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.
MR. FENSTERMACHER: I would be willing to stipulate to that effect, Dr. Laternser. In the English language, according to my understanding, the execution of an operation and it's carrying out are one and the same thing. Murder or killing is not intended by this word "execution" here. I am willing to stipulate that.
We offer next NOKW 1019, which is offered as Prosecution Exhibit 651. This document, if I may anticipate some objections, originates not with any of the units commanded by the defendants or even from a certain army office: it originates with the office of the Security Police and the S.D. The document, however, shows the relationship between the army units and the S.D. with respect to the carrying out of the Commando order. As appeared from the preceding document, the army was going to hand over a captured commando to the S.D. in compliance with the Fuehrer order. This document and a succeeding document will clarify the interrelationship between the S.D. and the army. The document further mentions specifically the turning over of captured commandos by an army unit in Serbia in Belgrade. At that time, the defendant Geitner was in Belgrade. The document is not limited to Geitner, it is offered, as was the preceding document, to show the wide distribution of the Commando order and the fact that it was executed.
DR. GAWLIK (Counsel for the defendant Dehner): Your Honor, I object to the submission of this document against General Dehner. The document is dated 1944 and according to prosecution's own admission General Dehner was only in the Southeast until March, 1944, and the prosecution itself limited to this period its case as regards General Dehner, therefore for this reason alone the document is inadmissable and irrelevant against General Dehner, and also the evidence which I have submitted only runs up to 9 March 1944.
DR. TIPP (Counsel for the defendant von Leyser): Your Honor, I object to the submission of this document against my client for various reasons. In my opinion it is not admissable for a document of this kind to be submitted as the prosecution desires, against a number of defendants.
The Prosecution offers it primarily in order to show that the statements of the defendants, with regard to the Commando order are not correct. In this connection, I would like to remark the following: General Leyser of course could only talk for his area and for the area his corps and state that the Commando order was not carried out here, because he has only positive knowledge about his own area. Also the affidavits submitted by us to this point refer only to the area of the 15th or 21st Corps. If the Tribunal checks the contents of this document, it will find that there is no mention of the area of the 15th or 21st Corps but merely of Belgrade, as the Prosecutor himself correctly stated. I do not know therefore, to what extent this document is supposed to be suitable to shake the credibility of General Leyser regarding his own testimony. Whatever is to be proven by this document cannot be proven against General Leyser. This document is without probative value as regards General von Leyser, and therefore I object to its submission.
DR. MUELLER TORGOW (Counsel for the defendant Felmy): Your Honors, the same applies for the LXVIII Corps, since there is no connection with it in the document. The document has no relevant probative value against General Felmy therefore I object to it.
DR. FRITSCH (Counsel for the defendant Rendulic): The same applies to my client here, and I would like to join the statements of Dr. Tipp.-This document has nothing at all to do with the area of the command of General Rendulic and therefore cannot be of any relevant probative value.
DR. WEISSGERBER (Counsel for the defendant Speidel): I join with the statements of my colleagues, and in the case of my client, I would like to point out this document is dated 15 June 1944, therefore, that is after the period when my client was in Greece and I would like to recall to the Tribunal .....
THE PRESIDENT: Is that not a matter of argument, Doctor?
DR. WEISSGERBER (Counsel for the defendant Speidel): Your Honor, I am stating this to prove that this document has no probative value and my objection is that this document is lacking in probative value as regards my client.
I would also like to point out that we, the defense counsel, cannot be referred to the closing arguments as regards this document, for if we have to deal with all these documents in our final plea, then the two hours which we are allowed is certainly not sufficient to deal with all the mistakes which we have to correct in these documents. Therefore, I would ask, and I believe my colleagues join with me in this, that just these objections which are being made here against these documents will be especially taken into account, because it is practically impossible for us to go into detail with these documents in our final plea, which is limited to two hours.
THE PRESIDENT: As bearing on the question as to the inter-relationship between these various departments and the Wehrmacht, the exhibit will be admitted. The Tribunal will be in recess at this time for fifteen minutes.
(a recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. FENSTERMACHER: I was about to read into the record Exhibit 651, if your Honors please. This is a communication from the chief of the Security Police and SD:
"Berlin 15 June 1944 to the OKW Wehrmacht Operations Staff: Subject: Commando Operations -- Fuehrer Order of 18 October 1942."
On page 2:
"In the affair mentioned above the same lack of clarity continues with the subordinate Wehrmacht units. The Commander of Security Police and of the SD in Belgrade reported a short time ago that 5 English Soldiers who had been captured by the Wehrmacht during a "Kommando Operation" against the Adriatic Island of Oljet on 22 May 1944 had been turned over to the Security Police in Belgrade.
I have ordered the Commander of the Security Police and of the SD in Belgrade to return these Englishment immediately to the Wehrmacht. If they are to be considered as members of a Commando Operation - they participated in an operation which was about 400 men strong and emanated from the Special Service Commandos under Brigadier William Churchill from the Island of Vis - they should not have been taken prisoners at all, but they should have been annihilated by Wehrmacht units during combat or during flight. If one does not wish to consider them members of a Kommando Operation but prisoners of War. The final transfer to the Security Police interrogation has been superfluous. In the latter case, the Commander of the Security Police and SD Belgrade would have been interested at most in a Security Police interrogation of the Englishmen concerned.
I again must call your attention to the fact that the lower Wehrmacht units have not been given any clear policy regarding the implementation of the Fuehrer order of 18 Oct. 42. Of course, this is not surprising, when even from the OKW they receive directives which do not co-incide with this Fuehrer Order.
Which office in OKW, Counter Intelligence III?? Inquiry and Counter Intelligence Belgrade on 8 July by FS:
At what date and to which office has the alleged information of the OKW been given?
I am reading in another report of the Commander of the Security Police and of the SD in Belgrade that the Army Group located there received in answer to an inquiry the directive from the OKW, former office of Foreign Intelligence, to treat members of English and American missions with the bands of Mihalovic and of Tito as if they were members of Commandos and to turn them over to the "SD" - they mean the Security Police.
Again, I must call your attention to the fact that normally a delivery to the Security Police is altogether out of the question because these members of Commando Operations are not to be taken prisoner at all. Even if in exceptional cases they are spared for the purpose of an interrogation, the ultimate treatment of such people is the affair of the Wehrmacht, whereby the people concerned are to be treated a prior as killed in action.
Only those members of Commando Operations are to be turned over to the Security Police, who were not exposed to battle by the Wehrmacht, but who fell into the hands of the Wehrmacht by other means, for instance, by the indigenous police in occupied territories.
The Wehrmacht Unit taking prisoners presumably has not been instructed sufficiently regarding the Fuehrer Order of 18 October 1942 and/or his application; otherwise the Englishmen mentioned above would not have been taken prisoner and would not have been turned over to the Security Police. If one wishes to designate the operation mentioned above as a Commando Operation, the Englishmen should have had been treated in accordance with the Fuehrer directive. Then several individuals could have been secured for interrogation purposes and later on have been treated in the same manner. But this would have been an affair of the unit, excepting the inclusion of the Security Police for the interrogation.
Instead, the Englishmen mentioned above were taken prisoner and supposedly, after having been treated at first like regular prisoners of war, they were turned over to the Commander of the Security Police and of the SD.
I have directed the Commander of the Security Police and of the SD in Belgrade to return the Englishman mentioned above to competent Wehrmacht authority with the comment that it is not the duty of the Security Police to correct mistakes made by the Wehrmacht in the implementation of the known Fuehrer Order.
Simultaneously, I have pointed out that in consideration of the mistake which has been made, no objections exist here to combining the treatment of the Englishmen as regular prisoners of war. Since it is merely a matter of one sergeant and four men, their use for the known counteroperation "Charkow" is probably out of the question.
I again ask that the subordinate troop units be given clear directives as soon as possible regarding the treatment of members of commando operations and that I be informed of the action so that I may be able to inform the subordinate offices of the Security Police accordingly.
The final document in this complex of the carrying out of the Commando Order in the Southeast the prosecution offers is number NOKW1020. This is offered as Exhibit 652 and, since it originates in the same office as the preceding office, that is, the office of the Chief of the Security Police and SD and is just two or three weeks after the preceding document and again relates to the relationship between the SD and the Wehrmacht particularly the army units in Belgrade, it is offered under the same period as the preceding document.
THE PRESIDENT: Have all the defense counsel had an opportunity to read this document?
DR. MUELLER-TORGOW (Counsel for defendant Felmy): I object to the admission of this document -- I withdraw my objection.
THE PRESIDENT: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, Your Honor.
This document is dated Berlin 9 July 1944 and originates in Amt. IV which your Honor will note from the preceding document, is a sub division of the Chief of the Security Police and SD.
"To the Office of Military Intelligence.
"Subject: Commando Operation -- Fuehrer Order of 18 October 1942.
"The evident lack of knowledge on the part of lower troop units respecting the application of the known Fuehrer order of 18 Oct. 42 has again made it necessary for a Wehrmacht unit to bring members of a Commando enterprise to a local office of the Security Police. This has occurred despite the fact that the English falling into German hands were supposed to be handled by the Wehrmacht office directly.
"According to a report of the commander of the security police and of the security service in Belgrade of 8 June 44 the following English soldiers were captured on 22 May 44 on the "Adriatic Island Olject:
1.) S t e v e n s, Richard, NCO
2.) L e d g a r d, Lous, Sailor
3.) M u r d o c h, james, Sailor
4.) P e t t i s, Roy, Sailor and
5.) W a s h, Josef, Sailor As members of a Commando of Special Service the strength of which was 400 men they were trying to bring in prisoners from this island Vis which at the same time is a naval base and the supply center of the forces of Tito.
As the Commander of the Security Police and of the Security Service in Belgrade further communicates, the High Command of the Army Group in Serbia received instructions to treat members of Anglo-American missions found with the bands as prisoners of war. As far as we can see from our position, this attitude towards most of the Anglo-American Staffs found with the bands is justified, because they do not come under the Fuehrer Order of 18 Oct. 42. They only have communication tasks to perform rather than tasks of sabotage and terror.
Since even bandits are made prisoners in Serbia and then in practice arc treated as prisoners of war, even though, as far as I know, the rights of prisoners of war are formally not granted to them, it is difficult to be of the opinion that members of the Anglo-American staff who are captured together with members of bandits, dressed in English or American uniforms, should be treated worse than bandits. I would have no scruples respecting the general adoption of the procedure already practiced somewhat thus far whereby English and Americans after close interrogation are to be treated as prisoners of war if they have not had clear out Commando assignments.
Naturally an those cases in which English and Americans appear as agents in civilian clothes would remain untouched by this ruling.
In the scope of the well known "Counter action Charkow" or number of English and American were captured who may be reproached which having been in connection with bands. To what extent the above will have an influence on the counter measures that are intended against the Charkow spectacular trials, I must leave to your estimation.
I request again to see that a definite clarification of instructions be forwarded to the lower Wehrmacht units concerning the treatment of members of Commando operations, because in the procedure followed heretofore, my subordinate offices have often been charged with unnecessary work.
I beg you to inform me concerning the stops you have taken."
And an illegible signature as deputy.
We offer next KNOW-2679. This is offered as prosecution Exhibit 653. This affidavit of the department chief of the legal division of the OKH is offered against all defendants and is to rebut the contention that when the words "Standrechtlich Erschiessen" are found in the captured documents it means that legal proceedings were undertaken. This affidavit rebuts that contention.
DR. LATERNSER: If it please the Tribunal, I object to the affidavit. It is not a testimony but a judgment of the person concerned. For that reason, admission of this affidavit not proper.
MR. FENSTERMACHER: If your Honor please, all of the defendants who testified concerning this matter were also giving judgments, if Dr. Laternser's contention is correct.
DR. GAWLIK: If it please the Tribunal, I should like to draw the Court's attention to the fact that the personal data of the affiant are not given. It merely reads "I, Dr. Erich Lattmann," so there is no information as to whether the affiant has the necessary knowledge. He says "we in the OKH." There ought to be the affiant's address, it ought to be stated who Lattmann was, what he did in the OKH, in order to establish whether he is able to pronounce on legal questions in this respect. I am also of the opinion that it is a legal question and not testimony. Therefore, the document is inadmissible for two reasons.
MR. FENSTERMACHER: If your Honor please, the interpretation of words in a document that would appear to be ambiguous is certainly not a matter of law. Now as to the first objection of Dr. Gawlik, personal data of the affiant is not given.
I would like to say this. That particular point was raised before in these proceedings. I brought it up once myself and your Honor who was presiding at the time asked whether I would be satisfied with a statement of counsel. At that time I said I would. I don't believe any of these defendants who certainly know a good deal more about personalities in the OKH than I do would dispute of their own knowledge that Dr. Erich Lattmann was throughout the war a department chief in the legal division of the OKH. He specifically mentions here, "We in the OKH."
DR. LATERNSER: If it please the Tribunal, that is pure conjecture on the part of the prosecution. I should like to point out that I have a photostat. The statement initially referred to--and I now am quoting-- "At the beginning of the Russian campaign." It has then been deleted and replaced by the wards "During the War." The affiant therefore wrote at first "At the beginning of the Russian campaign" and then struck out these words and substituted the words "During the war". If, contrary to expectations, the Court is prepared to admit this affidavit, I insist on the affiants being called as a witness for cross-examination. I should like to draw the attention of the Court to the modification.
MR. FENSTERMACHER: I should like to call the Court's attention to the fact that the modification has been initialed by the affiant.
DR. LATERNSER: Even if the affiant did initial it on the left-hand margin, even then I, as defense counsel, should be most interested in knowing for what reasons he made those corrections because he at first wrote "during the Russian campaign", then amended it and put it in a very general way. I should like to know by way of cross-examination how the affiant came to make this amendment.
MR. FENSTERMACHER: I don't understand, Dr. Laternser. Are you applying to have the witness called for cross-examination?
DR. LATERNSER: In case the affidavit is to be admitted, I should like to have the witness here for cross examination.
MR. FENSTERMACHER: I will be glad to produce him for you.
DR. SAUTER: If it please the Tribunal, may I point out the document does not show who Dr. Lattmann is.