At 0700 hours on 26 December a Sentry Station, consisting to my knowledge of a Sergeant and two men, reported that the Russians were making an attempt to land on the south coast near Feodesia. A short time later the Russians penetrated into the harbor of Feodesia with approximately 1000 men and, to my knowledge, attempted to carry out an attack. This was possible because the old mine blockade, which had been laid in the harbor of Feodesia by the Russians, had not been sufficiently strengthened.
Without checking the report made by the Sergeant, especially without driving to the site himself or sending one of the officers of his staff, SPONECK, within 15 minutes, passed on the order to the Division Commander in Kertsch to immediately march to the west with his Division. As far as I can recall the new point of resistance selected him was a line approximately 73 - 80 kilometers west of Kertsch, i.e. approx. half way between Kertsch and Sewastopol. He gave them only 2 days to reach this position. At a temperature of 20 - 30 degrees C below zero and on the poor, completely ice covered streets this resulted in the fact that all heavy weapons, including the machine guns, had to be left behind by the troops during this march and were lost, especially since the fuel for the trucks had run out.
On the basis of the Sergeant's report SPONECK furthermore ordered his own Command Post (as far as I can remember) moved approximately 25 30 kilometers west of its former position. He dismantled the old Command Post without even leaving a "Meldekopf" (Advance Message Center) behind until the new Command Post was erected. At the same time he neglected to inform the Army or Group of Armies of the withdrawal order he had given, although telephone as well as radio communications to the Army or Group of Armies were available.
DR. LATERNSER: May I interrupt, your Honors? I request that the further reading of the document do not take place. The whole affidavit contains only hearsay evidence. It is all hearsay. Dr. Schmauser was never on this spot.
He never states in what capacity he took cognizance of the fact. It is all hearsay and therefore not admissible as direct evidence in rebuttal.
MR. FENSTERMACHER: Aside from the fact that there has been a previous ruling with respect to hearsay, I direct Dr. Laternser' attention to page 3 in which the affiant mentions that he was the judge at the court martial of General Sponeck.
DR. LATERNSER: If it please the Tribunal, I thank the prosecution for the hint but that is the very proof of my statement that it is only hearsay evidence.
PRESIDING JUDGE BURKE: The motion will be overruled.
MR. FENSTERMACHER: Continuing at the bottom of page 2:
"At the same time, he neglected to inform the Army or Group of Armies of the withdrawal order he had given, although telephone as well as radio communications to the Army or Group of Armies were available."
He merely ordered one of his Ordnance Officers, from a town which to my recollection was about 20 kilometers westward (Ismail Pascha), to pass the report on by telephone in his place. As far as I can remember the Officer concerned did not reach that particular town until about 1500 hours. It was in this town that the telephone communications were located. The transmittance of that report he had been ordered to make was not possible, since this town had been attacked by Russian fliers just previous to his arrival and had been severely damaged. The effect of this was that, to my knowledge, the Army or Group of Armies were without knowledge of the withdrawal order issued by SPONECK for approximately 20 hours.
SPONECK's fears that he would be put off on the Parpatsch line proved themselves to be completely unfounded. The landing in Feodesia merely consisted of an assault troop raid made with insufficient troops, as has already been stated with approximately 1000 men, after the com pletion of which the Russians immediately withdrew again.
The convoy traveling along the north coast from east to west made no attempt whatsoever to land. It obviously was not intended for such a purpose, but rather was supposed to carry out transports which were intended for the west half of the Crimea.
The Russians themselves were apparently completely surprised by the evacuation of the half island of Kertsch. As far as I can recall they did not advance until the following afternoon and then with an entirely insufficient number of troops.
SPONECK attempted to justify his conduct with the excuse that entirely unreliable Roumanian troops, to my recollection the 2nd Roumanian Mountaineer Division, were located behind his Corps and that he had wanted to deal with them personally so as to prevent the endangering of the rear from the direction of Sevastopol.
Due to these incidents, presumably on Hitler's order, a charge of disobedience in the face of the enemy was placed against SPONECK. The trial took place in early February 1942 in Berlin. Goering was Chairman and Chief of the trial, the assisting officers were: Freiherr von Seydlitz and a General of the OKW, General for Special Duties Eugen Mueller. Judge: myself and Reichskriegsgerichtsrat. SPONECK was sentenced to death, the loss of the right to bear arms and all the usual indirect results. The sentence was confirmed as such by Hitler, but the execution was changed through clemency to 6 years imprisonment, retention of the right to a pension and military rank and the support of dependents. I presume that this measure is in accordance to all Goering's offers, who in his youth had served in the Cadet Corps together with SPONECK. To my knowledge SPONECK was placed in the Fortress Garmishain, where during the course of the following week he sent extremely insulting statements to a number of various offices, so that for a time there was some question as to whether a new trial would not take place.
As I have heard through hearsay SPONECK is supposed to have greatly misused the freedom he was entitled to as a fortress prisoner. It is said that he is supposed to have joined the resistance movement while in the Fortress and that for this reason, i.e. not in any way connected with the incidents which occurred in the Crimea, he was shot by the Gestapo.
As far as I have been informed the case of SPONECK was the first action of its kind which was brought against a German General. I have made this report after 5 years entirely from memory. I have no documents at my disposal. However, I believe that, at least, I have not erred in any of the important details.
There follows the jurat and then the signature of Dr. Karl Schmauser. Continuing on page 5, Dr. Schmauser discusses the Ziehlberg case.
"I, Dr. Karl Schmauser, declare and depose:
1) Although General von Ziehlenberg had lost an arm at the front in Italy, he nevertheless again reported for active duty at the front line, as commander of division, was subsequently posted at the central eastern front, if I remember correctly. Since May 1944, this division had been engaged in major retreat and disengagement operations.
"General Staff officer Major Kuhn had been the senior general staff officer of the division (Ia) since May 1944. As far as I remember, Kuhn had been employed continuously for 3 to 3 1/2 years in the organisational section of the general staff. Brigadier General Stieff, who afterwards became known from the events of 20 July 1944, had been his immediate superior officer and, by the way, had characterized Kuhn in his last service record as a "convinced National Socialist" or words to this effect. Until spring 1944, Kuhn had been engaged to be married to a niece of the Colonel in the General Staff, Stauffenberg and had been on intimate terms with Stauffenberg himself. However, the engagement with the countess Stauffenberg was dissolved, because Stauffenberg's family was deeply catholic, whereas Kuhn displayed strictly protestant views. His friendship with Stauffenberg, however, was not affected by this. Moreover, Kuhn had been on friendly terms with the Col. in the General Staff, Von Treskow, who also had been implicated in the events of 20 July.
"In company with these officers Kuhn had been a member of that circle of persons who had already attempted to blow up Hitler in 1943. This attempt could not be carried out at that time because, if I remember correctly, the secret military police found the explosive prematurely in December 1943 at headquarters, hidden away under moss.
Approximately in March or April 1944 Kuhn again brought explosives from the front to Berlin and thence to the Fuehrer's Headquarters. These were the very same explosives by means of which the attempt of 20 July was carried out.
This connection naturally had not been know before.
"General von Ziehlberg who, as the chief of the compentent department of the personnel office, had handled matters in regard to the personal affairs of the general staff officers, had known Kuhn before, although only superficially and, from what Kuhn told him, knew of the latter's personal and family relations with Stauffenberg.
"2) On or about 27 or 28 July Ziehlberg received a wireless or telephonic communication from the army group which stated that a staff officer would come to see him that very same night in order to give him an extremely important order. Particulars in regard to the order would be explained by the officer personally.
"On the same evening a serious engagement with the Russians had taken place, in the course of which the Russians made a gap in the front several kilometres wide. This gap could not be closed again.
"The designated officer from the staff of the army arrived about 6 AM at the command post of the division. He at first went to Ia (Kuhn) and to the adjutant. The discussions held there never became known. In particular it could not be established for certain whether he had not informed Kuhn of the contents of the order entrusted to him for delivery before he had seen Ziehlberg.
"After about half an hour or an hour Ziehlberg arrived. The officer then gave him the order. Ziehlberg opened the envelop and read the order in the presence of Kuhn, the division adjutant and the officer delivering it.
"The order read as follows: "Major Kuhn is to be arrested immediately and brought to Berlin accompanied by 2 officers.
Any opposition is useless." Ziehlberg did not know what to make of this order. He decided to let Kuhn read it in the presence of the other officers. Kuhn read the order without displaying any signs of emotion. Remembering that Kuhn had been on friendly terms with Brigadier General Stieff and Count Stauffenberg who had played a leading part in the bombing attempt that had taken place 8 days earlier, Ziehlberg now asked Kuhn whether he had been involved in the bombing affair. Kuhn denied this. Ziehlberg then returned to his adjoining hut in which he lived. He then entertained misgivings whether Kuhn had not purposely lied to him. However, he desisted on purpose to undertake anything against Kuhn in order to give him -- in accordance with the prevailing code of honor of the officers corps -- an opportunity to shoot himself in case he had been implicated. He then shaved himself and took his breakfast and returned to the combat post after an interval of about half an hour. Arrived there he found that the officer who had delivered the order, Kuhn, the division adjutant and the special missions staff officer were still there.
"Ziehlberg, on entering, overheard Kuhn request the 2 officers to inform his mother and to forward his personal belongings to her. Ziehlberg again asked Kuhn, whether he had anything also to say. Kuhn again said: "No". Ziehlberg then told him that he now intended to inspect the point of penetration in order to survey the situation on the spot. He expected to be back at 14 hours. Until that time the command post should be moved back to a designated position. Kuhn was ordered to go to the new command post. He, Ziehlberg, would again discuss the matter with him after his return in the afternoon and then take the necessary steps. Ziehlberg purposely did not inform one of the staff officers of the state of affairs or to charge one of them to remain in Kuhn's company. He did this in consideration of Kuhn's sense of honor and his position as senior general staff officer of the division.
He then left for the battalion affected by the breakthrough. After about 1/2 hour Kuhn also got in his car, however he did not drive in the direction of the new division combat post at the rear, but toward the gap in the front. He left his car and advanced along. Without being challenged or shot at, he deserted to the enemy. German soldiers who had been taken prisoners by the Russians on the sector in question, sighted Kuhn on two separate places and recognized him beyond any doubt.
"One of these returned soldiers, I believe a Master Sergeant, overheard Kuhn ask the Russians to take him to Moscow immediately, as he had to give most important information."
Now comes the most important part of the affidavit if your Honors please:
"3) Proceedings were instituted against Ziehlberg, because he had failed to place Kuhn under "immediate" arrest and/or to take the proper steps to secure his person, in violation of the order from the "highest authority". The trial was to take place at once before the Supreme Court, as far as I remember on the very same day. For reasons unknown to me, the trial was to be assigned to a "small" senate, established on an experimental basis, and composed of only three judges (a professional judge and two officers)."
DR. LATERNSER: If it please the Tribunal, I object to the second part of the affidavit, i.e., from page 4 onwards. I have not yet objected to it before but have to do it now. It is quite manifestly hearsay evidence. The affiant ought to have been present at all these events.
MR. FENSTERMACHER: The affiant was a judge which appears on page 9.
DR. LATERNSER: No, that is not correct; it follows from this that he was not the judge.
PRESIDING JUDGE BURKE: The Tribunal will attempt to evaluate the portion of the affidavit that may be material and will dispose of it accordingly. You may proceed.
MR. FENSTERMACHER: Continuing from the middle of page 8, about the first trial of Ziehlberg:
"As its chairman acted a judge who was only recently transferred, and merely temporarily assigned to the Reichsgericht (Reich Supreme Court). During the trial Ziehlberg pointed out that he relied on Kuhn's assertions that he, Kuhn, was not actually connected with the events of the 20th of July and the circle of its perpatrators. He thought it impossible that a general staff officer would lie to him and that at the same time he also could look him in his eyes.
"The senate found Ziehlberg guilty of negligent disobedience and sentenced him to a prison term of somewhat under one year. (I do not remember anymore the exact term). After this sentence had been imposed on Ziehlberg, he was interrogated by the General assigned for Special Duties with the High Command of the Army, and his legal advisor, a judge-advocate-general."
THE INTERPRETER: Would you give the page number please?
MR. FENSTERMACHER: Just a minute. It is on page 10 of the Englist memeographed copy.
THE INTERPRETER: Could you please give the page of the original document?
MR. FENSTERMACHER: I don't think I have the page of the original document. You can't find the paragraph beginning: "The Senate found Ziehlberg guilty"?
PRESIDING JUDGE BURKE: Mr. Fenstermacher, at this time, we will take our recess and that will give you a little more opportunity to find the place.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
JUDGE BURKE: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, Your Honor, I should like to announce that I am in error, and not Dr. Sauter and Dr. Rauschenbach, with respect to the war diary of the General Staff of the Southeastern Army and for Army Group Southern Greece. I think what confused us was that our record shows that the War Diary of the Commanding General Greece, Commanding General Southern Greece up to August, 1943, were sent. This document referred to as Exhibit 665 relates to a period after August, 1943, so the Prosecution would like to withdraw NOKW 2791, which was offered as 665.
DR. SAUTER: Dr. Sauter, for the defendant Lanz. If it please the Tribunal, though this formally finishes with this exhibit, I would still like to point out certain aspects. The court ruling was to the effect that these war diaries be submitted completely. If I understood the opinion of the Court correctly, the Court attached supreme importance to the fact that this material be submitted in completeness so that the Court would be in a position to gain an appropriate picture of the whole situation. This examination, however, shows us that the court ruling was not adhered to. A number of war diaries were submitted to us and we, of course, assumed that is the complete material. Today, unfortunately, we have to ascertain that important matters which might also have been important for the defense have not be submitted. I do not consider that a proper compliance with the ruling of the Court. That concerns principal aspects of this matter.
MR. FENSTERMACHER: Your Honor please, my understanding of the court's ruling was that the defense was entitled only to the war diaries if we introduced excerpts from them. Since we didn't introduce any excerpts from this particular unit the defense is not entitled to have them. It wasn't part of the Court's order, and so, of course, the war diary of this parti cular unit was not sent.
Perhaps Dr. Sauter is laboring under the misapprehension that he as a defense counsel is entitled to send out searching parties and fishing expeditions into our entire evidence. If Dr. Sauter's interpretation of the court's ruling were correct, I submit we might just as well have transported to Nurnberg the entire captured files from Washington.
DR. LATERNSER: Your Honor please, the ruling of the court has just been handed to me, and in this ruling it is stated --.
JUDGE BURKE: I may state, Dr. Laternser, that it is the present attitude of the Tribunal that Mr. Fenstermacher has correctly stated the rule. If you have anything that indicates a different point of view, the Tribunal will be interested in entertaining your views.
DR. LATERNSER: If the Tribunal please, at the beginning of this afternoon's session, I should like to refer back to this problem, after having studied the court's ruling very thoroughly.
JUDGE BURKE: Very well. The tribunal will accept your request to withdraw the exhibit submitted as 665, Document NOKW 2791.
MR. FENSTERMACHER: That is correct, Your Honor.
JUDGE BURKE: Is that the correct document number?
MR. FENSTERMACHER: That is correct, Your Honor.
JUDGE BURKE: Very well.
MR. FENSTERMACHER: We will offer in a very few minutes another document to take the place of Exhibit 665, so that we can keep the numbers in order.
JUDGE BURKE: Very well.
MR. FENSTERMACHER: Continuing now with the reading of the Schmauser affidavit with respect to the Ziehlbert case:
The Senate found ZIEHLBERG guilty of negligent disobedience and sentenced him to a prison term of somewhat under one year. (I do not remember anymore the exact term). After this sentence had been imposed on ZIEHLBERG, he was interrogated by the General assigned for Special Duties with the High Command of the Army, and his legal adviser, a judge-advocatc-general.
By completely changing the testimony he gave at the trial, ZIEHLBERG now admitted in detail that he was conscious of doubts, or at least misgivings, about KUHN's statements. For he had deliberately failed to put KUHN immediately under arrest in order to give him a chance to shoot himself. Subsequent to this very exhaustive interrogation of ZIEHLBERG by the General assigned for Special Duties and his legal adviser -- the transcript of which contained about three to four pages, according to my recollection -- the sentence was quashed and a new trial ordered with myself appointed as its presiding judge.
A short time later Generalfeldmarschall Keitel paid a visit to the Reich Supreme Military Court, which was the first and only time during the whole war. At this occasion he discussed the case ZIEHLBERG and expressed the opinion that KUHN's desertion meant for the German Wehrmacht the loss of 100,000 dead, because KUHN (who had been for 3½ years with the organizational department) represented an exceptionally valuable source of information for the enemy.
ZIEHLBERG repeated at the second trial the depositions he made to the General for Special Assignments. He severely emphasized them, and upon my question whether his deposition might not have been misunderstood by the General for Special Assignments, and how this second deposition was to be explained, he replied that he could not justify it with his conscience as a Christian to tell a falsehood before court. At the conclusion of the trial ZIEHLBERG sentenced to death for disobedience causing losses in consequence of negligence.. In the orally delivered reasons as well as in the written judgment it was emphasized by the senate that legal provisions prevented it from sentencing the defendant to detention in a fortress (an honorary punishment) as it would have liked to do. The senate would consider a jail term to arrest, and intentionally refrained from imposing a sentence to a dishonorable penitentiary term, in consideration of ZIEHLBERG's military accomplishments and unobjectionable human conduct and attitude.
The death penalty, which was also demanded by the prosecution, was considered by the senate not so much as a penalty in the criminal sense, but as a military atonement, which was justified by ZIEHLBERG having seriously endangered thousand of German soldiers.
Immediately after the trial I had ZIEHLBERT come into my office. I shook his hands, saying that in all my life I had never been touched so profoundly as by the fate befalling him. He should formally promise me that he would not lose his nerves and not lay hands on himself. I told him that I thought it entirely impossible that this sentence should ever be carried out, and that we would undertake everything in our power in order not only to obtain clemency but his reinstatement, after perhaps a few weeks had passed, to his divisional command. ZIEHLBERG on his part shook my hands, giving me the requested promise, and thanked me for the chivalrous form and manner with which I had treated him. He would not commit suicide, if for no other reasons, then because he was by far too good and convinced a Christian. He realized now what damage might be caused the German Wehrmacht by his failure to put KUHN under arrest, and he himself, ZIEHLBERG, if he had been a judge in this case, could have pronounced no other sentence that we had done.
As a consequence of this judgment all five members of the court signed a petition of clemency addressed to Hitler. In order to secure the most convincing wording for the clemency petition, and to set forth the situation from all its manifold angles, I agreed with the other four judges in a complete reversal of customary practices -- that they were to submit to me in advance their opinions with regard to the clemency plea, for the purpose that I might amend, and phrase it more effectively. This was done. The president of the Reich Supreme Military Court and chief of the legal division of the Wehrmacht, expressed himself strongly in favor of its indorsement.
When the decision concerning the confirmation of the sentence was delayed beyond the usual time, the president of the Reich Supreme Military Court went to Berlin to discuss the matter also with Goering and Himmler. Both promised him their support. Nevertheless, as far as I remember, Hitler confirmed the sentence and only after a number of months had passed. Thereupon the president of the Reich Supreme Military Court and I went personally to Berlin in order to plead with Feldmarschall Keitel to prevent, under all circumstances, the execution of this sentence. On my part I requested the president to point out that I could not envisage myself of ever acting as judge in any such a case again. I myself was not even received by Keitel. The discussion between Keitel and the president of the Reich Supreme Military Court lasted only a few minutes. As I was told subsequently by the president, Keitel rejected in the sharpest terms any renewed argumentation. He stated that Hitler, who for about three days carefully considered the case and acknowledged the humane considerations pleaded by us, nonetheless deemed it unavoidable, in the interest of the whole and the Wehrmacht, that the sentence be carried out, which in fact it was. Shortly before he died, ZIEHLBERG wrote me a letter in which he once more expressed his gratitude for the chivalrous manner in which I tried to help him during and after the trial.
"Except for the Ziehlberg case --". Here I might point out to Your Honors that this is after 20 July 1944. "-- I know neither from my own work nor that of any other judge or court -- as far as I can remember at this moment -- that at any other time a death sentence against a German general was carried out. I would like to remark, however, that I am not even informed by hearsay about the activities of the field court martials and especially not about the so-called "special summary court of the Fuehrer'." Follows the jurat and signature, "Dr. Karl Schmauser."
PRESIDENT: Is this offered in connection with the plea of superior orders?
MR. FENSTERMACHER: That is correct, your Honor.
PRESIDENT: As indicating custom?
MR. FENSTERMACHER: Yes, as indicating what the Prosecution contends were the consequences for German Generals disobeying orders.
PRESIDENT: And as indicating what International Law on that question is?
MR. FENSTERMACHER: We did not submit it for that reason because we feel that International Law is ....
DR. SAUTER: Dr. Sauter for the defendant Lang. Your Honors, I have reserved the right for me to cross examine this affiant, Dr. Schmauser. But I don't intend to make such a motion because the character of this witness becomes very evident from his affidavit anyhow. The affiant says here....
PRESIDING JUDGE BURKE: Dr. Sauter. Do you have an objection to make to the document?
DR. SAUTER: No, I haven't.
PRESIDING JUDGE BURKE: Very well, there is no matter before the Court then upon which an argument will be required at this time.
DR. SAUTER: Well, I only wanted to give my reasons, if the tribunal please, why I am not going to make a motion for cross examination of the affiant Schmauser.
PRESIDING JUDGE BURKE: That you do not wish to examine him is sufficient. Whatever reasons may impel you the Court has reserved for your argument, Dr. Sauter.
DR. SAUTER: I shall be prepared to do that in an appendix to my final plea in order to show how we defense counsel judge a man of the type of Dr. Schmauser.
PRESIDING JUDGE BURKE: Very well.
PROSECUTION: We offer next NOKW 2827 and if we give this Exhibit Number 665 I think it will keep our numbers in order.
Your Honors will note the original of this exhibit. You can ascertain that it is a long series of charts from which we have taken excerpts of the order of the battle of the German Army on particular dates. The dates we are interested in at this point are with respect to the time when the defendant Kuntze was in command of the 42nd Corps, or rather on what dates certain units were under the command of the defendant Kuntze as Commander of the 42nd Corps. The document is offered to rebut two affidavits introduced on behalf of the defendant Kuntze. The affidavit of Eberhard Einbeck which is in Kuntze Document Book 3 as Document Number 74 and Kuntze Exhibit 45 states that the 61st Division was subordinate to the 42nd Corps approximately from the middle of August until the last third of September 1941. The affidavit of Joachim von Woedtke, Kuntze Document Book 3 is Document Number 75, Exhibit 46 for Kuntze states that the 61st Division was subordinate to the 42nd Corps not after about 26 September 1941. Those affidavits in this rebuttal document which we offer in the year 1941 show whether or not the defendant Kuntze was responsible for the execution of commissars which are indicated from Prosecution Exhibits 592 and 593. Turning to the document itself now we find that on the 22nd of September 1941 the 61st Division and parts of the 217th Division were subordinate to the 42nd Corps, the 18th Army and Army Corps North. Another chart which is the order of battle of the German Army for the 27th September 1941 indicates that the 61st Division and one-third of 217th Division were similarily subordinate to the 42nd Corps and higher units; it states that on 2 October 1941 the 61st Division was still subordinate to the 42nd Corps.
8 October 1941 also shows that the 61st Division was in fact subordinate to the 42nd Corps which was commanded at that time by the defendant Kuntze.
DR. MENZEL (for the defendant Kuntze): May it please the tribunal, this document is a voluminous document. It comprises a list of several long pages which I should have to check. The copy given to us is only a small percentage of the whole document and not sub-divided very clearly. It is not possible to make any comment before looking through the photostat which was submitted to me now for the first time. May I be allowed to give my comments on this document after having had an opportunity to look through it. It does not become in any way evident from the document, whether it is a draft or a final copy.
PROSECUTION: I cannot quite understand Dr. Menzel's last remark. These are photostatic copies of captured documents which are in Washington, they are orders of battle charts which were prepared either by OKW or OKH.
DR. MENZEL: The photostat shows a document.
PRESIDING JUDGE BURKE: Is there any objection, Mr. Fenstermacher, to giving Dr. Menzel an opportunity to examine them before the afternoon session during the recess?
MR. FENSTERMACHER: None whatsoever. He may make any objection at any time.
PRESIDING JUDGE BURKE: Is that satisfactory, Dr. Menzel?
DR. MENZEL: Yes.
JUDGE CARTER: Mr. Fenstermacher, I just casually examined those exhibits. They are difficult to understand by anyone not familiar with those terms.
As I understand it from General Kuntze's evidence he commanded this division until approximately October 6th, according to his testimony at which time he claims the division was being moved into the Balkan area and arrived there on the 20th. That is just my recollection.
MR. FENSTERMACHER: I think he testified about commanding a corps rather than a division.
JUDGE CARTER: A corps, yes. My suggestion is, that you make a statement for the record to what this complicated piece of evidence means. I think it might be helpful for our examination.
MR. FENSTERMACHER: Prosecution Exhibits 692 and 693 indicate that commissars were executed by the 61st Division and 217th between -
PRESIDING JUDGE BURKE: I think you mean 592 and 593.
MR. FENSTERMACHER: Perfectly right, Your Honor, I am sorry. Prosecution Exhibits 592 and 593 indicate that commissars were executed by the 61st Division and the 217th Division between the dates of July 1941 and November or December 1941. The two affidavits in Kuntze Document Book 3 are to the effect that the 61st Division was not subordinated to the 42nd Corps after the last third of September 1941. This document indicates that as late as 8 October 1941 the 6lst Division was subordinated to the 42nd Corps which was commanded at that time by the defendant Kuntze.
JUDGE CARTER: Very well.
MR. FENSTERMACHER: I would like to offer next, NOKW-2826.
JUDGE CARTER: Before you go into that might I ask you one more question?
MR. FENSTERMACHER: Of course.
JUDGE CARTER: There is no question that the 61st Division did not accompany General Kuntze's Corps, the 42nd Corps, when it was transferred to the Balkans?
MR. FENSTERMACHER: I am not prepared to quite answer that question, your Honor. I believe about all I can say is that some time after the 8th of October 1941, the 61st Division was no longer subordinate to the 42nd Corps. I do not know where the Corps went or where the 61st Division went but in any event we do not charge General Kuntze with responsibility for the activities of the 61st Division after 8 October 1941.
JUDGE CARTER: Very well.
MR. FENSTERMACHER: This document is offered as Exhibit 667. Your Honors will recall that at the time Dr. Laternser applied to have interrogatories sent to General Eisenhower, General Devers, General Smith, and others, he also made an application to have an interrogatory sent to General Patton's Chief of Staff with respect to a reported order issued by General Patton at the time the American troops landed in Sicily. That application was read into the record and supported by a newspaper clipping. In order to clear General Patton's name and the name of the American Army with respect to their activities at the time they landed in Sicily, I should like to offer this document into evidence.
THE PRESIDENT: That application was denied.
MR. FENSTERMACHER: If your Honor please, the whole matter was spread upon the record. I think we should be given an opportunity to at least counteract, for the purpose of the record, Dr. Laternser's unfounded assertions.
THE PRESIDENT: I have no further comment to make.
MR. FENSTERMACHER: It is an order dated "Headquarters Seventh Army, United States Army, dated 6 August 1943.
"SUBJECT: Disposition of Enemy Military Personnel Apprehended Behind Front Lines.
TO: All Unit Commanders.
The following disposition of enemy military personnel apprehended behind front lines is announced:
"Germans in uniform apprehended behind front lines will be handled as Prisoners of War.
"Germans in civilian clothes apprehended behind front lines will be turned over to unit Provost Marshal who will impound them in the nearest local jail and accomplish in triplicate the attached form and deliver the original and first carbon copy to the Corps Provost Marshal and the third to the local jailer. Such a prisoner will be treated as being prima facie a spy, subject to rebuttal evidence that he was not obtaining, or endeavoring to obtain, information with intent to communicate the same to the enemy.
"Italians in uniform apprehended behind front lines will be handled as Prisoners of War. Those whose permanent homes are in Sicily will be segregated and evacuated separately to Army PW cages.
"Italians in civilian clothes whose permanent homes are not in Sicily apprehended behind front lines will be turned over to unit Provost Marshal who will impound them in the nearest local jail and accomplish in triplicate the attached form and deliver the original and first carbon copy to the Corps Provost Marshal and the third to the local jailer. Such a prisoner will be treated as being prima facie a spy, subject to rebuttal evidence that he was not obtaining, or endeavoring to obtain, information with intent to communicate the same to the enemy."
"By command of Lieutenant General PATTON:
"/s/ W. G. CALDWELL Lt Col, AGD, Adjutant General" I think the forms on page 2 of the document are self-explanatory and need no further explanation.