Eighty-Fifth Day:
Tuesday, 19th March, 1946 [Page 239]
DR. DIX (counsel for defendant Schacht): I should like to
make one request, that at least the technical possibilities
- that at least the counsel for these defendants who are
being cross-examined also be given the document that is
submitted to the defendant, so that they are in a position,
just as the Tribunal is, to follow the examination.
If Mr. Justice Jackson says that it is his opinion that it
would be right for the defence counsel - in this case my
colleague Stahmer-to receive this document only after the
examination - in this case of Goring - has ended I beg,
earnestly, in the interest of the dignity and prestige of
the defence, to take objection to this suggestion of Mr.
Justice Jackson's. I do not believe that he means by that to
insinuate that the defence counsel would be able - having
these documents in its hands at the same time as the
Tribunal and at the same time as the witness - somehow
through signs or otherwise to influence the defendant and
thereby disturb the cross-examination by Mr. Justice
Jackson, i.e., by the prosecutor. Mr. Justice Jackson
certainly did not mean that, but one might draw that
conclusion.
I therefore make this request: If in the cross-examination,
for the purpose of the cross-examination, in view of the
altogether justified element of surprise, a document is
presented to a witness that at the same time is presented to
the Tribunal, that at least a copy of this document be given
at the same time to the defence counsel, the defence counsel
concerned, either the one who has called the witness or the
one whose defendant is in the witness box, so that he can
have some idea of what the witness is being confronted with,
for Goering could read this document, but Dr. Stahmer could
not. In other words, he was not in a position to follow the
next part of Mr. Justice Jackson's cross-examination. That
is certainly not intended and would certainly not be fair
and I should therefore like to ask Mr. Justice Jackson to
reply to my suggestion and my application, in order to
arrive at an understanding and thereby to relieve the
Tribunal of the decision on a question that to me seems self-
explanatory.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal is inclined
to think - the Tribunal certainly thinks - that you are
perfectly right, that there is no necessity at all, as I
have already stated, to disclose the document to the
defendants before you use it in cross-examination. But, at
the time you use it in cross-examination, is there any
objection to handing a, copy of it to the counsel for the
defendant who is being cross-examined?
MR.JUSTICE JACKSON: In some instances it is physically
impossible because of our situation in reference to these
documents. A good many of these documents have come to us
very late. Our photostatic facilities are limited.
THE PRESIDENT: I am not suggesting that you should hand it
to all of them, but only to Dr. Stahmer.
[Page 240]
DR. DIX: May I say something else. If it is not possible in
German, then it should at least be possible in English, for
one English copy will certainly be available. Furthermore,
if it is a question of German witnesses, as Goering, the
document will be shown him in German anyhow; it will
certainly be shown the witness in German. I believe that
will surely be possible.
(Dr. Siemers approaches the lectern.)
THE PRESIDENT: We do not really need to hear more than one
counsel on this sort of point. I have already ruled upon
your objection, which was that the document should be
produced beforehand. The Tribunal has already ruled that
that objection should be denied.
DR. SIEMERS (counsel for the defendant Raeder): Mr.
President, I am sorry, my motion was that the defence
counsel should receive these documents at the same time as
the Tribunal. I am not of the opinion expressed by Dr. Dix,
that only one defence counsel should receive it. If it is a
report regarding the Reich Defence Council, then it is a
document important to several defendants. One copy is
therefore not sufficient, but each defence lawyer must have
one. I believe that Mr. Justice Jackson ...
THE PRESIDENT: But not at this moment. There are, as we all
know, the very greatest difficulties in producing all these
documents, and extraordinary efforts have been made by the
prosecution and the translating division to supply the
defendants with documents, and with documents in German, and
it is not necessary that every member of the defence counsel
have these documents at the time the witness is being cross-
examined. I am sure the prosecution win do everything they
can to let you have the documents in due course - any document
that is being used.
In the opinion of the Tribunal it is perfectly sufficient if
one copy of the document is supplied to the counsel for the
witness who is being cross-examined. As I say, the
prosecution will doubtless let you have copies of these
documents in due course.
You are appearing for the defendant Raeder, and the
defendant Raeder, I am afraid, at the present rate will not
be in the witness box for some time.
DR. SIEMERS: The result of that is that the defence counsel,
who is not momentarily concerned, cannot understand the
cross-examination. As to the technical question, I ask the
Tribunal to consider that I cannot follow Mr. Justice
Jackson on this technical point. The document is
mimeographed by means of a stencil. In mimeographing it
makes no difference at all whether 20, 40, 80 or 150 copies
are produced. It makes no difference from the point of view
of time, except perhaps four or five minutes. I believe for
this reason that one can hardly appeal to the technical
difficulties in this matter.
THE PRESIDENT: Counsel for the prosecution will consider
what you say, but no rule has been made by the Tribunal that
every document should be supplied to every counsel during
cross-examination.
THE DEFENDANT: I should like to say again in regard to the
document that this is not...
MR. JUSTICE JACKSON: May I respectfully ask that the witness
be instructed to answer the question and reserve his
explanations until his counsel re-examines him. Otherwise
this cross-examination cannot successfully be conducted in
reasonable time.
THE PRESIDENT: I have already explained, on several
occasions, that it is the duty of defendants when they are
in the witness-box, and the duty of witnesses, to answer
questions directly, if they are capable of being answered
directly, in the affirmative or in the negative; and if they
have any explanation to make afterwards, they can make it
after. answering the question directly.
[Page 241]
Q. I call your attention to Item 3,
under 11, "Finances," reading as
follows:
A. Yes, that is there.
Q. And you find the minutes signed by Wormann, do you not?
A. No, that is not true. I beg your pardon. Here on the
photostat Wormann has signed it, that is not Bormann. I know
Bormann's signature well, it is quite different.
Q. I said Wormann.
A. Wormann, yes.
Q. All right, my poor pronunciation. Well, was it not a fact
that you set up a working committee under the Reich Defence
Council which did meet from time to time and did carry on
certain work?
A. I have already explained recently that was the committee
of departmental chiefs.
Q. And I call your attention to Document 405-EC, minutes of
a meeting of the Working Committee of the Reich Defence
Council, meeting No. 10.
A. I understood the President to say before, that when I
have answered the question I can add an explanation that
seems necessary to me. Now that I have clearly answered your
question with regard to the first document, I want now to
stress once again that this was not a meeting of the closed
Reich Defence Council but a general calling together of all
Ministers, State Secretaries and numerous other persons. And
that I began my statements as follows:
Q. You testified that the movement into the Rhineland had
not been planned in advance.
A. Only a short time in advance, I emphasised.
Q. How long?
A. As far as I recall, at the most two to three weeks.
Q. Now, I call your attention to the minutes of the tenth
meeting of the Working Committee of the Reich Defence
Council, Document 405-EC, toward the end of that document,
the discussion on 26th June, 1935, which reads as follows
...
A. May I ask what page? This document is very long and is
new to me.
What page, please, otherwise I shall have to read the whole
document.
Q. Turn to the last paragraph and we will work backwards.
A. This document that has been handed to me contains
alternating statements of various individuals, that is, a
dialogue. May I ask once more
[Page 242]
Q. Do you find the third paragraph from the end? If my
document is correct we have got the same document.
A. You must tell me who was speaking. For different persons
speak here.
(A member of the prosecution indicates the place in the
document for the witness.)
Now it has been shown to me. Under the name Jodl. I have to
read it through first.
Q. Do you find this:
A. Yes.
Q. And do you find the next paragraph:
A. Yes.
Q. And you also find:
Q. Mobilisation, exactly.
A. That, if you remember, I stressed clearly in my
statement, that in the
demilitarised zone general preparations for mobilisation
were made. I mentioned the purchase of horses, etc. I only
wanted to point out the mistake regarding "clearing of the
Rhine," which has nothing to do with the Rhineland, but only
with the river.
Q. Well, those preparations were preparations for armed
occupation of the Rhineland, were they not?
A. No, that is altogether wrong. If Germany had become
involved in a war, no matter from which side, let us assume
from the Eak, then mobilisation measures would have had to
be carried out for security reasons throughout the Reich, in
this event, even in the demilitarised Rhineland; but not for
the purpose of occupation, of liberating the Rhineland.
Q. You mean the preparations were not military preparations?
A. Those were general preparations for mobilisation, such as
every country makes, and not for the purpose of the
occupation of the Rhineland.
Q. But were of a character which had to be kept entirely
secret from foreign Powers?
[Page 243]
MR. JUSTICE JACKSON: Well, I respectfully submit to the
Tribunal that this witness is not being responsive, and has
not been in his examination, and that it is ...
(The witness interposes a few words here.)
... it is perfectly futile to spend our time if we cannot
have responsive answers to our questions.
(The witness interposes slightly here.)
We can strike these things out. I do not want to spend time
doing that, but this witness, it seems to me, is adopting,
and has adopted, in the witness-box and in the dock, an
arrogant and contemptuous attitude toward the Tribunal which
is giving him the trial which he never gave a living soul,
or dead ones either.
I respectfully submit that the witness be instructed to make
notes, if he wishes, of his explanations, but that he be
required to answer my questions and reserve his explanations
for his counsel to bring out.
THE PRESIDENT: I have already laid down the general rule,
which is binding upon this defendant as upon other
witnesses. Perhaps we had better adjourn now at this
stage.
(The Tribunal adjourned until 20th March, 1946, at
10.00 hours.)
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(Part 8 of 8)
"Very critical situation of the Reich Exchequer. Relief
initially through the billion imposed on the Jews and
through profits accruing to the Reich from the
Aryanisation of Jewish enterprises."
You find that in the minutes, do you not?
"I. Organisation of the Reich Defence Council: The Reich
Defence Council was already, by decision of the Cabinet
of 1933 and 1934, called into being; but it has never
met. Through the Reich Defence Law of 4th September,
1938, it was re-established. The Chairman is the Fuehrer,
who has commissioned General Field-Marshal Goering his
permanent deputy."
Concerning the Reich Defence Council, about which we have
been talking, consisting of Schacht - or rather of the
triumvirate, it is attested here in writing once more, as I
have correctly said, that this Council never met. I ask to
have the question about the second document repeated, as I
have forgotten it.
"Commitment to writing of directives for mobilisation
purposes is permissible only in so far as it is
absolutely necessary for the smooth execution of the
measures provided for the demilitarised zone. Without
exception such material must be kept in safes."
Do you find that part?
"The demilitarised zone requires special treatment. In
his speech of 21st May, 1935, and in other statements,
the Fuehrer and Reich Chancellor declared that the
stipulations of the Versailles Treaty and the Locarno,
Pact regarding the demilitarised zone would be observed."
Do you find this?
"Since at present international entanglements must be
avoided under all circumstances, all urgently needed
preparations may be made. The preparations as such, or
their planning, must be kept in strictest secrecy in the
zone itself as well as in the rest of the Reich."
Do you find this?
"These preparations include in particular" - (a) and (b)
not important to my present question - "(c) Preparation
for the liberation of the Rhine."
A. Oh, no, here you have made a great mistake. The original
phrase - and this alone is the point in question - is:
"Preparation for the clearing of the Rhine." It is a purely
technical preparation that has nothing at all to do with the
liberation of the Rhineland. Here it says, first,
mobilisation measures for transportation and communications,
then "(c) Preparation for the clearing of the Rhine," i.e.,
in case of mobilisation preparations the Rhine is not to be
overburdened with freighters, tugboats, etc., but the river
has to be clear for military measures. Then it continues:
"(d) Preparation for local defence," etc. Thus you see, it
figures among small, quite general, ordinary and usual
preparations for mobilisation. The phrase used by the
prosecution ...