The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
12th March to 22nd March, 1946

Eighty-Sixth Day: Wednesday, 20th March, 1946
(Part 1 of 10)

[Page 244]

MR. JUSTICE JACKSON: If the Tribunal please, the last question which I asked last night referring to mobilisation preparations in the Rhineland, as shown in the official transcript, was this, "But of a character which had to be kept entirely secret from foreign Powers?" The answer was, "I do not believe I can recall the publication of the preparations of the United States for mobilisation."

Now, representing the United States of America, I am confronted with these choices - to ignore that remark and to allow it to stand for people who do not understand our system, or to develop at considerable expense of time its falsity, or to answer it in rebuttal. The difficulty arises from this, your Honour, that if the witness is permitted to volunteer statements in cross-examination there is no opportunity to make objection until they are placed on the record. Of course, if such an answer had been indicated by a question of counsel, as I respectfully submit would be the orderly procedure, there would have been objection; the Tribunal would have been in a position to discharge its duty under the Charter and I would have been in a position to have shortened the case by not having that remark recorded.

The Charter in Article 18 provides that the Tribunal shall rule out irrelevant issues and statements of any kind whatsoever. We are squarely confronted with that question; we cannot discharge those duties if the defendant is to volunteer these statements without questions which bring them up. I respectfully submit that, if the ruling of the Tribunal that the defendant may volunteer questions of this kind is to prevail, the control of these proceedings is put in the hands of this defendant, and the United States has been substantially denied its right of cross-examination under the Charter, because cross-examination cannot be effective under this kind of procedure. Since we cannot anticipate, we cannot meet -

THE PRESIDENT: I quite agree with you that any reference to the United States' secrecy with reference to mobilisation is entirely irrelevant, and that the answer ought not to have been made, but the only rule which the Tribunal can lay down as a general rule is the rule - already laid down - that the witness must answer, if possible, yes or no, and that he may make such explanations as may be necessary after answering questions directly in that way, and that such explanations must be brief and not be speeches. As far as this particular answer goes, I think it is entirely irrelevant.

MR. JUSTICE JACKSON: I must, of course, bow to the ruling of the Tribunal, but it is the second part. I quite recall the admonition of the Tribunal that there shall be answers yes or no. This witness, of course, made not the slightest pretension to that, and I must say that I cannot blame him: he is pursuing his interests. But we have no way of anticipating, and here we are confronted with this statement in the record, because when these statements are volunteered they are in the record before the Tribunal can rule upon them, and I have no opportunity to make objections and the Tribunal have no opportunity to rule. And it puts, as I said before, the control of these proceedings in the hands of the defendant, if he first makes the charges and then puts it up to us to ignore them or answer them by long cross- examination in rebuttal; and I think the specific charge made against the United States of America from the witness- stand presents that.

[Page 245]

Your Honour now advises the United States that it is an improper answer, but it is in the record and we must deal with it. I respectfully submit that unless we have -

THE PRESIDENT: What exactly is the motion you are making? Are you asking the Tribunal to strike the answer out of the record?

MR. JUSTICE JACKSON: Well, no; in a trial of this kind, where propaganda is one of the purposes of the defendant, striking out does no good after the answer is made, and Goering knows that as well as I. The charge has been made against the United States and it is in the record. I am now moving that this witness be instructed that he must answer my questions yes or no if they permit an answer, and that the explanations be brought out by his counsel in a fashion that will permit us to make objections if they are irrelevant and to obtain rulings of the Tribunal so that the Tribunal can discharge its functions of ruling out irrelevant issues and statements of any kind whatsoever. We must not let the trial degenerate into a bickering contest between counsel and the witness. That is not what the United States would expect me to participate in. I respectfully suggest that if he can draw any kind of challenge -

THE PRESIDENT: Are you submitting to the Tribunal that the witness has to answer every question yes or no and wait until he is re-examined for the purpose of making any explanations at all?

MR. JUSTICE JACKSON: I think that is the rule of cross- examination under ordinary circumstances. The witness, if the question permits it, must answer, and that if there are relevant explanations they be reserved until later.

Now let me come back to the specific problem I have here this morning. Here is an answer given which the Tribunal now rules is irrelevant. But we have no opportunity to object to it. The Tribunal had no opportunity to rule upon it. The witness asks, "Did you ever hear of the United States publishing its plan of mobilisation." Of course, we would have objected. The difficulty is that the Tribunal loses control of these proceedings if the defendant, in a case of this kind, where we all know propaganda is one of the purposes of the defendant, is permitted to put his propaganda in, and then we have to meet it afterwards. I really feel that the United States is deprived of the opportunity of the technique of cross-examination if this is the procedure.

THE PRESIDENT: Surely it is making too much of a sentence the witness has said, whether the United States makes its orders for mobilisation public or not? Surely that is not a matter of very great importance? Every country keeps certain things secret. Certainly it would be much wiser to ignore a statement of that sort. But as to the general rule, the Tribunal will now consider the matter. I have already laid down what I believe to be the rule and I think with the assent of the Tribunal, but I will ascertain -

MR. JUSTICE JACKSON: Let me say that I agree with your Honour that as far as the United States is concerned we are not worried by anything the witness can say about it - and we expected plenty. The point is, do we answer these things or leave them, apart from the control of the trial? It does seem to me that this is the beginning of this trial getting out of hand, if I may say so, if we do not have control of this situation. I trust the Tribunal will pardon my earnestness in presenting this. I think it is a vital thing.

THE PRESIDENT: I have never heard it suggested that the counsel for the prosecution have to answer every irrelevant observation made in cross-examination.

MR. JUSTICE JACKSON: That would be true in a private litigation, but I trust the Tribunal is not unaware that outside of this Court is a great social question of the revival of Nazism and that one of the purposes of the defendant Goering - I think he would be the first to admit - is to revive and perpetuate it by propaganda from this trial now in process.

THE PRESIDENT: Yes, Doctor Stahmer?

[Page 246]

DR. STAHMER: I just wanted to explain the following: The accusation had been made as if we intended to make propaganda here for Nazism or in any other direction. I do not think this accusation is justified. Neither do I believe that the defendant intended to make an accusation against the United States. I believe we have to consider the question that was put to him. That is, it was pointed out to him by the prosecution that this document which was submitted to him was marked "secret." Then he stated that he had never heard that a document of that kind would have been made public in the United States. If instead of the U.S.A. he had said "any other nation," then the remark would have been considered harmless.

In my opinion the answer was quite justified. The witness should be given the possibility not only to answer yes or no, but to give reasons for his answer, as ruled by the Tribunal.

THE PRESIDENT: Mr. Justice Jackson the Tribunal considers that the rule which it has laid down is the only possible rule and that the witness must be confined strictly to answering the question directly, where the question admits of a direct answer, and that he must not make his explanation before he gives a direct answer, but after having given a direct answer to any question which admits of a direct answer, he may make a short explanation, and that he is not to be confined simply to making direct answers yes or no and leaving the explanation until his counsel puts it to him in his re-examination.

As to this particular observation of the defendant, the defendant ought not to have referred to the United States, but it is a matter which I think you might we ignore.

MR. JUSTICE JACKSON: I shall bow to the ruling, of course.

I wish to make a statement to the Tribunal about one of the documents. At the conclusion of the session yesterday we were considering Document 405-EC. The defendant Goering challenged the use of a word which he said should have been translated "clearance" rather than "liberation." We have since had the translation checked and find that the defendant is correct. This document was introduced as Exhibit GB 160 on 9th January, at Page 109 (Part 4) of the Tribunal's records, and since it has already been received in evidence and it is before the Tribunal, we think it incumbent upon the prosecution to make that correction now for the record.



Q. You stated yesterday that the minutes of the Reich Defence Council with which you were presented were not minutes of a meeting of the Reich Defence Council as such?

A. Yes, I said that.

Q. And your testimony, notwithstanding that document, still stands, I take it, that the Reich Defence Council never met?

A. I said that also, yes.

Q. I now ask to have you shown a document which has just come into our possession, the minutes of the second session of the Reich Defence Council. I should have said, just come to us for translation. We have not had it translated; we have just discovered it among our great collection of documents.

THE PRESIDENT: Could Dr. Stahmer have a copy in English or not?

MR. JUSTICE JACKSON: We have not even had a chance to get it into English. I do not know what it says, except that it is the minutes of their meeting. We have a photostat.

Q. Are those not the minutes of the second meeting of the Reich Defence Council held on 23rd June, 1939?

A. I must read it first.

[Page 247]

I call your attention to the fact that the chairman is Minister President General Field-Marshal Goering. You will find that on Page 1.

A. I have never disputed that. It was fixed by law. This deals with the second Reich Defence Council, not the first one. Besides, I was not present at this meeting; and I point out that on the left is a list of the offices which took part in the meeting, and in my case it says, "Minister President Field-Marshal Goering," and on the right, as representative for him, "State Secretary Korner and State Secretary Neumann." But I shall have to look through the document first in order to find out whether I took part personally.

Q. Does it not say on Page 1, directly under the place of meeting, "Chairman: Minister President Goering"?

A. Yes. I have to read it first.

Q. Do you deny the authenticity of those minutes?

A. I have not yet looked them through.

It seems to be an absolutely authentic copy of the minutes. I admit that. But here again we are dealing with a meeting not, as I said when answering my counsel, of the Reich Defence Council, but of a larger meeting in which many other offices participated, and the second Reich Defence Council which was set up after 1938, not a secret council, such as was the case from 1933 to 1938.

Q. In other words, in interpreting your testimony, we must understand that when you say there was no meeting of the Reich Defence Council, you only mean that there were no meetings at which no other people were present?

A. No, that is not correct. There were two Reich Defence Laws concerning the Reich Defence Council, which I tried to explain in my statement. The Secret Council of 1933 to 1938, which was not made public, and the Reich Defence Council, which was created in 1938 and converted into the Ministerial Council in 1939; the latter held meetings which were in no way confined to its own members.

Q. Then you say that this was not the Defence Council that met under the ban of secrecy?

A. The prosecution want me to answer first, "Yes" or "No." It is hard to answer this question with "Yes" or "No." I assert that the Secret Defence Council, which was not made public and which arose out of a meeting of Ministers in 1933, never met. After 1938 a new Reich Defence Law created a new Council. At that time it was clear that "military sovereignty" (Wehrhoheit) had already been declared. This first Council, which the prosecution called the secret one, never met, and the document of yesterday proved that.

Q. Will you refer to Page 19 of this document, please, and tell me whether one of the very things with which this meeting concerned itself was not the lifting of the secrecy ban from the Reich Defence Law?

A. No, that is not the way it reads here. If I may translate it, the last point on the agenda: Consequences resulting from the lifting of the secrecy ban on the Reich Defence Law and measures to expedite procedures have already been dealt with by a letter from the Reich Defence Committee on 26th June.... Consequences resulting from the lifting of the secrecy ban with a view to expediting written communications.

Q. You have stated that on the Jewish Question some of the members of the Government were more radical than you. Would you state who these were?

A. Broadly speaking, when we took over the Government, we only demanded their removal from political and other leading positions in the State.

Q. That is not what I asked you.

THE PRESIDENT: That is not a direct answer to the question. The question was that you said some members of the Government were more radical toward Jews than you were. Would you tell us which of the members of the Government were more radical than you were.

[Page 248]

A. Excuse me, I did not understand the question to mean who were more radical, but in what way they were more radical. If you ask who, then I would point out that those were primarily Ministers Goebbels and Himmler.


Q. Do you also include your co-defendant, Streicher, as more radical than you?

A. Yes, but he was not a member of the Government.

Q. He was the Gauleiter, was he not, for this very territory in which we are sitting.

A. That is correct, but he had very little or no influence on Government measures.

Q. What about Heydrich?

A. Heydrich was subordinate to Himmler. If I said Himmler, I of course include Heydrich.

Q. Heydrich is, then, included in the list of the more radical ones to whom you refer ?

A. That is right, yes.

Q. What about Bormann?

A. It was only during the later years that I observed that Bormann was becoming more radical. I do not know anything about his attitude in the beginning.

Q. Now, I want to review with you briefly what the prosecution understands to be public acts taken by you in reference to the Jewish Question. From the very beginning you regarded the elimination of the Jew from the economic life of Germany as one phase of the Four-Year Plan under your jurisdiction, did you not?

A. The elimination, yes; that is partly correct. The elimination as far as the large industries were concerned, because there were continual disturbances due to the fact that there were large industries, also armament industries, still partly under Jewish directors, or with Jewish shareholders, and that caused unrest.

Q. Now, do I understand that you want the Tribunal to believe that all you were concerned about was the big Jewish enterprises? That is the way you want to be understood?

A. I was not at first disturbed by the small stores. They did not come into the Four-Year Plan.

Q. When did you become disturbed by the small stores?

A. When trade had to be limited, it was pointed out that this could be done first by closing the Jewish stores.

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