A. No.
Q. Are you of the opinion that Frank had knowledge of the Action Reinhardt, that is the order which has already been mentioned of 27 September 1942 and that he signed that order?
A. In September, 1942, nothing was known about that at all.
DR. RAUSCHENBACH: May it please the Tribunal, this is Document 724, Prosecution Exhibit 472. It is in Document Book 18. It is on Page 85 of the English text. It is a document which the defense counsel for Defendant Pohl has discussed yesterday afternoon with the defendant.
Court No. II, Case No. 4.
Q Witness, now that the document is before the Tribunal, would you please repeat your answer again? I asked you if Frank knew of the Action Reinhardt when he signed this order.
A In September, 1942, the WVHA had no knowledge of this action.
Q Was he able to overlook already at that time the extent--and above all the origin--of this property and these valuables which, as we discovered later, in part also originated from the extermination of Jews? Was he able to know at the time? Did he have knowledge at that time?
A No, we were unable to see that at all at the time. We were always told that confiscated valuables would come from the East, and that we were to continue to handle them, to liquidate them. As to from whom they came and where they originated--we did not know.
Q They were valuables which already had been confiscated previously by some other agency--but not by the WVHA, and not by the defendant Frank?
A Well, we could not have confiscated these valuables because we did not have the authority to carry out such confiscations.
Q Witness, from the document, in particular the final report of Globocnik, it becomes evident that there was a very large number of valuables--and of these, properties. Where did they come from? Were they all personal property? Were they personal objects belonging to the prisoners? Were not also whole stocks of goods included in this from stocks in ghettos?
A From the documents which I received I was unable to form a clear picture. Of course, it was possible that objects were included in these shipments--above all, textiles--which came from confiscated stocks of goods. However, I was unable to see that in detail. After all, I could only see these happenings on the basis of a written report which I received, and I was unable to look at the objects myself. I do not know if they were new objects or if they had been already used.
Court No. II, Case No. 4.
Q You told us this morning that certain amounts were turned over to the troops as Christmas presents and PX goods. Were used objects suitable for presents of that sort?
A Yes, of course, used objects could have been taken for that purpose. They may have been new objects and they may also have been used ones--but I do not know what number or to what extent. I am unable to know that.
Q You have already mentioned that Hauptsturmfuehrer Melmer was charged with the turning over and the receiving of foreign exchange and valuables, and that he had to turn them over to the Reichsband. Did Frank or his deputy in any case participate in this activity of Melmer?
A I had personally appointed Melmer, and he reported to me directly, in person. The contact did not go via Frank.
Q Is it correct that Himmler had made you personally responsible for the securing of Jewish property in favor of the German Reich?
A Yes, that is what he expressed in his speech at Posen.
Q Who was the beneficiary of all this property which had been confiscated? Was it the Reich--since the valuables were turned over to it via the Reichsbank--or was it the SS?
A Since all the objects were turned over to the Reich, the Reich must have been the only one that benefited.
Q Then I only have one more question to ask you, witness. You told us yesterday, among other things, that the execution of the whole Reinhardt Action was taken over by the WVHA, beginning the first of January 1944. Was Frank still chief of Amtsgruppe A at that time?
A No.
DR. RAUSCHENBACH: Thank you, witness. I have no further questions.
BY JUDGE PHILLIPS:
Q Witness, I understood you to say that Frank did not know where this property came from. Is that correct?
Court No. II, Case No. 4.
A Yes, that is what I said.
Q Nor did he have any way of knowing where it came from?
A No, at that time it was always said that they were objects which had been confiscated in the East, and Himmler himself described them as stolen and received goods.
Q What do you think he meant when he said this in his order then?
A Do you refer to Frank, Your Honor?
Q Yes, Frank's order signed by him; NO-724, on the 26th of September, 1942.
A The order was issued on the basis of directives which Himmler had sent to us and that is how the order was worked out.
Q I don't care where the order came from. Frank signed it. You have testified to that and he says this in the order: "Pertaining to the utilization of mobile and immobile property of the evacuated Jews..."
Well, now, if he didn't know where the property came from, why did he say it came from the evacuated Jews?
A I cannot exactly recall the text of this order, and I did not know that it says so.
Q Well, that is in the order that you said he signed. It is the beginning of it.
A Yes; they are confiscated goods from the East. Who confiscated them, I don't know. And I don't know if they were taken from the Jews or Poles who had been evacuated.
Q I was not asking you what you knew. You testified what Frank knew. You said Frank knew nothing about it.
A Yes...Well, I don't know what knowledge Frank had.
Q That is what I thought, but you testified to what Frank knew about it. That is exactly what you thought: that you didn't know what he knew about it.
A I have testified here in connection with the Action Reinhardt, Court No. II, Case No. 4.Your Honor.
I said that at the time in September 1942, in the WVHA, nothing was known of the Action Reinhardt at the WVHA.
Q You were asked the question: On the 26th of September 1942, did Frank know where this property came from that is contained in the order signed by him. And you said he didn't.
A I said that confiscated objects from the East were concerned. I was not asked from whom these objects were confiscated.
Q Well, the Tribunal knows what you said about it.
BY JUDGE MUSMANNO:
Q Will it affect the answers which you have already made if we direct your attention to the last paragraph of this document--Judge Phillips already having directed your attention to the very first line of the document? The last paragraph says: "It has to be strictly observed that the Jewish star is removed from all garments and outer garments which are to be delivered."
(Question repeated due to sound difficulties) Judge Phillips called your attention to the very first line in this document. I now direct your attention to the last paragraph in the document which reads as follows:
"It has to be strictly observed that the Jewish star is removed from all garments and outer garments which are to be delivered."
Wouldn't that be somewhat revelatory of the origin of these items of which you claim absolute ignorance? And you attribute that same ignorance to the signer of the document.
A To Frank?
Q Yes, to Frank.
A There was no doubt, of course, that among these objects were items which had been taken from the Jews. That has never been disputed.
Q Very well. That is all.
DR. RAUSCHENBACH: Your Honors, may I ask one question in connection with the witness?
Court No. II, Case No. 4.
BY DR. RAUSCHENBACH (Counsel for the defendant Frank):
Q Witness, it seems that the Tribunal has misunderstood your previous answer to the effect as you are alleged to have said that Frank could not have known that these things were taken from Jews. That is stated in the document. It states that these objects were taken from deported and resettled Jews. The question which I asked you was the following, and I repeat it once more. In issuing this order, was Frank able to first have knowledge of the designation Action Reinhardt, and 2) did he know of the extent of his Action, and 3) could he know that Jews were concerned here who had been killed or who were yet to be killed?
The document only refers to resettlement, and it only refers to Jews who had been resettled.
A He, and none of us of the WVHA at that time, were able to see that.
Q That is what I understood your previous answer to be.
Q Yes, it is on page 85 of the English Document Book. In the previous paragraph the phrase is contained which the judges just mentioned that the Jewish star was to be removed from the clothing which was sent. Would you have deducted from such a sentence that Jews were concerned who had been killed?
A No, the Jewish star had to be shown on all pieces of clothing and all garments.
Q Did you know at the time you used the word "hoarded goods" and "stored goods", did you know if Himmler had put this personally with a green pencil into the draft?
A I do not know that any more, but I do know that this expression was always used afterwards and that it originated with Himmler.
DR. RAUSCHENBACH: Thank you, witness.
THE PRESIDENT: Well, you don't take eyeglasses away from people when you are resettling them, do you?
WITNESS: Your Honor, the confiscation was not only carried out on individual persons, but also stocks of goods were confiscated and I don't know what else. We were not the ones who carried out the confiscation. I was not present when the confiscations were carried out and, therefore, I do not know and did not know at the time if confiscations were carried out on individual persons or if they were carried out on stocks and stores.
THE PRESIDENT: Do you mean that these eye glasses were not necessarily taken from people who wouldn't see any more, but might have been taken off the shelves in the stores?
WITNESS: Yes, of course. Early in September 1942, we were not able to make ourselves a picture of that at all. Later, when the larger reports of Globocnik arrived and when by the investigation report in June 1943, I heard what had happened, then, of course, the picture became more clear to me.
THE PRESIDENT: Then you learned a couple of Jews had been killed?
THE WITNESS: At the time it became clear to me that an action against the Jews was concerned here.
JUDGE MUSMANNO: Just one more question and so far as I am concerned, we will drop this line of inquiry. The President Judge just said to you that they would not take eye glasses from a person merely because he was being resettled and I will follow that up by asking nor would they take gold Would they take gold from the teeth of a person merely because of his being resettled?
WITNESS: No, they would not be taken away from people who had been resettled. As least I do not believe so.
JUDGE MUSMANNO: Then this very document in itself must have indicated to you and to Frank that these articles were being taken from dead people.
WITNESS: I can very well imagine that false teeth were included there and bridges. There may have been gold crowns which were confiscated at the dentists too. In any case in September 1942 nothing was known to us of an extermination against the Jews. Later on I did know about it.
JUDGE MUSMANNO: All these Jews may just have voluntarily donated the gold from their teeth. That's a possibility also.
WITNESS: I myself did not see the fillings and the gold and so on, and, therefore, I can not judge if these fillings were taken out by force.
EXAMINATION BY DR. VON STAKELBERG (Attorney for the Defendant Fanslau)
Q Witness, the WVHA was established on the 1st of February 1942. Was the defendant Fanslau appointed Chief of Office A-5 at that time?
A I believe so, yes. I believe that at that time he was appointed.
Q Did the Defendant Fanslau try to obtain this appointment or was he appointed by an order?
A He was ordered to take over this position.
Q Through the well-known order of March 1942 the incorporation of the Inspectorate of the Concentration Camps as Amtsgruppe D was ordered, effective the 1st of May 1942. Did the Defendant Fanslau participate in the conference which lead is in this order?
A No.
Q In the time afterwards, did the Defendant Fanslau repeatedly request his transfer from the WVHA to a field unit?
A I can not say that exactly, but I consider it quite possible.
Q Was the Defendant Fanslau as Chief of Office A-5 able to carry out an independent personnel policy, that is to say, could he carry out transfers on detachments to other office groups or within office groups?
A No.
Q You previously said that in October 1943, the Defendant Frank was detailed to the Main Office of the Regular Police. Did he later on at this same time still remain the Chief of Amtsgruppe A?
A No, I don't think so.
Q In the time afterwards, did the individual office chiefs of Amtsgruppe A, that is, the chiefs of A-1, A-2, A-3 and A-4, did they have the authority to report directly to you?
A Yes, they did have this authority.
Q When was the defendant Fanslau directed to take over the administration of Amtsgruppe A?
A I believe that was in July 1944.
Q In the following time did the Office Chief of Amtsgruppe A continue to have the right to report directly to you?
A Yes, the office chiefs came to see me personally.
Q I have seen from the documents that the so-called Reinhardt action was classified as top secret. What does Geheime Kommandosache mean?
A The notification of this action was limited to a circle of persons which was directly connected with it.
Q Therefore, Geheime Kommandosache meant a special protection for secrecy for this order?
A Yes.
Q What classifications of secrecy existed in the Army and the Waffen SS.
A Well, we had the classifications of "Secret", "Top Secret" and "Military Secret", and the last two mean top secret.
Q Was Geheime Kommandosache the highest classification of secret?
A Yes.
Q You previously stated that with Amtsgruppe A the former Hauptsturmfuehrer Melmer was charged with the participation in the Reinhardt Action. Was it part of the duty of Melmer not to discuss this matter with anybody; that is, he was not allowed to discuss it with the Defendant Fanslau either?
A Melmer was directly subordinated to me alone and he only reported to me.
Q Did you ever discuss the Reinhardt Action with Defendant Fanslau?
A No.
DR. VON STAKELBERG: I have no further questions.
BY DR. SCHMIDT (Attorney for defendant Josef Vogt):
Q Witness, when did you make Vogt's acquaintance?
A I met Vogt when he entered the Administrative Office of the SS. That was before the war, approximately 1936.
Q Therefore, you did not know him before he came to the SS Administrative Office at Munich?
A No, I did not know him before.
Q The Defendant Vogt was Chief of Amt A-4 in the WVHA. Did you ever ask Vogt to an official conference in which matters pertaining to concentration camps were discussed?
A No.
Q Did you ever call him to a conference in which the labor allocation of prisoners was discussed?
A No, he had nothing to do with it.
Q Were matters pertaining to economic plants discussed?
A No.
Q Did you ever call him to a conference in which the Reinhardt Action was mentioned?
A No.
Q Witness, you know that Vogt has been charged by the prosecution with participating in the Action Reinhardt, because in June 1943 in connection with the auditing of the funds of the Waffen-SS in Lublin he also audited the account "R". In issuing the order to Vogt, did you ever clarify the Action Reinhardt to him?
A I sent Vogt to Lublin in order to have the treasury of the administration there audited. I did not give him any further orders and I did not give him any further clarification.
Q Was the order which you issued to Vogt at the time actually within the competence of Amt A-4?
A The auditing of funds was actually not the task of Amt-A4. However, since Standartenfuehrer Schellin had reported to me that Gruppenfuehrer Globocnic had opposed this audit in*, I sent the Chief of Office A-4 in person in order to make this aditing possible.
Q. After having carried out the auditing and after having returned to Berlin did Vogt make an oral report to you about the result of this auditing?
A. Vogt submitted a short written report to me.
Q. Can you remember what Vogt stated at the time and what he objected to in the auditing report and what the contents of this report were?
A. Vogt objected to the fact that all the valuable from the Action Reinhardt had been transferred to the treasury of the Garrison of Lublin which was a Reich Treasury within the Waffen-SS and that he had not found any documents for this but only delivery receipts from Globocnik.
Q. Were any figures mentioned at all in this auditing report about the funds which had been turned in or the valuables?
A. No. No figures were mentioned at all.
Q. Witness, in connection with the Prosecution Document 725, Document Book 18, I would like to ask you a few questions. This is your decree of 9 December 1943 concerning the administration of Jewish property. It has the file mark II3 Reinhardt and it says at the beginning I quote: "An enquiry of the Budgeting Office of the German Reich causes to point out the following." End of quote. Witness, can you remember what this enquiry of the Reich Budgeting Office was dealing with at the time?
A. No, I do not recall that anymore.
Q. Is it possible that this enquiry of the Audit Court at that time which caused you to issue your order on December 9, 1943, is in connection with the objections of auditing by the defendant Vogt which Vogt announced to the Commissioner of the Audit Court at that time?
A. That's possible.
Q. Now I refer to a letter which you wrote on 16 February 1944 to Globocnik and which has been submitted by the prosecution in the trial before the International Military Tribunal in connection with the Action Reinhardt as document PS-4024, Exhibit GB 550.
The letter is very brief and I would like to quote it here. It reads as follows:
"Headed secret, File No. A-II3 Reinhardt, NE-ME, Diary No. Secret 3544. Subject Discharge Reinhardt at Lublin." "Reference your letter of 5 January 1944, and auditing report of Amt A-4 of 7 January 1944 and AII3 Reinhardt of 4 February 1944".
Now comes the address:
"SS Obergruppenfuehrer Globocnik, Higher SS and Police Leader in the Operational Zone, Adriatic Coast Line Trieste."
Then comes the text:
"The audit reports which have been submitted by the administration "Special Tasks G" Lublin for the period 25 October 1942 to 31 March 1943 have been submitted to the Audit Court. After having taken knowledge of the auditing report and after SS Sturmbannfuehrer Wipper has clarified this matter I now discharge you for the period of time which has been mentioned here."
One more sentence:
"Further accounts from 1 April 1943 to 31 December 1943 are being audited at this time. You will be informed at the appropriate time about time result of the auditing."
Signed "The Chief of the SS, WVHA, Pohl."
Witness, can you recall this letter?
A. Yes.
Q. In composing this letter did the defendant Vogt as Chief of the Audit Court of Office A-4--did he participate in this in any manner?
A. The letter came from Office A-2. That was Melmer and therefore Vogt cannot have participated in this matter.
Q. In the first sentence of your letter it has been mentioned that the accounts were submitted to Amt A-4, as far as the period 25 October 1942 to 31 March 1943 is concerned.
A. Yes.
Q. Do you know, witness, that the accounts which we have just mentioned were not at all submitted to the auditing office in Berlin or to the Evacuation place at Fuerstenberg where the Amt A-4 had been transferred at that time, since these accounts had already been audited by Vogt at Lublin?
A. Yes, the accounts on the first part of the auditing which Vogt had carried out at Lublin were not sent to Amt A-4, since the auditing was terminated, it was no longer necessary to send them to Fuerstonberg.
Q. Did Vogt have anything to do with the Agency A II3 Reinhardt?
A. No.
Q. In the second sentence of the letter under discussion you have discharged Globocnik for the period for which the account were submitted. Do you know, witness, that in order to issue such a discharge from responsibility according to legal provisions the Reich Audit Court would have been?
A. Yes, of course, by the Reich Audit Court on the basis of an agreement which Globocnik had reached with the Reich Minister of Finance by order of Himmler had already agreed our auditing was to be final and therefore I was able to issue this discharge from responsibility.
Q. In the last sentence of the letter which we are discussing right now the following is stated "that the accounts for the time after the first of April 1943 are going audited at this time." Do you know if these accounts for the time after the first of April 1943 were submitted to Amt A-4 for examination?
A. No.
Q. In an affidavit of 3 March 1947 Prosecution Document No2327, Document Book 3, the former commandant of Buchenwald Herman Pister has stated that on occasion of a conference of Commandants at Berlin he had seen Vogt in the WVHA. Witness, I now ask you do you know if Vogt over participated in a conference of Commandants at Berlin or any other place?
A. Vogt never participated in any such conferences.
Q. Did Vogt ever make an official trip together with you?
A. No.
A. Did you have any personal relationship with Vogt outside of your official contacts?
A. No.
Q. Witness, can you recall that at the beginning of 1945 it had been intended to dissolve Amt A-4 because the preliminary auditing work was considered as despensable?
A. Yes, that's correct. In the line of the general reduction of personnel which had been caused by the necessities of war, I also dissolved Amt A-4.
A. I have no further questions, your Honor.
THE PRESIDENT: The Tribunal will recess until 1:45.
( a recess was taken )
AFTERNOON SESSION (Hearing Reconvened at 1345 hours)
THE MARSHAL: The Tribunal No. 2 is again in session.
MR. ROBBINS: May it please the Tribunal. In view of the nature of the questions which defense counsel have asked since the Tribunal ruling on the matter of leading questions, I should like to have permission to briefly re-open the question, and to present the Prosecution's view on that. It seems to us that it is rather an important matter, and the manner in which the questions have been put will be seriously prejudicial to the prosecution. I should like briefly to state our view.
Our position is based on two points. First, that it is prejudicial to the case of the Prosecution, and, secondly, that in permitting such questions we are not getting the full story in the case. Referring to the first point, that it is prejudicial to the case of the Prosecution, I should like to point out just one example of the type of questions which have been asked. Counsel for the defendant Volk asked such a question: "Is it correct that the defendant Volk had nothing to do with such and such a letter, which was introduced as Prosecution's Exhibit before the International Military Tribunal, in which it was said that - -" and so on. In other words, it seems that the defense counsel are just, as it were, going down the Indictment and asking this witness, who is presumed to know more about the facts in the case than anybody else, if such and such defendants know anything about this; getting negative answers, and then going on to another point in the Indictment, which is designed obviously to whitewash each of the defendants in the dock without stating what the defendant knows about each particular defendant.
I should like to point out that the basis for the rule which concerns leading questions is based upon the emotional attitude of the witness. The witness in this instance is obviously not hostile to the defense, and, as a matter of fact he is jointly responsible with all the defendants in the dock for all of the acts of the defendants as Chief of the WVHA.
It is obviously to his interest to exculpate each of the defendants. Clearly it cannot be said that he is hostile to the defense questions. I certainly don't wish to strictly stick to technical rules of evidence, and sofar as I can remember, we have not raised the objection before, even when Dr. Seidl on direct examination put a great number of leading questions; but, here, I think the matter is quite different : Where leading questions are put for the purpose of saving time, or even suggesting a topic of examination, in such instances I think they are perfectly proper, but where it suggest the answer which the defense counsel wishes to get, not only suggest the answer but actually gives the answer in the question itself, it would seem that is objectionable.
I would point out that under American procedure even the prosecution can make a defense witness his own for the purpose of putting leading questions. That is to say, if after a defense witness takes the stand, and the prosecution starts to cross examine the witness, and the witness shows that he is emotionally biased in favor of the prosecution, then it is not permitted that the prosecution put leading questions, or lead the witness into his answers.
I am reluctant to quote from a treatwise on technical rules of evidence, but it seems that Witmore on Evidence, Section 774, states the policy of this rule quite clearly. He says; "Yet where the reason ceases, the rule ceases also. Thus, when an opponent's witness proves to be in fact biased in favor of the cross examiner, the danger of leading questions arises, and they may be forbidden."
To distinguish the question whether counsel may ask about the facts of his own case on cross examination, I should like to point out that defense counsel have gone beyond the scope of direct examination, and have gone into questions concerning their own case, and for the purposes of leading questions, I think, they have made the witness their own in going beyond the scope of direct examination.
Here again the question of making the witness one's own, and not being able to impeach him is a technical rule of evidence to which I would not urge the Court to adhere, and I would not suggest that the defense counsel could not attempt to impeach this witness.
I do think for the purpose of leading questions it must be considered that they have gone beyond the scope of direct examination, and as Wigmore says, the danger of leading questions is inherent.
I should like to quote one more point from Wigmore. He quotes from Judge French in the New York Court of Appeals, stating the law of New York. "A different rule would enable a party to develop his defense untrammeled by the rules which govern a direct examination and give him an advantage for which we can see no just reason. As to the new matter the witness becomes his own, and in substance and effect the cross-examination ceases." Wigmore says, "In other words, the policy of the prohibition turns soley upon the emotional attitude of the witness to the party in general."
In the second place, I think it is obvious that we are not getting a full and detailed story of the WVHA. The defense counsel are asking questions very conclusory in their character obviously designed for a negative answer, and that is what they get.
THE PRESIDENT: Well, of course, it is difficult to make a categorical ruling which will cover future examination. Much of the testimony which has been brought out by cross-examination is objectionable, not because the questions are leading, but because the witness is asked to state what was in someone else's mind, or conclusions and opinions of his own rather than facts that he knows. Much testimony which is objectionable has been introduced along that line. I don't think there is anything to your second objection, Mr. Robbins, that the questions do not bring out the whole story. You have the opportunity on redirect examination to supplement the examination and to bring out the rest of the story by your own questions. We will proceed and meet each question as it is asked, and without your intervention we will try to control the cross-examination within its proper bounds.
MR. ROBBINS: Thank you, your Honor.