argument or is vague or irrelevant. The remaining two documents, both apparently unsworn, contain allegations against the character of the witness Heisig. The Tribunal will remember that no allegations were made against him; that there was no cross-examination in regard to his character when he gave his evidence. And the second deals with other lectures which are not those in question.
Now, My Lord, the next document, D-48, deals with the alleged good treatment of Allied prisoners in German Naval prisoner-of-war camps, on which subject no issue has been raised with this defendant. D-60, Page 209 deals with Italian- and French-declared danger zones, which, the Prosecution submits, has no relevance to those declared by the Germans. D-74 and D-60, Page 256, deal with the relationship between the British and French merchant marines and their respective navies; and the Prosecution submits that they are irrelevant as far as the British Navy is concerned, if they have any relevance cumulative of D-67.
Now, My Lord, the third group are details of the Contraband Control System and they are D-60, Pages 173 to 198; D-72; D-60, Pages 204 and 205 and Pages 219 to 225. My Lord, these documents deal with the details of the contraband control, what articles were contraband, declarations of different governments; and it is submitted that details of the contraband control are remote from the issues raised and entirely irrelevant. I do not think in the presentation against either of the Naval defendants questions of declarations of contraband were mentioned at all, certainly not in regard to the Defendant Dönitz; and, in the submission of the Prosecution, it’s really introducing matters which are, I am sure, not helpful to the problems of this case.
The fourth group, which can only be described in very general terms, are allegations against the Allies. My Lord, the general objection I set out in the first paragraph is this: Those documents consist of various allegations against the Allies; they appear to have little or no relevance to the issues and, if submitted, might necessitate the Prosecution’s seeking the facilities to rebut the allegations; in which case a large volume of evidence in rebuttal might be entailed.
Then I have isolated those which deal with allegations that the Allies did not pick up survivors; there are two: 43, 67; Pages 96 and 90. 31 and 32 deal with Allied attacks on German air-sea rescue planes; 33 accuses a Soviet submarine of sinking a hospital ship.
And three, Numbers 37, 38, and 40, the last being a newspaper report, allege that the Allies shot survivors. My Lord, the question of Allied treatment of survivors is dealt with exhaustively by extract from the German Naval Diary and, My Lord, that we are not objecting to because there it is important not as evidence of the facts stated but as evidence of the matters that had an effect on the German Naval Command. For that purpose I am quite ready that Dr. Kranzbühler should put them in and the Tribunal should consider them. And there is another document which deals with that point quite fully, and I am quite prepared to let that go in.
Then, My Lord, the remainder allege either ruthless actions or breaches of International Law by the Allies; and these are Number 19, Page 24, the Göring exhibit; Numbers 7 and C-21, Page 91; 47, Pages 120, 121, which is also a newspaper report; 52, 60, Pages 152 and 208; D-75, 81, 82, 85, and 89.
Now, as I understand the defense that is developed here—the allegation with regard to the order which we say sets out the destruction of survivors—it is not that it was a reprisal, but the defense is that the order did not mean destruction but merely meant nonrescue. On that basis it seems difficult, indeed impossible, to appreciate how these matters become relevant at all.
And similarly with regard to the order for shooting Commandos. The justification alleged for the order is set out in the order itself. I haven’t heard any defendant develop any justification of that order in giving evidence before the Tribunal. Every one of the defendants so far has said this order was given by Hitler and “whether we approved of it or not we had to carry it out.”
So that, in my submission, there isn’t even the argument which is foreshadowed, that breaches of the laws and usages of war can be in certain occasions properly committed as reprisals. It is not put forward from that point of view; there is no admission here, as I understand the Defense, of breaches for which reprisal is the answer. Therefore, the Prosecution submits that these documents are also irrelevant.
My Lord, again I tried to put it as shortly as possible because I didn’t want to occupy too much time, but I tried to correct them and describe those which seemed of greatest importance.
THE PRESIDENT: The Tribunal would like to know why this matter of the admissibility of these documents hasn’t been argued before. In the other cases with which we have dealt, the question of the admissibility has been dealt with first of all by your offering your criticisms and objections, and then the defendant’s counsel’s being heard in reply. Then the Tribunal has ruled.
SIR DAVID MAXWELL-FYFE: My Lord, as I understand the position, we did put in objections to the documents and Dr. Kranzbühler suggested that he would very much prefer the documents to be translated and the objections taken at a later stage. And I was certainly informed that the Tribunal agreed with that and ordered the document to be translated.
THE PRESIDENT: That may be, for the purposes of translation. But that doesn’t mean that they are necessarily admissible. And in most of the other cases, if not all, as you will remember, we have had an argument in open session in which you, or one other member of the Prosecution, have made your objections, and then the defendant’s counsel has replied to those objections.
SIR DAVID MAXWELL-FYFE: My Lord, Dr. Kranzbühler has just handed—yes...
The ruling is:
“The Tribunal has ruled that the documents mentioned in your application may be translated, but that the question of their admissibility is to be decided later.”
My Lord, I am afraid I am at fault there. It didn’t occur to me, if I may be quite frank with the Tribunal, that I should have come before the beginning of the case Dönitz to make this argument. I am very sorry, and I must accept responsibility. I assumed, without real justification, that that meant the argument of admissibility would come at the beginning, or at some convenient time, in the case of Dönitz. I am very sorry, My Lord, and I can only express my regret.
My Lord, there is this excuse: We had three of the books on Saturday, and we only got the last one yesterday. Therefore, we really couldn’t have done it before today, even if I had thought of it.
THE PRESIDENT: Dr. Kranzbühler, the Tribunal considers that in view of the large number of documents to which the Prosecution objects, it will be highly inconvenient to have you answer Sir David Maxwell-Fyfe’s argument as you go through your documents; and therefore that you must answer now and deal with them in the way in which the other counsel have dealt with these objections to the admissibility of documents. Then the Tribunal will be able to consider the arguments that Sir David Maxwell-Fyfe has put forward and the arguments that you put forward in support of the documents.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, I should like to point out that just because of the many objections which the Prosecution makes against the documents, I have for practical purposes to present all my documents, for the line of thought pursued in presenting documentary evidence implies a definite order of presentation and I cannot take out one document or another without disturbing this line of thought. Therefore, I believe it would save considerable time if the Tribunal would permit me to answer the objections when I come to the particular document.
THE PRESIDENT: What difference could it make, assuming that the decision of the Tribunal is the same, whether you argue the matter now or whether you argue the matter afterwards? The documents which will remain, which will have been held to be admissible, will be the same. Therefore, there is no difference. I can’t see any argument in favor of what you are saying.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, my documentary material, exactly like that of the Prosecution, is organized with a definite purpose in mind and according to a definite idea. If, of the 50 documents which are contained in my documentary material, I have to argue about 40, then 10 are lacking. Therefore, it seems to me proper for me to discuss all 50, in the order in which I intended to submit them to the Tribunal.
If the Tribunal is of the opinion that the reasons given for the relevancy of the different documents are not sufficient, then the objectionable document can be withdrawn or refused. However, it seems expedient to me that I present my arguments in the order which I have been intending to follow, and not in the order in which the Prosecution is now making its objections. That defeats my purpose and disturbs my line of thought and, as defense counsel, I believe it is my task to present my own line of thought and not to reply to the line of thought pursued by the Prosecution or to their objections.
THE PRESIDENT: Well, if that is so, then you can present your argument upon the relevancy of the documents in the order in which they come.
FLOTTENRICHTER KRANZBÜHLER: Yes.
THE PRESIDENT: But you have to do it now.
FLOTTENRICHTER KRANZBÜHLER: Yes, Mr. President.
THE PRESIDENT: You can begin with D-5, which is the first, and then go on with D-9 and D-10; take them in the order in which they stand.
Dr. Kranzbühler, the Tribunal doesn’t see any reason why you should be dealt with in a different way from which the other defendants have been treated. Therefore, they think that you ought to be prepared to deal with these documents in the way in which they are grouped here. They would prefer that you should deal with them now, if you can deal with them in a reasonably short space of time. Then they will be able to determine the question of which documents shall be admitted during the adjournment. Otherwise, they will have to adjourn tomorrow for a consideration of that matter, which will still further hold up the trial.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, of course, I can make general statements as to the groups which the Prosecution has referred to, but I cannot refer to the individual documents with the necessary detail to establish their relevancy unequivocally. That is impossible for me, confronted as I am by a list which I have not seen before. Therefore I should like to ask, if I am to give reasons for each individual document now, that I be given an opportunity to do that tomorrow morning. However, if the Tribunal wishes only to hear general remarks about the groups, I can do that right now.
THE PRESIDENT: Very well, Dr. Kranzbühler. The Tribunal will adjourn now, and we will hear you upon these documents at 9:30 tomorrow morning.
FLOTTENRICHTER KRANZBÜHLER: In open session, Mr. President?
THE PRESIDENT: In open session, certainly, yes.