Where was General Dehner to seek justice when confronted by illegal orders of Hitler's?
Without answering these questions reference to a superior order cannot be excluded.
With regard to the four counts of the indictment under which General Dehner is charged I have to make the following detailed observations:
Under Count 1 of the indictment General Dehner is charged with responsibility for the cases listed under 5 i, k and m.
In case 5 i General Dehner is charged with the responsibility for the shooting of 40 hostages on or about 15 September 1943 in Croatia by troops of the 173rd Reserve Division.
The Prosecution has submitted no proofs to this effect.
From none of the documents submitted by the Prosecution it follows that on 14 September 1943. 40 hostages were shot in Croatia by troops of the 173rd Reserve Division. None of the witnesses examined by the Prosecution has testified to that effect.
If the Prosecution had proved these facts which they have asserted, I would prove that General Dehner was on leave during that time and that for this reason alone General Dehner could not be held to account under penal law for the shooting of these hostages.
It will, however, not depend on proving this point because as already mentioned there is so far a complete lack of evidence on the part of the prosecution.
JUDGE CARTER: We will take our noon recess at this time.
(A recess was taken.)
AFTERNOON SESSION
THE MARSHALL: The Tribunal is again in session.
DR. KLINNERT: I shall now continue my opening statement:
Under 5k of the indictment General Dehner is held responsible under penal law for the shooting of the 40 hostages in Croatia on 28 September 1943 through troops of the 173rd reserve division.
The arrest and execution of these hostages took place on the basis of an order of the 2nd Panzer Army of 15 September 1943. Document NOKW 509, Exhibit 340, Document Book XIV; Page 10. This order was passed on during General Dehner's leave. For this reason along General Dehner bears no responsibility under penal law for the passing on of this order.
On the basis of this order the divisional commanders decided independently with regard to the shooting of the hostages.
In the case of Yamashita the Supreme Court had pronounced the following legal maxim:
"And in Gen. Orders No. 264, Hq. Div. of the Philippines September 9, 1901, it was held that an officer could not be found guilty for failure to prevent a murder unless it appeared that the accused had "the power to present" it."
(Supreme Court Nos. 61 Miscellaneous and 672, October Term, 1945 (Page 10.)
General Dehner did not possess the power to prevent the execution of these measures ordered by a superior.
Moreover the shootings of hostages reported by teletype of 28 September 1943 were carried out during the leave of General Dehner. Under count 5 m General Dehner is charged with responsibility under penal law for the execution of 20 bandit suspects by troops of the 187th Reserve Division.
The teletype of 10 October 1943 submitted by the prosecution as evidence for this assertion; bears no signature; initial. It is merely an unauthenticated typewritten letter. This document has no probative value whatsoever.
No further evidence was offered by the prosecution for this assertion made under count 5 m.
I therefore move to discontinue proceedings against the defendant Dehner regarding the indictment point 5 i and m because the prosecution has offered no evidence which incriminates General Dehner beyond a reasonable doubt.
With respect to the further shootings listed in the teletype of 15 November 1943 and 12 November 1943 (Document NOKW 658, Exhibit 375 I shall prove that these shooting were not carried out by the divisions belonging to the LXIX Reserve Corps.
In a further teletype of 21 September 1943, Document NOKW 659, Exhibit 375, a report is made of the shooting of 10 hostages as a reprisal measure for an attack on the motor truck of a Croatian Panzer Regiment. Here I shall prove that
a) General Dehner was on leave during this time,
b) the shooting of these hostages was carried out not by troops of General Dehner's, but by Croatian units not subordinate to General Dehner.
Under Count 2 General Dehner is charged with plunder and devastation.
The devastation of 2 Croatian villages listed in the indictment under 9 c was carried out while General Dehner was on leave. For this reason alone General Dehner bears no responsibility under penal law.
Regarding the destruction of villages on 16 October 1943 listed under count 9 g, I shall first of all prove that it may be doubtful whether these two communities were burnt down at all.
In any case, the destruction of these two villages was not ordered by the corps.
I shall further prove that in so far the prerequisites of military necessity as well as the prerequisites of a reprisal action under international law were present.
To Count 9 h the Prosecution has up to date not offered any evidence that on 15 November 1943 troops of the 187th Reserve Division which was subordinate to General Dehner set fire to the village of Mamena. Up to now it has only been proved that this village was partly burned down as a definite nest of bandits on 7 November 1943.
This incorrectness of the Prosecution's assertion that the village was set on fire on 15 November 1943 follows from Document Book XVI, page 88, the daily report of 23 December 1943. According to this daily report this village was attacked in December 1943.
Thus it cannot have been destroyed on 15 November 1943.
Regarding the partial destruction of the village on 7 November 1943, I shall prove, that this measure was necessitated by the military situation.
Regarding the destruction of the village Grorewsky, on 27 November 1943 - mentioned under count 9 i of the indictment, I shall prove that this destruction was not carried out by troops under the command of General Dehner. Rather was this village burned down by police troops which were not subordinated to General Dehner. General Dehner neither ordered this destruction nor did he have the possibility to prevent it.
Besides, the teletype of 27 Nov. 1943 shows, that the locality concerned was strong point of the partisans. The destruction thus was a military necessity, and therefore not illegal by international law, as I shall prove, during the course of my evidence.
In so far as the other documents, which have been submitted by the Prosecution, s how that destruction of villages in the area of the LXIX Corps had taken place during the time when General Dehner was in charge of this Corps. I am going to prove that the destructions were either carried out by police units or that we are here dealing with measures which, taking in to consideration all circumstances, constituted urgent military necessities.
General Dehner is charged under Count 3 of the Indictment with having carried out and drafted illegal orders and the decrees subsequent to such, with haveng passed on such orders and decree and with responsibility for their execution through units of the Army.
As evidentiary material with regard to count 12 be of the Indictment, the Prosecution has submitted the Commissary by von Brauchitsch. This document merely proves that Brauchitsch issued the Commissary Order to the above date. This document docs not even go to show that the authorities listed under distribution actually received this order.
In June 1941 General Dehner was in charge of the 106th Infantry Division. This Division is not listed under the distribution given in the above document. Further evidentiary material with regard to this matter had not been submitted by the Prosecution. Under no circumstances can it therefore be taken as proved that General Dehner received this order. Beside, all evidence is lacking to show that General Dehner passed on this order or instituted any measures in order to have it carried out.
At this point I should like to refer to Wharton's words, which I have mentioned above, according to which it would have to be proved, that General Dehner wrote the above documents or received them or in some way informed about their contents.
Under count 12 h of the Indictment General Dehner is charged with having issued the Command Order; with having passed it on and with having carried out. To prove this the Prosecution has submitted document C. 18, exhibit 225; the order of Hitler from 18 October 1942.
( Page 17)
A distribution list does not appear in this document. For the reasons given by me previously; this document merely goes to prove that Hitler issued an order. All evidence is lacking to show which authorities; if any received this order. If particular it is not proven that General Dehner received it. The Prosecution submitted no evidentiary material to indicate that General Dehner passed on such an order or carried it out. The allegation con contained in the indictment to the effect that General Dehner issued this order is refuted through exhibit C 18 which has already been mentioned and which shows that the order was issued by Hitler.
Also with regard to this charge the evidence is not sufficient. Under Count 12 I of the indictment General Dehner is charged with having ordered the shooting of 1 staff officer and of 50 men for very division of the capitulated Italian Army as well as with having carried out this order Also with regard to that, the evidentiary material submitted by the Prosecution is insufficient to prove its allegation the prosecution has, to start off with submitted two Keitel orders of 9 September and 15 September 1943 document NOKW 898 exhibit 317 and NOKW 916 exhibit 323 which are supposed to show that General Dehner committed a criminal action.
Neither of these orders is addressed to General Dehner. As to that I am referring to page 27 of the English version Doc. Book 13.
On this page it can be seen to whom this order of 9 September 1943 was addressed. Document NOKW-916 does not show to which commands this order was actually sent. Besides, neither of these documents contains an order of the contents described in the indictment.
Therefore, neither of these documents proves that General Dehner received this order. There is no evidence showing that General Dehner passed on such an order.
Document NOKW-910, exhibit 327, page 43 of the English version of Document Book 13, which has not been submitted in evidence against General Dehner, shows, that such an order was sent only to the 15th Mountain Corps, which has never been subordinated to General Dehner, but that it sent to the 69th Corps for special tasks.
Neither was there any reason to send such an order to the 69th Corps for special tasks as there were no Italian troops within the area of the Corps. Apart from that General Dehner was on leave doing the period in question.
I therefore move that the proceedings against the defendant Dehner be discontinued with regard to Count 3 of the Indictment, since the Prosecution has not submitted any evidence, which might incriminate the defendant Dehner beyond a reasonable doubt.
Also the evidentiary material, which has been introduced with regard to Count 4 of the Indictment, can in no manner suffice to convict General Dehner. In accordance with the prosecution's own statements General Dehner is not involved in any of the individual cases mentioned under Count 4. None of the documents which have been submitted show that General Dehner has ever ordered arbitrary arrests of people indigenous to the area of his Corps for reasons of alleged racial inferiority or for political reasons. No case has it been proved that General Dehner ordered the indigenous population to be maltreated or even murdered. There is also all evidence lacking to prove that General Dehner ordered the civilian population to be seized and to be taken into the Reich for labor employment.
To prove this the prosecution has submitted documents NOKW-509and NOKW-657, which are exhibits 340 and 376 respectively, which, however, do not show that General Dehner was responsible according to criminal law. Document NOKW-509 on page 13 of the German Document Book 14 contains an order of the commander-in-chief of the 2nd Panzer Army from the 15th September 1943, which had been passed on by the Supreme Command of the 69th Corp for Special Tasks on 19 September 1943 and to which there was added a Supplementary Order on 23 September 1943, Both documents prove beyond doubt that the evacuations mentioned were by no means of an arbitrary nature. The order states literally. I quote:
"In those areas which are particularly important for the conduct of the war and which are infested with bands the male inhabitants from 15 - 60 years are to be evacuated. To begin with, they are to be collected in guarded labor-camps. The Army will issue further orders regarding their employment in labor. The evacuations are to be carried out as surprise actions in order to prevent the population from escaping before they take place.
Territories to be evacuated are: The surroundings of important passes and pass-ways, territory along railway-lines which are particularly endangered etc.
The intentions to carry out the evacuations are to be reported by the Corps Headquarters to the Ia of Panzer Army 2, and to the Quartermaster of Panzer Army 2. One Copy each."
This proves clearly that this evacuation constituted a military necessity and was therefore permissible according to International Law and which, incidentally, was stopped when General Dehner returned from his leave.
This is Document NOKW-509, Exhibit 340, page 26, A, first paragraph. For these reasons these documents do no suffice for the conviction of General Dehner.
The Prosecution has offered no evidence whatever to show that these evacuations were actually carried out. Also the evacuations, which had been ordered by General Dehner's deputy, according to Document NOKW-509, page 26 of the German document book, had been ordered because of constantly repeated attacks against the railroad Zagreb Joganovac, as can be seen from the document. Also these evacuations were legal in the sense of military law.
The prosecution has further submitted document NOKW-657 in evidence. This document does not prove any responsibility according to criminal law either, since firt of all this order is not illegal and secondly it was not been proved that this order, which was not even signed by General Dehner and was issued by his deputy when General Dehner was on leave, was ever carried out. Also with regard to count 4 of the indictment, the prosecution has not proved that General Dehner was responsible according to criminal law.
I therefore move that proceedings against General Dehner be discontinued with regard to Count 4 of the Indictment.
In summary I therefore move that proceedings against General Dehner be discontinued with regard to 5i and m of Count 1 of the Indictment, and with regard to count 3 and 4 of the Indictment, since the Prosecution has not proved that General Dehner is incriminated beyond a reasonable doubt.
JUDGE CARTER: The Tribunal is of the opinion that the ruling on these motions should be reserved until the conclusion of all the evidence. If counsel for the Defendant Dehner sees fit to renew the motions at that time they will then receive the consideration of the Tribunal.
DR. KLINNERT: Thank you, Your Honor.
DR. MUELLER-TORGOW: (Counsel for defendant Felmy) Your Honors, May it please the Tribunal, in 25 document books the Prosecution has submitted the pertinent material which is to show that the defendants committed war crimes and crimes against humanity according to Control Council Law No. 10.
The documents submitted are of a purely military character, such as war time diaries, activity reports, daily reports etc. There was a certain form and contents prescribed for them in the German Wehrmacht. Higher authorities wanted to be informed on certain matters; these reports had to be short, but complete as well, so that the decisions made by the higher authorities would correspond to actual conditions. The documents, which were submitted by the Prosecution in the form of copies, have lost their original significance, insofar as omissions were made in essential points and their contents was thus robbed of its context from which alone the documents can be understood. For instance, in the Ic-daily reports the following matters had to be reported on: under paragraph a) the tactical position, under, b), c, d, e) further indications concerning the position, concerning judgment of the enemy position, etc., under paragraph f) "Miscellaneous", to which, among other items, also belonged reprisal measures.
Therefore, if, as happened in many cases, paragraph f) was included in the copy of the document but paragraph a) to e) were left out, then we are solely being acquainted with an actual fact as a result of some cause, which we are unable to perceive. This is only one example, but it is typical for the whole presentation made by the Prosecution. The Prosecution's presentation only states actual facts without even so much as making a marginal note about the cause, it docs not inquire into the "why" and we shall see how important and decisive this question is.
The Tribunal has decided that in the document books copies do not constitute evidence, but that only photostats arc being considered as such. But these, too, arc partly not complete in themselves, besides other pertinent documents for other periods arc missing, which also have to be submitted so that the contents of the document can be under stood.
But even if the entire material in question would be available complete, the over-all connections would not be evident from it. These, however, are the decisive factors. At present I do not want either to examine the various documents as to their value as evidence, or to answer the various counts of the indictment from an actual and legal point of view. I only wish to make an attempt in general to remove from my client's, General Felmy's, picture - as it was presented to the Tribunal by the Prosecution in the course of its case-in-chief, the features of biased distortion, in order to go into details later on in my presentation of evidence.
For this purpose let us imagine that we make a journey to the South of Greece and at the same time into the past, that is to say, into the years 1943/44. At that time, General Felmy was commanding general of the LXVIII Army Corps.
First the preliminary question comes to mind: what was the function and the position of a commanding general in the German army? With regard to its orders and its competency, the army corps was just between the subordinate divisions and the superior army or army group, if there was no complete army. It is now especially important to realize that in the structure of the army there was a sharp break between divisions and army corps. The division was independent, tactically as well as with respect to supply. It formed an organism which was complete in itself, and whose members acted side by side and together on behalf of the whole, that is to say, the division. In the so-called "order of battle" (Kriegs*liederung), those links, that is, the subordinate regiments, batallions, and units, were graphically depicted. With one glance at the order of battle of, let us say, an armored division, one could immediately tell what wag its concentration, and through that one know its operational possibilities and its fighting strength. The separate links, every one of which had its definite assignment, remained closely together and kept in continuous touch with division headquarters.
This necessitated of course a continued contact between the division commander and his staff on the one hand, and with the troop commanders subordinated to him on the other hand, with the result that the division commander knew his troop commanders well from a military and human point of view.
The army corps, on the other hand, did not have a battle order in the sense mentioned above. The army corps could have two, but also five divisions subordinated to it, as the case might be, and the conditions of subordination changed if strategy or tactic required it, sometimes very often. An order of battle existed only for the corps staff and for the few so-called "corps troops" which were directly subordinated to the commanding general. The orders he issued or transmitted to the division he gave as the military superior outside of, and above, the organism as described above. Therefore, the commanding general as a rule did not have a continuous personal contact with the troop commanders within the divisions subordinate to him.
If we now look at the conditions in South Greece during the years 1943-44 from this point of view, we notice that after the capitulation of the Italians in September 1943, there was stationed there only one German division, the 117th Infantry Division, to which was added the 41st Fortress Division only in the winter 1943/44. It was spread over a territory which normally would be taken up by an army group. The space covered by the LXVIII Army Corps which included outside of the Peloponneso also Attica, Boetia, and several islands, corresponded to the territory usually allotted to an army. This, of course, meant a further increase in the difficulties connected with General Felmy's supervisory activities. If in addition to that one takes into consideration the dreary and inaccessible landscape of South Greece, one must realize that it was extremely difficult for him and his staff to form a correct picture of whether or not the measures taken by the troop units under his command had been chosen and executed in a manner which corresponded to the local conditions and was correct and appropriate.
However, if General Felmy had the opportunity of ascertaining excesses any where, and when he actually ascertained them, he put a stop to them with the necessary severity.
The answer to the question, what actually was his field of supervision, depends on the answer to the preliminary question: what was the tactical mission of the LXVIII Army Corps? The answer is: primarily and above all else, its mission was to secure the occupied territory against surprise invasion by the enemy. This was the primary purpose to which all military measures taken and to be subordinated. In addition to this, the army corps had a series of tasks which were considerably less important as seen from a higher tactical point of view, military, political, economic, and propagandistic missions which followed from the occupation of the territory.
To this belong especially also the lighting of guerrilla bands which truned against the German troops only after a certain definite time, which I shall discuss below. The German troops were technically in no way equipped for guerrilla warfare in the impassable territory of South Greece which was favorable to this trype of warfare in every respect-the mountains there reach a height of 2, 500 meters. The German soldier was neither skilled nor trained in guerrilla warfare; he was accustomed to stand before an open and recognizable adversary.
What was it that led to guerrilla warfare at all? As long as the Italians participated in the occupation and, in addition, as long as the 1st Armored Division was stationed on the Peloponnesos, the Germans had only very occasional clashes with the partisans. Only by the elimination of the Italians the situation became disagreeable for the German troops. And this was not only the case because the Italians partly deserted to the guerrillas and thereby reinforced them, or at least sold arms and munitions to them, but it can be exactly established that from that time on the guerrillas received supplies from territories outside of Greece, and were additionally supplied by air through the British. The partisans now more and more turned against the German soldiers without the latter having given any provocation whatsoever. The guerrillas unquestionably were the attackers and, especially in the Peloponnesos, there was hardly a day without attacks.
In which way they proceeded, in which manner they fought and in which inhuman way they treated captured and wounded German soldiers, for all this, evidence will be submitted by the defense. The position was particularly uncertain and not clean for the Germans also because apparently peaceful civilians, the so-called "house partisans" unexpectedly took part in sudden attacks, to disappear again afterwards among the population. Mention may be made by the way in this connection of the fact that these people, partly, made common cause with the bands only under pressure. The excitement of the German soldiers concerning the most terrible atrocities, committed by the bands in increasing numberto be proved by me - is only too understandable, - as far as feeling is concerned - and the reaction was often severe, but unavoidable.
If, to-day, similar things would happen to members of the BS occupation army, the consequences would certainly not be different. And I extend this comparison not only to reactions of feelings of individual soldiers but also to the measures which would be taken in that case by high military authorities. And here, High Tribunal, we come to the central idea of International Law in the event of war which has been expressed in the official French text of the Hague Convention of 1907 by the term "Necessites militaires" -military necessities The question - justified in itself, for several reasons - whether this convention and its supplement, the Hague Regulations of Land Warfare, are - or are not - valid entirely or in part, is irrelevant in this connection) for the notion of "military necessities" can also have a generally recognized meaning in customary law. The question arising after the last total war is: has the requirement of military necessity any relevant meaning at all any longer?
High Tribunal, I should like to submit - sine ira et studio the example that I am going to mention now and that - as the nearest in space - is only one example out of many. If you consider the impression given by this town which was formerly Nuernberg and which, for centruies, had been called "the little treasure chest of the German Reich", and if, then, you conclude that in the ruins below the castle, apart from many human lives, culture, too, had been buried, is there not, for any fair person, necessarily the question unavoidable: Was that necessary for warfare and victory? The answer, I think, seems to be clear, unless, in modern total war which is, it is true, far away from the Hague Regulations of Land Warfare, terror can be considered as a military necessity. But it is on the other hand, just "a well-calculated program of terror and destruction" that the defendants arc being charged with in the opening statement of the prosecution.
This is the only conclusion which can be drawn: either the concept of the "necessites militaires" actually disappeared, or, if still existing, it was broadened through the general usage of war to such an extent that the defendants must benefit by it, assuming that they actually gave the orders with which they arc charged. However, there will be no need for an association of thought with these negative aspects of warfare to prove that General FELMY cannot be held responsible within the meaning of the indictment. He did not provoke the guerrillas to assume an attitude against German soldiers which, was in contrast to the tenets of international law. The partisans were fully aware of the precarious situation of the German troops, they led to, and did anticipate, reprisals against hostages who had been found to be connected with them. They could have rendered any form of reprisals unnecessary through cessation of hostilities. They did not do so. Apart from that, the national Greek element they pretended to represent was merely a cloak to deceive the population. They acted on higher orders. Had this not been so, they would have had to stop their activities at the latest upon the withdrawal of the German troops from Greece. However, conditions in this unfortunate country not only have not improved since, on the contrary they deteriorated considerably Although during the last phases of the German occupation entire sections of the City of Athens were in the hands of the partisans and they could no longer be kept in check by the customary means, General FELMY refused to subject Athens to artillery fire, just as 20 years ago as a Major in the Reich Ministry of De Opening Plea FELMY fense, (Reichswehrministerium), he had abhorred the principle of air raids on open cities.
After the withdrawal of the Germans it was left to the Britisch to attack the sections of the rebels from the air. Winston Churchill in his essay, "If I were an American", published in "Life" of 12 May 1947, states that in the course of their retreat from Athens in December 1944, the guerrillas murdered at least 20,000 men women and children to whom they objected or who obstructed their path. They are the same guerillabands who formerly used to attack the Germans, even though the Prosecution uses the word "bands" in quotation marks, which however will have been lost even for them after the withdrawal of the Germans. "The Greek Dilemma", the title of a recently published American book, has since become a generally accepted idea. Formerly the Balcans were the "powder cask" of Europe, Greece is at present the "powder cask" of the world.
General FELMY, as all other defendants, is charged with "appeasement through terror". I shall bring evidence to the contrary and to the fact that during the entire period of his sojourn in Greece he made honest endeavours for a true peace through collaboration with the population. He not only did not terrorize and exterminate the latter but gave help when ever possible. He protected them against gross transgressions on the part of the Italians, he assisted them against the inhuman and cruel treatment of the partisans.
And that not only because Article 43 of the Hague Land Warfare Convention prescribes that the occupying officer "must make all the arrangements dependent upon him in order to re-establish and maintain as far as possible public order and public life." .. From inner compulsion he worked together with the population against the partisans in order to help them and bring peace to the country.
I do not want to go into detail at this point as to the abundance of arguments which are available in this respect.
Generally speaking, I have received during the last months from high and low, from soldiers and civilians, a large number of statements - in some cases without having requested them - all of which more or less culminate as to content in the following declaration: "I consider General FELMY incapable of having acted against the law and against humanity." He never was a "militarist" in the negative sense with an "odd conception of military discipline" as was expressed in the opening statement of the prosecution. The officers who worked with him all agree in describing him as a man who was in every respect a model of military and human respect, and ordinary soldiers speak of him as their "Papa Felmy", tireless in his concern for their welfare. That is the general opinion of him. Greece for him meant the land of the Hellenes, which in ancient times had once been the cultural center of the world. This reverence for Greece gave him additional strength to stand up with all the means at his disposal for peace in Greece.
And such a man, who is deeply rooted in religion and endowed with character and culture, who thinks, feels and acts like any decent person and any honorable officer in all countries of the world and who had thus clearly remained within the boundaries of behavior recognized as permissible by international law - could such a man be a criminal?
The German poet Matthias Claudius wrote a war song of a special kind 150 years ago. It contains a confession which was and is likewise the confession of General FELMY:
"Unfortunately it is war, and I request not to be blamed for it."
PRESIDING JUDGE CARTER: This, I think, concludes the opening statements of the defendants. I trust that the defense counsel are now prepared to go ahead with the evidence in support of their defense.
DR. LATERNSER: (Counsel for defendants List and von Weichs): Your Honors, do you intend to start this afternoon?
PRESIDING JUDGE CARTER: I know of no reason why we should not proceed.
DR. LATERNSER: Your Honors, I am prepared to start. I shall, to begin with, put the defendant Field Marshal List on the witness stand. Then I shall hear other witnesses and, finally, I shall submit to the Tribunal document books and present documents. Before I put the defendant Field Marshal List on the witness stand I should like to draw attention to the following.
My position is this. When I have heard the defendant I can for the moment not continue my case because the witnesses which have been requested by us have not yet turned up, and the document books are, unfortunately, not ready for submission and that because continuously new material comes in, and, therefore, they could not have been finished.
For this reason, I would like to put the question to the Tribunal how I am supposed to proceed after I have hoard the defendant Field Marshal List. If what possibly may not be avoidable, the other defendants are called to the stand, then we would have the disadvantage that the various cases could not be submitted in a complete form.
I would like to put this question to the Tribunal and to make clear thus the position of defense counsel in order that the Tribunal may know how the defense will have to proceed in the event that, in consideration of the short time which the prosecution took up by their presentation, there may possibly be a recess after the defendants have been put on the stand until all material is complete in the hands of the defense. I want to be very frank. The defense does at the moment not know its position clearly. As is well known to the Tribunal, it has made a motion that two of their representatives may look at the documents in Washington. The prosecution for its part has declared that all documentary evidence will be brought here. That latter alone would help the defense to a certain extent but not completely because we have made the motion to look at the documents ourselves because we expect to find documents beyond those which the prosecution has presented and which may be important to us.