Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-185.01
Last-Modified: 2000/10/14

                                                  [Page 289]

HUNDRED AND EIGHTY-FIFTH DAY

WEDNESDAY, 24th JULY, 1946

THE MARSHAL: May it please the Tribunal, the defendants Hess
and Raeder are absent.

THE PRESIDENT: The Tribunal will now hear the applications
for witnesses on behalf of the various organizations, taking
the SS first.

MR. ELWYN JONES: If your Lordship pleases, with regard to
the SS organization defending counsel has applied for seven
witnesses. Five of these - von Eberstein, Hinderfeld,
Hausser, Riedel and Reinicke - are among the twenty-nine SS
witnesses whose evidence has been heard on commission. The
prosecution has no objection to the calling of these
witnesses, although, as there is a certain amount of
overlapping in the evidence of Eberstein and Hinderfeld, it
is suggested with respect that this might be avoided when
those two witnesses are examined by Dr. Pelckmann.

As to the other witnesses applied for, with regard to Rode,
the Tribunal will see from defending counsel's application
that an affidavit from this witness was put in by the
prosecution as Exhibit USA 562. Dr. Pelckmann has informed
me that he does not propose or desire to call Rode to
testify before the Tribunal itself, but will be quite
content to cross-examine Rode on commission.

Therefore, if the Tribunal thinks that the interests of
justice demand the resumption in this particular case of the
taking of evidence on commission the prosecution has no
objection to Dr. Pelckmann's suggestion. Perhaps in fairness
to Dr. Pelckmann, I ought to add that I understand that Rode
only arrived in Nuremberg a few days ago.

The last witness applied for is Hermann Rauschning, the
former Senate President of the former free city of Danzig,
and the author of the book The Voice of Destruction,
extracts from which the prosecution has submitted in
document Exhibit USSR 378, as part of the prosecution's
case. No affidavit from Rauschning has ever been used by the
prosecution. I understand that Rauschning himself is now in
the United States.

With regard to him, the prosecution object to his being
called as a witness upon the following grounds.

If the Tribunal will look at defending counsel's
application, it will be seen that there are three matters
which it is desired to elucidate from Rauschning.

In so far as some of these facts may be relevant or have
evidential value, I submit that those facts can be extracted
from Rauschning's book The Voice of Destruction, and that in
those circumstances it is quite unnecessary to have
Rauschning here as a witness himself. The prosecution would,
of course, have no objection to further extracts from that
book being put in as part of the defence case of the SS
organization.

THE PRESIDENT: Would the prosecution object to
interrogatories being put to Rauschning?

MR. ELWYN JONES: No, my Lord, we should have no objection to
that.

There are facts set out in the first two paragraphs of
defending counsel's application with regard to Rauschning. I
submit that with regard to the first, a

                                                  [Page 290]

Cassandra-like statement by Rauschning that up to 1939 his
warnings were not heeded, it has, I submit, no evidential
value whatsoever. With regard to the second paragraph, in
which it is stated that Rauschning has knowledge of the fact
that in 1936-1937 Hitler did not have the intention of
exterminating the Jews, it is not in any way clear how
Rauschning could, in fact, have had any knowledge of
Hitler's intentions at all - even the devil knoweth not the
heart of man.

I do not submit that testimony of that kind from Rauschning
would be wholly irrelevant. Whatever I have said, the
prosecution would have no objection to further extracts
being taken from Rauschning's book, or interrogatories being
administered to him.

THE PRESIDENT: Dr. Pelckmann.

DR. PELCKMANN: May it please the High Tribunal, I am in
complete agreement with what Mr. Elwyn Jones has said, as
far as it applies to the rest of the witnesses. Regarding
his statement about the witness Rauschning, I should like to
say the following: The decision of the 13th of March, 6-A,
paragraph 3, specifies that it is relevant to submit
evidence on whether the possibly criminal aims and
activities of the SS were quite obvious or were known to the
bulk of the members.

I tried before the commission to prove that the aims and
activities were not criminal, that the crimes committed were
only individual acts or acts of certain groups, and that
these acts were not known to the majority of the members. I
tried to prove this by means of relatively very few
witnesses, compared with the number of members; as the
prosecutor said, by means of twenty-nine witnesses from
among thousands of affidavits. All this material will be
submitted to the High Tribunal in due course, but it all
concerns the so-called legal standing of membership.

The prosecution, on the other hand, submitted its evidence
against the SS, as well as against the other organizations,
directly to the Tribunal through documents and through the
direct testimony of witnesses, a procedure which took many
weeks. As regards the further assertion, in connection with
paragraph three of the decision of the 13th of March, that
the bulk of the SS - (The President interrupted the
statements of the defence counsel for a few minutes.)

THE PRESIDENT: Go on.

DR. PELCKMANN: As regards the further assertion that the
bulk of the SS knew of such criminal aims of the SS and of
the criminal acts of individual members or certain groups,
the prosecution did not present any proof, but merely
asserted that this could be seen clearly from the
circumstances, and was a matter of course. I consider it
only just, right and proper that in addition to the
statements of SS members, which as indirect proof I shall
submit in large numbers in the form of affidavits, and the
probative value of which could be disputed by the
prosecution because they are statements of the people in
question, namely of the SS members themselves, that in
addition the witness Rauschning, the only one of my
witnesses who is not under automatic arrest, should testify
before this Tribunal, and should testify in person. The only
other witnesses who will appear in person are the five
witnesses of the SS who held a relatively high rank, and
therefore have a fairly general knowledge, but it can be
held against them that their testimony is not quite
credible.

As for the person of Rauschning and the relevance of his
testimony I should like to say the following:

As has already been stated, he was an SS Standartenfuehrer
and President of the Danzig Senate. He had the complete
confidence of Hitler until 1936, when the break with Hitler
occurred. Rauschning emigrated, and was very active in
publishing material abroad. In his books, which have become
well known throughout the world, he constantly warned
against Hitler and his plans, and he is still everywhere
known as a man who did not defend or protect the Hitler
regime and its guilty members.

                                                  [Page 291]

In his many conversations with Hitler, he learned - and now
I come to the main point of my application: Firstly, that at
least in the years 1936 and 1937 Hitler did not intend to
exterminate the Jewish population. He has given detailed
reasons for this statement, and the objection of the
prosecution that it was impossible to recognize Hitler's
intentions does not completely apply, because this precisely
is the task of the Tribunal to recognize Hitler's intentions
as regards the salient points of the Indictment. If Hitler's
intentions are recognized, then perhaps one can decide the
responsibility of the bulk of the members of the
organizations.

Of course, we have only indications, and must, if possible,
obtain and evaluate direct evidence of Hitler's intentions.
This direct evidence of Hitler's intentions the witness
Rauschning can give on the basis of his conversations with
Hitler, and I do not think that one can find a better
witness for this subject.

Secondly, continuing with the points of my application,
Rauschning learned that Hitler -

THE PRESIDENT: What is it, Dr. Pelckmann, that makes you
think that Rauschning would be able to give this evidence?

DR. PELCKMANN: I know his books, my Lord.

THE PRESIDENT: Then if it is in his books, how will it help
to have him say what is in his books again?

DR. PELCKMANN: Of course, his books represent only a very
small part of his entire knowledge, and he certainly did not
write them with this trial in mind. The chief points brought
up by the prosecution in this trial can now be answered much
more satisfactorily by the witness himself than by
quotations from his books taken out of their context.

THE PRESIDENT: I understand you are saying that the only
reason you have for thinking that he would be able to answer
these questions is because of what you see in the books.
Then you do not know that he can give any further evidence
than is in the books.

DR. PELCKMANN: Of course, I do not know that, but it is
probable, and my assumption that he can do it is based on
experience. I do not think that I am asking for anything out
of the ordinary. I expect a man who in the years from 1933
to 1936 concerned himself so intensively with Hitler and
Nazism and then studied this regime in later years and
discussed it with foreigners, I expect such a man to know
much more than is set down in his books. And I also have the
following reasons for my application:

In preferring its charges the prosecution used quotations
from the books of Rauschning, and these quotations are
practically identical with the affidavits. The prosecution
would equally well have been able to obtain affidavits on
the pertinent passages in Rauschning's books which would
perhaps have contained his assertions in more detail.

According to the rules of procedure established by this
Tribunal, I am entitled to ask that witnesses who have
deposed affidavits for the prosecution be cross-examined by
the defence before the Tribunal. I believe that, if -

THE PRESIDENT: I am not aware that such a rule applied to
witnesses in the United States. The rule, in so far as any
rule at all was made, was that people who were in this
country, if they had made affidavits, might be brought here
for cross-examination; that rule has never been applied to
persons who were in the United States or in any other
country outside this country.

The case of Mr. Messersmith is an instance, and there has
never been a case of anybody's being brought in, except,
perhaps, the witness Dahlerus.

DR. PELCKMANN: Since the Indictment and the Tribunal's
verdict are of great importance for all members of the SS,
and since, unlike the cases of the individual defendants, I
can only call members of the organization as witnesses - and
this is a

[Page 292]

considerable restriction - I think I may ask the Tribunal
that this witness, the only one who is not implicated and
can tell the Tribunal something about conditions at that
time and his views on them, that this witness be brought
here; technical difficulties should play no part in this
trial of surely world-wide significance.

May I continue, my Lord?

THE PRESIDENT: Certainly.

DR. PELCKMANN: The witness is to testify further that it was
Hitler's deliberate policy to deceive the German people as
well as foreign countries about his plans and intentions;
for instance, about his aggressive intentions.

In very intimate conversations with Rauschning, Hitler
remarked - and almost joked about it - how successful he was
in leading by the nose not only foreign countries but his
own people.

These questions are relevant within the decision regarding
evidence.

With reference to the Jewish question, I refer to the
assertion of the prosecution that the Party programme
resulted directly in the extermination camp at Auschwitz.
The Party programme, as the bulk of the SS members saw it,
provided only for a solution of the Jewish question on the
basis of the statute of minorities, supplemented by the
somewhat more severe Nuremberg Laws of 1935. But, however
this may be, it could not be a crime against humanity. If it
could be proved that during this time Hitler actually did
not intend to exceed this programme, then the assertion of
the prosecution could no longer be upheld. If this attitude
of Hitler at that time can be proved, then the SS and the
simple SS man who followed this programme could not have had
any other attitude either.

Secondly, the deception of the German people: The following
is clear: We know today from the various documents just what
did take place at that time: We need only read the Reichstag
speech about Hitler's will for peace, or the reasons for the
murders on 30th June, 1934. But it would be startling if a
witness asserted that Hitler had confided to him that it was
his principle to deceive the Germans about his true
intentions. The prosecution would then have to prove that
the SS was not deceived - that the SS, in agreement with
Hitler, actually knew what Hitler wanted.

THE PRESIDENT: Dr. Pelckmann, the Tribunal did not desire to
hear a general argument from you upon the whole case. They
are simply dealing with the question of whether this man
Rauschning should be brought from the United States.

DR. PELCKMANN: If the relevance of his testimony is not
disputed, then I can very well understand -

THE PRESIDENT: Dr. Pelckmann, we have your written
application before us, and you are dealing with a variety of
matters which are not mentioned in that written application.

DR. PELCKMANN: I cannot, of course, set down in my
application everything that I would want to include. This
application, naturally, contains only my main points: 1. The
Jewish question, 2. The deception of the German people and
3. of the SS members.

THE PRESIDENT: We have indicated to you what the view of the
Tribunal is - that we think that you have dealt with the
application, and we do not desire to hear a general
argument.

DR. PELCKMANN: Mr. President, I only tried to show the
relevance of my three points of evidence. If the Tribunal
can assume that these points are relevant, then, I think, I
need only add this:

A single witness who is outside the SS, who, it is true, at
one time -

THE  PRESIDENT: You have already said that, Dr. Pelckmann,
more than once, and the Tribunal is quite aware of what you
have said.

                                                  [Page 293]

DR. PELCKMANN: Mr. President, do you not want an answer to
the question why we should deviate from the general rule and
bring this witness here from America? Do you not want an
answer to that?

THE PRESIDENT: You have already presented argument to that
effect.

Now we will deal with the SD.

MR. DODD: Mr. President, counsel for the SD has asked for
only two witnesses, and the prosecution has no objection to
these two witnesses being heard by the Tribunal. It appears
to be a reasonable number.

While I am before the Tribunal, may I go on with the
applications for the Reich Cabinet and High Command as well?

THE PRESIDENT: The Reich Cabinet, we understood, was not
going to be dealt with today.

MR. DODD: We received the application for one witness this
morning.

THE PRESIDENT: Oh, yes. Certainly. Go on and deal with
these.

MR. DODD: With respect to the High Command, counsel for the
defendant organization has asked for six witnesses, and our
position is that it is at least twice as many as are
necessary and that three - something like three - would be a
much more reasonable number to present before the Tribunal.
We have no particular preferences or no objections, no
particular objections, to any of the three. I understand,
however, that counsel prefers von Rundstedt, von Brauchitsch
and von Mannstein, and we have no objections if that is his
choice out of the six, but we do object to six on the ground
that they are too numerous and all of them have been heard
before the Commission.

With respect to the application of the Gestapo, only two
witnesses are asked for - the witness Best and the witness
Hoffmann, and we have no objection to the appearance of
these two witnesses.

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