Then I continue in the second paragraph of the next page, page 31: "The Chief of the SD Ernst Kaltenbrunner, known to me from my publishing activity in Vienna, chanced to tell me in the Summer of 1944, that he, during recent discussions, became acquainted with General Foretsch who impressed him as being possessed of superior military ability. Pointing this out to the Reichsfuehrer-SS Himmler, the latter replied he knew it, but Foertsch was politically not reliable and was not to be considered for higher posts of command."
Then on the third page, second paragraph, page 32: "In the tense months before the Munich Conference of 1938, before the beginning of the war in 1939, and during the war years, Foertsch and I have missed no chance to speak our minds openly. He knew of each other that we had a clearly national, yet, also cosmopolitan attitude, knew of each other's disappointment about the development of National-Socialism, and we had the same fears regarding it degeneration. Foertsch was a soldier in the best sense of the term, he served his people, and his country consciously. He never considered a war as anything else than a last resort. Any idea of a preventative war was distasteful to him; anyone like Foertsch and myself who had fought four years as front line infantrymen in the first world-war, had enough of front line duty for the rest of our lives."
The next document is Foertsch No. 10, I offer as Foertsch Exhibit No. 7, which is an affidavit b the former General of Infantry Westphal. This affidavit was also taken in the Allendorf Camp, and sworn to before the American Officer; it is on page 34 of the English, thus Westphal states: "From 5 March to 31 July 1940 I was first General staff officer in the Corps General Staff of the XXVIth Army Corps. In this capacity I was subordinate to the Chief of Staff of this Army Corps, the then Colonel in the General Staff Hermann Foertsch. I maintained correspondence with the later General Foertsch throughout the war, and also saw him occasionally in 1941, 1943 and 1944. In 1945 when Foertsch was Commander-in-Chief of an Army in the West, and I chief of Staff of the Commander-in-Chief West, I met him repeatedly.
The same applies to the first six weeks after the capitulation, when we jointly demobilized German troops in Bavaria."
On the second page, second paragraph, in the middle of the page: "Personally I considered that General Foertsch was one of the superiors I liked most during my almost 30 years of service, because he always stressed the human clement. As one of those human traits I also considered his frequent interference in favor of the civilian population during the Western campaign in 1940.
Then the witness gives some examples of General Foertsch's attitude, and among other things on page 3 of the document under (C): "In Antwerp it became accidentally known that two soldiers of the Corps General Staff had immorally approached Belgian women under the false pretense of a medical examination. Foertsch as their disciplinary superior immediately committed the two soldiers to the court martial, to whose jurisdiction they belonged, for trial." Then under (D): "In the second half of May 1940 the XXVIth Corps fought for the Gent-Bruegge channel. During this fighting two British soldiers were brought in, who had been captured behind the front-line in civilian clothes, and carrying arms. In the opinion of the concerned court-martial they had forfeited their lives under martial law as guerillas. General Foertsch conferred with me, because the still very young soldiers earned his pity. He attained that the two Britons were not arraigned, but were marched off as regular prisoners-of-war." And finally under (E): "In April 1945, various persons involved in the Munich revolt had been sentenced to death upon order of the supreme command. The sentenced persons were imprisoned within the area of the 1st Army, I think it was in the Traunstein prison. Although the OKW repeatedly demanded the execution of those persons, General Foertsch, after a conference in his army headquarters with his chief of staff, Brig. General Mauser, and myself, ordered that the death sentence be not executed on the above mentioned persons."
From the last example his basic attitude towards the military and other measures of the supreme command also becomes evident." And on the next page: "Whenever I met him, so already in 1940, he was always filled with harsh criticism especially again the Chief of the High Command of the Armed Forces, who was always desirous to please Hitler. Such a basic attitude corresponded to his intellect, as well as to his very strongly developed pessimistic views."
The next document is document Foertsch No. 11, which is offered as Exhibit No. 7.
THE PRESIDENT: Exhibit No. 8, isn't it?
DR. RAUSCHENBACH: Exhibit No. 8, yes, Your Honor. This is an extract from a letter which Foertsch wrote to his wife on 21 April 1941 from the front. This is a document from that time, and expresses his attitude as to the Greece capitulation. It runs as follows: "Yesterday and today stirring days with great tension and many phone calls. The Greeks at the Albanian front laid down their arms today at 1200 hours. They waited until they could capitulate to the German Army, not to the Italians. Indeed, I can not blame this valiant army for this."
MR. FENSTERMACHER: Your Honor, I object to the admission of this document, showing the defendant Foertsch's attitude towards the capitulation of Greece, which has not been presented as a question in this case, and, secondly, because the writing has not been identified. Finally, if the Tribunal overrules the Prosecution's objection, I ask that a full copy of the letter be made available to the Prosecution.
THE PRESIDENT: The objection will be overruled, subject to the presentation for further examination on behalf of the Prosecution of the entire letter.
DR. RAUSCHENBACH: Your Honor, just to supplement this, the letter is complete in the original, and I have certified the extract.
THE PRESIDENT: Do I understand you have the complete letter?
DR. RAUSCHENBACH: Yes, I would like to submit it.
THE PRESIDENT: The Tribunal does not wish this letter at this time. It may be furnished to the Prosecution, they are asking for it.
DR. RAUSCHENBACH: I think the Prosecutor has seen it. I always hand it to the Prosecution.
MR. FENSTERMACHER: May it please Your Honor, Dr. Rauschenbach may be misunderstanding; our contention is we have always furnished the defense counsel with a, copy of everything which we have put into evidence, and that this is the only copy which is made available by Dr. Rauschenbach, and it goes into evidence and it is retained by the Secretary-General. I simply ask Dr. Rauschenbach to furnish us with a copy of the letter which is put into evidence.
DR. RAUSCHENBACH: I understand. I'll get another photostat copy made and hand it to the Prosecution.
THE PRESIDENT: Subject to the ruling previously made, the exhibit will be received.
DR. RAUSCHENBACH: The next document, Document Mo. 12, I will offer as Exhibit No. 9. It is an affidavit by Wolf Ruediger Hauser, and was made in the Steinlager -- Stein Camp -- Allendorf, and it is certified by the competent American officer. Hauser states the following, after stating how he met General Foertsch in the first paragraph, on the first page of this document, page 39:
"General Foertsch was esteemed at the War College not only as an outstanding teacher of tactics, but also especially respected as man and educator by us students. He proclaimed and championed a military profession of the highest type, supported by moral responsibility, such as has been demonstrated only by the great soldiers and personalities of all countries."
Then on page 2:
"Also the American Captain (now General) Hartness attending our lectures as guest student, always expressed the highest regard of General Foertsch, whom he esteemed equally as man and soldier, when talking to us -- his fellow students and comrades. After seven years, during which we had no official contact, General Foertsch was again, as mentioned above, during the last months of the war, my direct superior in his capacity as supreme commander of the First Army. Particularly during this time which charged especially heavily every soldierly leader, General Foertsch personified that soldiery of high moral standards, of which he had taught us at the War College. Fully exerting his own personality and position, he opposed again and again the commands given by Hitler, and did everything in his power to keep away from the country every unnecessary severity of the war, to avoid destructions and spare lives. He also used his whole influence again and again, to bring to an end the war which had become senseless in his opinion."
The documents which I have submitted so far concerning the personal and military development and the character of the defendant General Foertsch. I have only read short extracts in order not to take up to much time, but I recommend that the one or the other documents should be read in there entirety, in order to get a complete impression.
I now come to Foertsch Document No. 13, which I offer as Exhibit No. 10, and this will begin the presentation of evidence about the question of the position of the chief of the General Staff, which played a very decisive role with General Foertsch. Now, in this document, No. 13, Exhibit 10, on page 42 of the Document Book, there is an extract from the Manual for tho General Staff Service in War, which which has already been mentioned by General Foertsch on the witness stand. I road from the introduction, figure No. 2, which is on the first page of my extract and is on page 42 of the document book:
"Tho commander boars the responsibility for the action. The General Staff Officer is adviser and helper and the conscientious executor of the decisions and orders of his commander. He has to observe tho limits erected by this relation to his commander. His activity will only be fruitful in the long run if he enjoys the full confidence of his commander."
And then Section III:
"Service with the Commanding Authorities in War and Duty at the Front in Times of Tension.
"A. Principal Matters.
"1. The higher commander bears for his sphere of command the sole responsibility.
"2. The officers and officials of Staff are his aides. The following directives define their functions. Only the rough outlines are given here. They form the basis for detailed directives to be worked out by the commanding authorities, and which are to be attached to the mobilization preparations.
"B. Tasks and Functions of the Officers and Officials.
"AA. High Command of a Group of Armies, Army High Command, Corps General Staff.
"1. The Chief of the General Staff.
"3. At the head of the Staff is the Chief of Staff. He is in all concerns the first adviser of the higher commander.
A close relation of confidence between the two is indispensable as a permanent basis for fruitful working of the commanding authority.
"4. Preceding operational and tactical decisions, the higher commander, unless immediate giving of an order is necessary, has to hear the Chief of Staff. It is the right and the, duty of the latter to submit his opinion and to make proposals.
"The decision and responsibility lies solely with the higher commander. The Chief of Staff has to devote himself to the execution of the will of his higher commander, even if his views and decisions diverge from his own.
"Simultaneous absence of the higher commander and the chief of staff from their post of command is to be avoided. If the situation requires a quick decision and the higher commander is absent and not at once to be reached, the chief of staff is in duty bound to decide and to issue orders. Such orders are to be marked expressly as coming from the authority, not from the person of the chief of staff. The chief of staff has to provide his higher commander with knowledge of all official matters which are of importance for him. Vice-versa, the higher commander has to instruct his chief about all orders given directly by him."
The next page, paragraph 5:
"The chief of staff is superior to all members of the staff, if something different has not been arranged individually by service regulation. Over the soldiers, except those who have greater length of service, the chief of staff of a group of armies, or of an army, has the disciplinary power of punishment held by a division commander, while the chief of staff of an army corps has that of a regimental commander.
"6. The Chief of Staff regulates the service of the entire staff, in so far as the service regulations do not prescribe something different for individual persons in certain departments."
Then I skip 7 and come to 8:
"Staff discussions -- in the entire staff as well as in the departments -- serve for quick information, guarantee the uniformity of conception and treatment and make much writing work superfluous."
And then under figure 10:
"The chief of staff regulates the reports to the higher commander. He may participate in them.
"All important affairs must be reported to the higher commander at the proper time in a short and precise form which emphasizes the essentials and so facilitates the forming of a decision, care being taken to avoid a subjective coloring according to a pre-formed opinion.
"11. The Chief of Staff examines all plans before their submission to the higher commander. He is entitled to sigh documents being neither of a fundamental nature, nor containing judgments as to value concerning the recipient. The signature is given in this form:
"'For the Command of the Group of Armies (Army High Command) Corps Headquarters.
"'The Chief of Staff.'" And then on the next page of the document I submit figure 17:
"The Chief of Staff has no right of inspection. Inspection of troops, emplacements, etc., is done on assignment by the higher commander.
"18. The Chief of Staff substitutes for the Higher Commander during short absence. In cases of longer absence the Higher Commanding Authority orders the representation of the Higher Commander."
And then from page 32 of the original there is figure c:
"The Judicial Officer of the Army, Department III:
"72. III is adviser of his commanding authority in all questions of law. Ho is subordinated immediately to the Higher Commander in his capacity as Appointing Authority and reports to him.
"The Chief of Staff is not permitted any influence on the reports of III to the Appointing Authority of the Court. However, the Judicial Officer has to inform the Chief of Staff at once especially of such happenings coming to his knowledge, as pertain to the spirit of the troops or concern persons in special positions (officers, higher officials) And the next document, Document 13-A -
MR. RAPP: Your Honor, I don't know how Dr. Rauschenbach is going to try his case. However, I do think that he ought to furnish us some certificates of translation. Now, this particular instrument he has just read into the report was certified by his colleague, Dr. Reich, who suddenly appears as a qualified translator being also at the same time Defense Counsel. That is something new to me. If Dr. Reich supposedly hasn't signed this to be true, then I would like to ask Defense Counsel who signed it to be a true translation. This is highly technical stuff. One word may mean a lot of difference. This is not intended to be picayune of trying to obstruct the progress of this trial, but I do think that we have qualified translators. There is no certificate on the English copy. I have seen none attached to the original. I would suggest if your Honors inquire into this particular phase. As it stands now, I don't think it should be permitted to be admitted as an exhibit as it was offered. Now, there are others, your Honor, just for your information there is no translation certificate on Exhibit 3, on Exhibit 4, on Exhibit 7, on Exhibit 10. I particularly don't care whether or not on these personal affidavits there are translation certificates. I don't want to create a precedent case out of it. On the last document, that is very technical, and I do think a properly qualified translator ought to tell us whether that is a correct translation of the German original.
I am sorry that I have to bring this up, but I do feel that Dr. Rauschenbach in charge of presentation of this case would know these things himself. He has been a long time in Nurnberg and knows the procedure as well as I.
THE PRESIDENT: It seems to me the Prosecution should be furnished a copy of this document in its entirety.
DR. RAUSCHENBACH: Your Honor, in order to begin with the question of translation mentioned by the Prosecutor, of course, I haven't translated one single of these documents or certified the translation, but on the last page of the English document book there is certificate of translation and from this it can be seen that Mr. Fred Solomon certifies that the whole document book is a true and correct translation of the German.
And I don't understand what is wrong, apart from Document 13. I think I am not responsible far the translation. That comes from the Translation Department. The copies -- the extract -- from the documents certified by me in German and the document itself is in this case a photostat copy which is submitted as original, which were made available to me by the Prosecution itself, because the original of the German cannot be obtained by us at all.
MR. RAPPL Well, Your Honor, assuming that Dr. Rauschenbach's argumentation would be correct, then the other certificates he has included in this document book would be rather ambiguous, it seems to me, or "superfluous" to use the correct expression. Either the last certificate is not applicable or the individual certificates are not applicable to the last. As it stands now, I don't think it should be left to the discretion of Dr. Rauschenbach which certificate as applicable at what particular time, we want to know that these things have been properly translated and certified.
THE PRESIDENT: Are you questioning the last certificate found on page 55a?
MR. RAPP: Your Honor, as far as the certificate from the affidavits are concerned, I am not questioning it. I am merely questioning when it is applicable and when it is not applicable. There are three additional certificates included in this document book. Either they are to supercede the certificate on the last page or the certificate on the last page rules out the previous certificates. I don't know the action to take, your Honor. I am only worried about this particular case.
THE PRESIDENT: If either one of these certificates is correct, then what is the occasion for the objection?
MR. RAPP: Your Honor, my original objection was that I do not know which certificate is applicable to which translation. You have one master certificate so to speak at the end of the book. If that is to be used, then what is the point for other certificates in the book?
THE PRESIDENT: If they are there and they are superfluous, what is the difference?
JUDGE BURKE: Well, isn't it a fact, Mr. Rapp, that some of the other certificates have references to attestation, rather than to translation?
MR. RAPP: That is true too, Your Honor, but there are also other certificates in here which have reference to translation. For instance, if Your Honors turn to page 16a, for instance, you have there a lady by the name of Perry certifying that a translation of a previous document submitted is correct, 16a; the same appears again on page 33a.
THE PRESIDENT: The objection will be overruled. The court will give consideration to these matters in its final determination.
DR. RAUSCHENBACH: Your Honor, now to conclude, I would like to add that I could not answer the questions of the prosecutor, because as defense counsel we have no influence at all on the technical Translation Division.
The next document is Document No. 13a, Exhibit No. 11. This is an expert opinion of the former Chief of the General Staff of the German Army about the position of the Chief of the General Staff of the Higher German Command in the 1939 to 1945 war. This Document 13a, Exhibit Foertsch 11 was sworn to before the competent American officer in the Neustadt Camp. This expert opinion is in regard to the responsibility of the Defendant Foertsch and everything charged to him by the prosecution from his position as Chief of the General Staf. This is so important that I must read the whole thing, so that it will be understandable. I begin:
"I give the following expert opinion in virtue of my knowledge of conditions in the German Army and my service experience which I have gained as chief of the General Staff of the Army in the period from 1935 - 1942.
1) The official instruction concerning duties and rights of a Chief of the General Staff of a higher command (in the following briefly referred to as "Chief") is contained in the secret printed regulation 92, (Dv. g 92) "Handbook for the General staff service in wartime" Part I. I had this regulation revised as Chief of the General Staff soon after I took office so as to establish clearly in the regulation, too, the point of view of absolute responsibility of the commander of the troops (in the regulation called "Fuehrer" or "oberer Fuehrer" (higher commander) which up till then had been established only by written orders.
H.Dv. g 92 stresses in Part I, Section III, A, No. 2 that the instructions given in the regulation concerning the activity of the separate organs of the staff are only to serve as "general principles" on the basis of which commands had to prepare separate instructions for service in the staff. To draw these up consistent with the needs of the service was the business of the "Chief" who was responsible to his "oberen Fuehrer" for the smooth running of the staff. To guarantee uniformity of staff work throughout the army, the important position of the chiefs as regards duties and rights was fixed in the regulation in so far as possible without getting lost in red-tape.
2) The "Chief" was responsible to his "oberen Fuehrer" only. His responsibility to him consisted in promptly creating and clarifying the foundations necessary to reach a conclusion; the presentation of all important matters at the right time briefly, sifting the essential in such a way as to facilitate the reaching of a conclusion without a biased attitude to an already formed opinion, further, after the conclusion had been reached by the absolutely responsible "oberen Fuehrer", in using all means in the power of the chief to carry out the will of the "oberen Fuehrer" and in furnishing the superior offices promptly with the necessary notices and reports as intended by the "oberen Fuehrer", Dv. g 92, Part I, Section III, No. 4, stresses expressly that the "Chief must exert every effort to carry out the will of the "oberen Fuehrer" even if the views and resolves of the letter deviate from his own. To this "carrying out of the will" of the "oberen Fuehrer" belonged a clear giving of commands which expressed the will without any ambiguity, the mustering of all available aids to the uniform carrying out of this will and supervision of prompt execution of the commands given. The "Chief therefore, had to report to his "oberen Fuehrer" if he confirmed that subordinate officers did not carry out the orders given by the "oberen Fuehrer", or not entirely or not soon enough.
The responsible commander of a subordinate office was responsible for carrying out the orders issued to the subordinate offices.
3) Concerning the responsibility for the orders given and decisions reached Dv.g.92.
Part I: Introduction No. 2 says:
'The Fuehrer bears the responsibility for the deed. The General Staff Officer is advisor and helper.'
Section III, Figure 4, 'The decision and responsibility rest with the Oberen Fuehrer alone."
The person elaborating the orders was responsible to the "Oberer Fuehrer" who was authorized to issue the order for the form and manner of the giving of the order which were to express his will correctly and in due course.
"4) Concerning the authority to give a signature Dv.g.92 Part I, Section III, No. 11 says: 'The Chief of the General Staff examines all drafts before they are submitted to the "Oberer Fuehrer". He is authorized to sign documents which have no fundamental significance and contain no judgment as to value of the recipient."
MR. RAPP: I would like to inquire from the Translation Branch if they don't have a word to translate "Oberer Fuehrer" properly. I have known that particular word for several years and it seems to me it is pretty easy to translate it correctly.
JUDGE BURKE: What is your contention as to the translation?
MR. RAPP: Your Honor, there are numerous translations that are possible. The English language provides several for these. I don't want to suggest them, but I do not think that a German word should get into the English record, because it means nothing to a lot of people.
JUDGE BURKE: May I suggest that the original be handed to the translator for use now and subsequently.
THE INTERPRETER: I would suggest for "Oberer Fuehrer" the use of "Higher Officer".
DR. RAUSCHENBACH: Yes, as the prosecutor just stated, there are several possibilities. It could be, perhaps, "Higher Commander".
MR. RAPP: That would be perfectly acceptable to us, Your Honor, I was only quibbling so that those who don't speak German know what we are talking about. "Higher Officers" is perfectly correct.
JUDGE BURKE: Is that agreeable to you, Dr. Rauschenbach?
DR. RAUSCHENBACH: Yes, I agree with that.
THE PRESIDENT: You may proceed then.
DR. RAUSCHENBACH: "This makes it quite clear that fundamental orders and decisions were not to be signed by the 'Chief' but 'by the Higher Commander.' The signature formula for documents which contained no fundamental orders and could therefore be signed by the Chief is set forth in Dv. g. 92 Part I. Section III No. 11. This formula indicated that the person signing does not draw on the order by virtue of his own authority of command, but as representative of his command, therefore with the 'higher commander' as the responsible person who alone was responsible for the activity of his official agency.
"The 'Chief' had aLways to use this formula when he signed as representative of his command. In this case the official designation of the Command Post always stood at the head of the letter. The only case when this formula was not used, was when the 'Chief' issued a written command within his personal sphere of command. The personal sphere of command of the 'chief' was the staff of the command at the head of which he stood and over which he exercised disciplinary power. Orders to the staff therefore were headed with the designation: 'The Chief of the General Staff of the ...... Command' and were signed merely with the name of the 'chief' personally authorized here to give orders."
THE PRESIDENT: Dr. Rauschenbach, we will take the noon recess at the regular time.
THE MARSHAL: The court is in recess until 1:30.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
MR. FENSTERMACHER: Your Honors, please, I would like to make one statement regarding a correction of the transcript of the record. Your Honors will recall that on the 18th of August, during the testimony of the Greek witness Papas, there was a mistranslation regarding the words "Steel Helmets". The translator stated that the words "Steel Helmets" should not have been used, and rather the word "style" in Greek should have been translated "appearance".
If your Honors will make this notation in the transcripts of the record on page 2193 of the English record for the 18th of August, the 7th line from the bottom of page 2193, which should now read: "Answer: Yes, I could very easily see. The appearance of the Italians and their uniforms was entirely different from that of the Germans."
The reference in that answer to "Steel Helmets" should be stricken.
And then on the next succeeding page, page 2194 of the English record, the 11th line from the top of that page, the answer should read: "I couldn't exactly give you a very detailed description of their uniforms, but in any case I could tell you their appearance is different."
The reference there to "Steel Helmets" should also be stricken.
Dr. Weisgerber, counsel for the defendant Speidel who was interrogating the witness Papas, as heard the record of that date proceeding and agrees to the change in the record which I have just given your Honors.
Now, if I may make one comment regarding the submission of the documents for the Defense. Your Honors will recall that throughout the presentation of our direct case we submitted a photostatic copy of each document which we offered into evidence to the Defense Information Center 24 hours before we submitted it in the Court.
We have not received any photostatic copy of any of the documents which Dr. Rauschenbach offered into evidence this morning. The problem is simply this: We have received a copy of the English Document Book and a copy of the German Document Book, and we can compare the two and pick out any translation errors; but if the German Document Book has been mistranscribed from the original document, that error wouldn't necessarily be perpetuated in the English translation, and unless we have a photostatic copy of each document offered into evidence 24 hours in advance we cannot ascertain whether the translation of the original document is correct.
THE PRESIDENT: I see no objections to your having it, provided the German counsels are given cooperation by the necessary departments. Are you in a position, Dr. Rauschenbach, to furnish, through the necessary departments, photostatic copies of these various documents?
DR. RAUSCHENBACH: I am sorry, Your Honor, this is something completely new to me. I have been defense counsel in Case One, and Case Four, and I have also participated in the IMT, and up to this time the Defense has not been asked to do this. They have not been asked to submit photostatic copies besides the German and English Document Books. That the Prosecution does this, as far as I know, has a special reason. While we Defense counsel leave our original documents, that is, affidavits, letters, etc., with the Secretary General, the Prosecution on its part has the original, only submitting a photostatic copy, while the actual original remains in the Document Center, and I believe that is the reason why the Prosecution makes photostats at all, and has them made. We, however, submit the original documents.
They are with the Secretary General, and up to this time nobody has had the idea, not even the other Courts, that besides, we still have to furnish also photostatic copies. I am afraid that would involve a technical procedure, which is complicated as it is, and this procedure again would have to be carried out by departments in this Court-House here, and would therefore be subordinate to the Chief of Counsel, and I think that is a completely new problem here.
MR. FENSTERMACHER: Your Honor, I am not aware that the procedure which I have suggested be followed is a new procedure here. I believe, however, that the reason why the Prosecution files photostatic copies with the Defense Information Center is not, as Dr. Rauschenbach puts it, because we do not file the original document, but rather because we want the Defense to be able to sit down with the photostatic copy, the German Document Book, and the English Document Book, to see that they all correspond. I think your Honors will be able to appreciate the necessity for a photostatic copy being available in advance to the Defense for thus reason: Should the German typist mistranscribe anything from the original document, or should the typist forget to include in the German portion of the document something which is in the original, we would be unable to tell, from examining the German Document Book copy and an English Document Book copy that was the case.
THE PRESIDENT: Is where any rule in connection with this matter that has been set up in the Rules of Procedure?
MR. FENSTERMACHER: The rule is somewhat unclear, your Honor. Rule 17 provides as follows: "Prosecution to file copies of exhibits -- Time Required. The Prosecution, not less than 24 hours before it desires to offer any record, document, or other writing, in evidence, as part of its case in chief, shall file with the Defense Information Center not less than one copy of each record, document, or writing, for each of the counsel for defense, such copy to be in the German language.
The Prosecution shall also deliver to Defense Information Center at least four copies thereof in the English language."
Rule 18 simply talks about the number of copies and exhibits which are to be filed with the Secretary General.
Your Honors will note that there seems to be nothing in Rule 17 which binds the Prosecution to file photostatic copies in advance with the Defense Information Center. That is the policy which we have followed and, I believe, has been followed by the Prosecution in other cases.
THE PRESIDENT: May I suggest this, Mr. Fenstermacher, Rather than take up the time of all these people here who are interested in this proceedings, unless it is necessary to do it right away, that you and some representative of the defense meet with the Tribunal in chambers and we work it out that way?
MR. FENSTERMACHER: Very well, Your Honor.
THE PRESIDENT: May I suggest that we have a conference at four-thirty?
You may proceed.
DR. RAUSCHENBACH: I shall proceed then with the reading of the Document Foertsch 13-a. That is exhibit 11. It is pant of the document - it is page 4 of the document under paragraph 5. It reads as follows:
"An exception is given to the generally stated, valid rules in Numbers 3) and 4) if the situation demands an immediate decision in a question which acquires fundamental significance and the "higher commander" is absent or cannot be reached immediately. Dv. g 92 Part I, Section III, No. 4 disposes of it in this way: 'If the situation demands a speedy decision and if the higher commander is absent and cannot be contacted immediately, the chief of the General Staff is obliged to decide and to order. Such orders are to be marked expressly as emanating from the command not from the person of the Chief of General Staff.' This says that in such an exception the chief can indeed give orders and is even compelled to give orders but assumes the responsibility outwards for the activity of his command. From this it is evident without being mentioned in the regulation that the decisions and orders of the chief had also in such a special case to be prompted by the effort to act as intended by his higher commander.
6.) "With the word 'current matters' such matters were designated in office language the settlement of which required no new fundamental decisions on the pant of a superior but which the collaborator could work out by virtue of existing regulations or fundamental decisions already on hand.