Is that right?
VON PAPEN: No.
DR. KUBUSCHOK: May I make a comment on the use of the Meissner affidavit? The case is similar to but not quite the same as the Schröder case. The Meissner affidavit was not offered to the Court during the proceedings. But during the Prosecution’s case it came to my knowledge that a Meissner affidavit was to be used. I talked to the Prosecution and pointed out that I would not under any circumstances be satisfied with the submitting of the Meissner affidavit, but would insist on calling Meissner as a witness. The reason is the same. The personality of the witness Meissner, who was very involved in these affairs, makes extreme caution advisable. The Prosecution told me that they would not use the affidavit, and finally told me that they would not call Schröder as a witness. I had no reason to call the witness myself. Now I am in a position where the affidavit is being submitted in cross-examination, and I am unable to question or expose the suspect witness Meissner before the Court.
SIR DAVID MAXWELL-FYFE: My Lord, concerning the position with regard to this affidavit, Major Barrington tells me that he did not have it when he presented the individual case against Von Papen. I am using it now. If the Tribunal thinks there is sufficient divergence between what the witness accepts and the affidavit to justify it, I have not the slightest objection to Dr. Kubuschok’s making application for Meissner to be cross-examined.
THE PRESIDENT: What do you say about the allegation of Dr. Kubuschok that the Prosecution says they were not going to use the affidavit?
SIR DAVID MAXWELL-FYFE: My Lord, I did not say that. Major Barrington, who was with me, had no recollection of my saying that at all. Major Barrington certainly never said that. It was never our intention, because it clearly was a most important document for us to use.
THE PRESIDENT: What is the date of it?
SIR DAVID MAXWELL-FYFE: The 28th of November. We gave a copy to Dr. Kubuschok.
DR. KUBUSCHOK: Yes.
Mr. President, may I explain? The British Prosecution did not make a binding statement that they would not submit the affidavit and not call the witness. I always said that if an affidavit were to be used, I would call the witness. I asked the Prosecution repeatedly, “Are you going to call the witness or not?” They said, “No.” Then I said, “Then I am not interested in it. We will drop this whole subject, and I will not call the witness.”