Archive/File: imt/tgmwc/tgmwc-11/tgmwc-11-101.06
Last-Modified: 2000/01/05

Q. You say you had a different view. Will you just look at a
letter from Herr Terboven, who was in charge in Norway,
Document PS-870, and it is Page 85, 71(a), Exhibit GB 307.
This is a report from Terboven for the information of the
Fuehrer and I want you to look at paragraph 2, "Counter
Measures," sub-paragraph 4. Do you see it? Have you got it,
defendant? I am sorry, I did give you the number, probably
you did not bear it, 71(a), Page 71(a) of the document book.
So sorry I did not make it clear.

SIR DAVID MAXWELL FYFE: My Lord, I am told that this has
been put in by French Prosecution as Exhibit RF 281. 1 gave
it a GB number, as I recall.

THE PRESIDENT: What number is it?

SIR DAVID MAXWELL FYFE: RF-281.

BY SIR DAVID MAXWELL FYFE:

Q. Do you find section 2, paragraph 4. That is:

  "Now I have just received a teleprint from Field Marshal
  Keitel, asking for a regulation to be issued, making
  members of the personnel, and, if necessary, their
  relatives, collectively responsible for cases of sabotage
  occurring in their establishments (joint responsibility
  of kinsfolk). This demand serves a purpose and promises
  success only if I am actually allowed to perform
  executions by firing squads. If this is not possible,
  such a decree would have exactly the opposite effect."

Opposite the words "If I am actually allowed to perform
executions by firing squads" there is the pencil note by
you, "Yes, that is best." So that is a third example where,
I suggest, you, yourself, are approving and encouraging the
shooting of relatives for the act of some member of their
family. What do you say to that, your own pencil note?

A. I did make that marginal note. An order given in
accordance with it was worded differently. A reply followed
which was worded differently. I wrote that note.

Q. That's what I wanted to know. Why did you write this
remark, "Yes, that is best," approving of a firing squad for
relatives of people who had committed some occupation
offence in Norway? Why did you think it was best that there
should be a firing squad for the relations? Why?

A. It was not done and no order to that effect was given. A
different order was given.

Q. That's not what I'm asking, and I shall give you one more
chance of answering it. Why did you put with your pencil on
that document, "Yes, that is best?"

A. I am no longer in a position to explain that today, in
view of the fact that I saw hundreds of documents daily. I
wrote it and I admit it now.

Q. Of course, unless it means something entirely different
from what you've written, it meant that you approved of it
yourself and thought it the best course, that the relations
should be shot by a firing squad.

SIR DAVID MAXWELL FYFE: I think your Lordship said that you
wished to adjourn.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL FYFE: I am not finished, my Lord. I have a
few matters for Monday morning.

THE PRESIDENT: Well, the defendant can return to the dock,
and we will proceed with the other applications.

Sir David, shall we deal with these applications in the same
way as we have done before?

SIR DAVID MAXWELL FYFE: Yes, your Lordship. The first one
that I have is an application on behalf of the defendant
Kaltenbrunner for a witness called Hoess, who was former
Commander of the Auschwitz Concentration Camp. My Lord,
there is no objection on the part of the prosecution to
that.

                                                   [Page 90]

THE PRESIDENT: So that is the application which has been
made by a great number of the defendants' counsel.

SIR DAVID MAXWELL FYFE: Oh, yes, your Lordship is quite
right.

My Lord, as Commandant of the Auschwitz Concentration Camp,
the prosecution feels that he could contribute to the
information of the Tribunal, if no objection is forthcoming.

THE PRESIDENT: Dr. Stahmer, I see that you are among the
counsel who applied for him. Is there anything you wish to
add about that?

DR. STAHMER: I have nothing to add to my written
application.

THE PRESIDENT: Thank you. Then the Tribunal will consider
this.

SIR DAVID MAXWELL FYFE: My Lord, the next one is Dr. Navile.
Dr. Navile was allowed as witness to the defendant Goering,
provided he can be located. He has been located in
Switzerland and I understand he has informed the Tribunal
that he sees no use in his coming here as a witness for
Goering, and he is now asked for by Dr. Nelte, counsel for
Keitel, to prove that prisoners of war had been treated
according to the rules of the Geneva Convention, Dr. Navile
having been a representative of the Red Cross. Dr. Nelte, I
am told, will be satisfied with an interrogatory, and the
prosecution have no objection to an interrogatory.

THE PRESIDENT: Dr. Nelte.

DR. NELTE: That is correct. I agree, providing that I am
allowed to put my questions to Dr. Navile in writing.

But may I add something here, not to this application to
present evidence, but with reference to another application,
which I have already submitted to the prosecution through
the translating division yesterday or the day before. My
application to admit Hitler's stenographers as witnesses was
rejected by the Tribunal as irrelevant. I have now received
a letter and an affidavit from one of these stenographers,
and in that affidavit I find a passage which refers to
Keitel's attitude to Hitler at interviews and conferences
with him.

Public opinion has criticised the defendants as being in the
habit of quoting dead men whenever they want to say anything
in their favour; and similar statements have been made in
this court. The defendant Keitel requests that the part of
the affidavit which I have already submitted, and which I
intend to submit, be admitted as an affidavit so that the
witness can still be rejected and yet it will be possible
for me to submit that passage of the affidavit with the
agreement of the prosecution.

SIR DAVID MAXWELL FYFE: If Dr. Nelte, my Lord, will submit
the passage, we will consider it, but I have not had the
chance of doing so until now.

THE PRESIDENT: Well, if you will carry out that course and
if you have no objection to it.

SIR DAVID MAXWELL FYFE: Very well, you will let me have a
copy of it?

DR. NELTE: Certainly.

SIR DAVID MAXWELL FYFE: My Lord, the next application is on
behalf of the defendant von Schirach, a request to submit an
affidavit of Dr. Hans Carossa. The gist of the affidavit is
that the defendant tried to keep himself independent of
Party directives in matters of literature and art and that,
while Gauleiter in Vienna, he repeatedly intervened on
behalf of Jews and concentration camp inmates. My Lord, the
prosecution has no objection to an affidavit being filed.

The next is an application on behalf of the defendant Funk
for interrogatories to be submitted to Mr. Messersmith.

THE PRESIDENT: Just wait a minute.

SIR DAVID MAXWELL FYFE: I am sorry.

THE PRESIDENT: Yes, Sir David?

SIR DAVID MAXWELL FYFE: My Lord, the next is an application
on behalf of the defendant Funk, asking for interrogatories
to be submitted to Mr. Messersmith, dealing with Funk's
relation to the Party and his work in the Reich Ministry of
Propaganda. My Lord, the prosecution have no objection, but
remind the Tribunal

                                                   [Page 91]

that the defendant Funk has already, on 15th March, asked
permission to submit another affidavit to Mr. Messersmith.
The prosecution did not raise any objection, but the
Tribunal has not, as far as we know, granted that yet. So I
wanted the Tribunal to know there was a previous request -

THE PRESIDENT: Do you mean an affidavit or interrogatory on
15th March?

SIR DAVID MAXWELL FYFE: Interrogatories.

THE PRESIDENT: Interrogatories? Surely we must have dealt
with it.

SIR DAVID MAXWELL FYFE: Well, that is the information that
my office had. They haven't seen the -

THE PRESIDENT: I see.

SIR DAVID MAXWELL FYFE: In case the Tribunal has not dealt
with it, we want to point out that there is one outstanding.
We have no objection to either.

Then the defendant Rosenberg requests Hitler's decree to
Rosenberg of June, 1943. There is no objection on the part
of the prosecution. I am told that we cannot trace any
previous application, but the position at the moment is that
we haven't any objection to it.

Then, my Lord, the next is von Neurath, an application for a
questionnaire, for Professor Kossuth, long resident in
Prague. Really they ask for interrogatories, my Lord, there
is no objection to interrogatories.

Then, my Lord, there is an application in reverse - if I may
so put it - from Dr. Dix on behalf of the defendant Schacht,
the downgrading of Herr Huelse, who was drafted as a
witness, to an affidavit. My Lord, we have no objection to
that.

DR. DIX (counsel for the defendant Schacht): This is the
witness Huelse. He was granted to me as a witness. In order
to shorten and simplify the proceedings, I have decided to
forfeit the right to hear the witness because there was an
affidavit. I have received the affidavit. While my
application to dispense with the witness was pending,
however, the witness arrived in Nuremberg. He is here now,
and I think therefore, that it will be best for him to stay
and for me to be allowed to examine him by confronting him
with his own affidavit, asking him to confirm it and then
putting some additional questions to him. I think that would
be much more practical than having the witness here to no
purpose, sending him back again and retaining only the
affidavit. My purpose was, in any case, partly to avoid the
complications connected with getting him here.

SIR DAVID MAXWELL FYFE: Withdraw the application to have the
affidavit -

THE PRESIDENT: Is the witness Huelse a prisoner or not, or
an internee?

DR. DIX: He is a free witness. He is not in detention and he
is free to move about Nuremberg.

THE PRESIDENT: Can he remain here until the defendant
Schacht's case comes on?

DR. DIX: I hope so. He has told me that he can stay and that
he is willing to do so.

SIR DAVID MAXWELL FYFE: My Lord, we have no objection. The
Tribunal has already granted him as a witness. If Dr. Dix
wants him as a witness, of course we have no objection to
it.

The next one is an application on behalf of the defendant
Streicher, for an affidavit from a Dr. Herold. To put it
quite shortly, the prosecution suggests that it should be
interrogatories rather than an affidavit, and on that basis
we would make no objection.

My Lord, there is only one thing I have to say. I had a most
useful discussion with Dr. Dix last night, following out the
Tribunal's suggestion of going through the documents. Dr.
Dix was most helpful in explaining the purpose of his
documents and what they were. I do suggest that if any of
the defence counsel when they are explaining the documents
would also care to explain the purport of their witnesses -
I don't want to embarrass them in any way - but if they
would voluntarily explain the purport of witnesses, either
to Mr. Dodd or myself, we might be able to save them a great
deal of time by indicating whether the
evidence of that witness would be agreed to or might be the
subject of objection.

                                                   [Page 92]

I suggest it now as we are going to meet over the documents,
and if they would extend it to witnesses, I am sure it would
prove a most profitable co-operation.

THE PRESIDENT: You are suggesting, Sir David, are you, that
they should explain to you the nature of the evidence which
the witnesses are going to give?

SIR DAVID MAXWELL FYFE: Yes.

THE PRESIDENT: And if the prosecution Were not going to
dispute it, that it might be incorporated in an affidavit?

SIR DAVID MAXWELL FYFE: Yes, that we could probably dispense
with the witness, and probably incorporate that in an
affidavit. Of course, I have been told the general purport
of the witness, because I attended on the application, but
if they could elaborate on it a little more, as often
happens when they see the witness and let me know what the
scope of the witness's testimony would be, I could probably
concede, either in whole or in part, and save them a lot of
work and the Tribunal a lot of time.

THE PRESIDENT: Well, I think the Tribunal would like to know
whether the defendants' counsel think that is a possible
course, whether it might lead to some shortening of the
defence. Could Dr. Dix possibly tell us whether he thinks it
would be possible?

DR. DIX: Of course, I cannot make any statement on the views
of my colleagues, since I cannot read their minds. All I can
say at the moment is that I will recommend to my colleagues
as unusually helpful and practical the kind of conversation
which I had the honour of having with Sir David yesterday.
Personally, I think that my colleagues too will agree to
this procedure unless there is any particular objection to
it, which is, of course, always possible. I cannot say any
more at the moment.

THE PRESIDENT: You understand what Sir David is suggesting,
that such a conversation should apply not only to documents
but also to witnesses, and if you could indicate rather more
fully than you do in your applications what the subject of
their evidence was going to be, possibly the prosecution
might be able to say in those circumstances that upon those
matters it would not propose to dispute the evidence and
therefore it might be incorporated in an affidavit?

SIR DAVID MAXWELL FYFE: My Lord, if your Lordship allows me
to interject, if they care to bring a statement on a
particular witness's testimony, the prosecution would, I am
sure, in many particulars be prepared to say, "Well, you
produce that statement on that point and we will admit it
without any formality."

THE PRESIDENT: Perhaps, Dr. Dix, you and the other counsel
for the defendants could consider that matter.
DR. DIX: I share your view entirely, my Lord, as you have
just stated it. I discussed both the witnesses and the
documents with Sir David and that was very helpful and,
accordingly, I will ...

THE PRESIDENT: If that is all we need do at the moment, then-
-
SIR DAVID MAXWELL FYFE: If your Lordship pleases, yes.

THE PRESIDENT. The Tribunal will adjourn.

(The Tribunal adjourned until 8th April, 1946, at 10.00 hours.)

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