Court No. II, Case No. 4.
However, the Prosecution, in the meantime, has had sufficient time to look at the material, and, I assume, that evidence for the defense will also be included in these files for my clients. That assumption on my part has shown itself to be correct because in the crossexamination of the defendant Dr. Bobermin the Prosecution submitted an extensive report about the activity of the Eastern German Construction Material Company, which has fully confirmed the claims and allegations made by the client whom I represent; and similar to this report which accidentally was submitted by the Prosecution, there may be a great number of other documents. Of course, I am restricted in my defense if the Prosecution disposes over the entire file material, and I don't have it available. For this reason, I can't submit any defense material for my client.
I herewith repeat my request, which I made earlier, that these boxes with the files of Office Group W be placed at my disposal so that I will be able to look into them for defense material.
DR. SEIDL (Counsel for defendant Pohl): Your Honor, I agree with the request made by Dr. Gawlik, with regard to the defendant Pohl whom I represent. The defendant Pohl was chief of Office Group W, and he is particularly interested in this material. I believe that this motion should be granted already for the reason that in no complex of questions has the Defense been able to obtain any defense material, and those exhibits and documents from the file material are in the hands of the Prosecution which are appropriate to support the defense of these clients.
There is a fundamental lack and deficiency in all these trials that the entire document material is solely in the possession of the Prosecution, and the Prosecution only submits those document which can be used in order to incriminate the defendants. In this trial, therefore, a ruling is not being adhered to which is a matter of course in German criminal procedures, where the Prosecution is obligated not only to submit the material which it considers incriminating to the defendants, Court No. II, Case No. 4.but to submit all the evidence which has any bearing, even on exonerating the defendant.
In the German Penal Code there is a special regulation where this duty of the Prosecution is specifically announced. In Germany, the Prosecution is not only at liberty to submit exonerating material or not--but this is a duty as far as the Prosecution is concerned. Here, the consideration is used that only in this way can the truth be found, and the basis be laid on which the Tribunal can give a just verdict.
THE PRESIDENT: Well, this is a familiar and universal rule in the United States as well, that the Prosecution is charged with the production of all evidence, whether it shows guilt or innocence. That is a universal rule which we are familiar with.
Mr. Robbins, what is your attitude on this motion. What is your attitude on this motion.
MR. ROBBINS: I would first like to consult with Mr. McHaney, but to state first that the Prosecution does not have these twelve or fourteen boxes that the Defense think we do. We don't know what happened to the documents that Baier turned over. We wish we had them, but we have not been able to find them. I don't doubt for a moment that he turned them over to American authorities, but that doesn't mean that they came into the hands of the Office of the Chief of Counsel.
DR. FROESCHMANN (Counsel for the defendant Mummenthey):
Your Honor, I want to join the statements made by my two colleagues. Already, months ago, I requested that the files of the DWB be submitted because they contain a large number of valuable documents which Mummenthey sent to his superior agency with regard to the compensation paid to the inmates. That the Prosecution possesses these documents becomes evidence from the fact that part of the documents which are contained in the files and which are known to Mummenthey were actually submitted. I maintain the same point of view that it is a duty of the Prosecution to turn over also those documents to the Defense which could be used to exonerate the defendants.
THE PRESIDENT: Well, the Tribunal will assume that several counsel have the same motion to present. I think we will reserve decision on this until two o'clock so that the Prosecution can determine and advise the Tribunal just what document they do have.
DR. FRITSCH (Counsel for defendant Baier):
I did not want to join the opinion of my other colleagues, but I only wanted to state that I am able to put at the disposal of the Prosecution the receipt which shows that these files were handed over. My means of this receipt they will certainly be able to find the present location of these boxes. The situation was such that Baier turned over these documents against a receipt, and this was done exactly in the same way that Loerner turned over the watches, which have already been mentioned. The receipt for the watches was taken away from him later. The receipt for the boxes, he still has in his possession. I, therefore, am gladly prepared to submit them here.
THE PRESIDENT: Do you know about this receipt, Mr. McHaney?
MR. McHANEY: No, I do not, Your Honor. I don't know who he got the receipt from, nor do we have the vaguest idea of where the documents are.
THE PRESIDENT: Probably signed by PFC Jones.
MR. McHANEY: Very true.
THE PRESIDENT: Do you have that receipt. Dr. Fritsch?
DR. FRITSCH: I would have to fetch it, Your Honor; perhaps I could submit it in the afternoon.
THE PRESIDENT: Yes.
MR. McHANEY: If the Tribunal please, the motions now being made by Defense counsel are nothing new in the procedures here at Nurnberg. They were advanced very early in the I.M.T. procedure, and to my knowledge have been consistently denied by all the tribunals. That is done, primarily, on the ground of difficulty.
We don't receive WVHA documents in nice, large cases, and have them all together; and, have our people go through them and sort out the incriminating evidence, and then hide the so-called exonerating evidence. These documents are picked up out of all sorts of files. Copies of these documents are normally sent to many different affencies, and only by a great deal of work and painstaking search, in Berlin primarily, do we manage to pick up copies of these various documents which have been put in. Some of them come out of Himmler's files; some of them come out of other files. But it is a very rare thing, I don't know of any -
THE PRESIDENT: Some of them come out of the woods, too.
Mr. McHANEY; Very likely, They are all brought together in nice cases where we could turn them over to these gentlemen to search through. They come down one at a time normally, or perhaps three or four at a time. They are put in our document rooms; they are identified with the number, and they go through a very complicated procedure.
What these gentlemen ask for is a carte blanche to go into the Prosecution's Document rooms and to search the files up and down for any material which they may find interesting to their clients and for their cases. I don't think that is proper. I don't think it is necessary to protect their interests. We are running a large number of cases around here, and it is impossible to segregate the material which applies only to one particular case against another.
THE PRESIDENT: Well, at this point you probably have segregated all the documentary material that refers to WVHA, haven't you?
MR. McHANEY: Not at all, Your Honor.
THE PRESIDENT: No, not even now? I thought by this time that would have been done.
MR. McHANEY: No; the material is never physically segregated at all; nor, by and large, are the indices to the material segregated.
We receive in summaries of documents which have a number across the top. We get hundreds of them. We pick out those when they come across our desks which we are interested in using in this case, and they are then processed, duplicated, mimeographed translated, and made available.
The others just remain there; they are not sorted out or segregated in any way.
Now, what these gentlemen ask for is an entry permit to our document rooms.
THE PRESIDENT: A roving commission.
MR. McHANEY: That is quite correct, a searching expedition. Now, one defense counsel claims he turned over the files, or rather the files of the defendant Baier was turned over to a certain man. He can identify those bundles of documents. The rules permit him to make application to this Tribunal to order the production of those documents. If we have them, we are bound to produce them, and we shall do so. My understanding is that we do not have them. If, in his application, he can identify the agency to which he surrendered the document, the Tribunal has available the offices of the Secretary General to find them -- and they will make that effort.
But the basic request being made here is for something quite different, and for something which we think is impossible to give them and is not necessary to protect their interests.
THE PRESIDENT: Well, the picture as we get it is that you have twelve large crates of WVHA documents, nine of which are exonerating and which you keep locked, and the other three you use for your own purposes. --and Dr. Seidl nods his head that that is exactly what is happening.
How large are these packing boxes, Mr. McHaney?
MR McHANEY: My colleagues tell me that we have no such boxes. However, before two o'clock if the Court wishes to make its ruling at that time, we will make a thorough search, and if we find any boxes of documents, why, we will advise the Tribunal at that time.
THE PRESIDENT: Well, I have seen rooms in that courthouse that they might be lost in.
MR. McHANEY: That is very true, Your Honor. It may even be that Mr. Baier's documents are lying around somewhere, but we don't know about it.
THE PRESIDENT: It might even be in the Defense Information Center.
MR. McHANEY: That is quite true; it might very well be.
THE PRESIDENT: Well, enough of this until two o'clock. We will make a ruling at that time.
Well, we haven't turned a wheel this morning. It is now eleven twenty five, and we haven't taken a word of testimony. Is there something more, sir? (To Pribilla)
DR. PRIBILLA (Counsel for defendant Tschentscher):
Your Honor, this was quite a nice conversation we had about this document material. However, there is a very serious aspect to it. I am actually very grateful to Mr. McHaney that he has told us so openly about the conditions which prevail with regard to the documents and just how they are evaluated. He was quite surprised when he said that the attornies couldn't demand that we should receive a permit to enter the document rooms. However, Your Honor, that is my opinion. Such a permit should be given to the Defense from the very moment on when the entire files about the incidents which are to be judged here are in one hand. That is, in the hand of one, single party namely, the Prosecution.
Mr. McHaney haw described to us just how these documents are being handled, and it is quite strange that the documents which are picked out are only the incriminating documents. Therefore, we can say that it would be just and fair if the Defense, on its part, could also look for the exonerating material.
If one wanted to say the Germans have lost the war and that we don't trust the Germans -- then, in order to follow the same procedure, the German Defense should he given some American officials who, in the interests of the Defenses, would look for the exonerating documents.
THE PRESIDENT: That's nonsense to talk that way. And we don't like it. There has not been the least suggestion here, and you know it very well, that we don't trust the German attornies. They have been given every assistance that we could possibly give them. And the suggestion that because you are German attornies you would not be allowed to look at the documents is just a little bit offensive.
DR. PRIBILLA: Your Honor, I regret that you have understood my statement in that way and I am grateful to you for what you have said with regard to the fact that you do trust the German defense counsel. However, I was quite serious when I made that suggestion. I have already submitted the same suggestion in writing to Military Tribunal I. Here I am only concerned with the principle that if the material is available in large amounts then not only one party should be given access to that material but in the same way the other party should have access to these documents.
THE PRESIDENT: All right. We have heard enough on this subject until two o'clock. We will take a ten minute recess now.
THE MARSHAL: The Tribunal will be in recess for ten minutes.
(A recess was taken.)
THE MARSHAL: Persons in the court will find their seats.
The Tribunal is again in session.
DR. SEIDL (For the defendant Pohl): May it please the Court, regarding the remark to which the President has taken exception. I think it is important to state that Dr. Pribilla only expressed his personal opinion, that he did not speak on behalf of defense counsel.
HORST KLEIN - Resumed CROSS EXAMINATION - Continued BY MR. HIGGINS:
Q. Witness, were you ever a member of the SA?
A. No.
Q. Subsequent to the purge which took place in 1934 the SS became the most powerful organization of the Party, did it not?
A. No.
Q. What particular organization was more powerful than the SS?
A. The Corps of the Political Leaders was the real authority within the Party.
Q. Well, didn't the leaders of the SS exercise a great deal of influence in the politics of the day?
A. I never noticed anything but I was not among the leaders of the SS. At the time I was a Rottenfuehrer, which is, roughly, a corporal.
Q. You didn't know that the higher members of the SS dictated the policies of the government during that period of time, say, subsequent to 1938?
A. This is the first time I have heard anything of the sort.
Q. Did you ever receive any decoration or citation or honor of any sort as a result of your participation in the Roehm affair?
A. For my participation in the Roehm affair, as far as I know, I was never cited nor did I receive a decoration because of it.
Q. Yesterday in the very last part of my examination I inquired into your relations with the Nordland Publishing Society. Could you very briefly tell me what the functions of this enterprise were?
A. The Nordland Publishing Company at that time published, I believe, a monthly or weekly magazine - a very bad one, incidentally - and later on they published books.
Q. And what, generally, were the contents of these books which were published by this organization? What matter did it treat, or rather what matter did they treat?
A. I must confess that I only read their books occasionally because I was not a publisher nor did I have the experience. My activity for this firm was confined to occasional legal consultations which never amounted to anything very much. Therefore, I do not know any details about the contents of the books.
Q. How long were you connected with this association?
A. My consultant activities to this editing office came to an end in April 1940.
Whether, and how long, I was registered on the commercial register I can't tell you because when I ceased to be a procurist it was not up to me but up to the superintendent.
Q. Could you tell me the date when you first became associated with it?
A. I contacted it for the first time, I believe, 1st February 1939 when I met them for the first time.
Q. I also inquired concerning the Sudeten Springs Ltd. and I would like to know over what period of time your duties or association with this organization continued?
A. I was connected with that organization during the same period of time.
Q. And could you very briefly tell me what purpose this organization served?
A. The Sudeten-Quell G.m.b.H. at that time had to buy a national spring in the Sudetenland. Then the firm was to supply troop canteens with mineral water. They were also to supply private markets. It was intended, above all, to make mineral water cheaper within the scope of the tendency to replace alcoholic stimulants. One said that alcohol wras damaging to national health but it was not intended to forbid alcoholic consumption altogether. It was intended to have in the canteens a beverage just as high in quality which has to be cheaper than a glass of beer.
Q. Could you tell me whether or not it was a profit organization? Did it operate for profit?
A. This firm, of course, made profits, but the plan was to have the profit used to keep the price of mineral water down, in other words, to serve this somewhat ideal purpose. The position wras thus that the other mineral springs, such as Fachingen, made very high profits. In private markets the mineral water which comes from the earth quite naturally was much more expensive than an alcoholic beverage of quality.
Q. Then the purpose of this organization wras to eliminate the exorbitant price of mineral water previously?
A. That was the original purpose, yes.
Q. Now, what activities did you participate in the SS prior to your becoming associated with the Society for German Cultural Monuments?
A. Would you please repeat the question? I don't quite understand it.
Q What activities did you participate in in the SS prior to your becoming associated with the Society for the sponsoring and care of German cultural monuments?
A I participated in the motorized unit up to 1934 in the manner I have described before. After 1934 I, because of the damage to my health from my bike crash which lasted a long time, hadn't been on active duty until that period of time.
Q Did you carry out any activities in the NSDAP?
A No, I never held an office in the Party.
Q In the spring of 1939 a re-organization took place and your office was transferred to a Main Department, was it not?
A I think that's pitched a bit too high. At that time I had no office at all. You are speaking of the spring of 1939 and I was never given a Main Office.
Q Well, weren't you in charge of Main Department for special tasks, Economic and Administrative Office?
A That was in the spring of 1940.
Q Prior to that time you simply worked in the SS administrative branch, is that right? You had no office whatsoever prior to 1940?
A No, I had no office prior to that.
Q Then upon the reorganization your sphere of responsibilities and duties were considerably extended, were they not?
A The reorganization terminated my consultant activities with the economic enterprise, you have mentioned. My activity was thereby restricted to the Monument Society, the Extern-Stone Foundation, and the King Henry foundation (Koenig Heinrich Stiftung) and also the homes were added to my sphere of work although I couldn't start on it as there were difficulties to be cleared up between ourselves and other offices because of competency.
Q However, subsequent to that reorganization your main tasks did center about the Society for German Cultural Monuments? Did it not?
AApart from other tasks which I have described to you.
Q Would you say that the greatest amount of your activities were concerned with this particular society?
A That would be saying too much. That resulted from the respective situation and requests which would reach us.
Q Then what you wish to say is that you do not know. That is, that you do not know whether or not the greatest part of your tasks were concerned with this society? Is that what you wish to say?
A It depended on how much business we had to deal with. Sometimes I would work more for the association, then the King Henry Foundation. Much of my time simply depended on what happened.
Q How was this office first designated, as AMT W/VIII?
A May I interpolate. The foundation of AMT X/VIII only became a legal person at that time which made it necessary to do more work for it. As I remember it the Office W/VIII was designated and founded when the WVHA was founded.
Q Then that designation was not used prior to the final reorganization. I was under the impression that the designation W/VIII was used prior to the time of the reorganization, that is of the final reorganization.
A Would you please repeat the question. I am afraid I didn't receive this.
Q I stated that I was under the impression that the designation AMT W/VIII was used prior to the final reorganization, that is the reorganization of 1942.
A When I was interrogated for the first time I discussed that point very thoroughly with the Interrogating Officer. He asked me when I became an office chief. I could not recall the date because it had practical Influence on my work. At that time I remember it must have been August 1941; but the Interrogating Officer told me it could only have been the 1 February 1942. I did not remember the organizational chart too well because it was of no practical importance to me. 6269
Q When did you first become associated with the Anton Leubel enterprise?
A Leubel? This was at the same time as Nordland and Sudeten Quell Co.
Q Could you very briefly tell us what the functions of that organization were?
A Certainly. It was a company which exploited patent rights.
Q I would like to turn to a discussion of the supply of labor to the Wewelsburg Building project. Do you know whether or not all the inmate labor there was supplied by the concentration camp situated at Niederhagen, at the Wewelsburg-Niederhagen concentration camp?
A First of all that camp formed the labor camp of Wewelsburg and later on formed the concentration camp of Niederhagen until that was dissolved. That is the impression which I have formed now.
Q What would you say was the greatest number of inmates employed on the Wewelsburg construction program?
A I said that I stated in my affidavit 300, which is the figure which I remember. I know my figures only from the report of the building management; but I saw here from a report that "up to 500" had been used which is set down in detail in this report. A greater number of inmates being employed I do not recall. After my arrest I have heard that in the Niederhagen camp up to 1000 inmates were supposed to have been located.
Q Didn't you have actual knowledge of the number of inmates employed at Wewelsburg?
AAs I said, about the inmates who were employed for the project of the building management I learned from Bartels' monthly report which he sent to me, beyond that I knew nothing.
Q Well didn't you visit the construction site on quite a few occasions?
A I said on direct examination that occasionally Bartels showed me various places which he as an artist found interesting.
Q You should be able to say then in a rather general way just how many inmates were employed there if you had visited that particular construction site.
A Well the construction sites were at some distance from the camp. I mean the inmates worked at the Castle which was at a distance of about 1/2 hours walk from the camp and on those sites there might have been, as I remember it, about 20-30 men workings.
Q Where were the greatest majority of inmates employed?
A There were a number of construction sites and as I see it the inmates worked on those construction sites. If I may add something that is the reason for the requests and complaints in his monthly reports regarding shortage of guards because he wanted to have people work on as many sites as possible.
Q Well did you visit all these sites at one time or another on these trips to Wewelsburg?
A Not all of them. If they were of no artistic interest to me at all, Bartels didn't mention them to me.
Q You were only interested in those things which had an artistic value, that is your statement?
A What happened was if Bartels as an artist could show something he would show it proudly. He thought he was a great architect and perhaps he was. Therefore, he would show me those things with pride.
Q. I see Bartels was an artist also as well as a construction manager in charge of labor allocation.
A He was an architect.
Q During these trips to the construction sites you have stated, you saw the inmates at work. Could you tell me what sort of condition they were in?
A What I saw corresponded entirely to the labor allocation of a stone mason or carpenter.
Q You didn't notice that they looked undernourished?
A No.
Q Looked perfectly normal to you?
A Yes. Those were my impressions, yes.
Q Could you tell me what the average working days of these inmates were?
Court No. II, Case No. 4.
A I cannot tell you with any certainty how many hours they worked, but I can give you many examples. As the work was not carried out behind a fence, but behind a chain of guards, the hours of work were confined to the daylight hours, which became important in winter. For the rest, nothing very much was done at Wewelsburg. Anyway, I don't think that the workers of the Wewelsburg enterprise worked longer hours than would have been usual on a construction project.
Q You went out of your way to visit these construction sites at Wewelsburg. I would like to ask you to tell me rather briefly just what the purpose of the visits was on these various occasions. Just why did you go to these Sites?
AAs I said, I did not go out of my way to do so. It was out of courtesy and respect for Bartels' personality as an artist that I went.
Q What did you talk to Bartels about when you arrived, just the artistic values of these various projects which were being worked on?
A No, as I said before, in Wewelsburg I had to conclude the contracts regarding the purchase of land, and the preliminary negotiations used to be concluded also by the building management. As a result of this, I went to visit Bartels. He explained to me what contracts had to be concluded, how the preliminary negotiations had been carried out, and once he had done that, he would now and then talk to me about his artistic ideas. It was purely a discussion which was quite inside my sphere of work.
Q And then you absolutely never discussed allocation of inmates to these sites?
A He sometimes expressed complaints that he did not have enough skilled workers. That, as far as I can recollect at this moment, was all he told me about these things.
Q Did he ever ask you to intercede for him in order to obtain more workers?
A I cannot recall any such occurrence.
Court No. II, Case No. 4.
Q It would seem that if he were in need of workers, you would be a very good person to go to, being a member of the WVHA, which had subordinated to it this great potential of labors. It would seem likely that he would speak to you about it, wouldn't it?
A No, I don't think that would be the correct official channel at the time, because, after all, in Wewelsburg, there was always the Camp Commandant and the natural thing to do would have been for him to discuss all these questions with the Commandant.
Q Would you say that Bartels always went through the correct channels?
A I would not necessarily want to say that, but he would choose the most practical channel.
Q And you do not think it would be practical for him to talk to you about procuring labor from the concentration camps?
A No, because if the camp Commandant lives right next door to him, why should he talk to me when I happened to drop in from Berlin or later on from Thuringia.
Q I would think that a very good reason would be that the Camp Commandant appeared not to be very acceptable to Bartels and, as he was a practical man, you would be the next one he would turn to. Doesn't that sound likely?
A May I hear that again?
Q I stated that Bartels was a very practical man and therefore, if he could not procure the labor from the Commandant of the Concentration camp, he would come to you.
A He would have chosen a different channel in that event, the channel through his office, Wewelsburg, for the position was that the most influence available was the Main Office Personal Staff. That office had direct contact and access to the Reichsfuehrer. Whenever a request came from the Personal Staff, all SS agencies made meticulous efforts to meet that request.
Q Didn't you on occasion confer with Mauer concerning the allocation of labor?
Court No. II, Case No. 4.
A I cannot recall a conference with Maurer about that.
Q I shall come to that in a very short time. Now I would like to know this, witness: On the occasions of these visits, did you submit reports to the Defendant Pohl, telling him what observations you had made during the trips?
AAs I remember it, I gave Pohl the monthly reports, and I have described the history of those monthly reports before.
Q Well, what I would like to know now is whether or not information was incorporated in those reports, which had come to your attention through your personal observations. In other words, if I might add, when you took these trips you saw certain things. I would think that you would report these matters to the Defendant Pohl, because they would be of interest to him.
A I am afraid I haven't fully understood your question.
Q I will try to put it very shortly. Isn't it true that the reports which you submitted to Pohl contained information which was obtained as a result of your personal observations of these camps, rather work sites?
THE PRESIDENT: Why don't you put it this way? "Didn't you tell Pohl what you had seen?" You see, he gets lost in your question, before you get to the end of it?
MR. HIGGINS: I will try to shorten it.
THE PRESIDENT: Didn't you tell Pohl what you yourself had seen?
THE WITNESS: Yes, I did.
Q. (By Mr. Higgins) This information was imparted through these reports? That was submitted to you?
A. Some of it, yes. I did not take everything down, but it is entirely possible that I took something down which I myself has observed, if I was given the opportunity.
Q. And you also imparted this information to him personally, did you not?
A. I did not report personally to Pohl every often. I had to be very brief and concise when I reported, because my sphere of tasks became extremely unimportant in Pohl's eyes, as the wor went on, because Pohl had the troop administration and, as such, he had very important things. I have already mentioned that Himmler was greatly interested in these things.
Q. How can you give me some idea of how frequently you did confer with Pohl?
A. Well, that is very hard for me to say today.
Q. Would you say-
A. How often I talked to Pohl and especially when I was at Wewelsburg, well, I really can't tell you, I'm afraid.
Q. You have no idea whether or not it was ten times a year or twenty times a year?
A. I can tell you how often I went to report to Pohl, but how often during those reports I spoke about Wewelsburg in particular, I can't tell you. I probably reported to Pohl about 8 - 10 times. I never made special notes or kept a diary or anything.
Q. On these visits to Wewelsburg did you confer with Obergruppenfuehrer Taubert?
A. Yes, whenever I was there I visited Obergruppenfuehrer Taubert and simple paid a brief courtesy call when he was there. After all, he was a General and Obergruppenfuehrer and, therefore, courtesy would require me to call on him.
Q. Was official business discussed during these calls?
A. I don't recall a single case of that. He usually offered me a very good cigar, because he knew that I like a cigar and once the cigar had been finished he said, "I am frightfully busy.