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.
THE PRESIDENT: You may proceed.
DR. TIPP: If your Honors please, I object against the introduction of this document, it is outside of the scope of the affidavit. The affidavit executed by General Reinhardt refers to General von Leyser and his division, that is General von Leyser's division and it however does not refer to the whole of the 41st Corps.
MR. FULKERSON: In the first place, I have not sought to introduce it and in the second place the witness just testified about his Corps and this does not pertain to a Corps.
JUDGE BURKE: You want to offer the exhibit in evidence?
MR. FULKERSON: No sir, I have no intention of offering it in evidence. I just wanted to ask the witness some questions about it.
THE WITNESS: This document is used in the indictment against me as evidence.
JUDGE BURKE: You will not therefore be required to answer any questions concerning it that may serve to incriminate you.
THE WITNESS: I believe this document has no connection whatsoever with the affidavit which I executed.
JUDGE BURKE: The answer -- I did not hear the answer please?
THE WITNESS: I believe this document has no connection whatever with the affidavit, which I executed for General von Leyser.
MR. FULKERSON: Now by that do I understand you to mean that you are refusing to comment on this on the grounds of self-incrimination?
THE WITNESS: It is a piece of evidence of the prosecution against me, against my person. The answer to this piece of evidence I shall give as a defendant in my own trial.
MR. FULKERSON: That is all I am trying to get at, General. Are you refusing to discuss this document because you are relying on your right not to incriminate yourself, because your answers so far have certainly not been responsive to my original question.
JUDGE BURKE: We will take the first answer first. Are you declining to answer the question with respect to this document because of the fact that it might serve to incriminate you?
THE WITNESS: I don't know how my testimony here might be used by the prosecution against me.
JUDGE BURKE: And you therefore choose not to answer on the grounds that it might incriminate you in your proceedings?
THE WITNESS: I am afraid of that.
MR. FULKERSON: Well, General, perhaps we can save some time here. That would also be your attitude on any other specific matters which I might ask you, which had to do with the carrying out of the Commissar order by your corps; is that not true?
THE WITNESS: I don't know how my answers here are to be brought into an immediate connection with the affidavit which I executed.
MR. FULKERSON: Well, would you just answer my last question, General?
THE WITNESS: May I have that question again please?
(The interpreter repeated the question in German.)
DR. TIPP: If your Honors please, I object to this question, it is so generally put that the witness cannot possibly answer it in this form. In my opinion every individual question can be decided by the witness whether he wants to answer it or not. I don't believe the question in this general form is admissible.
MR. FULKERSON: General, I have given you one document, which I ask you to comment upon as bearing on the question of the execution of the Commissar order by your Corps, Now you refuse to comment on the document because you said that what you might have to say here would possibly incriminate you in your own case. I now ask you whether if I submit similar documents to you, will your attitude toward them be the same; that is all?
JUDGE BURKE: I think that is rather a general question. Mr. Fulkerson. It is rather difficult to establish in advance the possibility of what might or what might not be considered as incriminating, as an answer incriminating to him. This man is here in this Court without counsel, it has been pointed out that he need not testify on any matters which might be incriminating. He cannot say in advance and wholesale of what could or what might incriminate him. If he had all that in mind which might incriminate him he would be an excellent lawyer. If you wish to ask some questions that might incriminate him, then you can save time by not asking those questions.
MR. FULKERSON: Very well, your Honor, I have no further questions.
JUDGE BURKE: Are there any further questions by defense counsel?
DR. TIPP: I have no further questions.
JUDGE BURKE: Are there any questions on the part of the Tribunal. The witness may be excused.
MR. FULKERSON: I would like to make a motion at this time that your Honors please strike this affidavit, you can of course reserve the ruling on the question later, but it is perfectly apparent that what we have here is a document which is absolutely self serving and about which the prosecutor is unable to ask the affiant anything without running head on into the self-incriminating rule.
JUDGE BURKE: What is your motion with respect to the affidavit?
MR. FULKERSON: Your Honor, the motion is that it be stricken from the record, if Your Honor please.
JUDGE BURKE: Just a moment, Mr. Rapp.
DR. TIPP: If your Honors please, I would like to comment on the motion. The prosecution moves this affidavit be stricken, I don't know why because in this affidavit it did not matter what General Reinhardt did or said, at least as far as the documents are concerned which the prosecution wanted to show the witness. The point of the affidavit was what General Reinhardt told General von Leyser before the commitment in the theater of war, that was the subject of the affidavit and concerning that particular point General Reinhardt has so far not been questioned by the Prosecution.
If the prosecutor on his own account waives the further questioning of the witness without even touching the individual subject of the affidavit, I cannot see how the affidavit loses any probative value, therefore, if your Honors please, I object to the motion that this document be stricken.
JUDGE BURKE: It is the feeling of the Tribunal that the motion should be granted and it is hereby granted and the exhibit is stricken from the record.
Mr. Rapp.
MR. RAPP: Your Honor, in reference to the Hoth affidavit given for General Felmy, defense exhibit 1, document 22.
JUDGE BURKE: The witness may be excused.
(The witness is excused.)
MR. RAPP: I hereby move that the motion made on behalf of the defendant Felmy be also stricken for similar reasons.
JUDGE BURKE: The motion will be granted for similar reasons.
You may proceed.
DR. MUELLER-TORGOW (Counsel for Defendant Felmy): If your Honors please, I object to the motion. It has already been sustained or overruled? I am sorry I didn't hear the ruling, your Honors.
PRESIDING JUDGE BURKE: It was granted. The Tribunal had discussed the matter and has decided that was the proper course in view of the attitude of the witnesses, an attitude which they had a perfect right to assume.
MR. FENSTERMACHER: Your Honors, I am now prepared to cross examine the affiant, Walter Warlimont.
PRESIDING JUDGE BURKE: According to the Marshal, it will be about three minutes before he arrives and, while the spectators and others may remain in their seats, there will be a short intermission of three minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. RAUSCHENBACH (Counsel for the defendant Foertsch): May it please the Tribunal, as Exhibit No. 12 and Exhibit No. 30, I had submitted two affidavits by General Warlimont who is now on the stand. I did this in the case of the defense of General Foertsch. After seeing the course of the cross examination of the other witnesses took who are also under indictment in Case 12, I withdraw both those affidavits and allow them to be stricken from the record since it has been established that the Prosecution conducts their cross examination, in my opinion, in such a way as to exceed the scope of cross examination and is going to put questions to this witness which he cannot answer in view of his status as defendant of Case 12. I withdraw the two affidavits.
PRESIDING JUDGE BURKE: Are there other affidavits on behalf of other defendants given by General Warlimont?
MR. FENSTERMACHER: Your Honors, yes, there were similar affidavits given by General Warlimont on behalf of defendant Kuntze. If your Honors please. My records--I think Dr. Menzel may be correct. You have them in your document book, Dr. Menzel, but you did not finally offer them. Is that correct?
DR. MENZEL (Counsel for defendant Kuntze): If your Honors please, the affidavits given by General Warlimont which were contained in my document book have not been offered by me and they have no exhibit number. They have no exhibit number.
DR. GAWLIK (Counsel for defendant Dehner): May it please the Tribunal, I had submitted an affidavit by General Warlimont, Dehner Document No. 42. It was given Dehner exhibit number 37. I withdraw this affidavit for similar reasons as those stated by my colleagues, Dr. Rauschenbach.
PRESIDING JUDGE BURKE: Are there other affidavits on behalf of other defendants known to defense counsel who are present?
MR. FENSTERMACHER: I believe that takes care of the matter, your Honor, and there will be nothing to cross examine about.
PRESIDING JUDGE BURKE: Quite right. The witness will be excused.
MR. FENSTERMACHER: I have not yet been informed, your Honor, officially, just which of the other affiants which the prosecution has requested to be brought to Nurnberg for cross examination have so far arrived. I am told unofficially that six of them are here and that they would be available for cross examination on Monday.
If your Honor has no objection, I wonder if we could adjourn somewhat early today and take up the matter of cross examining the affiants who are in Nurnberg on Monday.
PRESIDING JUDGE BURKE: Even if we adjourn now we won't be adjourning very early.
MR. FENSTERMACHER: I know that your Honor always likes to continue until the very last minute.
PRESIDING JUDGE BURKE: The Tribunal will stand adjourned without further comment until nine-thirty Monday morning.
(The Tribunal adjourned until 0930 hours, 19 January 1948).
Official Transcript of the American Military Tribunal V in the matter of the United States of America against Wilhelm List et al, defendants, sitting at Nurnberg, Germany, on the 19th of January 1948, 0930, Judge Wennerstrum presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the court.
THE PRESIDENT: Marshal, you will ascertain as to whether or not all the defendants are present in the courtroom.
THE MARSHAL: May it please your Honor, all the defendants are present in the courtroom.
MR. FENSTERMACHER: The prosecution is prepared at this time to cross examine the defense affiant August Winter.
THE PRESIDENT: The Marshal will bring this affiant before the Tribunal.
MR. FENSTERMACHER: The Prosecution would also like to announce at this time that it will recall, as a rebuttal witness, Nikolaus von Falkenhorst, as a rebuttal witness against the defendant Rendulic, with respect to events in Norway.
AUGUST WINTER, a witness, took the stand and testified as follows:
THE PRESIDENT: The witness will raise his right hand and be sworn. 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.)
THE PRESIDENT: You may be seated.
DR. LATERNSER: If the Tribunal please, the Prosecution just announced that its further rebuttal witness will be General von Falkenhorst. The Prosecution has so far not announced concerning what topic and against which of the defendants this further witness is to be examined. At this moment we heard of this examination for the first time, after the Prose cution some days ago stated that the four witnesses already announced would be the only rebuttal witnesses.
MR. FENSTERMACHER: If Your Honors please, I think several days ago the Prosecution announced that it would call four rebuttal witnesses and that we reserved the right to announce the calling of additional witnesses except that we would comply with the twenty-four hour rule with respect to notice. We shall not call von Falkenhorst prior to tomorrow morning at this time so that the defense has twenty-four hours' notice. I believe I stated a few minutes ago that von Falkenhorst would be heard against the defendant Rendulic with respect to events in Norway.
DR. FRITSCH: If Your Honors please, like my colleague Dr. Laternser, I had not heard the announcement against whom this new rebuttal witness is to be examined. I object to the production of new rebuttal witnesses. To avoid repetitions, I would like to refer to the statements made by my colleague, Dr. Laternser. The Prosecution, when making a statement concerning its rebuttal, named a number of witnesses and at the same time stated that these four witnesses, I believe, were the only ones and that there wouldn't be any further rebuttal witnesses. Therefore I object to the introduction of new rebuttal witnesses.
THE PRESIDENT: It seems that as long as the rules are complied with and there is not any unnecessary repetition, there should be no adverse ruling on the part of the Tribunal in connection with this application. The rules are being complied with and the objection as made by Defense Counsel will be overruled.
CROSS EXAMINATION BY MR. FENSTERMACHER:Q.- Your name is August Winter?
A.- Yes.
Q.- What was your last rank in the German Army?
A.- My last rank was General of the Mountain Troops.
Q.- You were, I believe General Winter, from August 1943 until the middle of March 1944, Chief of Staff of Army Group E?
A.- Yes, that is correct and towards the end of August 1943 I took over that office. I believe it was the 26th or 27th of August.
Q.- You took over that position from General Foertsch, I believe.
A.- Yes.
Q.- Then in March 1944 you relieved General Foertsch as Chief of Staff of Army Group F; am I correct in that?
A.- Yes, that is correct.
Q.- Do you recall giving affidavits on behalf of certain of the defendants in this case?
A.- I executed several affidavits for some of the defendants. That is right.
Q.- Do you recall how many affidavits you gave and for what defendants?
A.- I cannot remember the exact number. To the best of my recollection I executed affidavits for Field Marshal von Weichs, General Felmy, General Lanz, and General Speidel.
Q.- Do you recall the affidavit which you gave, General Winter, on behalf of General Speidel? It was executed by you at Neustadt on September 20, 1947, end was in Speidel Document Book I, on page 11, and it is titled Exhibit No. 40.
A.- I remember one affidavit that I executed for General Speidel. The book of documents of course I do not know. I never saw it.
Q.- What troops did General Speidel have under him in Greece, General Winter?
A.- General Speidel, concerning troops in the operational or technical meaning of the word, for the defense of the country, he did not have any such troops at all. As military commander, he merely had security troops, indigenous police troops, and there was a restricted number of those. I would have to comment on that and for some time he had indivi dual security battalions under him.
Q.- General Speidel had police troops under him?
A.- De jure he had police troops subordinate to him. Between General Speidel and these police troops there was the Higher SS and Police Leader interpolated. That is to the best of my information.
Q.- Now, you said in your affidavit in behalf of General Speidel that the Higher SS and Police Leaders for Greece were subordinate to the military commander Greece by assignment and personally. What did you mean by that?
A.- If I remember correctly, the words I put it in were "He was personally," that is, he was subordinate to him concerning his own person. That is a formulation which was used in the service regulations for the Higher SS and Police Leaders, as far as I know them, at the time.
Q.- What does "personal subordination" mean, General Winter?
A.- That is a conception of which I will have to tell the Tribunal that it was never quite clearly clarified. The subordination was a tactical one which however was however restricted by the fact that the Higher SS and Police Leader concerning the whole police sector received his directives directly from the Reichsfuehrer SS. Therefore what is supposed to be meant by a personal subordination in the legal meaning of the word I have during the time I was chief of staff in the Sputheast never been able to clarify certainly neither in Greece nor in any of the other areas. Even today I am not quite clear what it means.
Q.- What was the basis for your information then, when you wrote in your affidavit that General Schimana was subordinate by assignment and personally to General Speidel as military commander Greece?
A.- My information was my recollection of the service regulations (a) from the Military Commander Greece and, secondly, the service regulations of the Higher SS and Police Leader Greece, both of which were known to me in my capacity as Chief of Staff of Army Group.