THE MARSHAL: Persons in the Courtroom will please take their seats.
The Tribunal is again in session.
PRESIDING JUDGE CARTER: You may continue with the examination.
DIRECT EXAMINATION BY DR. WEISGERBER:
Q We will continue with the discussion of the documents from Prosecution Book 20, and after we have discussed Exhibits No. 464 and 467, we now come to Prosecution Exhibit No. 469, page 63 in the English and page 46 in the German. What can you tell us about this document?
A This is the German pamphlet which has already been mentioned, which is addressed to the population of the districts of Phydon and Levadia. From the pamphlet, one cannot see an office nor a signature nor a date. It is only a very poor German.
The only geographical place mentioned is Levadia. This is the same Levadia which has frequently been mentioned in the area of Boeotia. The signature with initials also do not offer any indication. Therefore, there is no possibility at all of identifying where this pamphlet originated, with whom this pamphlet originated because I have taken the trouble to make a test from the documents of the units which during the course of time were in Boeotia and I can see on this document Police Regiment 18, 1st Panzer Division, the 117th Light Infantry Division, 1st Air Force Field Division, the 1st Regiment Brandenburg, SS Panzer Grenadier Regiment 2, SS Panzer Grenadier Regiment 7 and SS Panzer Grenadier Regiment 8; and in addition there are units of the LXVIII Corps, for instance there is mention of one battalion of it and therefore it is not possible to find out from where this pamphlet originated.
Q And now I would like to ask you, did this pamphlet originate from you?
A No. Do you think I would write such bad German as in this pamphlet?
Q The last document in Document 20 is Exhibit No. 474 of the prosecution, page 94 of the English and page 66 of the German. What can you say about this exhibit?
A We already discussed this. I think this morning. It concerns the agreement between the Administrative Sub-Area Headquarters and the 117th Light Infantry Division about the competency with regard to reprisal measures.
Q And this brings us to the end of Document Book 20. General, there are no further documents charged against you by the prosecution. I now come to the last chapter of the charges against you. They are those which, according to the testimony of the witness Dr. Sontes, one of the Greek witnesses who were examined here--General, you have previously stated that you were also the supreme judicial authority over the population and, first of all, for Southern Greece and later on for the whole of Greece. Would you please tell us quite briefly in which areas your powers as supreme judicial authority extended?
AAs supreme judicial authority. I had the right by virtue of my executive power, and the duty to sentence Greeks inhabitants of Greece who by committing offenses or crimes violated the laws of the occupation power-in the main they were the following cases: murder, homicide, attempts on peoples' lives, sabotage and theft of Wehrmacht property, damaging Wehrmacht property and similar crimes by which the life and the fighting morale of the occupation power was weakened.
Q The witness Dr. Sontes during his testimony mentioned several special cases. The first of these cases was that one of the Greek officers who tried to escape to Egypt, according to the description of the witness, these Greek officers were sentenced to death by court martial for espionage. The witness further stated nevertheless that you had not confirmed the sentence of imprisonment which was served in Germany. Do you remember this case?
A I remember this case very well because it concerned me very much at that time, kept me very busy. From the testimony of the witness Sontes, it is correct that my Military Court sentenced him to death.
According to legal regulations, this was correct.
Q General, in order to avoid misunderstanding, you mean the Greek officers were sentenced to death?
A Yes. The Greek officers about whom we are talking here.
Q Your testimony could have been misunderstood in that Dr. Sontes was sentenced to death.
A I'm sorry. Of course we are talking about these officers who were mentioned just now by Dr. Weisgerber. Well, it is correct that these three officers were sentenced to death by the Military Court but incorrect is the fact that I rescinded the sentence and changed it into a penitentiary sentence and that I had caused them to be sent to Germany to serve this sentence of imprisonment. I had no right, neither with regard to the first measure nor to the second.
Q But yon said that you were the supreme judicial authority. Why, therefore, couldn't you confirm this sentence? Or not confirm it?
AAs supreme judicial authority in Southern Greece at that time. I only had the right to confirm sentences of imprisonment up to five years. Other punishments beyond that I had to submit to my superior office. Army Group E, or the Cammander-In-Chief Army Group E as the next highest judicial authority and he had to give his decision on it.
Q Then you probably did that in this case?
A This sentence together with all the documents and the events preceding it was submitted by me to the Commander-in-Chief Army Group E. In itself, it was not my duty to give any opinion about such sentences. In this case, nevertheless--and I know this, I remember this very clearly-I gave a very detailed opinion on this sentence in which I requested rescinding of the sentence and a considerable mitigation. If the court martial had given a definite legal judgment according to the legal provisions which prevailed at that time, for me the motive of the actions of these defendants were the most important reasons for my opinion. As an officer. I saw in the attitude of these defendants a wrongly understood but nevertheless subjective, understandable, up to a certain degree, pardonable action and this was the reason for my attitude towards this sentence.
Q. General, could you still say what decision was taken then by the competent office?
A. I still remember that the decision in this case took an enormously long time and that the reason was that this case was supposed to be taken even as far as Hitler. In any case, the OKW was dealing with it. The decision was that the death sentence was rescinded or changed and that the punishment I don't know the extent of it-was to be carried out in Germany. With regard to this latter decision, I had no influence whatsoever and I also didn't know the reasons for it, but in any case no one sentenced to penitentiary or imprisonment was ever sent by me to Germany but sentences were on principle always served in the prison in Athens.
Q. And the witness Sontes also gave his personal opinion about this case here, namely that in this sentence he saw a violation of international law and of international ethics because these officers were not treated as prisoners of war to which they were entitled; and therefore, General, I would like to know. General, what you have to say about this personal opinion of the witness Sontes.
A. At that time, when I heard it, I was very astonished that an obviously prominent attorney could state this kind of thing because he knew as well as I that at that time in Greece there weren't any prisoners of war at all; because after the capitulation, as we have often heard here, the soldiers and officers were released and sent home. That is, they were not made prisoners of war but they became private citizens again and as civilians of course they no longer enjoyed the protection of the Hague Convention and the Geneva Regulations but they came as every other citizen did, under the laws of the occupation power. If they violated any of these laws, then as every other citizen, they had to take the consequences.
In this respect? the sentence is absolutely clear according to my opinion and the subjective charges made by one witness against the defendants with regard to this point are in my opinion void.
Q. I now come to the second case which the witness Sontes mentioned in his testimony here. It is the case which he described, the Choros case. Dr. Sontes maintained that these persons who came before your military court went through a very extensive investigation before the proceedings took place, and at that time the secret field police made statements before the court and I quote here: "There is an order according to which we in such cases are allowed to make a very extensive investigation of the arrestee. What do you know about such methods of interrogation, and above all about this alleged order?
A. With regard to these methods of a so-called extensive investigation, I heard for the first time from the witness Sontes. The order quoted by him is completely unknown to me.
Q. But nevertheless the secret field police were subordinate to you at than time or is that not correct?
A. That is not correct. The secret field police were not subordinate to me but to the so-called field police director with the Army Group E in Salonika from whom they received their factual directives. They were in Athens or rather to be more exact in Piraeus---they were available to the Military Commander Greece for routine work duties and they had duties with regard to the military courts to carry out, to make arrests for this purpose etc. I I don't know about the rest of their tasks.
Q. In this connection I would like to refer to document Speidel No. 49, which is contained in Speidel document book No. 3 on page 35 and following. I offer this document as Speidel exhibit No. 31 and refer to page 36, figure III, it states:
"Subordinate to the Military Commander, Greece are the following: Economically: a) Courtier-Intelligence office Athens, b) 840th Secret Military Police."
This makes quite clear the fact that these Secret Field Police were only attached to you economically, that is you had no disciplinary competence, administrative competence or judicial competence?
A. No and also because the members of the Secret Field police were members of the army and secondly, these were officials and I, as General of the Air Force, had nothing to do with both categories.
Q. And then to whom were the offices of the Secret Field Police subordinate?
A. I assume in this connection to the so-called Secret Field Police director.
Q. And did you really never hear about the alleged investigation methods, mentioned by this witness, that is the intensified investigation?
A. No, I never heard about it, because if I had heard about the fact that there in the area of my sphere of work, i.e., my military court such methods were used. I would certainly have objected very strongly against than and I can perhaps illustrate that by my intervention in a very much more harmless case than this one would be. I am reminded of this case by the accusations made by the witness Sentes.
Q. What case do you mean?
A. One day Greeks reported to me that in a pre-interrogation in Piraeus, a Greek was beaten by a member of the Secret Field Police, only beaten. I was highly indignant about this report and called the chief of this office to me at once, I wanted to take him to account.
Because he could not give me any explanation about this case, I told him to carry out an investigation and ordered him to come to me on the next day with the guilty persons. It turned out in the following interrogation, which I myself undertook, that a rather old and otherwise well behaved official had beaten a Creek for the reason that "otherwise he could not have gotten anything out of the Greek, and they were already used to methods of investigation from their own Government," and lastly he described be me that the incident was quite harmless. I protested very strongly and prohibited the use of such Balkan methods in my area and the officer who was guilty of this was forbidden to carry on his duties in my area of command.
Whether I was justified in doing this, I don't know, have my doubts, but anyhow I did it. On the other hand, I was personally convinced that through this personal intervention of mine, all further excesses or misunderstandings would stop. What the results of this harmless case can be seen from the fact that I did not regulate it by a written order or commission any officer to deal with it, but I myself, as a commander, regulated these things although I had a lot of other worries. I was convinced that this finally brought to an end such methods.
Q. Do you think that this settlement of the case was sufficient or what do you think of it today?
A. At that time I was of the honest conviction that I had done everything possible and that I had done the correct thing and that it was sufficient. Today I think however quite differently about this case, I take a much milder view of it since the summer of 1945 I experienced how in the American concentration camp at Wallenberg prisoners came back from interrogations bleeding and beaten so that first of all they had to be taken to the hospital to have their wounds bandaged. I saw that with my own eyes; since that time I took a little more liberal view of it.
Q. I now come to a third case from the testimony of the witness Sentes. Sentes maintained that in two cases the defendants were acquitted by the Military Court, but some of them disappeared without any trace whatever, he mentioned figures from the Choros case, which you have just mentioned, three people disappeared without any trace and from a guess concluded with an attempted blast, seven people disappeared; what can you say as an explanation for this?
A. With regard to the first, I would like to say that the presumption of the witness is completely wrong. It is quite out of the question that with any kind of Germany agency, someone who was suspected, could disappear and as the witness Sentes hinted was removed by some agency or other. I personally have no remembrance of this at all and unfortunately there are no files available from which an explanation would no doubt be definitely quite clear. If I understand the statement of the witness Sentes with regard to the date and the numbers I assume them to be correct and I make that a pre-condition that these figures are correct, then I can say the following:
At the beginning of my examination I described in great detail my first reprisal case in Piraeus and stated that the retaliation took place in Salamis and Piraeus and fifteen reprisal hostages in Piraeus were executed as retaliation for attacks. According to the statements of the witness Sontes these ten allegedly disappeared and prisoners were also shot on 10 January. That is on the same day the retaliation measure took place, therefore the obvious conclusion is that these people were executed as reprisal prisoners for the case in Piraeus and were of course determined by me and summarizing it, it was not an arbitrary measure of some subordinate agency, but it was a decision taken by me, the incidents of which and the conclusions which of course I cannot remember today.
Q. Therefore you want to say that it could have taken place like that without your being able to say today that it did actually take place like that?
Q. It is an assumption from the testimony of the witness Sontes, which I now assume to be correct, according to the reprisal case described yesterday on the basis of the same dates, that is the only basis I have for this assumption because of course I try to find some explanation for his assertions.
Q. The witness Sontes then talked about the time the SS were in Athens and he stated the following about this period, "Until September, 1943 I was not able to maintain that we were in a condition of complete lawlessness, but then after the arrival of the SS things were quite different and the military court of the Military Commander ceased its activities." The witness then stated literally February or March of 1944 the Court of the Military Commander Greece was "a shop without customers", what can you explain about this testimony of the witness?
A. In order to start, there is one point that the witness Sontes made very remarkable correct observation with regard to the date, however in this case he completely mixes up the cause and effect and proves with this that he had no insight at all into the actual circumstances and conditions.
Q. Well, then you say that the witness Sontes is correct when he says that in 1944 your Military Court was "a shop without customers"?
A. This explanation of course must be understood "cum grano salis", but he was right about this.
Q. And is this occurance to be traced back to the activities of the SS?
A. Yes, that is how I understood his comments. There seems to be a closer connection with that, but this statement is positively wrong because I must state that the activities of my Court and my own activities as far as my judicial authority is concerned, had no connection at all with the activities of the SS. The judicial tasks of my Court always remained the same and were influenced by nothing and by nobody. They remained principally and completely independent of any kind of measures or intentions of the SS.
Q. We shall now talk about this occurrence, which the witness Sontes apparently misunderstood and which can be traced back to an organizational chance in your area. By this I mean the reorganization of the Greek area and the establishment of seven sub-area administrative headquarters and one district administrative headquarters?
A. Yes, that is correct, that was also the reason for a reorganization in the judicial sphere and with regard to this, and I shall explain the witness' statement about the "shop without customers", partly to confirm this and partly to reject this. I would like to talk about the actual development of justice in this time and outline during the course of the last three months of 1944 the sub-administration headquarters which you have just mentioned that were set up and took over their tasks.
Every sub-area administrative headquarters had its own military court, which had as its task the sentencing of people for offenses against the Wehrmacht, up to then all judicial cases were dealt with centrally by the Military Commander in Athens. Now a decentralization of the local system had to take place. This decentralization progressed very slowly, in my personal opinion, much too slowly, but nevertheless I realized the counter results of my chief judges who first of all wanted to carry out the decentralization slowly for the following reasons. The courts of the sub-area administrative headquarters were completely new and strange in the area. They did not know the standards of our judicial system, they did not know the population and in order to get a standard legislation throughout the whole Greek area, all the judges had to have extensive instructions about their new tasks, partially by visits from my own judges and partially by bringing in these professional judges to my staff. The result of this transient condition was that my military court was increasingly overburdened with cases, which came in from the provinces and my judges had the tendency to take on more and more. Thereby the eagerness for work and the loyal feeling of duty of my judges must be particularly emphasized here.
I, myself, finally took severe measures against these conditions and before I went to the hospital in Germany in 1944, I ordered quite clearly and unmistakably and for the last time that until my return the decentralization had to be completely carried out back of the basis of the organization. I had given my Court the following task, firstly the chief judge was the chief advisor of the command, Secondly, he carried out the supervision duties and thirdly, the court of the Military Commander should only deal with those cases for whose competency the Courts of the sub-area headquarters outside were not sufficient and for which the judicial authorities were not competent, and finally, the Military Court had to make the pronouncing of the sentences and legislative uniform and was only to take over individual cases which were unnecessary to ease the burden on other military courts. To put it in a nutshell, my Military Court was not to be the office which did all the work, but merely had a supervisory and a standardizing job.
This request, described by me, was carried out completely as I ordered while I was away and that is what I meant before by my comment that the witness Sontes was completely right when he said during the months of January and February until the middle of March my Military Court was a "shop without customers", nevertheless the reasons were different from what he saw.
Q Well, then did the reorganization which you had just recently described bring you any easing of the situation as regards the previous one?
A Yes, without doubt; it was urgently necessary because just from the sake of strength I could no longer go on as I had before. I took this task very seriously. I did not get the chief judge to submit the individual cases to me and sign them as was usual but I went through everything personally from the very first to the last piece of paper and I formed my own judgment and my own sentence and then only discussed the legal questions with the chief judge and exchanged opinions. On this I made my decision. For my decision there were always 3 most important factors; first, absolutely justice; secondly, the priority of common sense over the very strict provisions; and, thirdly, taking into account the psychological motives and the social milieu.
DR. WEISSGERBER: Your Honors, in this connection I offered from Speidel Document Book No. IV Document No. 63. This becomes Speidel Exhibit 32. The document is on page 1 and following in Speidel Document Book No. IV and is composed of many parts, first of all an affidavit by a certain Robert Geiger testifying that he was in possession of copies of a sentence, of a military court which he sent me a short time ago.
Robert Geiger is not known to my client but it was obviously the case that this affiant had found that my client was a defendant here and he had found these documents in his possession and voluntarily placed them at my disposal.
The second part is the copy of the sentence in the case against a certain Theophile Tsaitis, a sentence which has a previous history and which in the form as it is set down here, was discussed on the 13th of June 1943 by General Speidel. Theophilo Tsaitis was acquitted. The 21st of April 1943 negotiations took place about this matter and the defendant Tsaitis was charged with manslaughter together with a charge of endangering the traffic through negligence and a charge of having caused bodily harm to other persons and sentenced to two years imprisonment.
The judicial authority -- that is General Speidol -- did not confirm this sentence and he ordered a new trial to take place whereupon the decision of the acquittal was reached.
Q General, would yon state very briefly what this matter was to the Tribunal?
A Quite briefly, it was a very serious traffic accident for which the Greek was charged. He was driver of this vehicle which on the railway between Salonika and Athens came into collision with another one and this caused the death of 5 high German officers, amongst them the Commanding General of Salonika-Aegean and injuries to two other officers. Therefore, it was a traffic accident with very serious results and the casualties included amongst others a commanding general.
Q And now I come back again to the subject of the SS. You said that your judicial authority was confined to crimes committed against the German Wehrmacht and that you bad nothing at all to do with the activity of the SS and you had no influence on the activities. Is that correct?
A Yes, that is correct.
Q But the witness Sontes maintained that from September 1943 the prosecution of crimes was taken over by the SS. Is this statement correct?
A This assertion in this general form is, of course, wrong as far as it concerns the prosecution of crimes against the German Wehrmacht because the prosecution of any kind of offense or crime against the German Wehrmacht was, of course, completely my responsibility.
Q Then what were the actual tasks of the SS? What were the tasks they took over? The witness indicated something of this kind.
A The activity of the SS, especially in this sphere, was completely unknown to me because there were measures within the sphere of police tasks which were exclusively ordered by the Reichfuehrer SS. Therefore, what incidents took place in this state within a state were completely unknown to me.
Q The witness also stated in his testimony that you as commander -that is, as the highest officer in Greece -- could also have had some success with the SS; you could have given orders to the SS. It is, of course, correct that the witness then rather limited this statement by saying that, whether the commander could actually order the SS or not, this is a question which I cannot answer but in any case he was, so to speak, the high use ruler in the occupied territory and as responsible highest officer he could also order the police.
Was the witness correct in this statement?
A. For an outsider this view is completely understandable up to a certain degree; that I can admit because how should he as a Creek have an insight into the German organization in Greece, and how could he understand something which even we didn't understand for him. Simply all Germans who wore uniforms were members of the Wehrmacht and I was the man in command. I was not the highest officer in Greece. I don't know whether I should say "unfortunately" or "thank goodness"; but I was only the head of one of the three rival powers: Army, administration and SS; and there is also a fourth factor which comes in here, the political and economic leadership which I have also characterized. All in all, there was not only the dualism but a complete mix up of channels of command which most of us didn't understand all the time.
Q. General, during the course of your testimony yesterday and today you mentioned the chain of command, and you also mentioned the fact that the SS was exempted from your power of command. Well, the Witness Sontes said that the SS had established a terror regiment and that with the SS, as the witness stated, tortures were on the daily agenda and that people were shot by the SS without previous court proceedings -- not in individual cases, but in bulk. Well, the witness did not bring any evidence for all this, and he stated that he was not an eyewitness in the actual sense of the word. Here I would just like to talk about the fact that if the conditions were such as the witness Sontes described -- even if only partly -- then, they could have remained hidden from you in Athens.
A. first of all, with regard to all the stories told by Greeks, one must take into account their flourishing imagination and their Oriental exaggerations. Even Homer was like this. At that time the spread of rumors of all kinds was especially great. Nevertheless, there is a speak of truth in all rumors and all news. With regard to your question I would like to state expressly that question I would like to state expressly that I myself never heard anything of such rumors because these rumors did not reach as far as me. Of course, if the circumstances and conditions really had been the same as the Witness Sontes described, then I certainly would somehow have learned about them, either through the Greek Prime Minister, through the German Envoy, through the German Special Plenipotentiary; however, through one of the numerous diplomats in Athens with him I had regular meetings. In this connection I would also like to mention that the Commanding General of the LXVIIIth Corps, who was also in Athens -- General Felmy, heard nothing about these rumors, as he himself confirmed to me and as he has also stated in his testimony. One of these people would certainly have drawn my attention to these facts if they had really been facts. You may perhaps say that there was another source of information available to me -- that is, the conversations in the mess; but that did not come into the question because I was only in the mess once a week, and then I talked about only scientific subjects.
Then, of course, another source could have been the Higher SS and Police Leader, but, of course, I heard only what he told me.
MR. FENSTERMACHER: Your Honor, I wonder if the Prosecution might have the last five or ten minutes today in order to make a statement regarding the future disposition of the case again Field Marshal von Weichs -- a matter which we discussed in chambers yesterday afternoon?
PRESIDING JUDGE CARTER: It is agreeable by the Tribunal.
MR. FULKERSEN: Your Honor -
JUDGE WENNERSBRUN: Pardon me just a minute. It seems to me that if there is going to be any discussions on matters concerning Field Marshal von Weichs that Dr. Laternser should be present.
MR. FULKERSON: Yes, I agree with you, Your Honor; and if he can be brought in now we shall be glad to have him present.
PRESIDING JUDGE CARTER: Well, it seems to me that if you are going to present this matter you should have made arrangements to have him here.
MR. FULKERSEN: We can do that Monday, but, if Your Honors please all I wanted to do now was to get the Prosecution's motion before the Court and then, if Dr. Laternser wants to reject he can do so. Anyway eventually he'll have to do that later; he'll have to present some sort of a response.
PRESIDING JUDGE CARTER: Does anyone know if Dr. Laternser is available now?
DR. RAUSCHENBACH: Your Honor, I'll try and fetch Dr. Laternser. I think that the earliest moment he could be here would be around halfpast four; but if the Tribunal desires I'll certainly try and find him.
MR. FULKERSEN: Perhaps it would be better to postpone this until Monday when he can be here.
If Your Honors please, it has just come to my attention that Dr. Laternser won't be here Monday; so we'll have to postpone it until such time as he is able to be present.
MR. FENSTERMACHER: He has, if Your honors please, informed me that he is going to Wiesbaden this afternoon and will be out of town for several days. I don't know if he intends to come back later next week or not at all next week.
PRESIDING JUDGE CARTER: Well, is his assistant here?
DR. RAUSCHENBACH: Your Honor, if the matter is to be brought up on Monday, of course his assistant will be here. I will tell him at once. I think I shall even see Dr. Laternser myself immediately after this session, and I will tell him that this question will be brought up on Monday.
PRESIDING JUDGE CARTER: It's the opinion of the Tribunal that it should be put off until Dr. Laternser can be present.
DIRECT EXAMINATION (Continued) BY DR. WEISSGERBER:
Q. General, you have just stated that you heard nothing at all about the rumors as described here by the Witness Sontes. Well, what would have been your attitude if you had found out about rumors of this kind?
AAn intervention in the military situation which I would have been able to make against troops subordinate to me would not have been necessary in this case because disciplinary and judicial measures were not possible for me as the Higher SS and Police Leader was not subordinate to me in this direction. He was also not subordinate to me with regard to his sphere of duties as far as police matters were concerned, as I have already stated. If, therefore, rumors or complaints of the kind just mentioned had come to my knowledge and I had thought it necessary to think that something has happened which should not have happened, then the only thing I could have done would have been to call him to me at once and to ask him to stop these things. At the same time I would have had the possibility through my official channels above -- that is, through the OKW -- to report what the Higher SS and Police Leader or his organization had "cooked up," let us say.
I would in this way attempt to achieve an intervention of the Reichsfuehrer SS against hie subordinate But what would have been achieved in that way seems to me to be extremely doubtful because if there had been some kind of wrestling match between the OKW and the Reichsfuehrer SS, then the Reichsfuehrer SS was always the stronger.
Q. And now, I come to a last point from the testimony of the Witness Sontes, which is also covered by the affidavit of the Greek Government. I mean here the so-called Concentration Camp Chaidari. What do you know about this Concentration Camp Chaidari?
A. The Concentration Camp Chaidari only became some kind of a conception to me since I heard about it here. Of course I knew that the Higher SS and Police Leader, for his police tasks, had a prison or a prisoners camp, but that did not concern me. It was a purely police establishment, and that its character was that of a concentration camp I had no indication to assume. The Higher SS and Police Leader himself never mentioned to me the establishment of such a camp.
Q. In this connection I would like to quote a passage from the affidavit of General Eisenbach. This is Speidel Document No. 37, from Speidel Document Book II. I have already offered this document as Speidel Exhibit No. 13. The affiant states on Page 74 of Document Book II, under Figure 6: "The existence of the Camp Chaidari was unknown to me for a long time. One day I heard about it, but not officially, only by way of conversation about the summer of 1944. Thereupon I visited the camp, but found at already completely evacuated."
I only mention that here because the affiant Eisenbach was in Athens for a long time, and the Concentration Camp Chaidari was also unknown to him for a long time.
PRESIDING JUDGE CARTER: The Tribunal will recess until 9:30 Monday morning.
(The Tribunal adjourned at 1630 to Resume session Monday 15 December 1947 at 0930)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 15 December 1947, 9030, Justice Wennerstrum presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the Court.
THE PRESIDENT: Mr. Marshal, you will ascertain if all the defendants are present in the courtroom.
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom with the exception of defendant von Weichs who i in the hospital.
MR. FENSTERMACHER: Your Honors, I wonder if I might interrupt briefly and bring up the same matter that was raised on Friday and discontinued until Dr. Laternser could be present; that is the case concerning defendant Field Marshal von Weichs who has been hospitalized since 6 October.
The prosecution will file with the Secretary-General today a motion that the testimony of defendant von Weichs be submitted by deposition. The motion will be accompanied by an affidavit of Captain Roy Martin, the prison physician, to the effect that Field Marshal Weichs is in possession of all of his mental faculties and is physically able to answer all interrogatories proposed by counsel.
The prosecution feels that there can be no legal objection to the granting of unis motion. There is, of course, no limitation on the power of the Tribunal to adjudge and sentence the defendant merely because he does not testify in open court. In two instances it may be adjudged when he does not testify at all; that is, when he is tried in absentia or when he refuses to take the stand.
We believe that the only possible legal objection to the granting of this motion would be the question of confrontation, that the defendant has to be confronted by any witnesses testifying against him.