[Page 323]

LAHOUSEN: As to the question whether he is still alive, I seem to recall that this man, in connection with others whom I knew, very well might have been killed, but I cannot be more definite on this point.

[Page 324]

CROSS-EXAMINATION BY DR. FRITZ:

Q. Witness, do you know that the defendant Fritzsche, after May, 1942, was transferred to the Sixth Army as a soldier, and that there he heard for the first time of the existence of an order for execution and that he recommended to the Supreme Commander of the Sixth Army, Paulus, to have this order suspended within the jurisdiction of his army and to have this decision made known by leaflets to be dropped over the Russian front.

THE PRESIDENT: Be careful only to ask one question at a time. You have just asked three or four questions at once.

Q. (continuing.) Yes, Sir. Is it known to you that Fritzsche gave Paulus the advice to rescind the order for his army area?

A. That order had already been given to his army. Will you kindly give me the approximate date?

Q. That was during the Russian campaign, as I mentioned yesterday. Most of these things occurred in May, 1942.

A. No. In connection with the person of Fritzsche, this is not known to me. In connection with the name Reichenau, which was mentioned before, I do remember a conversation between Reichenau and Canaris. That for me was very impressive, and Reichenau's concept and judgement of things in this conversation, in this circle, where there were several other gentlemen present, showed him to be entirely different from what I expected him to be, and the way I thought of him. I don't know anything about this particular question.

Q. Also nothing concerning the fact that Paulus had then already rescinded the order within the boundaries of his Army?

A. No, not in connection with the name Paulus, but in general I believe, as I also mentioned yesterday, that several army commanders, whose names are no longer in my memory to-day, all those names have been recorded, and I have already informed you about them.

CROSS-EXAMINATION BY DR. KAUFFMANN (counsel for defendant Kaltenbrunner):

Q. Do you know Kaltenbrunner?

A. Kaltenbrunner? I met Kaltenbrunner once in my life, on a date that will always be in my memory. It was also the first meeting between Canaris and Kaltenbrunner. It took place in Munich in the Regina Hotel, and it was on that day when two young people, a student and his sister, were arrested and executed. They had distributed leaflets from the auditorium of the University of Munich. I read the contents of the leaflets, and I remember, amongst other things, that they contained an appeal to the Wehrmacht.

I can easily reconstruct that day. It was the first and last time that I saw Kaltenbrunner, with whose name I was familiar. Of course, Kaltenbrunner mentioned this subject to Canaris, in the presence of witnesses, and everybody got a terrible impression of what had happened, and Kaltenbrunner spoke about it to Canaris in a manner of which cynicism would be a very mild description. This is all that I can say to this question.

Q. Kaltenbrunner claims that Himmler retained full executive powers for himself, while he was only in charge of information. Is this in accord with the conversation that you just mentioned?

A. I would like you to know what connection this has with the matter Kaltenbrunner and Himmler-the power politics which took place, in the S.S.I have merely given this very plain description of this event - I can give you the names and the people present, who were very much impressed.

CROSS-EXAMINATION BY DR. BOEHM (counsel for S.A.)

Q. You were asked yesterday, whether the orders as to the treatment of Soviet prisoners of war were known to the leaders of the S.A. and other organisations,

[Page 325]

A. Who they were and what their names were, I do not know. I have also stated explicitly yesterday why I said so. These orders should have been known both to them and to a large circle, through the execution thereof and, of course, through the return of the wounded. The German people would have learned of it.

Q. In other words, it was only an opinion of yours but in no way a fact based on information?

A. No, it was not based on information. I have never spoken to any S.A. leader about it. I never had anything to do with them, and I do not think any one of them knew me well.

Q. Could you make a statement on this, that is, that the orders which were named yesterday were given to the formations of the S.A., emphasising S.A.?

A. Would you kindly formulate that question again?

Q. Could you make another statement, whether it was known to you whether the contents of these orders, which were talked about yesterday, were sent to formations of the S.A. through channels?

A. No, not through channels, no, but in the way I have previously indicated in other words, members of the S.A. who were also in the Wehrmacht would see outside actually what happened, and when they came back or came in contact with them they talked about the Jews as anyone else would. It was only in this connection

Q. Is it known to you whether members of the S.A. had anything to do, at all, with the management of the prisoners of war?

A. Within the frame of the employment of S.A. in the Wehrmacht, yes.

Q. Have you any personal information on that?

A. No, I never said that. I said I had already talked about the S.A.

Q. I have asked you what leaders of the S.A. formations have known about it, and you yourself answered that they should have known it.

A. I said the leaders of these organisations, in this way, have known about it.

Q. And to-day I ask you whether the specific formations of the S.A. had received these orders.

A. I can only repeat what I said yesterday, and I think I was very clear on the subject, in other words, how these orders, that I did not read myself, but I know the effects anyway -

Q. I can imagine myself how this happened, but I have asked you whether you know anything about having these orders actually given to the S.A.?

A. No.

Q. You do not know? Is anything known to you to show that members of the S.A. were employed for the supervision of prisoners of war, according to your personal information?

A. Yes, because I, myself, on a trip to the Army Group North, once got hold of an S.A. man, who kicked a Russian prisoner of war, and I told him off, accordingly. Surely somewhere I have this in my records, and also an episode about an Arbeitsdienst Mann.

Q. Did you report any of these incidents to any superior officers?

A. I did report them to my superior officers, and also made reports about these trips, either orally or in written shape, and on many of these occasions discussions took place.

Q. Have you got anything in your records?

A. Yes.

Q. Will you kindly present these?

(Discussion between counsel and witness in German, not translated.)

A. I am looking it up. This is about the Arbeitsdienst Mann, this document.

[Page 326]

A. I have not got it here. I would have to look it up.

Q. Is there any possibility that you might find some records?

A. I would have to obtain the entire material which the American authorities have, and I would have to look through it thoroughly for this one possibility.

DR. GEORG BOEHM (counsel for S.A.): I will ask the Court to have it made possible at some time.

Q. (continuing): I would also like to ask you if you have any other information that S.A. members, who you previously said were employed in supervisory capacities, were made to execute these orders, according to statements about Russian prisoners of war.

A. No, not personally.

Q. Thank you.

DR. STAHMER (counsel for Goering): I would like to ask the Court for a fundamental ruling, whether the defendant also has the right to personally ask the witness questions. According to the German Charter, Paragraph 16, I believe this is permissible without a doubt.

THE PRESIDENT: The Tribunal will consider the point you have raised and will let you know later.

MR. JUSTICE JACKSON: The United States prosecution would desire to be heard, I am sure, if there were any probability of that view being taken by the Tribunal.

THE PRESIDENT: Perhaps we had better hear you now then, Mr. Justice Jackson.

MR. JUSTICE JACKSON: Well, I think it is very clear that these provisions are mutually exclusive. Each has the right to conduct his own defence or to have the assistance of counsel. Certainly this would become a performance rather than a trial if, we go into that sort of thing. In framing this Charter, we anticipated the possibility that some of these defendants, being lawyers themselves, might conduct their own defence. If they do so, of course, they have all the privileges of counsel. If they avail themselves of the privileges of counsel, they are not, we submit, entitled to be heard in person.

DR. STAHMER: I would like to point out once more that paragraph 16 (e), according to my opinion, speaks very clearly in support of my point of view, and says that the defendant has the right, either personally or through his attorney, to present evidence, and according to the German text it is clear that the defendant has the right to cross- examine each witness called by the prosecution.

THE PRESIDENT: Does any other German counsel, defendant's counsel, wish to cross-examine the witness?

DR. SERVATIUS (counsel for defendant Sauckel): I would only like to point out that in the written forms that have been given to us by the Court, the defendant as well as his lawyer can propose a motion. There is room for two signatures on the questionnaire. I request, therefore, that the defendant himself have the right to speak on the floor.

THE PRESIDENT: What I asked was whether any other defendant's counsel wished to cross-examine the witness.

(Dr. Boehm approached the lectern.)

THE PRESIDENT: What is it? Would you put the earphones on, please, unless you understand English?

What is it you want to ask now? You have already cross- examined the witness.

DR. BOEHM: Yes, I have cross-examined him, but I have heard from him that he has written statements, that he has made a report, according to something he has witnessed. I cannot dismiss the witness as yet.

I would like to make a motion that it be made possible for the witness for the prosecution to look through all the reports and all the records, and for us to go through all the materials.

THE PRESIDENT: I think you must conclude your cross- examination now.

DR. BOEHM: Surely.

[Page 327]

DR. BOEHM: Yes.

THE PRESIDENT: Then, as no other defendant's counsel wishes to cross-examine the witness, the Tribunal will now retire for the purpose of considering the question raised by Dr. Stahmer: whether a defendant has the right to cross-examine as well as his own counsel.

(A recess was taken.)

THE PRESIDENT: The Tribunal has carefully considered the question raised by Dr. Stahmer, and it holds that defendants who are represented by counsel have not the right to cross- examine witnesses. They have the right to be called as witnesses themselves and to make a statement at the end of the trial.

Do the prosecutors wish to ask any questions of this witness in re-examination?

COLONEL AMEN: just one question, your Lordship.

THE PRESIDENT: Let the witness come back here.

THE MARSHAL OF THE COURT: He was taken away.

THE PRESIDENT: Taken away?

THE MARSHAL: That's right. He was taken away by some Captain who brought him here for the trial. They have sent after him now.

THE PRESIDENT: Do you know how far he has been taken away?

THE MARSHAL: No, Sir, I do not. I will find out immediately.

THE PRESIDENT: Colonel Amen, are the questions that you wish to ask of sufficient importance for the Tribunal to wait for this witness, or can he be recalled on Monday?

COLONEL AMEN: I do not think they are so important, your Lordship.

THE PRESIDENT: Very well then. The Tribunal will adjourn, and it will be understood that in future no witness will be removed, whilst he is under examination, from the precincts of this Court, except on the orders of the Tribunal.

COLONEL AMEN: I do not know how that happened, your Lordship, I understood he was still here.

(The Tribunal adjourned until 10.00 hours on 3rd December, 1945)

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