After the taking over of the territory of Greater-Stuttgart by the Americans on 8 July 1945 it is completely unthinkable that an order of a French office was posted. To the contrary, French orders had to be rescinded at once after the arrival of the Americans. There was never a working together of American and French offices in Stuttgart.
On this next document that I am going to present, it is a little complicated. I almost feel like saying, "Behold, I show you a mystery," but I would like to ask first that I be allowed to explain to the Court what I am trying to do and I can only do that by showing you the document and then, as I understand it, the only defense counsel involved here is Dr. Tipp -- and if Dr. Tipp has any objections that he at least wait until I finish explaining what I think the document shows and why I think it is proper rebuttal before he makes his objections.
In actual fact, it would have been better if I could have combined two documents into one but, due to the complicated index system in the document room, one document has received one number and that is inviolate and you can no longer take part of that and give it another document number ; so, since part of one of these documents has already been introduced into evidence and labeled, I was forced to make my submission in two parts.
The actual new document is NOKW-2828 which will be Prosecution Exhibit 658 and then I would also like to present pages 4, 4a and 5 of Document NOKW-075, part of which has already been submitted by the Prosecution before. I think that we had better have these distributed before I go on with any further explanation.
Actually, it would be better if we could recess now because this is going to be rather difficult to follow and Dr. Tipp will have a chance in that way to look this over before I begin.
THE PRESIDENT: The Tribunal will be in recess for fifteen-minutes.
THE MARSHAL: The Tribunal will be in recess until fifteen-fifteen.
(A recess was taken.)
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Tribunal is again in session.
MR. FULKERSON: If the Court please, I didn't realize it but Dr. Tipp does not have the German of one of these copies so I will go get the German for him now and, meanwhile, Mr. Fenstermacher will continue with the presentation of some other documents.
THE PRESIDENT: You are referring to this last exhibit?
MR. FULKERSON: Yes, sir. He doesn't have the German of those pages of NOKW -075.
THE PRESIDENT: This has not been read into the record, has it?
MR. FULKERSON: No.
THE PRESIDENT: So any objection or any comment that he might wish to make will be taken up at such later time as -
MR. FULKERSON: Well, what I thought I would do, if your Honors please, is to get the German photostate now and bring it back into Court and he can read that, and meanwhile Mr. Fenstermacher can present some other documents. Then I can come back to this.
MR. FULKERSON: I believe I gave the Exhibit No. 657 for both of these documents. I am introducing the two of them as - 658 I'm sorry, for both 075 and NOKW-2828.
THE PRESIDENT: 2828 has not been distributed to the Tribunal, I don't believe.
MR. FENSTERMACHER: Your Honors will recall that during the defense case of General Foertsch and General Geitner, a good deal of emphasis was placed upon the fact that they were chiefs of staff and performed staff functions and had no command functions. A similar defense, was made during the International Military Trial by Fieldmarshal Keitel and Col. General Jodl. For the convenience of the Tribunal, the Prosecution has excerpted certain portions of the testimony of Fieldmarshal Keitel and Col. General Jodl with respect to this particular point. We will distribute those excerpts now. They will be given in judicial notice of the Tribunal, even if they are not presented in this form. We offer them in this form solely for the convenience of the Tribunal in referring to them.
The excerpts from the testimony of Fieldmarshal Keitel should be given Prosecution Exhibit No. 659. We have not had these typed up in German simply because the entire German transcript of the proceedings of the International Military Tribunal are available to Defense Counsel. Only Dr. Rauschenbach and Dr. Sauter are involved here. I think from citing the dates on which the particular testimony was given they will be able to follow the excerpts which the Prosecution calls to the attention of the Court. The excerpts from the testimony of Col. General Alfred Jodl should be given Prosecution Exhibit No. 660.
DR. SAUTER: Sauter, for the defendant Geitner.
I have considerable doubts as to whether the testimony of any defendant which he may have made in some other case, some other trial would be a suitable rebuttal document. These testimonies are submitted regarding two persons who have been sentenced by the International Military Tribunal, sentenced to death and who have meanwhile been hanged. Those two persons also held a completely different position from that held, for instance, by defendant Geitner. In 1944 Geitner became Brigadier General of the Reserve. He held the lowest rank as a general but Fieldmarshal Keitel was a Fieldmarshal, that is a five-star-general. He had the highest position in the German Wehrmacht and Col. General Jodl being a Colonel General, held the position of Commander-in-Chief of an Army. I don't think that the position of Brigadier General can be compared to the position and rank of those other two and I ask that the Court examine as to whether these testimonies made before the International Military Tribunal really constitute a feasible and fair rebuttal document. I think it is very questionable.
THE PRESIDENT: May I make an inquiry of Mr. Fenstermacher on what theory you are offering this and under what rule?
MR. FENSTERMACHER: This is not offered as evidence Your Honor. It is offered in the nature of argument. As I understand the uniform rules of procedure here, when either party asks the Court to take judicial notice of something, you must present the Court with the actual testimony, previous testimony, or whatever document you are offering.
The last time, I believe, we offered something for the judicial notice of the Tribunal, we were concerned with the provisions of the Armistice agreement between the Italian Army and the Allies in September, 1943. That too, of course was entitled to be judicially noticed by the Tribunal but for the convenience of the Tribunal in following precisely what the Prosecution wanted to call attention to, we served it up. That is all we did here in this case. It is not to be considered as evidence at all.
DR. SAUTER: If it please the Tribunal, I and I think my colleagues also are quite unclear on what a difference there is. Such a document is not submitted so that the judges have something to read; it is being submitted so that something can be established and proven to the Tribunal. Further, whether Mr. Fenstermacher now states "I am submitting it as evidence," or whether he just says "I submit it for the Court to take judicial notice of," that is the same thing. He submits it so that the Court take judicial notice of its contents so that in arriving at its judgment, consideration can be given to these documents. We cannot find that the mere statement of Counsel for the Prosecution that a document which in itself is not admissible makes it admissible, particularly in the rebuttal, which in itself creates a very difficult situation for every defendant because at the moment they are confronted with a series of documents which may be months old and may already have been in the pigeon-holes of the Prosecution for months but are only being introduced now at such a moment as the defendants have no opportunity of defending themselves against these allegations.
We are of the opinion that considering the very grave incrimination caused by the submission of rebuttal documents anyhow and especially by rebuttal documents of that kind, these documents ought to be restricted to the very minimum.
THE PRESIDENT: It seems to me, Mr. Fenstermacher, that this offering of documents even for the judicial notice of the Tribunal has its place in the argument. Judicial notice is to be taken of matters which are so common and so generally accepted that there cannot be any question as to their authenticity or their general correctness and that can hardly be the term which could be applied to these documents.
MR. FENSTERMACHER: Your Honor, I may have the word of art wrong. Am I not correct that the Tribunal is entitled to take judicial notice of the testimony in the entire proceedings of the International Military Tribunal? I believe it is in Ordnance No. 7, Your Honor.
THE PRESIDENT: All right, where is it? Read it. As I see, you take judicial notice of the judgment. I can remember that much of it, the findings of the International Military Tribunal, but as to the whole proceedings, I am somewhat in doubt as to that.
MR. FENSTERMACHER: Well, would your Honor suggest that -
THE PRESIDENT: Unless otherwise advised to the contrary, they will not be received and will not be accepted by the Court even for matters of judicial notice. If they have any place at all, their place is in argument.
MR. FENSTERMACHER: My opinion may be incorrect on these next succeeding documents also. -
THE PRESIDENT: Unless you can prove so convincingly that they should be admitted under that rule, why, we may change our mind, but you present the ruling in proof and in absence of that, the Court will adhere to its former announced ruling.
MR. FENSTERMACHER: Now in assembling the great bulk of material which the Prosecution has offered into evidence, your Honors will recall that we prepared lists showing the chronological order in numerical sequence of all the documents which we have offered. That was simply for the convenience of all parties concerned in keeping the documents straight. We have also prepared cross reference lists of the documents. That is to say, we have chosen and made lists of those documents which relate to particular subjects. We have prepared cross reference tables of the documents and exhibits to Jews and Gypsies, to documents which concern the success of the policies of the German Army in the Southeast, of those documents which relate to forced labor and deportation, the documents which relate to concentration camps and the documents which relate to insignia and partisan units, etc.
We should like to present those for the information of the Tribunal. I believe it will be also very helpful to each of the defense counsel in going through the Prosecution's material by way of subject matter. I think this corresponds somewhat to the lists of documents which certain of the defendants have offered solely for the information of the Tribunal. This is, in other words, simply a rearranging of the documents by way of subject matter. The first cross reference table to the documents relating to Jews and Gypsies should be marked Exhibit 659.
DR. LATERNSER: If it please the Tribunal, that is no evidence and no proof which ought to be admitted now. It is merely a final statement in writing and purely argumentative.
THE PRESIDENT: As we understand it, this particular document is being submitted only for information purposes and is being given an exhibit number not with the thought of its being received in evidence but solely for the information of the Tribunal.
It should also be stated that the Tribunal is not receiving this document or any of the statements that are incorporated therein as proof of the facts there stated.
The proof will come from the documents to which the reference is there made. I think with that in mind, Dr. Laternser, it perhaps will avoid any question in your mind as to how it is being received by the Tribunal.
DR. LATERNSER: Yes, your Honor. If it please the Tribunal, the assertion of the Prosecution that these things should also help us in our work is not true, because they are only in English.
MR. FENSTERMACHER: The document number is set forth, so is the exhibit number, and the document book number, and they can very easily refer to the index in the document book itself.
DR. RAUSCHENBACH: It please the Tribunal, these lists and cross references do not facilitate the work of the defense for yet another reason: namely, virtually they constitute an abbreviated closing brief. That is, they present to the Court the contentions of the prosecution arranged according to the topics of prosecution. If the defense is not to be at a disadvantage, they ought to be allowed to use this same procedure, but considering the time limit set us for handing over our final pleas for translation, that is impossible now.
THE PRESIDENT: I made a suggestion outside the Courtroom, personally to Dr. Laternser, which I take it he in turn passed on to his associates, that they prepare as to their own documents something of this similar nature and similar to that which was originally presented by the Prosecution. So far there has only been one presented by the defense counsel that has come to my desk.
DR. RAUSCHENBACH: That is correct, your Honor, but these tabulations and compilations here do not refer and they do not establish a connection between the documents of Prosecution and those submitted by the Defense. That is the most difficult thing in the matter.
THE PRESIDENT: This has not been received as evidence and the Tribunal will give it such consideration as it deems it merits for information purposes only.
MR. FENSTERMACHER: The next cross reference table is a list of documents referring to the question of the success of the German policy in the Southeast. It should be marked Exhibit 660.
The next lists of those documents which relate to the question of forced labor and deportation to forced labor; it should be marked Exhibit 661.
The next list is of those documents in the Prosecution's case which refer to concentration camps; Exhibit 662 should be given to it.
And the final list relates to documents bearing on the question of insignia in the partisan units. This should be given Exhibit 663.
If your Honors please, I have checked Ordnance No. 7 on the question of judicial notice. Article 9 reads as follows:
"The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. They shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents that the commitees set up in the various Allied countries for the investigation of war crimes and the records and findings of military or other tribunals of any of the United Nations."
I believe your Honors will be entitled to look at this under it being a record of a military or other tribunal of any of the United Nations.
THE PRESIDENT: In the judgment of the Tribunal, the matters of pleadings, the Journal entries, the final judgment and record and decision constitute records; not the evidence. Then besides that these men are not here so that they can be cross-examined.
Mr. FENSTERMACHER: Your Honor please, I am not offering it as evidence, I am simply calling Your Honor's attention that in the course of the transcript of the international military tribunal certain defenses were offered which are by persons occupying positions which are similar to those positions occupied by General Foertsch and General Geitner, and that the defense put in by Keitel and Jodl were similar to those offered by Foertsch and Geitner.
THE PRESIDENT: The court will adhere to its former ruling.
MR. FULKERSON: I would like to ask the Court again to look at the two documents to which I have previously referred, that is NOKW 2828, and these additional excerpts from NOKW 075. Both of these are daily reports from the 15th Mountain Corps and therefore concern the defendant von Leyser.
DR. TIPP: If the Tribunal please, in order to prevent a false impression gaining ground, I want to state that Document 2828, reference to which has just been made as a daily report of the 15th Corps; is a daily report of the Inspector of the Railway Security - Croatia. I can not understand how the Prosecution can contend that in both cases these are daily reports by the 15th Corps if the document be clearly captioned "Daily Report Inspector of Railway Security - Croatia" of 4 November 1943.
MR. FULKERSON: You don't contend, do you, Doctor, that this excerpt from NOKW 075 is not a part of the daily report of the 15th Mountain Corps?
DR. TIPP: No, if it please the Tribunal, and I didn't say so. I merely contested the assertion by the Prosecution that both documents NOKW 075 and NOKW 2828 were a daily report by the 15th Corps. It is correct NOKW 075 contains inter alia a report by the 15th Corps, but NOKW 2828does not contain a daily report by the 15th Corps, but a daily report by the Inspector of Railway Security - Croatia, and that is all I have just been saying.
MR. FULKERSON: Well, -
THE PRESIDENT: I take it there is no objection then.
DR. TIPP: As far as the Prosecution wishes to introduce Document 2828 as being a daily report by the 15th Corps, with the assertion that it was a daily report by the 15th Corps, and thus wishes to incriminate my client, of course, I do object to that, but I may add that the Prosecution has not so far contended, nor had it proved, that the Inspector of Railway Security - Croatia, was ever subordinate to the 15th Corps. General Leyser was never in command of that unit.
THE PRESIDENT: The Tribunal will keep that matter in mind and will give consideration to these statements and be guided only by the proof which has been presented.
MR. FULKERSON: First, a remark about this NOKW 075, the document was submitted in its entirety in German, but only excerpts from it were submitted in English and that is why it is necessary here for us to go back and translate additional parts of the document which is already in evidence. General von Leyser testified that "From my perusal of the documents here, the only case in my Corps Area where human lives were taken as a reprisal measure is the case of the Cossack Division." That is the case in which the twenty-two hostages were hanged on the spot, or something to that effect; that can be found in the English transcript for the 7th of November, page 5232. In the original document which was--.
THE PRESIDENT: The page number again, please?
MR. FULKERSON: 5232, Your Honor. In the original series of excerpt from this document which were translated into English and introduced here as part of the Prosecution's Case in Chief, if you will now turn to page 5 of this additional translation and look under Daily Report of 4 November 1943 --.
DR. TIPP: Your Honor, I object to the further submission of this document. I have just stated that this Document 075 is in part concerned with an entry of a daily report by the 15th Corps, and the Prosecution has just shown me the report of the 6th of November 1943, on page 4. Mr. Fulkerson now proceeds to dwell on the remaining contents of this document and he is attempting to prove by a quotation that General von Leyser's testimony on direct examination had been improper.
If I understand Mr. Fulkerson correctly, he wishes to say that the testimony by General von Leyser had been incorrect and untrue inasmuch as he stated that within his command in the XVth Corps a reprisal measure had only been taken once which claimed human lives; that was with the 22nd Cossack Division. To refute this Mr. Fulkerson now refers to a daily report of 4 November 1943, from which he just wanted to quote. Mr. Fulkerson unfortunately made an error in this quotation. He overlooked the fact that as far as this excerpt is concerned it was not a daily report by the 15th Corps, which he obviously assumes, but a daily report of the Inspector General of Railway Security Croatia. May it please the Tribunal, to turn to page 4-a, containing the heading, then you will see, that all subsequent daily reports originated from the Inspectorate of Railway Security and not from the 15th Corps. As I have already stated, General von Leyser was not the Commander of the Inspectorate Railway Security - Croatia. The Prosecution has neither contended that, asserted that, nor have they proved it, so that General von Leyser is not in any way incriminated by this document, and I object to its introduction. If the Court wishes for further proof it is also forthcoming in a photostat which I have submitted to the Court. The daily report did not emanate from the 15th Corps, but from the Railway Security Inspectorate.
THE PRESIDENT: The Tribunal will give consideration to the source of these materials and will decide as to its applicability to the particular defendants. The objection will be overruled.
DR. TIPP: If the Tribunal please, may I add a comment? The Tribunal has asked us to restrict our final arguments to two hours; they also asked us, if possible, to file our closing arguments at least a fortnight before their delivery. That means that the defense will have to file their closing briefs by the middle of next week at the very latest. Concerning the present state and stage of the proceedings, we can not expect that the rebuttal and the subsequent cross examination will be concluded before the middle of next week.
Then if given the reason which the Tribunal has just stated, such evidence is accepted, the defense counsel are obliged to give additional reasons for those arguments in his closing brief. The Tribunal knows what an abundance of material has already been submitted in rebuttal. It is physically impossible for us to present, in our closing brief, everything we have to say. Time is pressing, and also technically we are not in a position to do our work by the time limit set by the Court. I believe therefore that the proceedings will require that these objections be decided just now so that the Prosecution, if they are in a position to make such a statement,may say whether they wish to assert and prove that the Railway Security Division-Croatia was subordinate to the 15th Corps. This element has never been presented before by the Prosecution. Therefore, in the direct examination of my client, I have not dealt with this point. It is an entirely new assertion of the Prosecution. I am in a position to refute this contention of the Prosecution. That is, I should have been in a position to have done that on direct examination because I know that in a war diary there is an entry to the effect that the Railway Security Division - Croatia was subordinate to another agency.
MR. FULKERSON: I don't see how it would speed things up here by having objections that take seven or eight minutes to utter. What you are now going into has to do with your closing statement, not with objection to a piece of testimony.
DR. TIPP: I have already stated, if the Tribunal please, that it is impossible for us to reply to this in our closing arguments. It is not a question of merely refuting a suggestion and of merely saying that General von Leyser was not the Commander of the Railway Security Division; it is a matter of proving this assertion and to prove this is impossible in the closing brief.
DR. TIPP: The Tribunal knows what an abundance of material has already been submitted in rebuttal. It is impossible for us to present in our closing brief everything we have to say. Time is pressing and also technically we are not in a position to do our work in the time limit set by the court. I believe the proceedings will require these objections be decided right now so that the prosecution if they are in a position to make a statement whether they wish to assert the railway security. This element has never been presented before by the prosecution and therefore in the direction examination of my client I have not dealt with this point. It is a completely navel assertion of the prosecution. I am in a position to refute this contention of the prosecution that is I should have been in the position to have done that in the direct examination because I know in the War Diary there is an entry to the effect.
MR. FULKERSON: I want to speed things up somewhat. It is not necessary to take twenty minutes to present this point.
DR. TIPP: I have already stated if the tribunal please it is impossible to us to reply to this. It is not a question of merely refuting a question and merely saying General von Leyser was in command of the railway security division and to prove this assertion is impossible in the closing briefs.
THE PRESIDENT: This document does not say it was subordinated to the defendant and the court is going to check carefully the responsibility of these particular individuals. I see no necessity for extending argument on this particular question. We will give it careful and thorough consideration but it will be received at this time for such probative value as the court deems it merits. The matter is closed and we will proceed with the next item.
DR. TIPP: Very well, I agree with the decision.
MR. FULKERSON: Now as I say in the extracts of this document of which we originally submitted only paragraph or sub-paragraph "C" out of all of the daily report of the 2nd of November, now if the Court will look back at the next page it will see that all of these various items on page 5 are supplements or details to daily reports which have already been submitted previously.
But in translating this, unfortunately, only that one item was picked out. That is, there is only one item under the daily report of November 4, 1943, was picked out in the translation. Since this purports to be a supplement to other detail reports and since we have in this document itself one daily report, that is the one for November 6th which is found on the first page of this document. I attempted to correlate the daily report with the supplement. That is possible. We did not, however, have the daily report of November, 4th, so that was sent for and that is this document Number 2828. I naturally expected when it arrived to find that it would have a subparagraph "A", "B", "C", "D", "E", etc as this supplement has. The court will notice it has not -- it really has three paragraphs in it with no sub-paragraphing at all. Fortunately, I was able to find someone cleverer than I and who was able to unlock the key to this, to the connection between the daily reports and supplements. If the court will look at those supplements, you will see that always under subparagraph "A" the incident itself is described, under sub-paragraph "B" is described the security measures which were enforced at the time, under sub-paragraph "C" it described the reprisal measures taken, under "D" security -- correction, security or patrolling activity and under "E" it is always reported whose responsibility or fault the incident was. Now it is introduced in rebuttal here merely to show or at least to show that General von Leyser when he looked over these documents did not have to work this out as a crossword puzzle as we did. He had the full text in German before him as I did not, due unfortunately to this partial translation, and he was not being frank and candit with the court when he made that statement.
DR. TIPP: If it please the tribunal, I object. It was said that in this stage of the proceedings there should be no arguments. The Prosecution has been arguing the last five minutes saying that General von Leyser of course possessed the key for this code. How the Prosecution arrived at this statement I don't know. The Prosecution asserts that of course, General von Leyser received the reports of other agencies, without proving this assertion.
I suggest the Prosecution be limited to submitting the document but there should be no arguing at this stage and no assertions of things that are not proven.
THE PRESIDENT: The tribunal is of the opinion that both the Prosecution and Defense Counsel have been violating its suggestions and admonitions from time to time. We have reserved an entire week for arguments and the Court will draw its own conclusions unaided at this time by comments from counsel of either side, argumentative comments. With these comments as a guide to all parties concerned, you may proceed.
MR. FULKERSON: We would next like to introduce as Prosecution Exhibit 659 -- sorry I have lost track of the exhibit numbers, 664, NOKW 2825. This document is being introduced simply in rebuttal in the following way. So many of these defendants have testified how they were badly mistreated by the American Armed Forces at the time they were first taken into custody, at least most of the complaints of that nature do relate to the time the defendants were first taken into custody, and we would like to introduce this document to show if that is so it at least was done in violation of the explicit orders of the highest American military authorities.
DR. LATERNSER: If it please the tribunal, I cannot see the relevance of this document. It was never asserted this was not done on order and the fact it happened is not refuted by this order.
MR. FULKERSON: If the defense is willing to stipulate that any instances of mistreatment of German prisoners of war were simply isolated examples which had they become known to the higher American military authorities would have been disapproved of and stopped, I will consent to not introduce this document, but the insinuations made here are all the other way.
DR. LATERNSER: I believe the Prosecution is asking for too much. We cannot make such statements -- then we ought to have knowledge of every case.
I really don't know what the Prosecution means.
THE PRESIDENT: This purported document does not refute the facts to which testimony has been given. It is immaterial and the objection will be sustained.
MR. FULKERSON: We would next like to introduce as Exhibit 665, NOKW 069.
THE PRESIDENT: 664.
MR. FULKERSON: I am sorry.
THE INTERPRETER: What was the exhibit number, if you please?
MR. FULKERSON: It was exhibit 664.
THE INTERPRETER: What document number, if you please?
MR. FULKERSON: It was 669.
The purpose of this document ....
THE PRESIDENT: Are you going to present it to the Court at this time?
MR. FULKERSON: Yes, sir, I am. The purpose of introducing this document is to refute the often repeated assertions of the defendants that insofar as tactical operations of the German Army in the Southeast, particularly in Croatia, were concerned, they were conducted strictly in accordance with International Law. I don't want to try the patience of the Tribunal by reading this entire document. Have most of you looked at it? Have most of defense counsel looked at it? It is submitted against the defendant Rendulic.
DR. FRITSCH: If it please the Tribunal, may I request the Prosecutor to tell me what he really wants to do with this document in his rebuttal what proof and evidence of the defense is he referring to and what does he really want to refute?
MR. FULKERSON: Unfortunately, I am not prepared at this moment to give you a reference to the transcript by page, if that is necessary I can do it later; is that what you mean?
DR. FRITSCH: In that case, I can tell the Counsel for the Prosecution that this question was not discussed at all. I can tell you precisely that in the Indictment this Division Brandenburg and the affair involved with it is mentioned. Of course, I have been waiting for a proof. The Prosecution has not furnished it and therefore, naturally, I have not referred to it when submitting my evidence. Now at this stage to produce such evidence is a practice which should not be sustained.
MR. FULKERSON: My recollection is that the defendant Rendulic has said here on the witness stand that there was no violations of International Law by the German troops. This document plainly refutes that, if your Honors please.
THE PRESIDENT: It seems to me that with the time that we have given to this case and the preparation of these documents and the apparent number of people I have observed not only in the court room, but in the hallways, that are part of the prosecution staff, we can have some information as to the particular matter to which you refer and which you endeavour to disprove by this document?
MR. FULKERSON: If your Honor please, I will withdraw the document for the moment and attempt to furnish that information later on.
MR. FENSTERMACHER: If your Honor please, we next offer NOKW 2870. This is offered as Exhibit 664 against the defendant List. It is offered to refute his testimony of just a day or two ago that following his illness. he was no longer Commander in Chief of the XII Army. This document will show that as late as 30 October, 1941 he was signing an official document, this staff order.
THE PRESIDENT: You may proceed apparently there is no objection.
MR. FENSTERMACHER: Thank you, your Honor. This staff order is dated: "Headquarters 30 October 1941," heading "The Wehrmacht Commander in the Southeast -- The Commander in Chief of the XIIth Army.
Colonel in the General Staff, Kuebler, Ia with the 12th Army since October 1939, has been assigned to new duties.
The accomplishments of my Ia in connection with the preparation and carrying out of the operations in the West in 1940 and the operation on the Balkans in 1941 are inseparably bound up with the battles and victories of the 12th Army.
Every member of the staff of the army headquarters is cognizent of the enormous amount of work which rested on the shoulders of the Ia. I am best able to judge with what untiring and inexhaustible work, and with what absolute reliability Colonel Kuebler has fulfilled his important and responsible tasks.
As man to man I have expressed to him my thanks for all this.
At this time when Colonel Kuebler is leaving us a feeling of honest gratitude for his faithful cooperation, for his good fellowship dominates the whole army. Colonel Kuebler's vigorous personality has impressed itself for ever on the hearts of all those who have worked with him and for him at this time.
Our best wishes accompany Colonel Kuebler in his new assignment. May the good luck of the soldier remain with him always.
signed List Field Marshal."
If your Honor please. I would like to have the photostatic copy of the document shown to your Honors, which has the signature of the Field Marshal signed in his own hand.
DR. LATERNSER: Mr. President......
THE PRESIDENT: Very briefly, Dr. Laternser.
DR. LATERNSER: Certainly, I have just seen that the Prosecution wishes to submit this document to the Court and it contains three letters on the top of the document: K.T.B. These letters mean War Diary. We have requested the War Diary of the Armed Forces Commander Southeast but we have never received it. If the Prosecution possess this War Diary and if the have with-held it from us, then, I move that this document be excluded because it is unfair by the Prosecution and then for the first time in this case I contend that this is an unfair behavior on the part of the Prosecution and I protest against it on that grounds.
MR. FENSTERMACHER: We have withheld nothing from the Defense, if your Honor please, that document arrived on my desk yesterday from Washington. Now that is a one page piece of paper, it was captured. Now if there was an entire war diary of the XIIth Army in Washington, then it would have been sent, it can only mean it was found there recently.
DR. LATERNSER: Mr. President, very well, I want to emphasize that, of course, it was for us the most essential thing to obtain the War Diary of the Armed Forces Commander Southeast.
It did not come here. I as defense counsel of Fieldmarshal List attach the greatest importance to seeing the War Diary, which obviously exists and was not sent, before I conclude my case.
MR. FENSTERMACHER: This is the first document which the Prosecution has ever offered from the War Diary of the XIIth Army. I will withdraw it if I find out from Washington that there is an entire War Diary in Washington. Our information has been that there...... Withdrawn, I don't know whether we have ever asked for the War Diary. I assume when Dr. Laternser said he has demanded it he demanded it on the theory, that the Prosecution introduced excerpts from it, that is not my recollection.
DR. LATERNSER: May I have another look at this document, if the Tribunal please? I here state for the information of the Tribunal that I being a defense counsel cannot possibly discharge my duties as given me if the War Diary is withheld from me, although we have requested it. In that case, I am unable to proceed without getting the War Diary as soon as possible.
MR. FENSTERMACHER: I want to say to Dr. Laternser that the mere fact that there are the initials KTB on this piece of paper, has nothing at all to do with whether there is a entire War Diary in Washington. This is a captured document.
DR. LATERNSER: If it please the Tribunal. If it says here "KTB" this means that this is a copy for the War Diary. Whether the remainder of the War Diary is there, of course I do not know, but I do not believe that this is a single document, there are a few holes and perforations as can be seen from the photostat and it must have been filed in a war diary or appendix. Therefore I maintain that this War Diary exists and I am entitled to make this statement having seen part of it.
THE PRESIDENT: Our previous order concerning documents, which were to be furnished from Washington, applied to portions of war diaries offered. There is no showing here that this is a portion of a war diary, other than the statement of counsel which we do not wish to question, but that does not indicate on its face this is a part of the war diary.