Chapter XXVI: Section C: of my Appendix A, that the crimes of the SS were committed, (8)

SIR DAVID MAXWELL-FYFE: I should suggest, My Lord, with great deference, that if Dr. Seidl would run through the other witnesses and show those to which he attaches special importance, it would be convenient for the Tribunal; and if Dr. Seidl would be good enough to say quite bluntly whether he attaches importance to any of the others or if he does not, then it might be possible for the Prosecution to reconsider the elimination of all these witnesses; but the position at the moment is that there are requests for all sections, all departments of the Government General, and the Prosecution failed to see how these are necessary. If Dr. Seidl would indicate any special purpose that he attaches to any of them, then one might come back and consider President Struve again; but the position at the moment is that the Prosecution do not see how it really helps the case of the Defendant Frank that each one of the departmental chiefs should be called.

DR. SEIDL: It is not the case that all the officers or rather holders of office, were named as witnesses. A good many others could have been named. For instance, I have already said that out of nine governors, each of whom was in charge of 3 to 3½ million people, I have named only one: the witness Von Burgsdorff.

I have also foregone witnesses whom I had previously named—for instance, the various military commanders. If, however, the Prosecution wishes to know which witnesses I consider of special importance, I shall give the numbers of these witnesses.

They are, besides State Secretary Dr. Bühler, witness Number 2, Von Burgsdorff; Lammers has already been approved; further, the witness Dr. Max Meidinger; the witness Gassner, Number 6; the witness Number 7, Helene Kraffczyk; the witness Number 9, Bilfinger—he was not a member of the administration of the Government General; members of the Government General; Numbers 13, 14, 15, and 19. That does not mean, however, that I am willing to forego the witnesses which I have not mentioned. Witness Number 15, President Dr. Naumann, is an important witness because he was the chief of the main department for food and agriculture and can give us detailed information about the Defendant Dr. Frank’s policy with regard to the feeding of the Polish and Ukrainian peoples and how he tried in particular, through the highest authorities of the Reich, to have the demands of the Reich reduced. The witness’ address was not known until now, but I understand that the chief Polish public prosecutor, Dr. Sawicki, is supposed to know where he is at present. The next witness is Number 16, President Ohlenbusch, who is called mainly to testify to the cultural policy pursued by the Defendant Frank in the Government General. He is not, however, one of our most important witnesses; and I imagine that in his case an interrogatory would suffice.

The same applies to witness Number 17. Witness Number 18 is Dr. Eisfeldt whose last appointment was head of the main department of forestry, and who will testify to the forestry policy of the defendant and especially—this seems to me an essential point—to the fact that there was so much trouble with the partisans in the Government General that it was in the interest of the Polish and Ukrainian people themselves to take strong measures against them. Witness Number 19 is President Lesacker, lately head of the main department of internal administration, whose last known place of residence was Bad Tölz. His present address may now have become known. Witness Number 20 is Professor Dr. Teitge, who, as my application shows, is to testify to the efforts made by the Defendant Dr. Frank in the field of public health.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, I have now had the advantage of hearing everything that Dr. Seidl has to say, and it seems to me that, so far as the witnesses from the Government General itself are concerned, the position is that Dr. Böpple, Number 13, does not add greatly to the general position which would be explained by Dr. Bühler and Dr. Von Burgsdorff and Fräulein Kraffczyk; that the witness Number 5, Dr. Meidinger, seems to deal with very much the same problems as President Struve, witness Number 14, and the witness Naumann, Number 15, and that, on reconsideration, I think the Prosecution would be prepared to agree that one of these witnesses, either Dr. Meidinger, or Dr. Struve, or Dr. Naumann, might well be called.

With regard to all the others, Dr. Ohlenbusch, Dr. Senkowsky, and Dr. Eisfeldt seem to speak about points that are really removed from the issues in this case, and Dr. Lesacker speaks on the general attitude of the defendant towards Poles and Ukrainians, which is covered by Dr. Bühler and Von Burgsdorff, and Meidinger, if he is granted; and the last witness, Teitge, seems again to speak on a really departmental point which is not a serious issue in the case. And, therefore, in trying to apply our own principle of recommending any witness where there is a real relevancy, the Prosecution would be prepared to go as far as I said in their recommendation, that, in addition to the witnesses that I have mentioned, they would suggest that either Dr. Meidinger or one of the witnesses Struve or Naumann should be called.

COL. POKROVSKY: I ask for permission to add a few words to that which has been said by my esteemed colleague, Sir David.

THE PRESIDENT: Yes.

COL. POKROVSKY: After listening very carefully to Dr. Seidl, I have come to the conclusion that we must ask you to take notice of our negative attitude towards a further summoning of the witness Von dem Bach-Zelewski. The Soviet Delegation fears that should the Tribunal deem it possible to grant Dr. Seidl’s application—which, to my mind, appears completely unfounded—then a very dangerous precedent would be created for the factual annulment of the basic decision already accepted by the Tribunal in this respect.

As far as I understand, the Tribunal are of opinion that every witness can and must be called once only for purpose of cross-interrogation. In reply to your question Dr. Seidl confirms that he was present here during the cross-examination by my colleague, Colonel Taylor, and myself. He saw and heard how the cross-examination was progressing. His reference to the fact that he did not have time enough to prepare for participation in this cross-examination appears to me unworthy of the slightest attention. He was in the same position as the rest of us. The Tribunal will remember that a number of the Defense Counsel participated in the cross-examination of the witness Von dem Bach-Zelewski. I see no reason why a different attitude should be adopted for Dr. Seidl’s sake and I do not see why, to gratify a wish of Dr. Seidl, which, to me, is completely incomprehensible, the basic decision of the Tribunal should be changed concerning the repeated calling of witnesses for cross-examination.

This is what I wanted to add to the words of my respected colleague, Sir David Maxwell-Fyfe.

DR. SEIDL: Mr. President, I do not believe that the desire to hear an important witness is incomprehensible in itself, if the cross-examination is rendered difficult for reasons over which we have no control. In the first place, I have only asked the Court for permission to submit an affidavit from this witness to the Tribunal. If now the affidavit is such. . .

THE PRESIDENT: Are you dealing with Number 20?

DR. SEIDL: No, Sir. I am speaking about the witness Von dem Bach-Zelewski.

THE PRESIDENT: The Tribunal will consider what you said about it.

DR. SEIDL: May I now begin with the list of documents?

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents, Dr. Seidl asks for the correspondence between the Governor General and the Reich Chancellery. I have just verified that we do not have the other part of the correspondence. Of course, if any of it comes into our possession, we will be only too pleased to give it to Dr. Seidl. We do not have it, and we also do not have the personal files of the Defendant Frank in the Reich Security Main Office. The same applies to that—that if we do get possession we will let Dr. Seidl know at once.

THE PRESIDENT: Have the Prosecution any objection to the other documents which are asked for?

SIR DAVID MAXWELL-FYFE: I think that is all. The others are the diary. Dr. Seidl can comment on and call evidence as he desires as to the diary.

THE PRESIDENT: Yes, very well. Now counsel for the Defendant Frick.

DR. PANNENBECKER: Your Honors, the first witness I have named is Dr. Lammers, who has, however, already been approved for the Defendant Keitel. I believe, therefore, that I need make no statement on this point.

As my second witness I have named the former State Secretary of the Ministry of the Interior, Dr. Stuckart. He is one of the State Secretaries of the Ministry of the Interior, and he is in custody in Nuremberg. He was chief of the central office.

THE PRESIDENT: Is Dr. Stuckart being asked for by the Defendant Keitel?

SIR DAVID MAXWELL-FYFE: I think the explanation is that it was certainly thought that on the 9th of February this witness was to be so called by the Defendant Keitel, and on that basis he was approved in connection with the Defendant Frick. That is not directly my request to write it on the Defendant Keitel’s final list.

THE PRESIDENT: You have no objection to him?

SIR DAVID MAXWELL-FYFE: I have no objection to him, Your Lordship.

THE PRESIDENT: Very well.

DR. PANNENBECKER: Mr. President, as witness Number 3 I have named General Daluege, who was formerly general of the Regular Police, and who is now in custody here in Nuremberg. He is informed especially about the attitude of the Defendant Frick to the anti-Jewish demonstration on 9 November 1938, and he also knows the relations between Frick and Himmler.

SIR DAVID MAXWELL-FYFE: I have no objection.

DR. PANNENBECKER: As witness Number 4 I have named Dr. Diels, who is now in an internment camp in the Hanover district. The witness was chief of the Gestapo in Prussia in 1933-1934. He is acquainted with the measures which the Defendant Frick, as Reich Minister of the Interior, decreed for the supervision of the provinces by the Reich, as well as about the concentration camps, and also, in particular, about measures taken in individual cases and about conditions in the camps.

SIR DAVID MAXWELL-FYFE: I submit that this witness’ evidence should be taken in writing. With regard to the earlier part, the Tribunal will have the advantage of the Defendant Göring who was concerned especially with the practices of the police in Prussia in 1933 and 1934, and with regard to the other points, as to the measures of the Defendant Frick, these are either laws or orders or administrative measures, which could be included, in the submission of the Prosecution, as being dealt with by written testimony supplemented by testimony of the Defendant Frick himself.

DR. PANNENBECKER: I should like to say something to that. I believe that it would be more practical to hear the witness here before the Court. We can then have a talk with him beforehand and find out the points on which he has detailed information, whereas in an interrogatory these things could not be discussed in detail.

THE PRESIDENT: We will consider that.

DR. PANNENBECKER: As witness Number 5 I have named the former police commissioner, Gillhuber. Gillhuber accompanied the Defendant Frick on all his official trips as his police guard. He therefore knows what trips Frick made and can therefore testify that Frick never went to the Dachau Concentration Camp, which contradicts the testimony given here by the witness Dr. Blaha.

SIR DAVID MAXWELL-FYFE: I have no objection, of course, to the Defendant Frick’s dealing with that point. The only difficulty as to a witness of this sort is, I will say, the unfamiliarity with all of his travels, because if he is or was a bodyguard, he is almost certain to have periods of leave, and periods of interruption would occur. I should have thought that this could have been dealt with by affidavits, or an interrogatory, if necessary. When they are seen the matter could be reconsidered. But I would suggest at first stage the interrogatories, indicating in the witness’ own account how often he was with the Defendant Frick and what interruptions would be most frequent in that period; therefore, it is for the Court to decide.

DR. PANNENBECKER: I agree with that, Mr. President.

SIR DAVID MAXWELL-FYFE: Now dealing with the next point, I have a suggestion to make in regard to the witness—the next witness, Denson. The point, as I understand it there, is that the Witness Blaha said before the Tribunal that Frick had visited Dachau, that it was, however, his evidence at the Dachau trial that Frick did not come to Dachau. I should say the most satisfactory way in dealing with that is to get the shorthand notes of the Witness Blaha’s evidence at the Dachau trial and put in a certified copy.

DR. PANNENBECKER: Agreed. I believe also that these notes. . .

SIR DAVID MAXWELL-FYFE: Actually we have a certified copy of the shorthand notes of Blaha’s evidence here, and I also say in fairness to the witness that it does show he did say that at Dachau Frick visited the concentration camp, and I will show it to Dr. Pannenbecker whenever he likes.

DR. PANNENBECKER: As witness Number 7 I have named Dr. Messersmith. An affidavit from him has been read here by the Prosecution. An interrogatory has already been approved for this witness. We have not as yet received an answer. I should like for the time being to withhold the question as to whether a hearing of this witness in person seems necessary.

As an additional application I have also named the witness Dr. Gisevius.

SIR DAVID MAXWELL-FYFE: I should submit that Dr. Gisevius’ evidence might also be reasonably dealt with directly in an affidavit in answer to interrogatories. He was consultant of the Reich Minister of the Interior under the Defendant Frick and supposedly went to Switzerland after 20 July 1944; he has exact knowledge of the responsibility and actual authority of the Defendant Frick to issue orders in police matters. I should think that such matters might be conveniently dealt with in an affidavit.

THE PRESIDENT: What do you say, Dr. Pannenbecker?

DR. PANNENBECKER: I should like to say that the Witness Dr. Gisevius is also required as a witness by the Defendant Schacht, as far as I know, about the events of 20 July 1944. I believe that this witness will have to appear in person for the Defendant Schacht. It would also be better if the witness could be heard here in person for the Defendant Frick. In case of necessity an affidavit would suffice.

THE PRESIDENT: There is one other point about it. You asked earlier for the return of Colonel Ratke. I think that you were told you could have him or Stuckart. Will you now leave him out of your application because you have Stuckart?

DR. PANNENBECKER: No, it was like this. I had named three witnesses for Dr. Blaha—Gillhuber, Ratke, and a third. We dropped Ratke when I got Gillhuber.

May I speak about the document book here?

THE PRESIDENT: Yes.

DR. PANNENBECKER: In order to give a general description of the Defendant Frick’s character, I asked permission to refer to two books. One of them is a small book, _We Build the Third Reich_, which contains speeches made by Frick. I intend merely to quote short excerpts from these speeches in the course of my presentation of evidence. As regards the other book, _Inside Europe_, by John Gunther, I want to read here, too, only a short excerpt, one sentence about Frick.

Then I have offered further evidence material on the question of whether Frick intervened by means of restrictive decrees against arbitrary measures in imposing protective custody and have based my observations mainly on documents originally submitted by the Prosecution but not read in court. These documents I have listed simply under Number 2a-c.

I have further asked for permission to refer to the files of the police department of the Ministry of the Interior, where restrictive decrees issued by the Defendant Frick in regard to protective custody are also to be found.

With reference to his intervention in individual cases, I request permission to read a letter written to me by the former Reichstag Deputy Wulle. I have listed it under Number 3. The Prosecution has submitted an affidavit by Seger, in which the latter declares that Frick, as chairman of the Committee for Foreign Affairs of the Reichstag, had made statements on putting political opponents into concentration camps as early as December 1932. In Number 4 I have asked for the stenographic records of the Foreign Affairs Committee to prove that such a statement was never recorded and never made.

Number 5 concerns the records of the Dachau trial in regard to the Blaha incident already discussed.

Number 6 concerns an affidavit by the Witness Dr. Stuckart, which he made for the American Prosecution on 21 September 1945. I could just as well ask this witness about these questions when he is heard in person; but it would shorten the hearing if I could read this affidavit, which was made for the Prosecution.

With regard to Frick’s position as Reich Protector of Bohemia and Moravia, I should like to submit the Prosecution’s Document Number 1368-PS, which contains details of the limitations imposed on the Defendant Frick’s powers as Reich Protector at the time of his appointment.

I have also made a supplementary application for Gisevius’ book, _To the Bitter End_. I learned of this book through an extract published in the _Süddeutsche Zeitung_ on 26 February 1946 which gave interesting details of the Röhm Putsch of 30 June 1934. This extract states that for the events of 30 June 1934, police power was assumed by Hitler and transferred to Göring and Himmler. The book will give further details in precisely this field, since Gisevius was at that time expert for police matters in the Reich Ministry of the Interior. I request the Tribunal, therefore, to refer to this book, which is not yet in my hands, or to assist me to procure a copy.

SIR DAVID MAXWELL-FYFE: I might say I do not think that there is much disagreement between Dr. Pannenbecker and the Prosecution. I might run through the documents asked for. In the book, _We Build the Third Reich_, if Dr. Pannenbecker will indicate the excerpts he is going to use, the Prosecution will have no objection to his quoting from them, and the same with regard to the quotations from Mr. Gunther’s book, _Inside Europe_. To Paragraph 2 of the Document 779-PS and the excerpt from a newspaper, the Document 775-PS—to these there are no objections. The files of the police division are not in the hands of the Prosecution. If we do get any of them, then we shall let Dr. Pannenbecker know. As far as the letter from the former representative Wulle is concerned, there is no objection to that. I have not seen any letter yet, but there is no objection to it in principle.

With regard to Number 4, I think there is some misunderstanding there. That is Document L-83. The affidavit of Seger is before the Tribunal as Exhibit Number USA-234, and the statement referred to by Seger was that the Defendant Frick said to him, “Don’t worry, when we are in power, we shall put all of you guys into concentration camps.” This was alleged in the affidavit as said by Frick to Seger during the course of a conversation. It is not alleged to have been said in the Foreign Affairs Committee.

Then Number 5—I say I have the shorthand notes, and it will be shown to Dr. Pannenbecker. As to Number 6, I understand that Dr. Stuckart is going to be called. Of course, the affidavit can be put to him and he can verify its truth. The Document 1336-PS will be put at the disposal of the Defense and they can make such use of it as they can. That covers the documents. As to Dr. Gisevius’ book, I understand that Dr. Pannenbecker has not a copy of that. Perhaps the Tribunal will see that a copy can be obtained for him. I do not know whether we have a copy. We will see what we can do and see that a copy is available.

DR. PANNENBECKER: As to Number 4, Dr. Seger, I still have a brief comment to make on Document 83. Perhaps an interrogatory could show whether or not Frick made the statement in question in his capacity as chairman of the Foreign Affairs Committee—in other words whether or not that statement is in the stenographic minutes.

SIR DAVID MAXWELL-FYFE: I understood that it was not in the minutes.

It would not be in the minutes because Dr. Seger alleges that it was made during the course of a conversation, and not in that committee.

DR. PANNENBECKER: Thank you.

THE PRESIDENT: The Tribunal will continue tomorrow morning at 10 o’clock, if possible, with the further applications for witnesses and documents, which the Tribunal understand have been lodged on Friday evening.

[_The Tribunal adjourned until 5 March 1946 at 1000 hours._]

SEVENTY-FOURTH DAY
Tuesday, 5 March 1946

_Morning Session_

THE PRESIDENT: I have an announcement to make.

The attention of the Tribunal has been drawn by Dr. Hanns Marx, one of the German counsel appearing in this case for the Defense, to an article which was published in the newspaper _Berliner Zeitung_ for February 2, under the heading, “A Defense Counsel.” The article, which I do not propose to read, criticizes Dr. Marx in the severest terms for an error in his cross-examination of a witness when he deputized for Dr. Babel on behalf of the SS. The article suggested that in asking the question he did he was behaving most improperly, that he was expressing private and personal views under the guise of acting as counsel, and that his proper course was to remain silent in view of the character of the evidence.

The matter assumes a graver aspect still because the article goes on to threaten Dr. Marx with complete ostracism in the future and does so in language both violent and intimidating.

The Tribunal desires to say in the plainest language that such conduct cannot be tolerated. The right of any accused person to be represented by counsel is one of the most important elements in the administration of justice. Counsel is an officer of the Court, and he must be permitted freely to make his defense without fear from threats or intimidations. In conformity with the express provisions of the Charter, the Tribunal was at great pains to see that all the individual defendants and the named organizations should have the advantage of being represented by counsel; and the Defense Counsel have already shown the great service they are rendering in this Trial, and their conduct in this regard should certainly not leave them open to reproach of any kind from any quarter.

The Tribunal itself is the sole judge of what is proper conduct in Court and will be zealous to insure that the highest standard of professional conduct is maintained. Counsel, in discharge of their duties under the Charter, may count upon the fullest protection which it is in the power of the Tribunal to afford. In the present instance the Tribunal does not think that Dr. Marx in any way exceeded his professional duty.

The Tribunal regards the matter as one of such importance in its bearing on the due administration of justice that they have asked the Control Council for Germany to investigate the facts and to report to the Tribunal.

That is all.

Sir David, the first application is for the Defendant Streicher. I call upon counsel for the Defendant Streicher.

DR. HANNS MARX (Counsel for Defendant Streicher): Mr. President, the Defendant Streicher is indicted under two counts: Firstly, that he was active in the planning and in the conspiracy for preparation of aggressive war; and secondly, Crimes against Humanity.

As far as the first point is concerned, the Defense does not think it necessary to offer any evidence because the Defendant Streicher, during the whole of this proceeding, was never mentioned in a single document; neither can it be proved that he took part in any of the intimate conferences with Hitler. In this respect I did not see fit to offer any proof. As to the second point, first of all I should like to call the wife of the Defendant Streicher, Frau Adele Streicher nee Tappe as witness.

SIR DAVID MAXWELL-FYFE: I wonder if it would be convenient for me to indicate the views of the Prosecution on these witnesses; there are only six of them. Then perhaps Dr. Marx could make his comments on my suggestions.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: The Tribunal will see that there are six witnesses, and if it would take them in my order, I would indicate the point of view of the Prosecution.

Number 3, Ernst Hiemer, was the editor in chief of _Der Stürmer_, and apparently the defendant’s principal lieutenant.

Number 4, Wurzbacher, was an SA brigade leader in Nuremberg, and is alleged to be able to give evidence as to the speeches of the defendant.

Number 2, Herrwerth, was the defendant’s chauffeur, and he is to speak on one point, namely, the defendant’s annoyance at violence being used on the 10th of November 1938.

And Number 6, Dr. Strobel, who is a lawyer, is to speak on the same point, the disapproval expressed by the defendant in December 1938 of the measures taken in November.

Then there are two members of the defendant’s family: Frau Streicher, who was his secretary from 1940 to 1945; and his son, Lothar Streicher.

The Prosecution would have no objection to Herr Hiemer, as the defendant’s principal lieutenant, speaking, as suggested by Dr. Marx, on what Dr. Marx calls the Defendant Streicher’s basic attitude to the Jewish question. There are a number of matters on which he is said to be able to speak, to which the Prosecution would object as irrelevant. However, the time for so doing is later.

Then, with regard to Herr Wurzbacher, he is said to have always been present at meetings where Streicher spoke, from the early days. To that also the Prosecution would not make objection, but they draw attention to the fact that in the earlier applications Herr Wurzbacher was said to be able to speak as to the boycott in 1933 and the events of November 1938. Therefore the Prosecution respectfully remind the Tribunal that he can speak on the events in 1938, and, in the view of the Prosecution, it is not necessary to have oral testimony to repeat that point. They therefore suggest that with regard to Herr Herrwerth, the defendant’s chauffeur, who really speaks on one main point—that the defendant showed anger with regard to the events of 1938—an affidavit would be sufficient. They suggest the same course with regard to Dr. Strobel, the attorney who is mentioned.

With regard to Frau Streicher, Number 1, the Tribunal will see that it is said that Frau Streicher was the defendant’s secretary during the period from May 1940 to May 1945. The gist of the case against this defendant refers, of course, to a much earlier period, both before and immediately after the rise to power.

The Prosecution suggest that the evidence which is desired from Frau Streicher is really a description of the life of the defendant during the war years, and they suggest that that, again, be covered by an affidavit.

That leaves Lieutenant Lothar Streicher, the eldest son of the defendant. If I may remind the Tribunal of how the matters mentioned in regard to him come into the case: In a report of the Göring commission on the question of corruption in regard to Aryanization, part of the report stated that this defendant paid a visit to three boys in prison, and that certain disgusting and cruel actions took place. The Prosecution, of course, submit that that is not really a matter relevant to the charges against the defendant, but they realize that it is a highly prejudicial matter; it has been read and a bad effect has resulted from that evidence. Therefore they feel it must be a matter for the Tribunal; and the Prosecution, having put in the report including that, ought not to take objection, except to point out that it is not strictly relevant. However, if the Tribunal feel that this defendant ought to have the advantage of his son’s counteracting that account of very unpleasant matters, the Prosecution would not take any objection, although they are bound to point out that it is not strictly relevant.

THE PRESIDENT: In the view of the Prosecution, would an affidavit be suitable in that case?

SIR DAVID MAXWELL-FYFE: Certainly, that is the line the Prosecution would suggest.

Therefore, if I may summarize, what I am suggesting is that the Prosecution would make no objection to Herr Hiemer and Herr Wurzbacher giving oral evidence, and to affidavits from the other witnesses.

DR. MARX: I beg to differ in a few respects with Sir David Maxwell-Fyfe. The Prosecution hold that the testimony to be given by Frau Adele Streicher would not be specially relevant. Opposing this I should like to state that this witness was for 5 years, that is from 1940 to 1945, close to the defendant, handled his entire correspondence, and knows what contacts Streicher had during the whole war.

The Defense is particularly anxious to prove that Streicher had no connection with any of the leading men of the State or Party while he lived in isolation in Pleikershof. There was no exchange of letters or opinions with Hitler, Himmler, Kaltenbrunner, or Heydrich, or any other leading personalities, whatever their names might be. Streicher was completely isolated and played no political role whatsoever; neither had he any authority. In view of this, I, as his counsel, cannot waive the evidence of this witness, as otherwise the vital interests of the Defendant Streicher would be prejudiced. I therefore suggest that my application to call Frau Streicher as witness before the Tribunal be granted, so that the pertinent questions may be put to her.

The same applies to the witness Herrwerth. It cannot be said that this witness can give information only on irrelevant matters or on an insignificant incident. On the contrary the incident in question is of decisive importance. This man Herrwerth was present on the night of 9 November 1938, when SA Group Leader Von Obernitz reported to the then Gauleiter Streicher that demonstrations against the Jewish population were being planned. He therefore knows from personal experience what passed between these two men, and that Streicher was opposed to this demonstration, because he considered such a demonstration to be entirely wrong.

Thus, in opposition to the Führer’s will and order, Streicher kept himself aloof from this demonstration against the Jewish population. There can be no doubt that this incident is of particular importance. It is clear that the behavior of Streicher, who at the time was already in bed and received Obernitz in his bedroom, corroborated the stand taken by his defense, I therefore submit that Fritz Herrwerth be called as witness before the Tribunal, so that he can be examined by me and, if necessary, also by the Prosecution.

As to the witness Hiemer, the Prosecution and I seem to be in agreement that he as well as Wurzbacher appear before the Tribunal. I may mention that Wurzbacher is now in the Altenstaedt Camp near Schongau, Camp Number 10.

As to the witness Lothar Streicher, the Defendant Streicher attaches particular importance to having it confirmed by this witness that what the Göring report mentions about the Defendant Streicher’s indecent words or acts, when visiting the prison, is untrue.

If the Prosecution are prepared to state that they will drop this point and no longer use this report, then I would agree to refrain from calling this witness. Otherwise, I consider it my duty to insist on having this witness called before the Tribunal to vindicate my client’s honor. An affidavit could not possibly meet this purpose, and I therefore ask that the application of the Defense be granted.

SIR DAVID MAXWELL-FYFE: On that last point, My Lord, I have indicated from the Prosecution that that incident is not relevant to the charges against the Defendant Streicher. The Prosecution, of course, produced the report and I thought I had made it clear to the Tribunal that it is one of these collateral matters that do come in, and the Prosecution for that reason would not oppose an affidavit from Lothar Streicher. But the main case of the Prosecution against this defendant is on the stirring up of and consistent incitement to persecution of the Jews. I do not think I can put it further than that. But I had hoped I had made clear that the incident was not one that was relevant upon any other issue. The report under discussion was on the Aryanization of Jewish properties, and that was a passage in the report. The report itself is relevant to persecution.

THE PRESIDENT: The Tribunal will consider that matter.

DR. MARX: Mr. President, may I make a few additional remarks?

This matter which is to be proved by Lothar Streicher forms a part of the Göring report and cannot therefore be dealt with separated from its context. The defendant contends that this Göring report originates from a man who wanted to harm him, who, after having received many favors from him, became his enemy and used this Göring commission, which was originally meant for quite other purposes, to deal the defendant, whom he hated, a sudden blow.

It is a rather serious matter to say of a man that he indulged in sadism in the presence of other persons in a disgusting manner. That is why the defendant is so anxious to have the falsity of this allegation exposed here publicly. I therefore request once more that Lothar Streicher be brought before this Tribunal.

As to the last witness, Attorney Strobel, I would be very pleased to comply with Sir David Maxwell-Fyfe’s wishes, but also in this case I am afraid I cannot do so.

Attorney Strobel’s testimony is offered as proof for the following: Sometime, approximately three weeks after the events on the night of 9 November 1938, Streicher addressed a meeting of the Association of Lawyers at Nuremberg. At that public meeting of lawyers, Streicher defined his attitude to the events of 9 November 1938 and made it clear that he had been against the demonstration and the firing of synagogues. Attorney Strobel, as he said, was very surprised at the time that Streicher so openly took a stand against Hitler’s order and made no secret of what he had said to Obernitz, that he would not take part in the demonstration and that he considered the whole thing to be a mistake.

Strobel’s testimony may carry more weight than that of chauffeur Herrwerth, since in the case of the latter the Prosecution can hold against the Defense the fact that Herrwerth was an employee of the defendant and may therefore be inclined to take the defendant’s side. This argument, however, does not apply to Attorney Strobel, as he, in a letter addressed to the Tribunal, wanted to express his aversion to the defendant and mentioned the meeting only incidentally.

Consequently, Strobel must be regarded as an impartial witness, whereas one might say of Herrwerth that he is perhaps not wholly disinterested. I therefore submit that Attorney Strobel also be called before the Tribunal in order to enable the Defense and, if necessary, also the Prosecution to put direct questions to this witness.

THE PRESIDENT: That concludes your witnesses, does it not? Now you can turn to the documents. No documents? Very well, the Tribunal will consider your applications.

DR. MARX: Mr. President, may I have a word please? Up to now it has not been possible for me to collect all the documents we need. There are a number of newspaper articles which I should like to submit to the Tribunal, and I ask for leave to submit the list of documents later on. I shall get in touch with the Prosecution beforehand as to which documents should be discarded and which should be put in.

THE PRESIDENT: Yes, Dr. Marx, the Tribunal will have no objection to your getting in touch with the Prosecution with reference to documents later on, but you must understand that no delay can be permitted.

I call upon the Counsel for the Defendant Funk.

SIR DAVID MAXWELL-FYFE: If Dr. Sauter would allow me, I should like to say that, with regard to these applications, there is so little between the applications and the views of the Prosecution that it might shorten matters if I were to indicate the views of the Prosecution, and then Dr. Sauter could add anything he has to say. I could be extremely short, but I do not want to forestall Dr. Sauter if he has any objection.

THE PRESIDENT: Would that meet with your view, Dr. Sauter?

DR. FRITZ SAUTER (Counsel for Defendant Funk): That I present my applications now and that the Prosecution then reply?

THE PRESIDENT: I think Sir David meant that he should first indicate any objections which he has, and then you could explain your view.

DR. SAUTER: I quite agree, My Lord.

SIR DAVID MAXWELL-FYFE: If the Tribunal please, the witnesses fall into four groups. The first group is three witnesses from the Ministry of Economics, Numbers 1, 2, and 10 on the list. As I understand Dr. Sauter, he wishes to call Number 2, Herr Hayler, as an oral witness, and to have affidavits from the witnesses Landfried, Number 1, and Kallus, Number 10. The Prosecution have no objection to this course, except that with regard to the witness Landfried they may have some observation to make on the form of the interrogatories, which could no doubt be settled with Dr. Sauter, and then put to the Tribunal for their approval. Secondly, they want to reserve the right to apply for further cross-interrogatories. Apart from that, which I submit are really minor points, they agree with that suggestion.

The second group is two witnesses from the Reichsbank, Number 5, Herr Puhl, and Number 7, Dr. August Schwedler. Again, as I understand Dr. Sauter, he wants an affidavit in the form of answers to questions. The Prosecution have no objection to that, only again they reserve the right to apply for cross-interrogatories, if necessary; if the answers take a certain form, they might have to apply to the Court that the witness be brought for cross-examination. They simply want to reserve that right, but, of course, they cannot take up their position until they have seen the form of the answers.

Then, the third group consists of one witness, who is Dr. Lammers, who has been called by most of the defendants orally, and there is no objection to that, and the Prosecution suggest that Dr. Sauter will put his questions to Dr. Lammers when he is called by the other defendants.

Then, the fourth group is a general one. There is Herr Oeser, who is an editor, Number 6; Herr Amann, Number 8; and Number 9, Herr Roesen; and lastly, Number 4, Frau Funk. As I understand it, with regard to all these witnesses, Dr. Sauter wished either an interrogatory or an affidavit. The Prosecution make no objection to that, with the same understanding that they reserve their rights to put cross-interrogatories or to ask the Tribunal to summon any of them as witnesses if any point emerges. Subject to the reservation of these points, there is nothing between us, because the result is, if I have understood it all correctly, that Dr. Sauter is asking for two oral witnesses and eight sets of interrogatories.

THE PRESIDENT: Sir David, don’t you draw any distinction between an affidavit and interrogatories?

SIR DAVID MAXWELL-FYFE: Well, I do, certainly. But, My Lord, Dr. Sauter has shown in the case of most of the witnesses the interrogatories which he is putting—apart from Dr. Lammers, who, of course, will be dealt with orally, because he is being produced as a witness. I understand that when Dr. Sauter says “affidavit” he means an affidavit in the form of answers to questions, such as those he has set out in the appendix.

THE PRESIDENT: Well, then, Sir David, so far as the Prosecution are concerned, they would take the line that you have suggested, meaning by an affidavit, interrogatories and, if necessary, cross-interrogatories?

SIR DAVID MAXWELL-FYFE: That is so.

THE PRESIDENT: Very well. Yes, Dr. Sauter?

DR. SAUTER: Mr. President, I am in agreement with the suggestions of the Prosecution as to the individual applications. As to the wording of the individual interrogatories I shall come to an agreement with the Prosecution.

THE PRESIDENT: Just one moment. Dr. Sauter, perhaps you could tell us, dealing, for instance, with Number 6—you say there, “I have in hand an affirmation from this witness with a supplement thereto.” Does that mean answers to interrogatories, or does that mean an affidavit, a statement? Have you got the passage?

DR. SAUTER: Yes, I have an affidavit from this witness, Albert Oeser, Number 6, and this affidavit will be submitted to the Tribunal, together with my document book. I am already in possession of this affidavit.

THE PRESIDENT: Well, Sir David, that is not quite the same as interrogatories. I do not know whether you have seen the affidavit. I mean, it may be that at a later stage you would want to cross-examine or to put cross-interrogatories to that witness.

SIR DAVID MAXWELL-FYFE: Yes, that would be so, Your Honor. I must reserve the right, until I have seen the affidavit, to do that. The ones that are attached to Dr. Sauter’s application are all in the interrogatory form, but where the document is in the form of a statement, the Prosecution would have to reserve these rights. Really, one cannot make any declaration until one has seen that.

DR. SAUTER: Mr. President, before I put in evidence this affidavit by the witness Oeser, Number 6, I shall, of course, pass it to the Prosecution so that they have ample time to decide as to whether they wish to cross-examine this witness. This goes without saying.

THE PRESIDENT: Where is that particular witness? Where is he?

DR. SAUTER: He is witness Number 6, My Lord.

THE PRESIDENT: Yes, but where is the man? Where is he at the present moment? Is he in Nuremberg or where?

DR. SAUTER: Witness Oeser is at Schramberg in the Black Forest, in Baden, near the Rhine. It is some distance from Nuremberg. Moreover, Mr. President, the points to which the witness is to testify are comparatively so insignificant that it would hardly be worth while to bring the witness himself to Nuremberg. I personally do not know the witness, but an acquaintance of mine mentioned him to me as a person who could give favorable information on the conduct of the Defendant Funk. Thus we got to know about witness Oeser and obtained from him an affidavit which I shall pass to the Prosecution in good time.

SIR DAVID MAXWELL-FYFE: With regard to the documents, My Lord, the first one is a biography of the Defendant Funk. The extracts were submitted as part of the Prosecution’s case. I ask that Dr. Sauter intimate what passages he desires to use, and then the Prosecution can make such objections or comments as may or may not be necessary.

The second request is, I think, the same as we had yesterday, namely for the record of the Dachau trial and of the evidence of the witness Dr. Blaha. The American prosecutors will be pleased to show Dr. Sauter the report that they have of Dr. Blaha’s evidence at that trial.

With regard to the speeches of the Defendant Funk, there again, if Dr. Sauter will intimate what they are and what he intends to use, the Prosecution will consider them. _Prima facie_ they would be a relevant matter.

And with regard to Number 4, the copy of the newspaper with a report of the defendant’s speech, that again would _prima facie_ be relevant, and we shall look into it. It is very unlikely that there would be any objection, but we shall look into it; and, if necessary, deal with it when Dr. Sauter makes his presentation.

THE PRESIDENT: Has Dr. Sauter the newspaper?

DR. SAUTER: Mr. President, the newspaper mentioned under Number 4, and also the speeches mentioned under Number 3, are now in my possession. I shall not use the entire text of the speeches in my brief.

THE PRESIDENT: Then you would be prepared to indicate to the Prosecution the passages in your Document 1 and the passages in 3 and 4, which you wanted to use, so that they can have them translated?

DR. SAUTER: Yes, My Lord. I shall include in the Document Book from the book mentioned under Number 1 only a few—I think two or three—pages and from the speeches and newspaper articles only those passages which I am going to use, and submit these to the Prosecution in time for translation. As to the record of the Dachau trial, this request is settled by what the Prosecution stated yesterday regarding the Defendant Frick. I believe the Dachau stenographic report is already available. I shall peruse it, so that this matter is settled.

THE PRESIDENT: Very well. Then I call upon counsel for Dr. Schacht.

DR. DIX: I am very pleased to be able to tell the Tribunal that I believe I am in agreement with Sir David as to the compass of evidence to be submitted by me, especially as to those applications which I shall either withdraw or restrict. In order to facilitate matters, may I therefore first tell the Tribunal which applications on my list I withdraw and which ones I restrict, so that eventually those will be left which I maintain. I withdraw application Number 5 for the examination of Dr. Diels. I heard yesterday that Dr. Diels has been called for as witness in another application. Should the Tribunal grant yesterday’s application and order Diels to appear, then I should like to reserve the right to examine. I myself shall, however, not apply for him.

Then I should like to call your attention to applications Number 6, Colonel Gronau; Number 7, Herr Von Scherpenberg; Number 8, State Secretary Carl Schmid; Number 9, Consul General Dr. Schniewind; Number 10, General Thomas of the armament staff; Number 11, Dr. Walter Asmus; Number 12, Dr. Franz Reuter; and Number 13, Dr. Berckemeyer. For all these witnesses I am willing to accept an affidavit. I quite realize that I have to pass affidavits to the Prosecution and that the latter have the right to apply for these witnesses to be summoned for cross-examination.

The following witnesses, therefore, remain to be called before the Tribunal: Witness Number 1, Dr. Gisevius; witness Number 2, Frau Strünck; witness Number 3, the former Reichsbank Director, Vocke; and witness Number 4, the former Reichsbank Director, Ernst Huelse. In respect to these witnesses, I must insist on my application for their personal appearance. Schacht’s defense cannot dispense with the oral examination of these witnesses. May I put forward my reasons in each case. The testimony of these witnesses is in no way cumulative. One witness knows things the other does not. Vocke and Huelse were Schacht’s closest collaborators at the Reichsbank and at the International Bank at Basel. They know of events and developments which Schacht may not be able to recall in detail. The oral examination of these witnesses cannot therefore be replaced by interrogatories because he is no longer sufficiently versed to draw up the relevant questions. These witnesses must be informed of the theme of the evidence and be given the opportunity to make a comprehensive statement.

The same, namely that they still remember events in detail which Schacht no longer recollects, applies to Frau Strünck and Gisevius, who can testify particularly as to the plans for the various attempts on Hitler’s life from 1938 to 1944.

This is all I have to say regarding my application for these witnesses.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Dix and Professor Kraus were good enough to indicate to me and my colleagues yesterday their proposals which Dr. Dix suggested be put before the Tribunal. The Prosecution felt that by limiting all the witnesses to the first point and Point 2, Dr. Dix was making a reasonable suggestion. The Prosecution, of course, reserve all rights as to the relevancy of the various points set out as to these witnesses, but they felt that that, as I say, was a reasonable suggestion. On Numbers 3 and 4 it means that the Defense are limiting all the witnesses, on the general economic course of conduct of the defendant, and again the Prosecution felt that that was a reasonable suggestion. With regard to the others, the Prosecution must, as I have said—and Dr. Dix agreed—reserve all rights by way of cross-interrogatories or of asking that the witness should be summoned, but the Prosecution felt that they could be in a position really to decide what their rights and proper course should be only when they had seen the affidavits that were put in. That is the reasoning of the Prosecution in the matter.

THE PRESIDENT: As to documents, Dr. Dix?

DR. DIX: Regarding the documents, I should like to make it clear that wherever in my list I have referred to books, published speeches, and such like, especially under Number 2, this does not mean that I intend to present to the Tribunal long extracts from these books. Only short quotations will be made and these quotations will be. . .

[_The proceedings were interrupted by technical difficulties in the interpreting system._]

THE PRESIDENT: The best course would be for us to adjourn now and then this mechanical defect will be remedied.

[_A recess was taken._]

THE PRESIDENT: Just one moment, Dr. Dix. I have one or two announcements to make. In the first place, the application which has been made on behalf of the defendants for a separate trial of the organizations named under Articles 9 and 10 of the Charter is denied.

Secondly, with reference to the application made on behalf of counsel for the Defendant Bormann, the Tribunal have considered the application dated February 23, 1946, by Dr. Bergold, counsel for the Defendant Bormann, in which he asks that Bormann’s case should be heard last, at the end of the cases of all the other defendants. The Tribunal have decided to grant this application.

The Tribunal also rule that the hearing of Dr. Bergold’s applications on behalf of Bormann for witnesses and documents, in accordance with Article 24(d), shall not take place at the present time, when the Tribunal are hearing the applications of all the other defendants, but at a later date to be fixed within the next three weeks.

Thirdly, with reference to the business of the Tribunal, the Tribunal will sit in closed session after the conclusion of the applications on behalf of the four defendants who are being heard today. Tomorrow the Tribunal will continue the applications on behalf of the next four defendants, and on Thursday the Tribunal will hear the case on behalf of the Defendant Göring.

Yes, Dr. Dix.

DR. DIX: Before the recess, I was about to tell the Tribunal, as to Number 2 of the list of documents, that in my presentation I would confine myself to really important and quite short quotations, after having made them available to the Prosecution in our document book. This disposes of Number 2.

Number 1 consists of extracts from copies already submitted by the Prosecution. I shall give but one example, namely, the report by Ambassador Bullitt to the Secretary of State in Washington. The Prosecution presented the last part of this report, in which they were interested, whereas I wish to reserve the right to present the first part, which deals with Schacht’s peaceful intentions and his lack of political influence on Hitler, and which is therefore of importance to the Defense.

I now turn, to Number 3, Subparagraph (a), which is the Schacht memorandum to Hitler of 3 May 1935 concerning the legal rights of Jews, dissolution of the Gestapo, _et cetera_.

May I again ask the Prosecution to see to it as far as possible that this document, which has not been introduced so far, be procured together with Document 1168-PS, which at the time of Schacht’s interrogation by Colonel Gurfein was produced. As I heard yesterday, the document has not yet been found, but perhaps Colonel Gurfein, who has already gone back, can assist us in this matter. These two documents are very important, as they constitute parts of a Schacht memorandum which can be understood and appreciated only in its entirety.