[Page 41]

THE PRESIDENT: With reference to the applications for witnesses and documents that were made the other day in court, I will take them in the order in which they were dealt with in court.

The first application is the application of Kaltenbrunner and the three witnesses which he asks for are allowed: Tiefenbacher, Kandruth and Strupp.

The application of the defendant Schirach is rejected.

The applications of the defendants Hess and Frank for General Donovan are rejected.

The applications of the defendants Speer and Keitel are granted, and the application of the defendant Jodl for an affidavit I think was granted yesterday.

The application for the defendant Goering for two witnesses, Stuckhardt and Burmath, is granted, but on the condition that three witnesses only may be called upon the subject concerned.

With reference to the application of the defendant Hess, the Tribunal orders as follows:

The affidavit of the former Ambassador Gans of the 17th of May, 1946, is rejected on the ground that it is not in accordance with the permission given on 14th May, 1946, but purports to incorporate not merely the substance but also the form of the secret treaties, and the form embraced in the affidavit is not identified as being correct either by a person who made the copies or by one who compared them with the originals. Such copies cannot be received in evidence, and the Tribunal has twice ruled to this effect.

The matter of importance to the issues before the Tribunal is not the form of the treaties, but their contents, and evidence of their contents is already before the Tribunal by the testimony of three witnesses. The admission of this affidavit would add nothing to the proof before the Tribunal. The same is true of the proposal to call Gaus as a witness, who would only support evidence as to the contents of the treaties which has not been contradicted.

The motion of the 23rd of May, 1946, to reconsider the Tribunal's former decision, and the motion of the 24th of May, 1946, to call Gans as a witness, are accordingly denied.

There is one other matter with which the Tribunal proposes to deal, and it is this: In future, counsel for the organizations which the prosecution has asked the Tribunal to declare to be criminal will not be permitted to examine or to cross-examine any witnesses other than the defendants in this court. If they wish to examine or to cross-examine those witnesses, they must call them before the commissions which are now sitting for the taking of evidence on the questions with which the organizations are concerned.

That is all.

DR. KUBUSCHOK (counsel for defendant von Papen): I should like to voice a further request for the case of von Papen. I submitted a written request on 6th June. This was discussed with the prosecution, and the General Secretary has instructed me to bring this matter to the attention of the Tribunal.

[Page 42]

Some days ago my colleague received a letter from Graf Feil, who is living in Bad Ischl, which is also in the American-occupied zone of Austria, not far from Gmunden, the residence of Prince Erbach. In this letter he has made detailed statements about the contacts which the defendant von Papen had with the circle of conspirators involved in the attempted assassination of 20th July.

Since this question was raised by the witness Gisevius, the defence feels itself bound to discuss it in the presentation of evidence, although it attaches no great importance to it. This evidence can probably be produced by means of an affidavit.

At the same time, I ask that Graf Feil be brought here with Prince Erbach so that he can depose an affidavit in the presence of the prosecution. It is absolutely essential to bring both these witnesses here, because the case of von Papen is imminent and we could not take care of these matters by correspondence.

THE PRESIDENT: Dr. Kubuschok, will you draw our attention to the particular points in which you say that the interrogatory of Prince Erbach-Schonberg is incomplete or misleading?

DR. KUBUSCHOK: In connection with one of the preceding questions of this interrogatory, Prince Erbach answered that the defendant von Papen had desired to achieve his assignment by peaceful means rather than by the use of force. The witness answered a later question as to whether the defendant von Papen acted in accordance with these political principles, as follows: "As long as I was there, I had the impression that the defendant von Papen acted in accordance with these principles, which meant the establishment of relations by peaceful means rather than by the use of force."

This last statement contradicts the first half of the answer. Apart from that, this latter sentence scarcely corresponds to the facts.

THE PRESIDENT: Are you saying that that answer is incomplete or contradictory?

DR. KUBUSCHOK: There is a contradiction. "Rather than by force" contradicts the first half of his reply, that he acted according to these principles. These questions -

THE PRESIDENT: The answer that I have got is: "As long as I was there I had the impression that the defendant von Papen acted according to this policy of establishing relations through peaceful means rather than force."

There is nothing contradictory in that, in English.

DR. KUBUSCHOK: The word "rather" disturbs me and is a contradiction. It does not mean the same thing, namely, that he wanted only to bring about connections in a peaceful manner and not by force.

THE PRESIDENT: It means the same thing. It means that he wanted to establish the relations by peaceful means rather than with forceful means. "Not by force," he means.

DR. KUBUSCHOK: This version might lead to the assumption that the defendant von Papen did not even consider peaceful means. We want to prove, in accordance with the foregoing sentence, that he rejected all means other than peaceful means from the beginning and never introduced them into his discussions. However, if the High Tribunal interprets the interrogatory in the manner which has just been stated, then I have no further reason to supplement it.

[Page 43]

DR. KUBUSCHOK: In the German version it is translated

"I would prefer peaceful means to force; as a last resort other than peaceful means might have to be considered."

We want to establish clearly the fact that none other than peaceful methods were ever considered.

SIR DAVID MAXWELL FYFE: To save any trouble, I should like to assure the Tribunal that the prosecution accepted the answer in the sense which your Lordship has just put. We should not suggest for a moment that Prince Erbach would make any other answer than in the sense the Tribunal has accepted it.

THE PRESIDENT: Perhaps a way of meeting the difficulty would be if you would agree to read the words in the sense "and not by force."

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

THE PRESIDENT: Yes.

DR. KUBUSCHOK: Then, of course, I quite agree, and I should like to have the Tribunal's decision as to whether Graf Feil is to be brought here to depose an affidavit.

THE PRESIDENT: You mean the other witness?

DR. KUBUSCHOK: The second witness, Graf Feil, who wrote the letter which we wish to submit to the High Tribunal in the form of an affidavit.

THE PRESIDENT: We will consider that when we have heard Sir David.

Are there any other inconsistencies or contradictions to which you wish to draw our attention in the Prince's interrogatory?

DR. KUBUSCHOK: No.

THE PRESIDENT: Has the letter of Graf Feil been translated?

DR. KUBUSCHOK: No, it has not yet been translated, but it is an ordinary letter, the identity of which we cannot prove and that is why we wanted the affidavit in the proper form.

THE PRESIDENT: Would the letter itself be sufficient if the prosecution were prepared to admit the letter?

DR. KUBUSCHOK: Yes, it would suffice, for we could certainly prove nothing more with the affidavit than what is contained in the letter.

SIR DAVID MAXWELL FYFE: I have no objection to admitting the letter, my Lord.

THE PRESIDENT: Very well. Thank you, Sir David.

Then the interrogatories of Prince Erbach-Schonberg will be amended in the way that we have indicated, and the letter of Count Friedrich Karl von Feil will be admitted.

SIR DAVID MAXWELL FYFE: I wonder if your Lordship will allow me to mention one point that arose on Tuesday.

Your Lordship may remember that the defendant Jodl said that he had not been permitted by the prosecution to mention a document. My Lord, a misunderstanding arose in this way. Your Lordship may remember that at an early stage, in dealing with witnesses and applications, I objected to general evidence of shackling because I said that the prosecution had not laid evidence of shackling by the Germans as a part of their case, and therefore it did not seem to me an issue that need be pursued.

I put that forward, and Mr. Roberts, who was dealing with the later stages, adopted the same line.

[Page 44]

I should not like the Tribunal to think that I was making any reflection on the learned professors who are conducting the defendant Jodl's case, or putting, forward that they had made a basic accusation against me. I thought, therefore, the Tribunal would allow me just a moment to explain that it was a misunderstanding and that neither of us feel that we have been injured in any way by the other by what has been said.

THE PRESIDENT: Is there anything further that needs to be done with reference to the admission or introduction of this?

SIR DAVID MAXWELL FYFE: Nothing at all, because I waived any objection to it, and the defendant Jodl was permitted, in giving his evidence, to make a full explanation as to it. I only wanted it to be understood how the misunderstanding had arisen, and that I did not feel that Professor Exner or Professor Jahrreiss had made any baseless charges against me in so doing.

THE PRESIDENT: All right.

SIR DAVID MAXWELL FYFE: Thank you very much.

DR. NELTE (counsel for defendant Keitel): I should like to put one question to the witness.

FREIHERR VON BUTTLAR BRANDENFELS - Resumed

DIRECT EXAMINATION - Continued

BY DR. NELTE:

Witness, the charge has been made against the defendant, Field-Marshal Keitel, that - and I quote: "rather than back up his subordinate officers and protect them, he threatened them; yes, he threatened to turn them over to the Gestapo."

Can you give us facts about this charge which prove that this was not the case?

A. I can testify that Field-Marshal Keitel was always very well disposed towards the officers of the Wehrmacht Operations Staff. For instance, the relationship between him and Colonel Monch, who was closely connected with him in his military capacity of chief of the organization division, was almost that of father and son; and he deeply lamented his death in action on the Eastern front.

I can also say that I myself, together with Lieutenant-Colonel Ziehlberger, the I-a man on my staff, in the year 7944, on the basis of factual disagreement with the staff of the Reichsfuehrer SS, was accused in a letter to Field-Marshal Keitel of sabotaging the co-operation between OKW and the Reichsfuehrer SS and the conduct of the war. In his reply, which I saw myself, Field-Marshal Keitel sheltered us in every way; and said that he would take entire responsibility for everything done by his subordinate officers.

DR. NELTE: Thank you very much. I have no further questions.

THE PRESIDENT: Is there any cross-examination?

MR. ROBERTS: My Lord, I do not propose to cross-examine. That, of course, will not be taken to mean that the prosecution is accepting the truth of this evidence at all. But the whole question of atrocities in the East has been so thoroughly covered by evidence and by document, my Lord, I think it would be wrong and repetitious if I cross-examined.

THE PRESIDENT: Yes, Mr. Roberts.

[Page 45]

THE PRESIDENT: I do not think it is necessary for it to be given an exhibit number. It was put to the witness, and he says the evidence was correct. That enables Dr. Laternser to refer to it hereafter.

MR. ROBERTS: Yes, my Lord. Then I propose the prosecution should get copies. Could that be conveniently arranged?

THE PRESIDENT: Of course.

MR. ROBERTS: My Lord, Mr. Dodd is pointing out that we have not seen this affidavit. We do not know what it contains. But we will get a copy, and if we have any further application to make, we can make it.

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