JUDGE BURKE: Mr. Fenstermacher, does that clarify the matter so far as your understanding is concerned?
MR. FENSTERMACHER: I am still a little confused, Your Honor, but I think I will have to concede that is the way it was.
JUDGE BURKE: We are both in the same class. I am confused to. Start all over again.
DR. FRITSCH: Witness, my question is to the effect, does this whole note deal with one case or with several cases?
A.- As far as I remember the two events, I cannot say -- if I read the note, then I would assume that Paragraph 1 refers to a case concerning parents. As I said previously, I don't recall it at the moment, whereas in Paragraph 2, another case appears to be referred to, which I only remember in a certain form because I know that at the time the SD represented to us that they had not or would not inflict special treatment upon members of the mission. That was the communication made; that is what I remember, but as far as the case of seven Englishmen captured together with bandits was concerned, I really don't know what it is all about and whether it interested the OKW.
Q.- Witness, I didn't want to have any details. I may assume that your somewhat long answer really goes to show that it is two cases, as far as you recollect?
A.- Two cases, and especially after perusal of this document, because otherwise I should have said in connection with the first what I said at the end, and not vice versa.
Q.- Witness, do you know when the second case, which I like to term the second case, on the Island of Brac, about what time it occurred?
A.- Well, that was in 1944, when Gnesebeck was Ic with the Panzer Army. And when Hinterscher was Counter Intelligence officer both these officers know about these events and Gneseback, as far as I recollect, fell in 1944.
Q.- You recall the month?
A.- No, Sir, I don't.
Q.- This note is dated the 15th of July, 1944, as is shown by the document. Who was at that time commander in chief of the Second Panzer Army, if you can recall it?
A.- I can't say when General Rendulic was transferred. Afterwards it was General Angelis, but I really don't know; that must be ascertainable from documents.
Q.- I have no more questions.
JUDGE BURKE: Any further questions by any of defense counsel?
If not, Mr. Fenstermacher, you may proceed.
RECROSS EXAMINATION BY MR. FENSTERMACHER:Q.- Thank you, Your Honor.
Colonel, how many commandoes were captured on the Island of Brac, do you recall?
A.- No, I don't know. I only recall the case of Churchill by the name, because at the time he was especially requested by the SS -- rather by Himmler himself.
Q.- When you say in your affidavit for Geitner that you have "indubitably a very detailed knowledge of conditions in the Balkans". Would you like to modify that statement somewhat in view of what has transpired here this afternoon?
A.- No. I have no reason to do that, because I don't recall, naturally, the innumerable detailed cases, - nobody could expect me to - but that I did know the conditions in the Balkans while I was there, very well from the level of the Commander-in-Chief South East, that I fully maintain.
Q.- When did you first learn about the commando order?
A.- The commando order? For the first time when we received an order regarding the treatment of members of Foreign Missions, and in the enforcement of this order at this time, I asked for the commando order to be submitted to me, and then I gained knowledge of it.
Q.- When was that? What date?
A.- It must have been in 1944 some time, I don't recall the exact date.
Q.- When did you have these discussions regarding the stupidity of the order that you talked about?
A.- Yes, that must have been subsequently to my gaining knowledge of the order regarding the treatment of members of Foreign Missions, I learnt of the written order regarding the commando members in 1944, by teletype, by writing, and other means of communication, which also accounted for a considerable delay so it must have been in 1944.
Q.- When in 1944? At the beginning, or middle or the end.
DR. FRITSCH: If it please the Tribunal, no objection to the question itself, but against the interpretation, because a most essential part of the sentence was not translated at all. The witness has stated that why there was so much delay with this commando order. Perhaps he may be allowed to repeat it.
JUDGE BURKE: It it unnecessary to state what the witness has stated. Just say the question was incomplete. The entire question should be submitted to the witness for his answer. There appears to be a very extreme amount of unnecessary confusion in this system this afternoon.
Q.- Colonel, can you recall when in 1944 you heard about the Commando order?
A.- No, Sir. I do not recall that.
Q.- Now, it must have been prior to April, 1944, mustn't it? Because that is when you turned Captain Blyth over to the -
A.- I should like to say it must have been at a later date.
Q Now, Colonel, but you recall that document, don't you? Look at it again, NOKW 227, Exhibit 669. You said on that Blyth is being turned over to the SD in accordance with the Hitler order on the 16th of April 1944, and your name is signed in the left hand corner. You knew about the Commando Order as early as that date, didn't you?
DR. FRITSCH: Your Honor, I object to the further examination of this witness on the following grounds: the Prosecution seems to want to divide his interrogation into stages. In the cross examination he was entitled to put such questions, but in recross examination he only has the possibility to deal with those questions which have been dealt with in redirect. I think if necessary we ought to enter into the re-redirect again.
MR. FENSTERMACHER: Dr. Fritsch, seems to be concerned because I am trying to develop a point which he discussed, namely: when the witness had knowledge of the commando order. I submit it is entirely proper redirect, Your Honor.
JUDGE BURKE: The objection will be overruled.
DR. FRITSCH: If the Tribunal please, I did not refer to the commando order at all. I had merely referred to a notice and tried to elucidate this matter, as to its facts but the Prosecutor begins at the very same point at which he began in the cross examination.
JUDGE BURKE: Dr. Fritsch, the objection is overruled.
BY MR. FENSTERMACHER:
Q Now, Colonel, you knew prior to 16 April 1944 all about the commando order, didn't you?
A When? Sir, I would say that in my view it must have been at a later date that this occurred, but I can't say it for certain, but I believe that I can gather from the document that the instruction in this affair emanated from the OKH and that the order of the OKH and the Fuehrer order -- citing the Fuehrer order in zero-zero-has been transmitted. There was never any question of a special treatment in our area, but what we received from the OKH was simply transmitted.
Q Perhaps you did not understand my question. I asked you whether or not you didn't know all about the commando order prior to 16 April 1944. Doesn't this document refresh your recollection?
A No, it doesn't. I still maintain that it must have been at a later date.
Q Colonel, your name is on this document and in the third line of it there is a reference to the commando order of 18 October 1942? How can you make a reference to an order you didn't know anything about?
A I don't know how it happened. I have said that before, but I think it is possible on the basis of the text that the order of the OKH - because we had nothing to do with a prisoner-of-war camp in the Z1. - that the text of the order was transmitted, and we knew the order; that was possible, but we didn't know what order it was, and this would also support my contention that it must have been at a later date.
Q I assume, Colonel, that this order was in the hands of all the subordinate units of Army Group F at the time?
A That was also not necessarily so.
Q Do you really doubt that this order was in the hands of the Second Panzer Army, as well as Army Group E, which were the two subordinate branches of the Commander-in Chief South East at this time? Do you really doubt that?
A No, I have never doubted this.
Q You are sure this order was in the hands of those subordinate units?
A Yes.
Q I have no further questions, Your Honor.
JUDGE BURKE: Any further questions on the part of the defense counsel? Any Questions on the part of members of the Tribunal? If not, the witness will be excused. You may stand aside. (Witness excused.)
DR. MENZEL: Dr. Menzel, counsel for General Kuntze. If the Tribunal please, I wish to return to Exhibit 665.
The court will recollect that this document had been submitted before the recess. Mr. Fenstermacher was kind enough to agree to my referring to it after the recess, because the photostat was rather lengthy. I object to submission of this document on the following grounds: This document purports to prove that at a certain point of time, that is, at the end of September, 1941, a certain unit allegedly shot the commissars, and that this unit was subordinate to the OKH. This document does not belong to the Washington documents. Mr. Fenstermacher must be mistaken in this. We have studied the Washington documents and they contained only material from the South East. The document must have been in the possession of the Prosecution for a long time. This point, that is the shooting of commissars by a certain unit was discussed during examination of General Kuntze in some detail and the Prosecution ought to have submitted this document to the witness at the latest in the cross examination so that I, at that time, would have had the opportunity during the redirect of General Kuntze to question him about this document, but now during rebuttal document it can't be submitted so that the defense is limited in its scope. I do not now have the possibility to question the defendant nor other witnesses about it. To be added to this is the fact that the document is immaterial and irrelevant. It could only prove whether the OKH on a certain day - a unit attached to the OKH was registered as being subordinate to the 42nd Army Corps. These formations were recorded every day in the OKH, and naturally they did not correspond to the actual state of the Front. If then this document is submitted in order to refute the testimony of the Corps Adjutant, the I-a, then it is immaterial as evidence because naturally at that time the deployment of the formations had previously been effected, because some of them were transferred to Rumania. The salient point of my objection now is that the document could, if at all, only be informative with respect to whether the 61st Division was subordinate to the 42nd Army Corps in a certain period of time, but this was only a question of Prosecution Exhibit 593, which is an excerpt from the war diary of the Field Police Troop 161-AMotorized, which is not identical with the 61st Division, and the document does not therefore, disclose whether the Field Police troops were in September, 1942, subordinate to the 42nd Army Corps in the decisive period.
I therefore ask that the objection be sustained.
MR. FENSTERMACHER: If I may start with Dr. Menzel's last point first. Your Honors will note that Exhibit 593 is an identification report of Field Squad Gendarme 161-A, Motorized, but the report itself appears to have been found in the war diary of the 61st Infantry Division. If the 61st Infantry Division was subordinate to the 42nd Corps commanded by General Kuntze at the time when the incidents mentioned in the Field Gendarme report took place, then the document is certainly relevant and material. It is rather strange for Dr. Menzel to object to it if it is irrelevant and immaterial and wouldn't particularly harm him. Now to his first point, with reference to whether or not this is of timely submission, I would simply like to say that the prosecution can't tell when it is going to get material bearing on this case. The files are voluminous and they have to be screened and we can't promise to have them screened at the end of a particular time, but more than that, during the cross examination of General Kuntze, as I remember it, he did not doubt that the 61st Division and the 217th Division were subordinate to the Corps at that time, so it was rather surprising for me to learn, in reading this document book that two of his affiants were contesting the date of the subordination, and with those two affidavits in mind we endeavored to ascertain decisively the relationship of the subordination on the dates involved. I submit it is entirely proper for us to rebut these affidavits with these charts.
I would simply like to add one more statement to the statement which I made in explanation of our Exhibit 665. I said at that time that according to the charts it was shown that the 61st Division was subordinated to the 42nd Corps on the 8th of October 1941, and our charts bear that out. The next chart which we captured indicates that on the 12th of October 1941 -- I have it here if Your Honors would care to look at it -- indicates that the 61st Division was not subordinated to the 42nd Corps. Some time between the 8th and the 12th the Division apparently left the subordination of the Corps. I believe there were certain executions of commissars mentioned in Exhibit 593 which occurred both on the 8th of October and on the 9th of October and if I said, this morning, that we did not hold General Kuntze responsible for the execution of commissars after the 8th of October, I am in error, and would like to amend by stating that it is also our belief that he is responsible for the executions which took place on the 9th of October 1941.
PRESIDING JUDGE BURKE: We will take our afternoon recess at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
PRESIDING JUDGE BURKE: The Tribunal is prepared to dispose of both matters which were pending at the end of the session. With regard to the motion made this afternoon, the motion will be overruled and the testimony will be permitted for such probative value, if any, as it may have. In respect to the motion made just at the conclusion of the afternoon session, while there is some technical doubt of the right of admission of this testimony, it will be received for such probative value as it may have. You may proceed.
MR. FENSTERMACHER: Does that ruling also refer to Dr. Menzel's present application, Your Honor?
PRESIDING JUDGE BURKE: Unfortunately did I have my sound system off?
DR. MENZEL: I would like to ask your Honor the ruling of the Tribunal refers to my objection also, which I wanted to supplement and concerning which I had not concluded my statement, or are other motions concerned by this ruling?
PRESIDING JUDGE BURKE: I am very sorry. I thought the matter had been concluded; but you may proceed, Dr. Menzel.
DR. MENZEL: May it please the Tribunal. Quite briefly I wanted to point out the following. Document 593, that is, Prosecution Exhibit 593, which has been submitted some time ago, is the War Diary of the 161st Field Gendarmerie Troop. In the copy which I have available, nothing is contained concerning the fact that this Field Gendarmerie Unit was subordinated to the 61st Division. Mr. Fenstermacher now submits the photostat which contains which contains notes which are not contained in the document book submitted by the prosecution. It is here and I shall submit this document to the Tribunal, that in very fine letters on the top, something is written which is almost illegible. It concerns an Infantry Division. Who made this handwritten note and when it was made is not at all clear.
One could well imagine that an expert, for instance in the War Ministry in Washington, under the assumption that this particular Field Gendarmerie Unit was subordinate to that Division concerned, therefore made that handwritten note. It can hardly be read and, in my opinion, has no weight therefore. I am prepared to show this photostat to the Court. Apart from this, I would like to be permitted to comment on the basis of this example, where it leads to if such documents are being submitted as rebuttal documents. In this particular incomplete new document, Exhibit 665, which contains only a period of a very few days, the 61st Division is still registered on the 8th of October having belonged to the 42nd Corps. If the document had been presented during the cross examination of the defendant Kuntze, I would have been in a position to bring certain proof -- at that time I had all the possibilities to produce evidence -- that on the 8th 10th the 42nd Corps was on its way to Roumania and that therefore practical subordination was technically not possible at that date and that only the former formal subordination existed and was registered in the O.K.H. possibly to that date when the Corps arrived in Roumania and was newly subordinated there. All these possibilities of evidence, which would not have been difficult, are eliminated for me because my case has rested in any respect. Now, by the prosecution of such a rebuttal document, I see myself in a position where my evidence and my defense is impaired in a way which in my opinion is intolerable. A rebuttal document must only be submitted concerning a topic which the defense, for instance, by producing a document submitted as quite a new topic
MR. FENSTERMACHER: Your Honor, if I may say a few things. I cannot really believe that Dr. Menzel is serious when he says something about people in Washington writing things on this document. Of course the documents were photostated in the very same condition in which they were found. The fact that it is there somewhat illegibly and very lightly written, I think, would also negate any inference that it was written in Washington.
Now, with respect to his second point, I think he protests too much. He maintains, in effect, a certain amount of surprise with respect to Exhibits 592 and 593. He dealt with those points not only during his redirect examination of General Kuntze but also in an attempt to rebut the documents. The two affidavits which this present Exhibit 665 -- the charts -- is intended to rebut, were added long after General Kuntze left the witness stand. They were added on the 26th of November, 1947, the one, that is, Document No. 74, Exhibit 45 of Kuntze; and the other Document, No. 75 of Kuntze, Exhibit 46 of Kuntze, was added just last month, on the 3rd of December, 1947. He has had very ample opportunity to deal with the question of which divisions were subordinate to the 42nd Corps at which time and for him to maintain that we cannot take the contentions of his affiant.....his client, on the ground that they are not proper rebuttal, I think is somewhat facetious.
PRESIDING JUDGE BURKE: It is the opinion of the Tribunal that the record contains ample testimony to justify Dr. Menzel making an argument concerning the matter just submitted by you at this time; and while, as I stated, there may be some question of the technical right to present it at this time, the Tribunal will attempt to safeguard all rights that are involved in it. I am sure that Dr. Menzel meant no disregard by his observation about the Washington memorandum or the initials that were placed upon there. A lot of people are inclined to criticize Washington for various reasons. The incident is closed. The objection is overruled.
DR. MENZEL: May I briefly state that of course I did not want to make any derogatory remarks about Washington.
PRESIDING JUDGE BURKE: We were quite certain of that, Dr. Menzel.
DR. MENZEL: All I wanted to state was that it was quite illegible and that somebody, at some time, may have added a handwritten note -when and where, we cannot ascertain.
PRESIDING JUDGE BURKE: I am sure no one attached any ulterior motive to your suggestion.
You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, your Honor. Mr. Fulkerson is prepared to cross examine another one of the affiants at this time.
MR. FULKERSON: Perhaps, before I proceed with the cross examination of the witness, General Reinhardt, I had better present the document that I have here, a copy of which I have already given to Dr. Tipp. Since it concerns, so far as I can tell, only General von Leyser, I do not know whether other defense counsel all want a copy of it or not; but at any rate, here it is for distribution. The number of it is NOKW-1950, and we will introduce it.......
PRESIDING JUDGE BURKE: Dr. Laternser has indicated that other defense counsel would not be interested in copies of it.
MR. FULKERSON: It will be introduced as Prosecution Exhibit 670.
DR. TIPP (Counsel for the defendant von Leyser): If it please the Tribunal. I object to the introduction of this document on the following grounds: (1) This document cannot be used to support a charge by the prosecution in this trial.
PRESIDING JUDGE BURKE: If you will withhold your objection for just a moment, until the Tribunal has copies of the document?
You may proceed, Dr. Tipp.
DR. TIPP: If it please the Tribunal. I object to the introduction of this document on two grounds. The document is an order by the 269th Infantry Division dated 8 August 1941. Therefore it deals with the Russian Theater of War.
I said.....
PRESIDING JUDGE BURKE: Go ahead.
DR. TIPP: If your Honors please. I said this document is an order dated 8 August 1941 and therefore it deals with the Russian Theater of War. According to the practice so far used by the prosecution, merely the Southeastern Area and the activities carried out by the defendants there are the subjects of this trial, with one exception, and that is the Commissar Order. This charge is the only one which refers to the Eastern Theater of War. This document, however, which is now being presented by the prosecution, does not contain anything which one could even, by a long shot, connect with the Commissar Order. The other reason is that, quite obviously, this is not a rebuttal document. I would not know which assertion by the defense is to be rebutted with this document. All the incidents which form the basis of this order were not dealt with in General von Leyser's examination. They could not be dealt with because these topics are not the subject of the indictment. I do not believe, therefore, that this document can be accepted.
MR. FULKERSON: I would like to make a few remarks about what Dr. Tipp has just said. In the course of presenting his testimony on General von Leyser's behalf, Dr. Tipp has introduced a number of affidavits which have clearly put the character of the defendant von Leyser in issue here. One right after another of these affidavits describes what a kind, sympathetic person General von Leyser always had been and how it is just completely impossible for him ever to have done anything even reprehensible, not to say criminal. I have a whole series of these excerpts before me here now. In fact, when you read them you have to keep reminding yourself that they are not describing the life of St. Francis of Assisi. Now I hope to prove by introducing this document that either the character of General von Leyser has undergone a terrific transformation since 1941, or else that these affiants are not familiar with some of the flowers which bloom in the darker caverns of his personality.
PRESIDING JUDGE BURKE: Now if you have completed your philosophical, religious, and poetic admonitions, the Tribunal will attempt to pass on the motion.
MR. FULKERSON: Would you like to hear the excerpts from the affidavits?
PRESIDING JUDGE BURKE: Having been in the Tribunal, we have heard them. The objection will be overruled.
DR. TIPP: If your Honor please, then I would like to make a motion concerning this document. The prosecution presents an order from a period of time which so far has not been described by General von Leyser and could not be described. I am of the opinion, however, that alone from existing relations this military order is comprehensible; seen by itself such an order cannot be understood at all.
Court No. V, Case No. VII.
I am of the opinion, therefore, that it is a restriction of the rights of my client if the Court formed an opinion on the basis of this order without knowing the relations which existed at the time. I would, therefore, ask that General Leyser be permitted to rebut the assertions by the prosecution since this order makes his character appear in an unfavorable light and that he may be allowed to make certain comments to this order in particular.
PRESIDING JUDGE BURKE: The Tribunal is not too easily influenced by extraneous remarks, Dr. Tipp, and for the purpose only of limiting it to the question of any negation of the character affidavits and for that reason only the exhibit will be admitted, and the motion denied.
MR. FULKERSON: I only want to read a couple of excerpts from this document. The subject is the treatment of enemy civilians and Russian prisoners of war. I will read paragraph 1:
"1) Treatment of the Enemy Civilian Population Hard and ruthless attack by the responsible leaders.
Every consideration and mercy is weakness and means danger. Ruthless prevention of every threat by the enemy civilian population. Attacks and violence of all sorts against persons and objects, as well as attempts at such things, are to be struck down ruthlessly with weapons until the opponent is annihilated."
Now skip down to the last paragraph on the page:
"Favoring or aiding partisans, stragglers, etc. on the part of the civilian population is to be regarded as guerrilla warfare. Suspicious elements are to be turned over to the Einsatzgruppen and/or detachments of the SP. The wandering around of civilians without passes is to be prevented."
And finally under 2:
"2) Surveillance of Prisoners of War "The prisoner of war who is willing to work and obedient Court No. V, Case No. VII.
is to be decently treated. Lapses are to be most severely punished. Every sort of consideration for or even fraternization with Russian prisoners of war is unworthy of the German soldier. The feeling of pride and superiority must remain recognizable everywhere.
"Attempts at fleeing, law-breaking, refusals, etc. are to be immediately dealt with by the use of arms without a previous order to halt. Any procrastination in using arms can be dangerous.
And it is signed by von Leyser.
PRESIDING JUDGE BURKE: What is that exhibit number again, Mr. Fulkerson? 670?
DR. TIPP: If your Honors please, may I in addition read something to which Mr. Fulkerson read into the record? I would like to read those points which seem to prove just the contrary of what Mr. Fulkerson intends to prove. The order states:
"The further expansion of the theater of operations in the East, the ambush tactics of the Bolshevist opponent, the deliberate use of partisan groups and the appeals by the Russians for the formation of bands in our rear areas necessitates the severest measures for the domination of the territory which we have won.
"It has become known that the necessary harshness has not been exercised everywhere.
"The criterion for every treatment and for all the measures to be taken must be the thought of the unconditional security of the German soldiers."
I may then turn to page 2 towards the middle of the first paragraph:
"Russian stragglers who wander around in or out of Court No. V, Case No. VII.
uniform are to be ordered by posters and/or loud speakers to report at once at the nearest German Wehrmacht office. If this does not take place by a certain time to be set in each locality, they are to be regarded as francs-tireur and treated as such."
I can skip the next paragraph because Mr. Fulkerson has already read it. The document goes on to say, after page 2 of the original:
"Civilian residents are to be brought to work as soon as possible everywhere."
I will leave these quotations show sufficiently what the other intended to state and the basis on which it was necessary to be issued.
MR. FULKERSON: Now if your Honor please, I am ready for the witness General Reinhardt if he can be brought into the Courtroom.
PRESIDING JUDGE BURKE: The marshal will bring the witness Hans Reinhardt to the Tribunal.
HANS REINHARDT, a witness, took the stand and testified as follows:
BY THE PRESIDENT:
If you will please arise? Raise your right hand. I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
PRESIDING JUDGE BURKE: You may be seated.
Mr. Fulkerson, there still appears to be a lot of unnecessary confusion on this speaker system.
MR. FULKERSON: What do you mean, your Honor?
PRESIDING JUDGE BURKE: There is a lot of noise, a lot of unnecessary - sounds like a printing press to me.
MR. FULKERSON: It doesn't sound so bad over here.
PRESIDING JUDGE BURKE: Perhaps we could exchange places.
MR. FULKERSON: That is right.
PRESIDING JUDGE BURKE: You may proceed.
Court No. V, Case No. VII.
DIRECT EXAMINATION BY MR. FULKERSON:
Q What is your name, sir?
A Hans Reinhardt.
Q Profession?
A I am an active officer.
Q What is your last rank?
A General.
Q Are you now at liberty or not?
A I am here in the jail.
Q Are you at present named as a defendant in any of the proceedings here at Nurnberg before any American Military Tribunal?
A I am a defendant for the last trial to be held.
DR. TIPP: If it please the Tribunal, General Reinhardt, as he stated just now, is a defendant in Case No. XII. Therefore, I should ask that he be given the same legal information as was offered today to General Wolff. I don't think that the General will incriminate himself by whatever testimony he is to give here. However, just the same, the statements made here are to be regarded from a different aspect than the ones which he will have to make in his own case. It is quite possible that whatever testimony he gives during this trial may be used as incriminating him when he is a defendant. I should, therefore, be grateful if he be given the proper instruction.
PRESIDING JUDGE BURKE: I think that is a correct observation. The witness should be and is hereby informed that he is under no obligation to give any testimony in this proceedings that will or may serve to incriminate him in any proceeding in which he is now or may hereafter become involved. Do you understand?
GENERAL REINHARDT: Yes, I have, your Honor.
BY MR. FULKERSON:
Q General Reinhardt, I believe that you executed an affidavit for the specific purpose of having it submitted as evidence before Court No. V, Case No. VII.
this Tribunal on behalf of General von Leyser.
A Yes, I did.
Q This affidavit dealt generally with the question of the socalled Commissar Order?
A Yes.
Q Now, you stated in this affidavit that before the Russian campaign began, you had already made up your mind that you would not carry out the Commissar Order and had so stated to at least some of your divisional commanders although you were not sure whether General von Leyser was present at the particular conferences at which you made this statement. That was the substance of your affidavit?
A Yes.
Q General, at the time that you made this affidavit, you of course were aware that General von Leyser was already a defendant here in these proceedings?
A Yes.
Q And as Commander of the 269th Infantry Division, he was your immediate subordinate during the first months of the Russian campaign, is that true?
A Yes, that is correct.
Q You were aware that one of the offenses with which General von Leyser was charged was the carrying out of this Commissar Order?
A Yes.
Q Did it occur to you -- or, first when did you first find that out, General Reinhardt? When did you first know that General von Leyser was being charged with criminal responsibility for the execution of the Commissar Order?
A I received a request to give an affidavit concerning the problem of the Commissar Order.
Q Now did it occur to you at that time that if it should be held or found as a fact, let us put it, by one Tribunal that one of your immediate subordinates was guilty of having carried out the Commissar Order, that you yourself would be directly implicated?
DR. TIPP: If your Honors please, I object to this question. It is not a question driving at facts, but it is a question asking for a legal judgment or legal consequences of a certain fact, which the witness does not have to answer, that is a question which a Court has to decide.
JUDGE BURKE: The objection is sustained.
MR. FULKERSON: Am I to understand sir that I am prevented by the ruling of the Court from going into the question of General Reinhardt's motive for executing this affidavit insofar as his own personal interest was concerned?
JUDGE BURKE: It can be concluded that you may not secure an answer to the question to which the objection is made and such questions as you may desire to ask in the future will be either passed on by the Tribunal or if there is no objection they will be answered.
MR. FULKERSON: General, are you prepared to state that the Commissar order was not carried out by your corps during the first three months, say of the Russian campaign?
DR. TIPP: May it please the Tribunal, I think that is one of the very questions to which the witness does not have to testify according to the ruling of the Tribunal since the question of whether or not the Commissar order was carried out by the units subordinate to General Reinhardt is the crux of his own trial.
JUDGE BURKE: The witness is entitled to reserve the right whether in his judgment an answer may incriminate him.
THE WITNESS: I have already stated in the trial of the General Staff and the O.K.W. that where my corps was concerned, I forbade them to carry out the Commissar order.
MR. FULKERSON: General, I would like for you to look at this document and tell the Court what it is, will you sir?
DR. TIPP: If your Honors please, I object against the introduction of this document.