DR. LATERNSER: Your Honors, at the moment I would like to object to the following, and that is that the witness, Felber, should be called as early as this afternoon. In this particular case I have to refer to the following fact in particular, that the 24-hour notice before a witness is to be called will have to be maintained because the defense will have to prepare a possible cross-examination. For this reason alone it will not be possible to summon the witness this afternoon. That is to begin with.
I further object against, -- that the prosecution moves this witness is to be heard as a court witness for the following reasons: Alone for the motion of the prosecution -- the motion of the prosecution that this witness, -- that it wants to examine this witness, --- that shows that the prosecution needs the witness.
A further principle is, as to my knowledge of the Anglo-American proceedings, that the one who asserts something has to prove it. If, therefore, the prosecution is interested in this witness, --then it has to call him. After all, your Honor, that court witnesses are called in cases when the court is of the opinion that a certain item is still doubtful.
The prosecution at the moment is presenting its case in chief, and if there is anything doubtful here, then the defense will endeavor to clarify it. Only at a later stage of the proceedings will, therefore, be the possibility that the court itself calls a witness. The prerequisites, therefore, that a court witness at this stage of the proceedings is called, are not given here.
I rather assume that the prosecution believes that there is a certain risk connected with this witness; that risk will have to be borne by the prosecution, and that is by the prosecution themselves, if they think they need the testimony of this witness.
The danger which was indicated by the prosecution earlier, that the witness may incriminate himself, in view of his own pending trial is also there, when the court calls the witness and examines the witness, and when the prosecution and the defense subsequently have the right to cross examine the witness.
The witness in that case would have to have pointed out his rights by those parties who call him. You have to tell him that he can refuse to answer questions which incriminate himself.
I summarize. According to the rules of the Anglo American proceedings at this stage of the proceedings, there is no legal possibility to call a court witness, since only after the prosecution has ended its case in chief, and the defense has also endeavored to clarify certain points, -- if then doubtful points have remained, at that stage only, according to my knowledge of the rules of proceedings, the possibility exists that the court itself calls a witness.
Your Honor, alone from the motion of the prosecution, the Court should call a certain witness, you can see that the prosecution wants to prove something with this witness. Therefore, this witness is a prosecution witness, and the prosecution has to decide whether they want to call him as a witness or not.
I object, therefore, against the motion of the prosecution that this witness be called as a court witness.
MR. DENNEY: May it please your Honors, the notice was sent on 4 August, and I believe today is the 7th, so 72 hours have elapsed. It is out of our hands, and we delivered to the Secretary General to the effect that Felber would be called as a witness. With reference to Dr. Laternser's statement that there is no precedent for this, I appreciate his dissertation on Anglo-American law. However, I refer him to the case of the United States vs. Karl Brandt, et al, before Military Tribunal I of these Tribunals, transcript for the 16 of December 1946, pages 493 and 494, where Mr. McHaney made his application for the witness, and the transcript in the same court for the following day, December 17. Judge Sebring, speaking for the Tribunal pages 546-547, made his ruling.
At that time they were at approximately page 600 in the record,to be specific, 595, - in the government's case, when the witness Walter Neff, testified pursuant to the court's ruling. As Mr. Rapp has pointed out, we have not talked to Felber for several months. He is going to be extradited, and we feel that his testimony is informative. He was Military Commander Southeast, and Military Commander Serbia from August of 1943 to October of 1944. He was the immediate superior for whom the defendant, Geitner, was chief-of-staff during that period.
We frankly do not know what he is going to say, and we are asking the court to bring him in as their witness so that we can proceed to lead him, and if necessary, impeach him, and the same rights are available to defense counsel.
PRESIDENT WENNERSTRUM: Mr. Denney, I take it that you are standing here as the prosecutor and it is dependent upon the prosecution to make its own case, and not for the court. The court stands here as an impartial Tribunal.
MR. DENNEY: We appreciate that, your Honor, and we are just making a suggestion in view of the precedent which we have, and perhaps your Honors would like to consider it. It does not have to be decided now.
PRESIDENT WENNERSTRUM: After Dr. Laternser, if he wants to, makes a brief statement, the Court will reserve the ruling until one-thirty. However, I do not wish to shut you off, Mr. Denney.
MR. DENNEY: I appreciate it, your Honor.
PRESIDENT WENNERSTRUM: If you have anything further to say, we will entertain it.
MR. DENNEY: The reason, in addition, that the witness is sought to be called at this time is the fact that as Mr. Rapp pointed out, it has been quite some time since that order of extradition has not been complied with, and in view of the fact that he is here, it is submitted that we now have him, and when he does leave there may be some difficulty in getting him back.
PRESIDENT WENNERSTRUM: It also ought to be kept in mind that when he comes into court he becomes under the jurisdiction of the court.
MR. DENNEY: Oh, yes, your Honor. We are not in any way questioning the Court's jurisdiction.
PRESIDENT WENNERSTRUM: Regardless of what department the United States says they want him, if we have any authority at all, he is under the control and jurisdiction of the Tribunal.
MR. DENNEY: Yes, your Honor.
PRESIDENT WENNERSTRUM: Subject to such orders as we may make, I think, and when he shall be released.
MR. DENNEY: Yes, Your Honor, we are quite in agreement with that.
PRESIDENT WENNERSTRUM: Do you have anything further?
MR. DENNEY: No, your Honor.
PRESIDENT WENNERSTRUM: Dr. Laternser, do you have anything further to say?
DR. LATERNSER: Your Honor, to begin with, to the point that the prosecution intends to hear the witness as early as this afternoon, the prosecution has just announced that already 72 hours ago, the Secretary General was notified that the witness was to be called as such. I state that the defense has not been informed of this fact as yet, and according to the rules for these proceedings, it is a prerequisite that the evidence is to be announced 24 hours in advance. In the case of this witness this has not been done, and for this reason alone the interrogation of the witness this afternoon cannot be had.
To the motion itself, I would like to say the following. The prosecution maintains that lately, during recent months, they have not talked to the witness I knew however that they at least during the course of the month of February, talked to him, and that at several times he was interrogated by the prosecution.
The witness is, as I may assume, because of the request by the prosecution here, and this fact cannot be cited as reason that he now should be called as a court witness; the prosecution has every possibility to call him any time; this fact cannot be cited that because he just happens to be here now, that now the court should call him.
Also the assertion of the prosecution that they do not know what they witness is going to testify to does not apply, for the prosecution from earlier interrogations knows clearly the attitude of the witness.
PRESIDENT WENNERSTRUM: The ruling will be reserved until onethirty this afternoon.
MR. RAPP: If Your Honors will recall, the last document we discussed was NOKW-044, Prosecution Exhibit 418, and I believe we stopped on page 88 which was read into the record. It was on pages 66 and 67 respectively, of the German document book.
Your Honors, this is a report of the area Commander-in-Chief Southeast, -- I believe it should be, "Army Commander Southeast", and the first report is about Army Group E.
This report is dated December, '43, and at first refers to the 67th Infantry Corps. I would just like to check in the original document, with your permission, your Honors, whether or not this is not a misspelling. I would like to take a look at the original document.
MR. RAPP: If Your Honors permit, we will refer to this document in just a few minutes after the defense counsel for the Defendant Felmy has convinced himself whether or not this should actually be the 67th Infantry Corps or not; and we will come back to this page in a minute and read it into the record. If Your Honors well turn now please to Page 90, there we have the 22nd Infantry Corps, under the 9th of December 1943. This particular Corps was commanded, at that time, by the Defendant Lanz, and it says: "As reprisal measure for cable sabotage Sarande-Korfu a few hostages ware shot." And it was signed "Commander in Chief Southeast," the Defendant Weichs, "High Command Army Group F." The next page, Your Honor, Page 91, is a Daily Report, Army Commander in Chief Southeast, dated the 8th of December 1943. Pertaining to Army Group E, 68th Corps, and it states: "As reprisal for hand attack Southeast of Gythion 25 hostages shot." And if Your Honors turn to the next page, Page 92, we have again the 68th Corps, reporting under the 7 of December: "Reprisal measures for attack on railroad base Southeast of Tripole 50 hostages hanged." If Your Honors please, we can now go back to Page 89. Defense counsel just informed us that this actually should be the 68th Corps. So, if Your Honors and also the German Document Book, the Roman numeral LXVIIth Infantry Corps to read Roman numeral LXVIIIth Infantry Corps, which, at that time, was commanded by the Defendant Felmy.
THE PRESIDENT: May I inquire of the German counsel as to whether the change of this, from the 67th to the 68th corps, meets with his permission and whether he consents to it.
DR. MUELLER-TORGOW: Dr. Mueller-Torgow for the Defendant Felmy. Your Honor, this document contains obviously a typographical error. Instead of 67th Corps it should read 68th Corps. I, therefore, agree with an alteration to the effect.
THE PRESIDENT: Very well.
MR RAPP: On the same page, Page 92, Your Honor, we find again the 68th Infantry Corps, saying, "In Aighion 50 hostages shot to death.
O.F.K. 395 (Admin. Area HQ) klissura-Pass (20 West Ptolomaeis) operation against bands under way." and then a "Copy of Teletype Commander Chief Southeast dated 1.12.43." On the next page, Your Honor, Page 93, and Pages 68 and 69 of the German defense counsel's Document Book, we find "Area Commander in Chief Southeast." It should be "Army Commander in Chief Southeast."
"Area Army Group E:
Assault Dicision Rhodos:
Reconnaissance at Nisiro and Poskop without special developments. Reconnaissance Nisiro reports that on 23 November an English assault detachment on Nisiro blasted an H'glider carrying freight for Rhodos and that it forced another glider with some Italians to leave the port for Turkey.
XXII/ Mountain Corps.
During reprisal operation against bands in the area of Korea 1 village taken with some resistance. All men capable of bearing arms shot to death. Village destroyed."
That Corps, at that time was commanded by the Defendant Lanz. On the next page, Your Honors, we have the former Felmy Corps stating, "As reprisal for band attack Road Tripole-- Sparta 100 hostages shot at the place of the crime. During search of Corinth numerous hostages arrested. Arms and propaganda material secured." It was the 68th Infantry Corps. "Serbia: Railway bridge area Zajezar .. Knjazevac damaged by Communists and a number of residents of Nationalist views murdered. Commander in Chief Southeast (High Command Army Group F)." This dated 4.11.43. If Your Honors turn to your next page, we have Area Commander in Chief Southeast; the Assault Division Rhodes reports: Four armed Italians arrested and shot to death. Combat Group Simi returned without lossed to Rhodes leaving small security forces behind. Commander in Chief Southeast." And this particular message does not mean to hear a date. Below, however, it states "Excerpt from Daily Report, Commander in Chief Southeast, dated 20.10.1943. Army Commander in Chief Southeast: Army Group E: F.K. 395."
And it says on the next page, "Final report Ossa operation. Enemy losses: 205 prisoners, 37 dead, 42 wounded, 13 dumps of varying sizes containing ammunition, rations and clothing captured or destroyed. 3 villages (among the Spelia) razed to the group. Our lossed: 2 dead, 3 wounded," Below, "Italian prisoners shot in the Ossa mountains. Operation continued. Near Trikkala Greek paymaster with voluminous records pertaining to hand organization arrested. In reprisal for attack on Engineer Company several properties near Elassen were destroyed." The next page, Your Honors, Page 97; that's Pages 70 and 71 of defense counsel's book, Under the 15th of October we find "Army Commander in Chief Southeast: Ossa operation with local enemy resistance according to plan. Italian participation proved. More band camps destroyed at Spelia. The village of Pirgetes destroyed. 24 band suspect arrested at Trikkala." And below, the 68th Infantry Corps reorts, "The Prefect of Kalamta murdered. State of emergency declared. 50 hostages arrested." On the next page, Administrative Area Headquarters 395: "Band center Spelia (Ossa Mountains) taken by combat lasting several hours. Village destroyed... In reprisal for attacks made lately in the area of Larissa, 2 villages burned down. 65 suspects shot while trying to escape." Under Roman paragraph 11, under the 25th of November 1947, it is reported, Army Group E, the 68th Infantry Corps, Felmy reports: "In reprisal for band attack on Aighion 20 Communists shot to death. Serbia: Lebane said to be threatened by 2,000 Communists." On the next page, Your Honors, Page 99, under the date of the 10th of October; the date is recorded at the bottom of Page 98. We find a report from Serbia, saying, "In Cacak on 1/10. 283 DM hostages and 43 Communists shot in reprisal for attacks which cost the lives of members of the German and Bulgarian Wehrmacht. Commander in Chief Southeast (High Command Army Group F)." Then, below, we find a teletype message dated the 5th of September, still on the same page, "Serbia: In reprisal 20 Communists and 24 DM people shot. In the area of Arandelovac attack on grain confiscation kommando." Next page, Your Honor, "Copy of teletype dated 3.9.43." That's Page 100. It days was at the bottom, "Reprisal measures area Northwest of Sarajevo: 124 arrested, secured 700 head of cattle."
The next page, Page 101, and in the German it is Page 73 I believe, there's a Daily Report, Commander in Chief Southeast, Army Group F, 2.9.1943., handwritten (it says on there), "To 2nd Panzer Army, Area Second Panzer Army", and then, under "b" it states: "Serbia Bands forming of Rumanian and Czech deserters on the Rumanian bank of the Danube. 450 Communist suspects ordered to be shot to death in the course of operation on the area of Leskovac starting on 3.9." Then, "Copy of Teletype, Commander Southeast, dated 22.11.43," Page 102, "Serbia: According to Serbian sources no signs of DM and circles close to him breaking with the allies are recognizable. The continuous attacks on German Wehrmacht automobiles on the main road Northwest of Kragujevac are carried out by Chetnik bands which wish to force the release of band members captured by the Serbian Volunteer Corps. These will be hanged on the spot in the course of reprisal measures." Below this, under the 31st of October, we find "Daily Report, Commander in Chief Southeast, dated 31.10.43, Serbia : In Belgrade circles a rumor is being spread according to which Stalin has demanded from officers that the Yugoslav Government in Cairo depose DM and deliver him over to Tito. DM is to be convicted as a war criminal. In Belgrade 3 arrest by the SD, 2 of them activity in the DM communications staff." And on the other page, Page 103 in the English, which is the last page of this particular document, it says, "42 DM hostages shot to death in reprisal for attack on Bulgarian patrol." This, Your Honors, concludes Document No. NOKW-044.
Court No. V, Case No. VII.
The next document will be NOKW-1438 to be submitted as prosecution Exhibit 419, Your Honors. You will find this document on page 104 and German defense counsel will find this on page 75. This is a directive from the OKW for the higher SS and Police Leader in Greece.
"Commander-in-Chief Southeast High Command Army Group F Group 1c/AO Counter Intelligence 111 (stamp DRAFT SECRET Local Headquarters 11 Oct 1943 (handwritten) Diary SUBJECT:
Standard order of procedure for the Senior SS and Police Leader in Greece.
To the Chief, Field Police Enclosed please find standard order of procedure for information and for your files.
For Commander-in-Chief Southeast High Command Army Group F Chief of General Staff per Lt. Colonel."
At that time the Chief of General Staff was, of course, the defendant Foertsch. And on page 105, we find now the procedure and it says:
"1. By agreement with the Chief of OKW, the Reich Fuehrer SS, and Chief of the German Police appoints a Senior SS and Police Leader for the Area of Military Commander Greece.
"2. The Senior SS and Police Leader is an office of the Reich Fuehrer SS and the Chief of the German Police, which is subordinate to Military Commander Greece for the period of its employment in Greece.
"3. In the area of the Military Commander Greece, the Senior SS and Police Leader embraces all duties which are incumbent on the Reich Fuehrer SS and Chief of German police in the Reich.
He has authority to direct and supervise the Greek authorities and police forces within the sphere of these duties.
4. The primary duty of the Senior SS and Police Leader is the command of the SS and Police units (excluding Waffen SS units subordinated to Army Group E) in their combat against bands of sabotage, pursuant to the general directives of the Reich Fuehrer SS. For this purpose, definite combat areas under their own responsibility are to be assigned to the by the Military Commander.
The Military Commander regulates command authority and assignment of forces in the event of combat missions outside of regularly assigned combat areas.
5. In all affairs concerning police matters and service matters, Senior SS and Police Leader is the superior authority of the SS and Police Forces employed in Greece.
The military commander is authorized to employ units of the Ordnungs Police only if the fulfillment of the tasks set to the Senior SS and Police Leader by Reich Fuehrer SS permits it."
"6 The Military Commander is authorized to issue directives to the Senior SS and Police Leader which are necessary to avoid interference with Wehrmacht operations and duties. They take precedence over any other directives.
7 The Senior SS and Police Leader will receive policies and directives for the execution to these duties from the Reich Fuehrer SS and Chief of German Police. He will carry then out/ concurrently and opportunely, informing the Military Commander Greece in as far as he does not receive any restricting directives from the letter.
The Military Commander is to be informed in good time concerning reports submitted by the Senior SS and Police Leader to Reich Fuehrer SS and Chief of the German Police.
(signed) Keitel That was dated September 14, 1943, and at that time this letter pertains to the defendant Speidel was the Military Commander in Greece.
This, your Honor, concludes Document 1438.
The next document to be offered is NOKW-171. You will find this on page 108. It is being submitted as prosecution Exhibit 420. This is a letter from the Military Commander Southeast to the Military Commander Greece, the defendant Speidel, pertaining to the immediate recruitment of 2200 workers for the Air Corps. It says: "To Military Commander Greece, secret, priority, and it is 22 October, 1943."
"For the purposes of provisioning of the army, the air corps, and for the General of Transport Affairs, manpower is to be recruited and to the amount of 2200 workers in Greece. The recruiting is to be carried out with dispatch. With regard to working conditions (salary, provisions of workers with groceries, provisioning of families and other means) liaison is to be assumed with the Chief Administrator, with the military commander Southeast."
This is signed Military Commander Southeast Ia, No.1157/43.
If your Honors turn to the next document on page 109, it is being offered as Exhibit No. 421. I am referring to NOKW-163. Defense counsel will find this on page 79. This is a report from the Military Commander Southeast to the Army Group F and it is for information to the High Command of the German Army, to the High of the German Armed Forces, to the 2nd Panzer Army and to the German General Plenipotentiary in Croatia. It is a daily report of December 3, 1943. It states:
"Military Commander Greece: Nineteen Communist reprisal prisoners shot as revenge for the murder and wounding of Greek police, by the Senior SS and Police Fuehrer in Athens."
Can the translator find this or not? This should be on page 79 of the German document book. Do you have it now? I will repeat this document for the record, if your Honors permit.
December 3, 1943, to Army Group F through reporter. For information of High Command Germany Army, High Command German Armed Forces, 2nd Panzer Army, German General Plenipotentiary in Croatia, Daily report of 3 December 1943.
"Military Commander Greece Nineteen Communist reprisal prisoners show as revenge for the murder and wounding of Greek police, by the Senior SS and Police Fuehrer in Athens.
Certified (signature Illegible 1st Lieutenant Military Commander Southeast Ia Secret (signed) Muncket Colonel, General Staff Corps."
The next document, your Honor, is Document 692. You will find this on page 110 in your document book. Defense counsel page 80. It is being submitted as prosecution Exhibit No. 422. It is a situation report from the Military Commander in Greece to the Military Commander Southeast. Felber and pertains about the activities against Jews, labor recruitments, and other pertinent data.
Dated 19.11.43 and the report itself is dated March 18, 1944. At that time the defendant Speidel was still Military Commander Greece.
"1. Political Situation. As a consequence of a further worsening of the food and economic situation, an increase of the discontent of the population and consequently of Communist influence, particularly in the cities. The communists felt themselves strong enough at the beginning of March to evoke a strike movement on Piraeuw, Severe penal measures forced resumption of work but will not be able to stop renewed strikes which are to be expected, only economic betterment of the worker can be of real help.
Alliances of the Communist groups have make progress (acknowledgment of EAM of Communism) but also those of the anti-Communist front (swing to the National Socialist, EEE movement). While a large part of the population is against Communism, it keeps in the background because of fear of Communist punishment.
The tendency situation (The attitude of Bulgaria and Turkey). On the Peloponnesus the Communist influence is increasing despite all military measures.
II. Enemy situation:
a) Band activity and insurgent movement With the coming of the warmer weather band activity has increased.
Bandits released during the winter seen to return to their original units. Our own operations showed good successes. From the Peloponnesus: Report of the first" "appearance of Russian bandit officers.
The union of EAM and EDNS seems to have been accomplished due to Angle American pressure. Allegedly the following agreements were made:
1. Closest cooperation the fight against common enemy.
2. Direct assistance in case of an Allied landing in Greece.
3. Release of all prisoners of war and hostages held by the contracting parties.
The unified troops are to call themselves "National Greek Army" (Formation of a General Staff).
In the main territories of the bands, particularly on the Peloponnesus, formations of "Council Organizations" with their own administration and jurisdiction."
The Air situation: is not too important to read into the record. Then we come under D.
"d. Labor employment:
Tendency to strikes and partial strikes at the railroad and several plants at the beginning of March were suppressed by energetic military measures: 50 Communists were shot immediately, while other who were arrested are awaiting their sentence. Unconditional resumption of work followed short strikes. Since the beginning of the year 4 worker transports went to the Reich from Athens and Saloniki. The first 3 comprised 1628 persons (of which 183 were returning from leave) the fourth, 645 persons (of which 61 were returning from leave).""IX.
Propaganda Situation:" You will find this under Roman 1C on page 12 your Honors. And then the document continues:
Enemy Propagando There was another attempt to undermine the morale of the Wehrmacht by the use of leaflets with an illustrated description of the terror damages at home.
A new publication was the camouflaged "Deutschen Nachrichten" from Desdon. Active enemy propaganda which was directed against the occupying powers and against the Greek Government. News from the radio broadcasting station Cairo was sold to the population in form of leaflets. A newly coined slogan "5 minutes to 12". Communist propagando unchanged, appeals primarily to youth.
Own Propagando Up to now the challenge to desert, by radio and press, by posters and leaflets as well as by whispering propagando has resulted in only minor successes due to fear of reprisal measures on the part of the Communists.
The turning over of classes 06 and younger fit for frontline duty has been accomplished. Scruting by Special Staff without objections. The replacement situation will be improved by the withdrawals of classes 05 and older from the combat troops.
For the Military Commander Greece Chief of the General Staff (signed) illegible signature
THE PRESIDENT: May I interrupt? Before our non adjournment. I think I should call your attention to the fact that at my request the Deputy Secretary General has made inquiry as to the notification to the defense of the intention to use the witness referred to earlier in these proceedings, and I am informed that this notice is not in the defense center. It is not in the Secretary General's office and is not on the Secretary General's message center.
I think that ought to be called to somebody attention so that it may be checked.
MR. DENNEY: I have made a check, your Honor, I inquired and was told that it was sent up on the 4th. We will try to find what happened to it. In any event, we are getting another one ready to serve and certainly defense counsel know now that we plan to call him.
THE PRESIDENT: The Tribunal will be in recess until one-thirty this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION The hearing reconvened at 1330 hours.
THE MARSHALL: The persons in the court room will be seated.
The Tribunal is again in session.
THE PRESIDENT: Before we commence the presentation of evidence the Tribunal wishes to rule on some matters which have been heretofore presented and this Tribunal feels should receive its attention at this time. Earlier in these proceedings there was presented to the Tribunal an objection as to the placing of two of the defendants in one cell. A communication was addressed to proper officials in charge of the prison and also connected with the administration of the courts here and in the course of time the Tribunal has received an answer to this communication. I shall read only a portion of this communication and am doing so for the purposes of the record. It is signed by A.J. Regnier, Colonel, Infantry, Deputy Post Commander, who is named as one of the commissioners as I understand it, to make the investigation. His report is as follows:
Headquarters, Nurnberg Military Post APO 696, U.S. Army, August 4, 1947.
To: Secretary-General Office of Chief of Counsel War Crimes APO 696, U.S. Army, (Attention, Col.
Ray) "1. Report on complaints made by defendants, Case No. VII, and I. G. Farben, relative to the restrictions as follows:
"A. It is not the intention of the prison officer, Nurnberg Prison, to put more than one prisoner in a cell unless the prisoner expresses a desire to do so. It has, however, become necessary, as a temporary measure, during the renovation of the Prison, to out two (2) prisoners in the same cell. However, as soon as the painting project is completed prisoners will occupy a single cell insofar as is possible. There is no basis of fact for the report made by prisoners that they are being put together in cells in order to avoid suicide attempt."
There are other subsections of this letter but subsection A is the only one that applies to the complaint and motion which was presented in the early days of the submission of this case.
I might further state that members of the Tribunal have made a personal inspection of the jail and we find that it is kept in a clean manner and that the cells are clean and that the lighting, of which complaint is made, is quite satisfactory. We are also informed that there is no intention of putting more than one prisoner, that is now a part of this case here, and who is on trial here, with another prisoner, and for that reason the complaint, as to there being two defendants in one cell, is, as far as we are informed, without merit. This report having been made and from out own personal inspection we find no basis for the complaint which was originally presented to the Tribunal. However, if, on any later occasion any matters in connection with the administration of the prison which defendants or their counsel feel should be presented to the Tribunal, this Tribunal will be receptive to hearing any objections or complaints which counsel or defendants feel should be brought to the attention of the Tribunal. That is all as to that matter.
In connection with the motion which was presented this morning asking that the Tribunal call the witness Felben as a court witness, the motion will be over-ruled. As was intimated in comments made by the Presiding Judge this morning, this Tribunal feels that it sits here as an arbiter; that it does not represent either the Prosecution or the Defense, and that for us to call a witness, as our witness, would put us in a position of being somewhat in the nature of a prosecutor. That is not out position; that is not out status and we feel that for us to do so would not be in keeping with the interests of justice. The duty of presenting the prosecution and presenting of evidence which it may, will or will not sustain in its accusations of the prosecution is upon the prosecution and not upon the court. For that reason the motion to call this witness as a court's witness will be over-ruled. If the prosecution is of the opinion that his testimony is of material value to their case it is naturally to be expected they will be produced in court.
There has been some comment made, if the court were to call this witness as a court's witness, then under those circumstances the Prosecution might cross-examine, if he was not a co-operative witness. That is a matter for the prosecution to meet when that situation is presented and under certain rules and procedure there is a manner in which that can be handled. That disposes of the application as presented this morning. Anything further, Mr. Denney?
MR. DENNEY: If your Honors please, in view of your Honors' decision, we will produce the witness Felber and have him take the stand and with reference to the statement I made this morning about the notice to the defense counsel, I should like to apologize for any inference that may have been drawn therefrom with reference to the office of SecretaryGeneral, or the Defense Information Center. I have been informed that the notice had been sent on 4 August and I believed the source of my information, unfortunately, it was an error. However, the fault is mine and any burden to be born is mine and mine alone and not shared with anyone else in the prosecution staff.
THE PRESIDENT: I don't feel that there is any necessity for any apology Mr. Denney. We all make mistakes and there are errors and omissions in every one's office and under the circumstances we will consider it as one of those things that happen and let it go at that.
MR. DENNEY: Thank you, your Honor. In view of the fact that this new notice with reference to the witness Felber may be going awry as the result of our fault, I should like to advise the defense counsel now that we expect to produce him as a witness. It is now 1:44. No, Dr. Laternser, we are not going to sit tomorrow. It will probably be Monday or later.
MR. RAPP: If your Honor, please, prior to the recess we concluded page 112 in the English Document Book and I believe page 83 and 84 in the German Document Book. At that time we were concerned with document NOKW 692, which was submitted as Prosecution Exhibit No. 422. Your Honor, this is still the Situation Report of the Military Commander in Greece, the defendant Speidel, to the Military Commander Southeast, this man Felber, and we have already read part of this into the record, and I shall continue now:
"Situation Report for the period from 1. to 31.
12.43 General Situation:
The situation is basically unchanged. Further development will be strongly influenced by the economic and food situation. Since this situation continually worsens it decreases the popular standard of living which is low per se. The majority of the population wants quiet. The attitude is wavering and divided due to fear of band terror and of German retaliation. The advance of the Communist movement promotes unification of the anti-Communist elements, which, however, is still in its inception. Excesses of the members of the Wehrmacht against the population (crime against property as a consequence of insufficient pay in Drachma) disturb the generally correct relationship of the population to the occupying power. Varied estimates of the war situation and of the costume of the way also influence the morale and attitude of the Greek people."
Then we have again the Air Situation, in which we are not much interested here, and in paragraph Roman Numeral II, b, it talks about Enemy Propaganda:
"Leaflets were dropped particularly in larger cities. As usual the propaganda aimed at soldiers, is trying to divide leadership and men. A new angle if to ascribe to us the guilt of the air war. The well known "Soldatennachrichten der R.A.F. und U.S.A.F. is trying to have a demoralizing effect. For the first time a booby detonator was found with the inscription: