DR. SEIDL: Your Honor, may I suggest then that if those assertions have no probative value whatsoever that then the admission of these documents by discontinued; and as far as Document NO-1907 is concerned and Document 1900, if they are in no connection with the indictment, then I do not see any reason whatsoever in admitting these documents in evidence. And it would facilitate the task of the Defense if the Defense knows at this point what evidence can be used legally when making the judgment. I consider it my duty from the point of view of the Defense to take an attitude to every document which is introduced as evidence which was accepted by the Tribunal, because I have to start from the point that somehow they might be considered as having a probative value in some respects.
THE PRESIDENT: The Tribunal will use its recess for discussing this topic, among other things, and we will advise you at the end of the recess. We will be in recess.
THE MARSHAL: The Tribunal will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: I would like to advise counsel that the Tribunal plans to recess at three o'clock this afternoon for the rest of the day. One of the members is obliged to be absent, so we will recess at three o'clock for the rest of the day.
I would like to advise you, Dr. Seidl, that your examination of this witness should be confined to matters which pertain to the indictment -- and not to collateral irregularities or offenses with which this Tribunal is not concerned.
DR. SEIDL: May I then maintain the point of view, your Honor, that the corrupting case of Sauerzweig, and similar corruption cases which were contained in the affidavit do not have any probative value, and the Defense does not have to deal with these questions as to just what legal conclusions can be drawn from it.
BY DR. SEIDL:
Q Witness, in your affidavit you have further stated that Pohl worked together with Kaltenbrunner and Nebe so that they could exert some pressure on you. Was that an assumption on your part, or did you have any reasons which support this opinion on your part?
A That was not an assumption, but this was a fact.
Q On what is your claim based?
A The investigations had hardly led to any results. When Gruppenfuehrer Nebe, by order of Kaltenbrunner, approached me immediately afterwards with the instructions that the investigation was to be limited to certain points. Already in December or January, 1943, I was to depose a statement to the effect that the investigation had shown good results and that justice had been done now; and that I, myself, was of the opinion, that my activity in this respect had been concluded. On this occasion I was told that this position of Kaltenbrunner' s was maintained expressly by the wish of Obergruppenfuehrer Pohl. Later on, I also heard about a document which Pohl and Kaltenbrunner compiled together. This document contained the opinion of two people and it was submitted to him directly.
In this document Pohl stated that the continuation of the investigation had already led to disciplinary offenses on the part of the inmates. This report was submitted to Himmler.
The investigation was endangering the armament work of the concentration camp program. That is the reason why the investigation should be discontinued. Obersturmfuehrer Mittelstedt, my successor, told me that he himself was a witness to the fact that Obergruppenfuehrer Pohl had declared to the Reichsfuehrer that either I should be relieved of being in charge of the investigation or that Pohl would resign his position. That is what I heard about the activity of Obergruppenfuehrer Pohl with regard to the investigations in the concentration camps, whereupon my affidavit is founded.
Q May I understand your testimony to mean, Witness, that Pohl objected to the continuation of the investigation, because, in spite of the operation of a big machinery, it was not possible to reach any actual results?
A No, the results, to which the investigation led, were so clear that Pohl did not wish to accept the results.
Q What do you mean by results in this respect? Witness, when did this take place, which you have just mentioned, and what do you mean in this connection, when you say, "The results were so clear that Pohl did not want to accept them."
A I did not speak about one incident here, Mr. Attorney, but I spoke about innumerable cases. I spoke about a continued activity of Obergruppenfuehrer Poh. This activity was apparent to me already in the turn of the years '43. '44. This activity then continued until I was relieved of my position and then that became apparent to the broad public within the SS.
Q You have claimed, Witness, that by virtue of an order of August, 1944, the SS judges had to obtain the special permission of Pohl in order a concentration camp and I want to ask you, was Pohl able at all to issue such an order, after you consider the judges concerned in the investigation had received their assignments directly from Himmler?
A This order of Obergruppenfuehrer Pohl I have seen personally. It was not an order to the SS judges, but it was an order to the concentration camp commanders, who were subordinated to him. These concentration camp commanders were prohibited from admitting any SS judge to a concentration camp without Pohl's explicit written permission. This order, however, was still more monstrous. It was made the duty of the commanders to see to it that the investigations by the SS judges and the police authorities, who were also used in the investigation, could only adhere to the certain subject which was included in a written interrogation warrent. With that, practically all the investigations were actually paralyzed.
Every suspicion for which the evidence had to be accumulated, had to be submitted to Obergruppenfuehrer Pohl and his subordinate agencies also and also the camp commanders against whom the investigation was directed.
Q Witness --
A Of course, we objected with the Reichsfuehrer against this and also pointed out what was going on and that Pohl once again had acted completely arbitrary and autocratic. The order later on was changed or was completely rescinded. However, Pohl had achieved that my successor for several months could not carry out his work at all.
Q Witness, I am now going to put an order to you which I have in my hands. This is an order which is signed by Obergruppenfuehrer Pohl. In this order it is stated, "1, In order to remove any unclarities which have arisen through the activity of the Z.B.V. Court, the Reichsfuehrer SS has ordered, 'Reichsfuehrer of the 16th of May, 1944. In accordance with paragraph 188 of the War Time Manual, I order 1, Effective immediately with the Main Office SS Courts and SS and Police Courts, Z.B.V. is to be established.' "Then in paragraphs 2, 3, 4, and 5 and 6 there follow further regulations about this court. In paragraph 2, the Defendant Pohl then orders himself "Through the decree of the Reichsfuehrer-SS the following matter has been clarified." And then under paragraph 3, it is stated literally, "I expect from all the agencies which are subordinated to me that they will support the Z.B.V. court which will be called into life with the above order and that they will support it in its work, as far as possible. Officers and enlisted men who do not comply with my order I shall discipline myself." Witness, doesn't this order show quite clearly that the Defendant Pohl gave the direct instructions to all agencies under his command that they were to support the activity of this Z.B.V. Court wherever possible?
A In this connection, I must say I would be grateful to you, Counselor, if I could personally look at this order. However, for the time being, I want to say that it is one of the typical examples of the behavior of Obergruppenfuehrer Pohl that he used big words and so he would put on the veil of protection of law and discipline, although he, in reality, did exactly the opposite.
Q Witness, just how is it with your previous testimony that you stated that Obergruppenfuehrer Pohl did everything in order to improve conditions in the concentration camps and with regard to the food and food supplies he wanted to make conditions which were worthy of human beings?
A I did not say that he did everything what he could do, but I only said, and I think as a former judge it is my duty to say that, I have also stated the positive things he did. However, life does not consist of quarters and food. Quite apart from the purpose for which the inmates were given those things.
Q You further go on to say in the affidavit, Document NO-1907, "Pohl was a man of terrific influence, because all the agencies and the entire administration for the concentration camps he handled personally." What do you mean by making the statement with regard to the agencies, Witness?
A Well, he had the authority to give orders to all agencies under his command and that included the whole complex of the concentration camp. However, beyond that he used his influence against me with the RSHA and the RSHA for the most part he had included in his subordinate agencies, and I know the reason for that because from the foreign exchange profits of the concentration camps the Defendant Pohl contributed in order to have the many activities carried out.
Q How do you know that, Witness?
A I know that from the statements of the Witness Kaltenbrunner in the trial before the International Military Tribunal. However, I knew that already before that time.
Q Witness, to whom was Department VI subordinate in the concentration camps?
Were they subordinate to the WVHA or were they subordinate to the RSHA?
A The political departments of the concentrations camps were subordinate to the RSHA. At the same time, however, the members of the Political Department were members of the concentration camp staff and, consequently, they were strickly subordinate to the camp commander as far as the disciplinary measures were concerned. These people, therefore, were subordinated to different people. They had to cooperate with the camp commanders and they had to cooperate also with the RSHA, and I believe that the central agencies were not informed about these bad conditions which prevailed.
Q However, your factual instructions the political departments apparently received from the SS, is that correct?
A Yes, without any doubt.
Q Through what channels, just how did the concentration camps obtain their food supplies? Did you make any observations about that?
A The food rations were turned over by a Reich law. The new rations were set by Reich law and therefore they were turned over by the civilian agencies.
Q Witness, in the affidavit NO-1907 you have alleged, that people had been transferred by Pohl so that they could be taken away from your jurisdiction. As far as legal matters were concerned, was it a fact, Witness, that by virtue of your special assignment you were competent anywhere and you were not limited to one locality, and, therefore, a transfer for this reason could not have any factual motives.
A Just because I was constantly restricted by Obergruppenfuehrer Pohl, and especially because of the transfers, the Z.B.V, Court was established. However, even then, he continued in his activity and, if somebody was transferred to a troop unit, with which he had not acted before, I could interrogate him and reach him, he was again transferred to another agency, and, in this way, our investigation of the case was delayed indefinitely.
And I ant to give you an example for it. That was the case in the proceedings against the Concentrattion Warsaw. Pohl had arrested the officer and commander and now he had the commandant and the two officers and he told the Z.B.V. court to go there immediately so that the three culprits could he hanged -
Q. Witness, I must interrupt your answer with regard to the case of the Concentration Camp Warsaw. I shall ask you several questions later on, and I think it is more expressive that this whole question is discussed at the same time. You will have the opportunity later on to give us your answer.
A. Well, However, since I have begun my answer already, I would lite to finish. Well, he maintained the officers-
Q. I told you already, witness, that I am going to ask you questions later on on this matter.
A. I beg your pardon. You asked me to give an example and I would like to give you this example right now.
THE PRESIDENT: He didn't ask you for the example. You said you would like to give him one. Dr. Seidl didn't ask you for an example. So ahead, Dr. Seidl with another question. You are wasting a lot of time on matters that don't mean thing to the Tribunal. I would like to tell you that.
Q. In your affidavit, you have also alleged that Pohl naturally was informed about the illegal matters going on in the concentration camps Do you now hes often Obergruppenfuehrer Pohl visited the concentration camps? I want to ask yon in particular how often was he at Buchenwald during the eight months when you were there?
A. During this time Pohl did not visit this concentration camp at all. However I know something else, positively.
THE PRESIDENT: Never mind. Never mind. Just answer questions. Go ahead Dr. Seidl, another question.
Q. Witness, in your affidavit you have commented on the corruption of the case of Englke. I now want to ask you, id this case have anything to do with the concentration camps?
A. No.
Q. In the affidavit NO-1907, you also made statements about the conditions at Dora. I now want to ask you, did you yourself ever visit Dora and do you know conditions which prevailed there from you own experiences?
A. I was not at Dora. I--
Q. That is sufficient for me. I only wanted you to tell me whether you were there or not. Witness, when was the decision made in the Main Office SS Courts that against certain SS officers a trail for corruption was to be instituted after the war? What officers of the Main Office SS Courts participated in this resolution, and why was this trial only to be started after the war?
THE PRESIDENT: And why do you talk about it?
DR. SEIDL: This question seems necessary to me, Your Honor, in order to clarify the question of the veracity of this witness. I just want to examine his veracity here. However, if the Tribunal thinks this question is unnecessary, that I will withdraw it.
THE PRESIDENT: We thought that twenty minutes ago, and told you so.
A. Witness, from October, 1946 until the 13th of January, 1947, were you here in Nurnberg in the so-called Witness Wing of the court prison here?
A. Could you give me the dates again please?
Q. From October, 1946, until the middle of January, 1947.
A. I believe from the 1st of July until today I was in the Witness Wing of the court prison.
Q. In November, 1946 did you have discussion with SS Oberfuehrer Reinecke about your investigation of the concentration camps and did Oberfuehrer Reinecke reproach you severely in that occasion, because the results of your investigation -- because you had exaggerated the results of your investigations and that your opinions in part you had based not on facts you found yourself, but which you had gained from hearsay?
A. Not a word is true, Every word you have stated is false. SS Oberfuehrere Reinecke is located in Garmish already many months and he has been interrogated there and for quite a long time.
Q. Witness, I am not coming to the case of the Concentration Camp Warsaw. By whose orders was the arrest of the commander carried out?
A. I ordered his arrest. I signed his warrent for arrest.
Q. And hew can you example your letter to the collaborator of the SS, court officer of the EVHA, where you congratulate him for his success and where you answer that you will personally deal with his group yourself.
A. I have already stated before in my examination that Hauptstu,fuehrer Gross-Himrich was the first on to be at Warsaw and that there he carried out the preliminary interrogations and the original arrest. For his quite unusual activity on the part of Obergruppenfuehrer Pohl and for this initiative of his collaborator, Gross Hinrich, I was so surprised and I was so glad about the fact that I congratulated him for it.
Q. In line with you investigation, how often did you go to Warsaw?
A. I told you that I was not in Warsaw, but that I only took part in these investigation in parts.
Q. Do you know that the people whom you arrested at the time were kept in the concentration camp Oranienburg until they were to be tried?
A. Yes, because Pohl prevented the trail proceeding from the startine.
Q. What do you mean by prevented?
A. He kept on transferring all the witnesses and the suspects in the case so that a legal trial was not possible.
Q. However, witness, you yourself have stated before that the arrest of the commander of the camp had been carried out by Pohl. What would his purpose be to have this man arrested first and then prevent his trail from being carried out?
THE PRESIDENT: Dr. Hoffmann.
DR. HOFFMANN (Attorney for the Defendant Scheide) : Before we in terrupted the witness, when we discussed the question of Warsaw? I am of the opinion, but I have not expressed it, that the Tribunal is suffici ently informed about all these questions.
However, because the witness did want to testify about this before, so he could not use up the time of the Tribunal.
Now, he should not be cross examined about it. Then he should give us all the circumstances and should describe to us just what happened in Warsaw. However, in this case we are also dealing with a case of corruption which actually must not have any probative value, and it is also murder.
THE PRESIDENT: Of course, we don't know what happened at Warsaw. The witness says he wasn't there. If it is merely another instance of official corruption the Tribunal will say once more that we don't care to hear about it. If it involves war crimes or crimes against humanity, we do. Now, can't you get the distinction there?
DR. SEIDL: Your Honor, the witness has made statements in his affidavit about this corruption case. I do not know any more about the whole case than the witness has mentioned in his affidavit. It is the purpose of my examination to find out what actually went on there. I want to know whether the defendant Pohl is guilty in the clarification of the case and just what happened to the culprits in the investigation.
THE PRESIDENT: What did the culprits do?
DR. SEIDL: According to the answer which I have received from the witness, I must assume that two thing were involved there. First of all, we must have had a case of corruption here; and secondly, and that is shown by his last statement, some murder case was also involved here. It must have been involved in this question. Your Honor, I know just as little about it as the Tribunal; and the reason for my examination is to find out the details from the witness. However, if the Tribunal maintains the opinion that this question has nothing to do with the indictment, then I will also withdraw this question.
THE PRESIDENT: I don't know whether it does or not. Witness, answer my question. Were the men who were arrested in the Warsaw concentration camp accused of brutality against prisoners or of murder?
A Yes, they carried out continual maltreatment and murder on inmates.
- 6719 a
THE PRESIDENT: That's what we are interested in. If the witness knows anything about that, let's hear it.
BY DR. SEIDL:
Q. Witness, what did you yourself do in order to speed up this trial?
A. I issued a warrant of arrest against the accused, and I instructed the SS and Police court at Warsaw to carry out the appropriate investigation. I also informed other commissions of the case. However, I was not able to take any further steps in this case because upon the representations of Pohl throught Schmidt-Klevenow I was relieved of my position as being in charge of the investigation in this case. That was done in September 1944 at Weimar.
Q. That was done after this order was issued which I showed you before?
A. Yes.
Q. Weren't you able to turn to your immediate superior, the SS Obergruppenfuehrer Breithaupt, to see that something was done about the obstacles you alleged were placed in your path? Wasn't it possible for you to turn immediately to the Reichsfuehrer SS, who, after all, had personally established the SS Police Court Z.B.V.?
A. We tried to avail ourselves of this opportunity extremely often, and we constantly negotiated with Obergruppenfuehrer Pohl and the Reichs-fuehrer about this matter. We did use the opportunity. However, in practice Pohl did everything so that the trial could not be carried out.
Q. I now want to put to you some statements from an affidavit. Dr. Schmidt-Klevenow, whom you have mentioned before, has stated the following in an affidavit about this matter; and I Quote; "The case at Warsaw came to the knowledge of the WVHA through an anonymous letter. In accordance with letters, I immediately started an investigation, carrying it out successfully. The participants in the crime were arrested and taken to Oranienburg where they were kept in confinement until a short time before the surrender.
It is out of Question that I transferred the members of the SS who were accused into all directions.
"Dr. Morgen knew from the files which I turned over to the SS and Police Courts in accordance with my duty that the persons responsible for the crimes were in confinement. It is not true that I told the president of the Z.B.V. Court, Obersturmfuehere Ende, that he should withdraw the investigation. I saw Ende on only one occasion, and that was at the Koch trial at Weimar. Therefore, I could only have persuaded him to discontinue the trial in writing. However, this is also just as improbably and as untrue.
"I was glad when I was rid of the whole matter, which was so extensive, and I was warned about Dr. Morgen since he was now in charge of the investigation; and I asked him that he return the files to me so that the investigation could be carried on. It seems very strange and Quite improbably that Dr. Morgen should have charged me with the further investigations if he at the time already maintained the point of view that I was trying to obstruct the carrying out of this trial. My immediate intervention at Warsaw probably shows that the contrary was the case. Apparently Dr. Morgen at the time maintained a different point of view. Since my expert could tell me, he sent his congratulations about the successful results of the investigation. He sent these congratulations in writing."
I now want to ask you, witness, do you still want to maintain your previous testimony?
A. There is no reason for me to change one word which I have given in my testimony.
THE PRESIDENT: That's enough; that's the answer.
DR. SEIDL: I have another affidavit here by Dr. Gross-Henrich, your Honor. However, in order to shorten the examination, I do not want to put it to the witness; and I shall submit it independently in evidence.
Q. In another affidavit, witness, an affidavit which you already gave last year-
DR. HOFFMANN: Your Honor, Dr. Morgen is my witness; and with regard to his veracity and the attacks which are directed against him by the defense counsel of Pohl, I want to make two requests. I request either that the witness Dr. Morgen can voice himself with regard to the accusations of Schmidt-Klevenow, or I make the motion that SchmidtKlevenow and Gross-Henrich be placed before the witness Morgen at this Tribunal.
THE PRESIDENT: This cross examination has assumed the proportions of a brawl or a quarrel between the witness and Pohl on matters that do not concern the Tribunal at all. Unless you confine it to matters relating directly to charges in the indictment, we'll stop the cross examination forthwith. In any event we are going to stop it at 12:30. You have fifteen minutes to cross examine, provided you confine your questions to the charges in the indictment or something relating to those charges. We've said this repeatedly. This is the last time we'll say it.
DR. SEIDL: Your Honor, I now request that I be permitted to obtain some information on a legal question which is not quite clear to me, with regard to the ruling which the Tribunal has made just now. The witness morgen on the 13th of July 1946 signed an affidavit which we submitted in this trial. In this affidavit incorrect statements have been made about the authority and about the activity of the defendant Pohl, in his position as a judge and in particular with regard to the question of whether he could be the supreme judge for the concentration camps. I therefore should like a decision as to whether the question has any probative value in this trial proceeding or not.
THE PRESIDENT: I haven't heard any question yet.
BY DR. SEIDL: Witness, in the affidavit which we have just referred to, you stated that the Main Office SS courts above all wanted to break the judicial authority of the Chief of the Main Office Pohl. I therefore want to ask you, Witness -- of what did this judicial authority of Pohl consist and what circle of people was it extended to or confined to?
In particular, did the concentration camps belong to the circle?
THE PRESIDENT: We know the answer to that. Pohl's authority as a judge extended only to the members of his own organization and not to the concentration camps.
DR. SEIDL: That is the answer which would be correct. In the affidavit of this witness, however, the contrary has been stated.
THE PRESIDENT: All right, ask another question.
Court No. II, Case No. 4.
Q I now come to my final question, which refers to an exhibit which was submitted by the prosecution and which is located in Document Book IX. This is Document NO-265, which was submitted by the prosecution as Exhibit 219. In this document the witness Dr. Morgen is mentioned; and I should like to put part of this entry to you. This is the Diary of Ding; and here we have an entry of the 31st of December 1943.
I quote verbatim from that entry: "Special experiment on four persons in matters pertaining to Koch-Hoven. By order of SS Gruppenfuehrer Nebe the experiment was carried out in the presence of Dr. Morgen and Dr. Wehnert. Dr. Ding, Sturmbannfuehrer." That latter portion is the signature.
Witness, I now want to ask you, what special experiment was carried out here and just to what extent did you participate in this experiment? I would like yon to answer my question as briefly as possible.
AAbout this experiment I have given two affidavits in the medical case. It was very much in detail there. In this connection I want to say that on the 31st of December, when this special experiment is alleged to have taken place, I was not at Buchenwald. Since my parents had been bombed out at this time I was with them at the time. Also, this was not a special experiment by order of Gruppenfuehrer Nebe, but this was done by order of Gruppenfuehrer Mueller.
Q Witness, you deny that you were there?
A I don't deny anything; but I just am explaining to you in answer to your question what happened. I had nothing whatsoever to do with the experiment because I am not a physician, and I can't make any experiments. But the physician who carried out the experiment asked me to attend as a witness. On this occasion I assured myself for my own satisfaction of the fact that this experiment would not be dangerous to the lives and the health of the experimental subjects; that these persons had volunteered for the experiments and that actually nothing happened to Court No. II, Case No. 4.them during the experiment.
Q That is sufficient for me, witness. Now, I am going to put a statement to you which is very brief and which the witness Dr. Eugen Kogon has made before Military Tribunal Number I. This is the court record of the session of the 17th of January 1947; and I quote from Page 1213 of the German text:
"Q. Do you know anything about experiments which were carried out with poison at the concentration camp Buchenwald?
"A. I know of two such cases. In the one case, it was around the turn of the year 1943 or 1944 or late in the fall of 1943. In the second case it took place in the summer of 1944. In each case Russian prisoners of war were used for these experiments. In the first case various drugs of the so-called alcaloid series were put into a noodle soup, and they were given to the prisoners of war at Block 46, who, of course, did not know that these chemicals were contained in the soup. Two of the prisoners became so sick that they had to vomit. One of them became unconscious. The fourth one did not show any signs of any effects whatsoever. Then all four prisoners were strangled in the crematorium and they were dissected. The contents of their stomachs and other effects were determined. The experiment was carried out by orders of the SS Court, by the SS, and investigating judge SS Sturmbann fuehrer Dr. Morgen. It was carried out in the presence of Dr. Ding, Dr. Morgen, Dr. Wehnert, SS Hauptsturmfuehrer and SS Judge, and one of the three camp commanders. I don't exactly know any more whether it was SS Sturmbannfuehrer Schobert or SS Hauptsturmfuehrer Florstedt."
Q Witness, I now want to ask you, do you still claim that you were not participating in this experiment?
A The description of the witness Kogon is based on hearsay. That is what Kogon stated himself. He also gave us his source of information. He talked to the inmate nurse Kaczinsky, who, in turn, heard about these things through hearsay. Nothing of the things he mentioned is true. The Sturmbannfuehrer Florstedt whom he mentioned as being present was the commander of the concentration camp Lublin.