I couldn't do that earlier.
THE PRESIDENT: These memorandum - or memoranda that were submitted the other day are not exhibits and are merely presented to the court for information purposes. The commando order or directive which was submitted in connection with the original case is the one to which the Tribunal has been giving primary attention, and it will undoubtedly be the one to which we will give final consideration as being that part of the prosecution case in which we will dispose of that particular matter.
It should be stated here that we are now in the rebuttal stage, as far an the Prosecution is concerned, with the exception of such matters as pertain to two defendants who have certain other evidence to present. Under the circumstances the request and motion will be denied.
MR. FENSTERMACHER: We continue, this morning, if Your Honors please, with presentation of more rebuttal documents. Your Honors will recall that yesterday the prosecution offered NOKW 1734 as Exhibit 645 in evidence. That was an affidavit of Theodor Fischer. Dr. Sauter made inquiry at that time as to the present address of the affiant. We have made investigation and learn now that as appears from the final page of the affidavit that the affidavit was executed here in Nurnberg on the 18th of June 1947. On the 16th of July 1947, the affiant was returned to the Prisoner of War enclosure at Dachau. I think that probably satisfies Dr. Sauter's objection and I will offer it again at this time. I should like to read the affidavit. I believe I mentioned yesterday for what purpose it was offered and against which defendants, but I will do so again. It is offered against the defendant Speidel because it clarifies the work of administrative sub-area headquarters. It is offered against the defendant Geitner because the affiant served under Felber and Geitner, and is to rebut the contention of Geitner that many of these reports were reports of "fake" shootings.
The affidavit reads as follows:
"I, Theodor F I S C H E R, born in Suthm, West Prussia on 19th December 1888, swear, state and depose:
I am a regular army officer and my last grade was Brigadier General. At the beginning of the war I went to the front as Commanding Officer of the 328th Infantry Regiment. In this position I remained until approximately August 1942. In between I commanded temporarily the 223rd and 227th Divisions in Russia. Effective the 1st October 1942, I was appointed Commanding Officer of the 610th Administrative Area Headquarters at Banjaluka, Serbia. At a later date this Administrative Area Headquarters was transferred to Cacak and I remained there until October 1943 and then commanded the 373rd Division as a deputy in Croatia for a period of two months. In December 1943, I returned to Administrative Area Headquarters in Serbia, and, based on my request, was relieved in January 1941. As Commanding Officer of the 610 Administrative Area Headquarters, General of Artillery Bader Was my direct superior. Later on my superior was General of Infantry Felber. My Administrative Area Headquarters was sub-divided into six district Headquarters, each of which was commanded by a District Commander who was responsible to me personally. The troops under my command merely consisted of approximately 150 German Field Policemen which were numerically distributed among the various District Headquarters.
With reference to reprisal measures, I state the following:
All reprisal measures were carried out by order of General Bader and later on by order of General Felber. I know that these two Generals, just as I, were not in agreement with the entire complex of reprisal measures, which, however, had to be carried by explicit order and under pressure of the OXW. I remember that the death of a German soldier which had been caused by a cowardly attack was avenged by the lives of 50 enemies. In case of a wounded German soldier 25 enemies were killed.
As far as I can remember the executions were carried out by shootings. Another method which was ordered as a revenge for the death of German soldiers was the burning down of Hamlets and villages. The victims who were selected for such executions were either so-called communists or DM-Followers. It can be assumed that a small number of hostages who were confined in the local prisons of the District Headquarters were used to fill the death quota which had been ordered by General Bader or General Felber. In various cases, however, hundreds of persons were affected by the executions and it was therefore impossible to obtain this number from hostages confined in the prisons. For this reason, the SD itself carried out the further selection of communists or DM-Followers in the neighborhood of such places where attacks on German soldiers or German property had occurred. These selected hostages were then turned over to the execution detachment for the carrying out of the reprisal measures. As a matter of course I personally have never given any order for the execution of reprisal measures and must emphasize that General Bader or General Felber reserved for themselves the right to give such orders. Naturally, I was under orders to pass on reprisal orders which I received from higher headquarters to the agencies which were subordinate to me for the purpose of execution. Based on my military education, my conception of honor as a soldier and the old customs of the Army, it was, as a matter of course, impossible for me either not to pass on orders of this kind or even to destroy them. Owing to the considerations mentioned above it is my conception that neither General Bader or General Felber were in any position to do anything but to decree such orders. So called "fake shootings" could never have taken place. Bader or Felber already gave orders for the shootings to the District Commander over the telephone before these District Commanders could receive the written order which I sent them through the much slower working channels. The unit on whose behalf the reprisal measures were carried out, watched keenly that these measures were actually executed, and would immediately have reported to higher headquarters any "fake measures", or falsified reports on our part.
In addition the SD for its part supervised the execution. The result would have been that I myself and the responsible officers under my command would have been hanged for refusing to obey orders.
As I said before, such matters as refusing to obey orders or gross negligence were not tolerated in the Germany Army especially when one was conscious of the consequences. I have frequently discussed the subject of reprisal measures with General Bader as well as with General Felber and have protested against them as much as was possible for me. I know that General Bader and General Felber loathed the ordering of reprisal measures just as much as I did. Our duty as a soldier, however, did not leave us any other way out, than to execute those orders. For the Area Commanders, like myself, who were in daily contact with the local population of the country and whose task it was to liven up the economy in order to help ourselves the kind of measure was naturally even more regrettable. I consider this kind of measure wrong from a psychological point of view now as I did then. From the Military - Administrative point of view almost suicidal. In addition these measures naturally helped to swell the ranks of the partisans to an ever increasing degree and finally provoked the hostility of the entire population against us."
Then the jurat, signed "Theodor Fischer".
DR. SAUTER: According to the statement of Mr. Fenstermacher this document by General Fischer has been submitted as proof that fake shootings were not supposed to have taken place. This document is new and up to now General von Geitner could not state his opinion on it. In order to avoid misunderstandings I would like to state that Herr Geitner never maintained that fake shootings took place with the sub-area administrative headquarters, on the contrary, sub-area administrative headquarters could not carry out fake-shootings because the secrecy involved would not have been possible there. Further, von Geitner expressly stated that such fake shootings which were in reality not shootings at all only took place in Belgrade and then were only possible with the cooperation of a leader of the SD. Therefore, if a sub-area administrative a Commandant such as General Fischer confirms to the Prosecution that fake shootings did not take place, then this proves nothing at all in face of the assertions and descriptions given by General Geitner. If this assertion of General Fischer is regarded as important, I request that Brigadier General Fischer be brought here for cross-examination so that he can give more details about fake shootings, because as Herr von Geitner is convinced that if Herr Fischer, who did not find anything out about fake shootings and could not have found out anything about fake shootings previously is present here, then we shall see how this question was dealt with, and it will therefore be seen that he could not possibly know anything. I therefore request that Brigadier General Fischer be brought here for cross examination.
MR. FENSTERMACHER: If your Honor please, we will be glad to bring Fischer here for examination. It has been the policy, of the Tribunal I believe to have these applications done in writing, heretofore. Would you just put the application down in writing, Dr. Sauter?
THE PRESIDENT: We are getting down towards the close where we cannot wait for five or six days to transcribe certain things to go through channels We do not wish to restrict counsel in any way but we are going to be limited in our time. Dr. Sauter is within his rights in making this request and I take it then that the prosecution will be required to present this man.
"You may proceed. The matter has been disposed of.
DR. SAUTER: May I add one more thing your Honor? Perhaps it will help things. This is a relatively unimportant point. Since we have already prove this question of fake shootings, as it is called, with documents, perhaps the whole thing can be settled like this. Brigadier General von Geitner could perhaps be called to the witness stand in order to clear this up, this might perhaps he a solution, and therefore because of this small point it will not be necessary to fetch Brigadier General Fischer from Dachau.
THE PRESIDENT: You have made your request, Dr. Sauter, and if you stand upon it the only thing the Tribunal can do is to endeavor to see that it is complied with.
DR. SAUTER: Thank you, your Honor.
DR. WEISSGERBER (FOR GENERAL SPEIDEL): The prosecution has submitted this document against my client. In the whole document the name of my client does not appear one single time, and also from the whole document one cannot see anything at all about my client.
THE PRESIDENT: I do not wish to be discourteous and it is not with that thought that I ask do you have in mind making an objection? Otherwise the matter of comments concerning a particular document should be restricted to the closing arguments.
DR. WEISSGERBER: Your Honor, I don't want to allow this point to pass without protesting on behalf of my client General Speidel but I don't want to make a formal objection.
MR. FENSTERMACHER: Your Honor, I object to being interrupted as I put in these documents by argument of counsel. We state the theory under which these documents are offered and I believe it that theory is incorrect that can be shown in the final argument.
THE PRESIDENT: If counsel desire to make an objection the court will entertain them, however we do not wish nor will we entertain arguments at this time. The defense counsel have a right to make objections and that right will be reserved and granted to then at all tines.
But we will not entertain arguments. You may proceed.
MR. FENSTERMACHER: We offer next NOKW 2814. This is the Personnel File on General Wilhelm Speidel. It is offered to rebut his statement regarding his approval or disapproval of National Socialism. It is offered as Exhibit 648.
THE PRESIDENT: None of these men are being charged with being members of a particular party or organization, are they?
MR. FENSTERMACHER: That is quite true, your Honor, that is why we made particular point of this in our direct case, but as long as the matter was brought up by the defendants we think we are entitled to rebut it.
THE PRESIDENT: It isn't an issue, is it?
MR. FENSTERMACHER: I think it goes to the credibility of the defendants your Honor.
THE PRESIDENT: Very well.
DR. WEISSGERBER: Your Honor, I object to the submission of this document. This document without doubt has already been available for some time to the Prosecution, and furthermore it has nothing to do with the rebuttal as such. It has no connection at all with any Count of the Indictment.
MR. FENSTERMACHER: This document arrived in the hands of the prosecution not more than one week ago from the war Ministry in London. It was the British Army that captured the files of the Air Force and not the American army. It was not available to us at the time of our direct case.
THE PRESIDENT: Bearing upon that question alone the exhibit will be admitted.
MR. FENSTERMACHER: This is the personal file on General Speidel from Colonel General Staff Corps Wilhelm, the Luftwaffe personnel office. I call your Honor's attention to page 2 of the document, Judgment as of 15 March 1939 concerning Speidel, office chief of staff in 1st Air Flotilla, Paragraph III:
"General Judgment:
Excellent soldier of clear conduct and concept. Widespread education and interests.
Incorporates in himself the ideals of National Socialism, which he can pass on to his surrounding world from the originality of experience. Soldier in the best sense of the Third Reich!
..........
(signed) Kesselring Lt.Gen., Air Corps Chief of Staff, 1st Air Flotilla Berlin 22 March 1939
MR. FENSTERMACHER: We offer next NOKW 2815 which is a similar personnel file on General Helmuth Felmy. It is offered for the same purpose as the preceding document. It is offered as Exhibit 649: "Headquarters, Army Group E, 1 January 1944:
DR. MUELLER-TORGOW: For General Felmy: Your Honor, I object to the introduction of this document because it is not rebuttal evidence and the contents of this document here could have been presented by the prosecution in its main case months ago. This is nothing produced in rebuttal of evidence presented by the defense.
THE PRESIDENT: The objection will be overruled.
MR. FENSTERMACHER: This is one personnel file of General Felmy from one Luftwaffe Personnel Office. The document page 1 shows:
Headquarters, Army Group E, 1 Jan. 1944 War Judgment as of ....... 1 Jan.
1944 for officers, excluding medical and veterinary officers concerning Lt. Gen.
Air Corps 4 Feb. '38 Hellmuth Felmy.
On page 2:
Short judgment (evaluation of personality, National Socialist attitude, Value in the face of the enemy, official ability, mental and physical comments and adaptability, infantry experience, when and where recruited): National Socialist Fuehrer personality. Has also further filled his position very well and met all demands in the ideological, mental, and physical aspects completely. He made the operations for the capture of the Sporades much easier by unselfish and especially intelligent assistance.
Adaptability for what next higher utilization.
for what special or other use? in the Southeast Area and for commanding foreigners.
(signed) Loehr General, Commander-in-Chief, Army Group E
MR. FENSTERMACHER: The next four documents which we offer form part of a Commando complex with respect to whether or not the Commando Order was ever issued in the East. Several of these defendants particularly Generals Felmy, Lanz, Rendulic, Dehner and Leyser were serving in the East in October 1942 when the Commando Order was issued. They have testified they did not receive the Commando Order and did not pass it on. These documents are submitted to show the wide circulation of the Commando Order in the East. The first document is NOKW 1737, and it is offered as Exhibit 650.
DR. FRITSCH (for General Rendulic): I object
MR. FENSTERMACHER: I can anticipate one or two objections. None of these orders show the precise receipt of distribution of the Commando Order by any of the units commanded by the defendants at this particular time. But it is offered to show that there was wide distribution and from the text of the documents it appears that the order was widely destroyed following receipt. The Prosecution submits that it goes to question the credibility of the witnesses when they testified that they never received it.
DR. FRITSCH: Your Honor, I object to the introductory words of the prosecution. It has never been asserted here that this Order was not known. If therefore the evidence against an assertion of this kind is made against defendant General Rendulic then I object to the introduction of this document because it is inadmissible as rebuttal evidence.
THE PRESIDENT: Dr. Gawlik, do you desire to make an objection?
DR. GAWLIK (For General Dehner): Yes, Your Honor, I object to the submission of this document against General Dehner - the document is dated 21st October 1942. General Dehner was no longer in the East in October 1942, as the Prosecution itself has submitted.
MR. FENSTERMACHER: I don't wish to enger into argumentation on this. I believe the record will show whether or not the contentions of the Prosecution or the contentions of the Defense are valid in these cases.
We just simply stated one theory in order to have that document admitted. Its value of course is for the Tribunal to determine. As far as the individual application to the defendants is concerned.
DR. GAWLIK: The prosecution itself stated that General Dehner was only in the East until April 1942 therefore they cannot submit in rebuttal a document dated October 1942. The document is irrelevant. The Prosecution should have submitted an earlier document.
THE PRESIDENT: The majority of the Court is of the opinion that the objection should be sustained.
MR. FENSTERMACHER: We offer now NOKW 1720 as Exhibit 650. This document reveals the orders which accompanied the distribution of the Commando Order in the East and indicates the strict instructions to destroy the Commando Order upon its receipt. It is offered against the same defendants mentioned at the time the preceding document, which was not admitted, was offered. It contains a certificate of destruction which will be in with the succeeding document which indicates that the Commando Order was in fact distributed and then the copies were returned, or certificates of destruction were returned. The order of the Commander of Army Area B:
Headquarters, 28 October 1942.
58th copy of 59 copies.
Enclosed is a Fuehrer Order (OKW) Armed Forces Operations Staff about the destruction of terror and sabotage troops. Battalion Commanders will report immediately by teletype acknowledgement and destruction of the directive of 10 November 1942. Attached certificates of destruction of documents are to be forwarded through channels.
Commander of Army Area B will inform his allied headquarters directly. There will be no information from headquarters in any event.
For the Commander of Army Area B The Chief of Staff.
DR. TIPP (For General von Leyser): Your Honor, if I understood Mr. Fenstermacher correctly, he offered this Order against my client General von Leyser. From this document it can be seen this Order was issued by Army Group B. The Prosecution itself has never asserted and cannot assert that General von Leyser was a member of Army Group B. If the Prosecution want to use this special document here against my client, then the Prosecution must prove that General von Leyser belonged to Army Group B, which it did not in its own case, and I therefore object to this extent to the introduction of this document against General von Leyser. The rest of my colleagues, Your Honor, have asked me to object for Generals Lanz, Felmy and Rendulic.
DR. FRITSCH: Your Honor, I would just like to add for the sake of order that on the German copies there is a note missing which is contained in the English. It states "Commander of Army B" in the English and this is not contained in the German.
MR. FENSTERMACHER: I think if we pass the document to the Court Interpreters they can make the proper notations in the English copies.
DR. GAWLIK: I would like to ask the Prosecution whether this document is also charged against General Dehner, since it bears the same date as the previous document which was not admitted by the Tribunal. I'm not quite clear here.
MR. FENSTERMACHER: Yes, the Prosecution offers it against General Dehner.
DR. GAWLIK: Then I object to the submission of this document since the contents are the same as the document dated October 1942. At that time General Dehner according to evidence submitted by the Prosecution was no longer in the East, and in particular, he never belonged to Army Group B.
MR. FENSTERMACHER: I submit that that's a matter of argument, if Your Honor please. It goes to the weight that might be attached to one document and to the evaluation of the case against General Dehner.
MR. GAWLIK: Your Honor, in answer to this I would like to state this is not a conclusion argument but a question of the relevancy of the document. The Prosecution can only submit documents here which are relevant and the relevancy of a document must be checked with the admission of the document.
THE PRESIDENT: The majority of the Court is of the opinion the Exhibit is not admissible. The objection will be sustained.
MR. FENSTERMACHER: If Your Honor please, as I recall there was only one objection to the competency of the document, that of Dr. Gawlik. The other objection of Dr. Fritsch went to the translation, and not to its admissibility at all.
DR. FRITSCH: The objection, Your Honor, made by my colleague Tipp was also joined by us all, - just in addition I mentioned a mistake in the two documents, but this matter has been settled by the ruling of the Court.
MR. FENSTERMACHER: If Your Honor please, in order really to complete this complex, I would like to return to the preceding document NOKW 1737 and offer it under another theory. You will notice on page 2 of the distribution list that this order was distributed to Army Group A and its subordinate units, Army Group B and its subordinate armies, to Army Group Centre and its subordinate armies; to Army Group North and its subordinate armies. That constitutes the entire army and army group units of the German Army in Russia, at the time the order was issued. How every one of these defendants - there is only doubt with respect to General Dehner - was in the East at this time and was serving in one of these particular units, except for the defendant list, Dr. Laternser, and I submit it is admissible on that theory.
DR. RAUSCHENBACH (For the defendant Foertsch)L Your Honor.....
DR. FENSTERMACHER: I can anticipate Dr. Rauschenbach. I believe General Foertsch and General Geitner were not serving in the East at this time. I'm not quite sure about General Geitner. Perhaps Dr. Sauter would clarify that matter?
DR. MENZEL: I join the objection because I also do not know my client was ever assigned in the East.
MR. FENSTERMACHER: I think we're getting confused. What I meant to say was that of the five defendants against whom these two preceding documents were offered, that is Felmy, Lanz, Rendulic, Dehner and Leyser, I am willing to modify and amend as to General Dehner. The two documents were never offered against any one defendant other than those 4 or 5 mentioned. I think that will anticipate Dr. Menzel, Dr. Sauter, Dr. Weissgerber and Dr. MuellerTorgow.
JUDGE BURKE: Mr. Fenstermacher for my own guidance and information could this be considered other than purely negative testimony?
MR. FENSTERMACHER: Your Honor, I submit that negative testimony in a situation like this becomes positive. That is to say when these defendants testify that they never received the Commando Order and want to know and ask the Prosecution as several of them have from the stand, why we don't submit documents showing that they did receive it, we have to submit evidence of this kind showing how widely distributed the order was from the point of who received it and also the documentation showing the order was ordered to be destroyed and was destroyed. To make it quite clear exactly why there are no documents showing the precise receipt of it I submit to that extent it is proper rebuttal testimony which affects the credibility of the defendants' stories.
DR. MUELLER TORGOW (Counsel for the defendant Felmy): Your Honor, I don't know where it is supposed to be seen that the order for instance went to General Felmy as Commanding General of the LXVIII Army Corps at the time because from the document and distribution list it can be merely seen that an additional copy of it went to the 1st Panzer Army, but nothing else, and therefore the document is irrelevant and cannot be offered in evidence. I maintain my objection.
MR. FENSTERMACHER: Dr. Muller Torgow knows as well as I that General Felmy was not Commander-in-Chief of the LXVIII corps at this same period, but was rather serving in Russia with a different unit.
DR. MUELLER TORGOW: May I make a correction? It was the LXVIII Corps of which General Felmy was in charge, also in Russia.
THE PRESIDENT: The majority of the Court adheres to its former ruling.
MR. FENSTERMACHER: I should like, if I may your Honors, to show that the Prosecution, if it were not for the ruling of the Tribunal, would offer NOKW 2431 to show the destruction of the Commando order by one particular unit, and NOKW 3707 showing the return of a certificate of destruction.
We now turn to the commando complex in the Southeast. Your Honors will recall that many of these defendants testified that the Commando order was not actually executed in the Southeast and many of their affiants have also said the same thing. The next complex of documents will indicate that the order was in fact carried out in the Southeast. We offer first NOKW 1791.
To the pages distributing these two documents, which I mentioned I would offer and which I did not, - I think the copies should be collected from all parties concerned. The reason I say this, Your Honor, is because these documents will bear on the second High Command case and should not be revealed to any outside parties at this time.
NOKW 1791 is offered as Exhibit No. 650.
JUDGE BURKE: Mr. Fenstermacher, perhaps in the interest of brevity, is it your claim that this exhibit indicates the execution of the order or the destruction of the order with in the present area of any of the defendants involved in this proceedings?
MR. FENSTERMACHER: This complex of documents, if your Honors please, does show that members of commandos were executed in the Southeastern area at a time certain of the defendants were in command there. We offer it because from the geographical place, names mentioned in this first document, Athens is mentioned, and at that particular date, the defendant Felmy was in Athens. Some of the succeeding documents in this complex will mention the name Belgrade, and on the date of the document, which discusses the execution of commandos, General Geitner was at that time in Belgrade. Now, in addition to those theories, the documents are offered to rebut the general statements which were made in affidavits to the effect that never was the Commando Order carried out in the Southeast. Those general statements were not, as your Honors will recall, restricted to time or place.
This first document is from Army Group E, dated Headquarters, 18 July, 1944. There is on it a receipt stamp, "Commander-in-Chief Southeast," Subject: "British Commando Operations against the Island of Calino during the night 1/2 July 1944. During the night 1/2 July 1944 the strong point "Morgenroth on Calino was attacked by a British Commando Detachment."
DR. WEISSGERBER (Counsel for the defendant Speidel): Your Honors, I have only just received a copy of this document. Up until now I have not yet heard against whom this document is submitted.
MR. FENSTERMACHER: I submit it particularly against the defendant Felmy, but generally against the affidavits which were produced here by all of the persons and all of the defendants involved in the Southeast that is to say General Foertsch, General Speidel, General Lanz and Generals Dehner, Leyser and Rendulic also testified and produced affidavits stating that the Commando order was never executed in the Southeast. I can antisipate some of these objections, the dates on this particular documents will relate only to General Felmy, but if my theory is correct, that we can rebut general testimony with similarly general testimony, then I submit that it goes to the credibility of all the defendants who testified that the Commando Order was never executed in the Southeast.
THE PRESIDENT: Can you make the objection generally for all concerned?
DR. WEISSGERBER (Counsel for the defendant Speidel): I am not in a position to do that, Your Honor. I can only speak for my own client, and in this case I can only point out that on 18 June 1944 my client had left Greece for a long time As regard to the other statements of Mr. Fenstermacher concerning the fact that this document should argue generally that such Commando operations took place much earlier, then one really cannot see how this assertion of Mr. Fenstermacher can have any basis at all.
With this general assertion, one certainly cannot argue. In any case with reference to my client, this document cannot be applied at all.
MR. FENSTERMACHER: Your Honor, I believe Dr. Weissgerber and the other defense counsel are forgetting the real nature of this case. It is a case based upon captured documents, we didn't capture them all, and for that reason I believe the Tribunal must be liberal in allowing this kind of evidence in - and their weight of course is for the Tribunal ultimately to determine. I submit that as to its admissibility; the entire theory in one case of captured documents should permit them to be received.
DR. RAUSCHENBACH (Counsel for the defendant Foertsch): I have two objections. The first: I object to the submission of the documents against the defendant Foertsch. This cannot refute any testimony or any affidavits of his, because up to now we have only submitted that the Commando order was not carried out at the time when General Foertsch was in the Southeast.
Secondly, the general statements made by the Prosecution about the fact that the Prosecution is not in possession of all the documents and therefore the Tribunal must be liberal in its acceptance, has no basis at all.
We know that the admissability of such documents at all is only a special case in these Occupation Courts, and that in American courts one is very much more cautious in the admissability of documents as evidence; but this cannot he even more extended and in addition admit document which do not even tally with the period in question. There is no evidential connection at all here.
MR. FENSTERMACHER: I can clarify our theory regarding parts of this document against General Foertsch, General Foertsch received the Commando order, he distributed it, he also drafted and distributed the supplement to the Commando Order and one theory is that at the time he passed that order on and should have anticipated the consequence of it in the hands of lower units. One of the consequences is proved by this document.
Regarding Dr. Rauschenbach's second objection, as far as this Court sitting asan American Court is concerned, I submit quite clearly that this Court does not sit as an American Tribunal. If that were true, I should say that 99% of the affidavits of the defendants would not have been received. I don't think the defense counsel should blow hot and cold on this matter of a strict interpretation of one rule of procedure.
THE PRESIDENT: On this matter, Mr. Fenstermacher, for such probative value as the Court may give it, the exhibit will be admitted.
DR. SAUTER (Counsel for the defendant Lanz): Mr. Fenstermacher has stated that this document is also submitted against the defendant Lanz. I would like Mr. Fenstermacher to tell us where the Island of Calino is, my client was about two years in command in Epirus, but he never heard the name Calino, and as a result he cannot imagine where this Island actually is supposed to be. Perhaps Mr. Fenstermacher can give us the necessary information.
MR. FENSTERMACHER: As far as this document is concerned, it goes generally against the defendant Geitner. Since the location is Athens. It is primarily concerned with General Felmy, but if Dr. Sauter will be patient we will come to some documents which mention Belgrade at the time when his client was actually sitting in Belgrade.
THE PRESIDENT: The court has made its ruling, you may proceed.
DR. FRITSCH: (Counsel for the defendant Rendulic): Your Honors, excuse me if I ma making a mistake about the ruling of the Tribunal. I think the ruling which has been made is against the statements of the individual defense counsel. Here, therefore, on behalf of the defendant General Rendulic, I would like to point out that during the period from which this document originates, my client had already left the Southeast for some long time, and this is the basis for my objection.
MR. FENSTERMACHER: Your Honor, I ask that matters of this kind as to whether or not the defendant was present in the Southeast at the time of these documents should be ruled upon as argument and not admitted.
THE PRESIDENT: The motion has been disposed of and there will be sufficient opportunity for counsel to cover these matters in the final argument.
JUDGE BURKE: What exhibit number did you give that, Mr. Fenstermacher?
MR. FENSTERMACHER: I believe I gave Exhibit 650. Your Honor, NOKW 1791, Exhibit 650. This is a report from /Army Group E, as I said before, dated 18 July 1944:
Subject: British Commando Operations against the Island of Calino during the night 1/2 July 1944.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
During the night 1/2 July 1944 the strong - point "MORGENROTH" on Calino was attacked by a British Commando Detachment. After an engagement lasting about 25 minutes the enemy was forced to retreat.
Own losses: 1 man slightly wounded.
Material damage: Interruption of the telephone line between the strong-point and the Company Command Post already before the start of the attack.
Enemy losses: 3 prisoners.
Sergeant John Dryden, born 25 October 1919 at Newcastle, was wounded, was flown to Athens on 5 July, and will be handed over to the SD in compliance with the Fuehrer Order.
. . . . . . . . . . . . . . . . . . . .
Execution of the Commando Operation:
From the interrogation of Doughty, Prisoner of War, and from subsequent findings by our own patrols, so far the following details were ascertained concerning the execution of the operation.
I think the remainder of the details are of not particular interest here.
DR. LATERNSER (Counsel for the defendant List): Your Honor, although the matter does not concern me, I would just like to point out a translation mistake--Oh, that is very, very important Mr. Fenstermacher. Here it states "Execution of the Commando operation" and in the German it states "Carrying out of the Commando operation." I think this gives a completely wrong idea Mr. Fenstermacher. This does not mean the execution of the members of the commando, that is the killing of them. It merely means the carrying out or execution of the operation itself. I don't know if I'm right, but I would just like to get this mistake corrected.