Requests for money or transfer of money by the Reich Treasury by Office Group A was not longer affected. The payment and transfers for the garrison treasury and other Reich treasuries on the one hand, and the Reichsbank Agencies or German Main Treasury on the other, was done directly at that time; as far as the transfer of the members of the Waffen SS to Office Group W was concerned, Fanslau did not have any closer knowledge or what W did within Office Group W. Every personnel question was dealt with by the office group within itself. It becomes clear, also from the letter of Osti to Co-Defendant Baier, Document NO-1264 in Document Book XXIV, where Dr. Horn on page 3 reports about the possibility of release to two SS officers, 6 NCO's, 3 enlisted men, one male and one female civilian employee.
I would like to refer here to the Hohberg letter to NO-1005, Exhibit 380 concerning the transfer of auditors. The prosecution wanted to comment from Document NO-2382B, which was Exhibit 678 that Office A-V transferred personnel to the Osti. This, if one reads the document carefully does not become clear from the document. On the contrary it becomes clear that Osti sent people back to the WVHA who could be spared. Within the scope of Office Group W, mostly civilians worked at Office A-V and had nothing to do with their files. Personnel administration with Staff W was in the hands of civilian imployee Ansorge.
d. Looting of occupied territories. Fanslau did not take any part in the looting of occupied territories nor did he have any knowledge of these activities. The prosecution obviously attempts to use the transfer order for Sturmbannfuehrer Schellin, signed by Fanslau to become SS Economist of the Higher SS and Police leaders, in order to arrive at a connection with the activities of the SS economist.
When he submitted that document I drew attention to Prosecution Exhibit No. 331, on pare 13 of the German. Fanslau too, stated that Himmler reserved the right to appoint the SS Economist himself. On page 14 of the same document, Pohl therefore submits a collective proposal concerning the appointment of the SS economist. Under paragraph 4, it is proposed to appoint Sturmbannfuehrer Schellin. Quite obviously, what is missing here is an intermediary order which must have been Himmler's approval, the relative order by the SS Personnel Main Office. The order signed by Fanslau concerns the appointment made by the Main Personal Office and therefore is purely an extract from the collective order in accordance with Pohl's suggestion.
THE PRESIDENT: Dr. von Stakelberg -
DR. VON STAKELBERG: Yes.
THE PRESIDENT: I've got to readjust our schedule here a little further. This morning we have a convention of American congressmen coming to visit us and we want to have a court in session when they get here and I am just advised that General Taylor would like to have us in session from 10:40 to 11:15.
DR. VON STAKELBERG: 10:40 to 11:15.
THE PRESIDENT: So I think we will suspend now and resume so that we will be on exhibition when they arrive.
Now I have some information about the translations and I think I know some of the answers that you are ready to give. Most of the speeches were receives by the Translation Division of September 15, which was last Monday. I remember very distinctly, at least two or three weeks ago, suggesting to counsel that they get their speeches ready and in to the Translation Division early and then if you wanted to add to them to cover matters that occurred later in the trial, you could do so. Some arguments have still not reached the Translation Division. I don't know which ones they are, but apparently this difficulty that we are in seems to be attributable to the defense counsel not getting their manuscripts and copies into the Translation Division soon enough.
We can hear the arguments on behalf of Sommer, Hohberg, and Pook, and I believe Dr. Rauschenbauch now had the German translation for Hans Loerner ready. Now that will take care of today. But what will happen tomorrow? Is there anyone who has not yet delivered his final argument to the Translation Division is that possible. If there is such a naughty person, he isn't here. Is it true that most of these transcripts were not delivered until last Monday? When did you turn in your manuscript? Did you turn it into the Defense Information Center, I suppose, and then I know there is some delay from the Defense Information Center to the Translation Department, isn't there?
DR. VON STAKELBERG: Yes, there is always a slight delay there. I must admit, Your Honor, that I submitted mine only on the 15th, because I fought here in the Viking matter. I must admit that on my own behalf. I don't know what my colleagues did.
DR. HAENSEL: May I point out one thing to the Tribunal. A final plea can only be written at the end.
THE PRESIDENT: That is just the point.
DR. HAENSEL: Well, what I mean is the final plea is something which must be an immediate expression by defense counsel. The best plea is the one which is held extemporaneously. To commit oneself to a definite plea and put it down in writing a long time in advance is a very difficult thing to do; as the trial proceeds perhaps an argument occurs at the last moment which comes out. The question therefore is always very difficult in these big trials and usually the procedure is to take a short interval after the end so that you can write down your plea. Then we were a bit rushed at the end and I believe it must be expected that many officers, including myself, submitted our pleas very late, on the 15th, for instance, but I don't think for that reason, we should be accused of anything, especially as there was never a time limit fixed when we had to hand over the pleas. Would it not be possible
THE PRESIDENT: I think you ought to be scolded a little bit anyway. I don't know that I want to more than that.
DR. HAENSEL: Yes.
THE PRESIDENT: But at any rate, you ought to be scolded and perhaps spanked.
DR. HAENSEL: But every good pupil always has an excuse ready.
THE PRESIDENT: Especially if his name is Haensel.
DR. RACUSCHENBACH (FOR THE DEFENDANT FRANK): I believe, Your Honors, that the technical difficulties are larger always on the side of the Defense only. I believe I am correctly informed when I say that the prosecution delivered the draft of their plea only on the last day, but he has somebody who will bit it down immediately. He need not have it translated, because he speaks in English. That must be taken into consideration.
THE PRESIDENT: Well, I call attention to the eminent example of your confrere Dr. Seidl. He has a reputation of always having his material ready, and he had it here, 152 pages, Now he had it ready? Maybe he is a magician. I don't know.
DR. HAENSEL: Far be it from me to say anything against Dr. Seidl, but after all it is difficult to start a trial by writing down the plea. After all, you can write down the plea only at the end, but perhaps there might be a case where Seidl who started at the beginning and therefore had his facts. But a good plea ought to be hold and read not at the beginning.
THE PRESIDENT: Dr. Haensel, you could write 2/3 of your plea before you hear any evidence. At any rate, two weeks ago, you could write 2/3 of it, and later, at that time, I know you have to wait, but you could get most of it ready long before the end of the evidence.
DR. HANSEL: That is right, but I cannot hand it over to translation before I have finished, of course, but I can't expect the Translation Department to translate 2/3 of it first and then given them 1/3 later on.
The translation can only start when I have completely finished my plea and that is the proper way. I think it is simply a technical difficulty and I am completely aware of its implications. All we can do is try to pass the bottle neck.
THE PRESIDENT: Well, I have got to scold so body. So ****** shake my finger at, so you are here, and so I scold you and shake my finger at you. That's because you are here. Now, it true that there are some arguments that have not yet been completed and turned in? None that you know of? Well, all right. We have enough to go for today, and probably tomorrow.
DR. HAENSEL: Rauschenbach has some here.
THE PRESIDENT: We will take what remains of the recess, and we have enough to finish today and probably tomorrow, and then we will see what happens. Some times these things turn out better than we feared. We will take a short recess now.
(A recess was taken).
THE MARSHAL: Take your seats please.
The Tribunal is again in session.
DR. VON STACKELBERG(for defendant Fanslau): The medical experiments Euthanasia.1.Fanslau had no knowledge at all about the fact that medical experiments were being carried out, or that there was such a thing as a Euthanasia program. The term Euthanasia Became known to defendant about the end of 1945.or 1946. This has conclusively proved that Fanslau had no knowledge of the crimes proved by the Prosecution and, therefore, cannot be hold responsible for participation by consent. 2. Just in case the Tribunal should not share my legal misgivings against an extension of the forms and participation under Law No. 10, I have to analyze the other forms of participation of Sections 2e and d of Law No. 10. These proofs make the fact that whether or not an act can be punished depends on (a) connection with the planning and execution of a crime, (b) to the membership of an organization or group which was connected with the execution of such crimes. Both provisions seem at first only to stipulate objective conditions, connections, or membership. But that interpretation surely is not compatible with the legal concept of all civilized nations. In German law the accessory must have the will that the deed must be done, and the man who aids and abets must have the will to allow the illegal excesses of the deed to continue.
Similarly, Anglo-American law stipulates for the necessary before the fact the principle in the second degree, and the accessory after the fact as a subjective stipulation with Dolus, for the principle in the second degree: "There must be both a participation in the act and the community of purpose." Condition that an act can be punished must always be the knowledge of intended or committed crimes. This is also borne out by the cases decided by Military Tribunal I; and quoted by my learned friend Dr. Rauschenbach in detail. Defendant Fanslau had no knowledge of the criminal plans -- my questions which I put with emphasis in this direction he denied emphatically -- nor of the commission of crimes as I have described in detail.
In addition to this there is no fact that membership in the WVHA alone did not establish close factual connections between the defendants that one could speak of objective connection or the membership to a group. No political plan was at the back of the establishment of the WVHA. Its establishment was due only to the effort to have the confused organization consisting of a large number of independent offices, such as Budget & Buildings, Main Office of Administration and Economy, Troop Administration, simplified. Moreover, WVHA was not a uniform and unified department. At first it consisted purely of military tasks, Office Groups A, B, and in some cases C, and apart from that, quite independently, purely economic tasks (Office Group W, and in some cases C). Later on there was the administration of concentration camps as a purely independent field of task separated both locally and factually (Office Group D located in Oranienburg). The unification of these multiple spheres of tasks did not have any factual reasons because otherwise at least three different government departments had to be established. It had purely one personal reasons: All these tasks were handed over to the defendant Pohl jointly. The formal unification into a department with a uniform name must not deceive us that the various spheres of tasks were separated factually. Cooperation between the various office groups among each other did not take place. There was no conference of the office group chiefs, nor was there any factual collaboration. I shall quote the question put by Judge Phillips to Fanslau:
"I spoke about the work. You had no cooperation within the various offices, but each one was independent of the other and was submitted only to Pohl -- is that what we are to understand?
A.- Yes. Excuse me - these were separated spheres of tasks and distinct from one another."
It would have been quite proper to have three different departments instead of the WVHA.
administrative office of the Waffen-SS and Economic Office, and Office for the concentration camp and to put them, all three under Pohl. This would have described that these spheres of tasks did not have any factual interrelation. The fact that the duties of troop administration economy were locally coordinated and given a uniform designation together with the Inspectorate of concentration camp must not deceive us that there was lack of factual connection and lack of a common purpose. WVHA, internally speaking, did not have any factual connections, was not a group organization with a common purpose. Even under the intensified forms of participation under Law No. 10 any punishable responsibility of Fanslau does not exist.
This brings me to main Part C of my plea -- Crimes of Membership in an Organization Declared to be Criminal by IMT. We should at first look more closely at the crime newly established under No. 10 against which, in my fundamental analysis, I have already raised the objection of nullum crimen, nulla poena sine lege. Justice Jackson said, before the IMT --- this above the fundamental principle for the prosecution against the organization:
"The purpose of declaring criminality of organizations as in every conspiracy charge, is punishment for aiding crimes although the precise perpetrators can never be found or identified."
The essence of a criminal membership in an organization declared to be criminal consists, therefore, of the fact that abetting in crimes as not stated in detail have been declared, an independent crime by depriving it of its nature as an accessory act. For in every interpretation of this provision, particularly as to the question according to subjective conditions, the local principle formed for the accessory must be taken recourse to. 2. The IMT in its sentence declared those people to be criminals among the SS those groups of persons who became members, or remained members of the SS (a) after 1 September 1939, (b) voluntarily, and who (c) either had knowledge of the criminal acts of the SS or were involved in the commission of such crimes.
The term of Groups of Persons, in the sense of this sentence, was described as follows by the IMT:
"A criminal organization is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together and organized for a common purpose."
We will have to examine whether the Prosecution succeeded in proving with any certainty and beyond reasonable doubt that these conditions apply to the defendant Fanslau.
3. The question arises here whether the group declared to be criminal is identical with the SS Special Task Unit (Verfuegungstruppe), the Waffen-SS, or the WVHA.
a.- The Special Task Unit, Verfuegungstruppe, according to the findings of the IMT consisted of SS members who had volunteered for a term of military service of four years, instead of being drafted into the army. It was organized as an armed unit which should be used with the Army in case of mobilization. In the summer of 1939 the Special Task Unit was equipped as a motorized division in order to form a corps of combat units which in 1940 became known as the Waffen-SS. The Waffen-SS were under one technical orders of the army but they were equipped by the administrative agencies of the SS and supplied with everything else and was under the disciplinary charges of the SS. One thing becomes clear therefrom. On 1 September 1939 the SS Special Task Unit, and later as Waffen-SS, was put under the technical orders of the army. Its members became soldiers. Military laws, the duty of the soldier to obey orders, and do service, applied to them as well as to any members of the Wehrmacht. This, it seems to me, removes the stigma of voluntary joining in the case of the members of the SS Special Task Unit and later the Waffen-SS at least as late as 1 September 1939.
But apart from this fact defendant Fanslau was not among those men who were aware of an Alleged criminal purpose of the Waffen-SS. The Waffen-SS to him was a purely military unit with military tasks and military aims. He himself regarded himself as an officer and not a political official. After he heard of atrocities of any kind he regarded them as excesses against which strong measures had to be taken, but not for the expression of a criminal system. I refer here to the testimony of witness Felix Steiner who gave us these details about discipline, and the observation of military customs within the Viking Division. Even if isolated units of the Waffen-SS were used to carry out criminal tasks it is also certain that it was not the SS as a whole or an organization which according to its aims and program was to serve criminal aims.
b. Nor can the WVHA be regarded as a criminal group in the sense of the sentence of the IMT.
THE PRESIDENT: Well, Dr. Stackelberg, the only criminal group this involved is the SS isn't it? The WVHA was not determined to be a criminal group by the IMT?
DR. STACKELBERG: As I understand it, your Honor, I think a certain group was declared to be criminal within the SS.
THE PRESIDENT: Well, certainly not the WVHA.
DR. STACKELBERG: No, but I am looking for this group. I am trying to find out which group was declared criminal by the IMT because the IMT has said those members of the SS are criminal who belonged to that group, but the IMT has not said that the WVHA, or that the Waffen-SS, or the Verfuegungstruppe, was criminal, or was that group, What I am trying to point out, your Honor, is that not the whole SS has been declared to be criminal.
THE PRESIDENT: Oh.
DR. STACKELBERG: That according to the sentence of the IMT only those members of the SS were declared criminal who become, or were, members after the 1st of September 1939 and who were members voluntarily and who knew about the crimes in the SS; not all members are criminal.
THE PRESIDENT: Not all members, but does not the IMT judgment refer to the Waffen-SS only?
DR. STACKELBERG: The judgment of the IMT refers, I think verbally to"that group in the SS."
THE PRESIDENT: In the Waffen-SS.
DR. STACKELBERG: In the SS, nob the Waffen-SS, your Honor. I think in the whole SS.
THE PRESIDENT: I think the fair implication is that there was meant certain members only of the Waffen-SS.
DR. STACKELBERG: Yes, Your Honor, yes.
THE PRESIDENT: Do you agree with me on that?
DR. STACKELBERG: I agree with you on that, yes.
DR. VON STAKELBERG: I believe I can skip the paragraph concerning the WVHA in this connection. Number 4, to continue on Page 34: The result that the defendant Fanslau was not a member of the group within the SS which had been declared criminal is further borne out if we briefly look once again at his career and what he did during various periods of time.
In 1931 the defendant Fanslau, who was then 22, joined the NSDAP and the Allgemeine SS under the impact of the world economic crisis of the time during the course of which he had become unemployed, from the time of the autumn of 1930 on. Between 1934 and 1938 he was in the administrative service of the SS in a variety of official positions. Between 1st March 1938 and 21 June 1938 he worked on the budgets for the SS special task units, the Verfuegungstruppe. After that he became the administrative officer of the SS for Verfuegungstruppe and after that of the Viking Division.
From the time of 1st February 1942 he was a member of the WVHA, his tasks being purely military ones. As Chief of Office A/V he was only in charge of military tasks in the personnel department concerning officers and men of the Waffen SS. within the scope of field A/V/1 was the personnel data of CO's and members of Officer Group A,B,C, and D, as well as those of the female clerks. In the field of task of A/V/2 personnel data of the administrative offices were kept. The field of task cf A/V/3 consisted of the training and education of administrative officers. All that was done in A/V was a purely military activity and was roughly the same thing as was done by the personnel office of the army administrative office. The training also of the administrative officers was done on principles issued for the army.
The defendant Fanslau thought it was particularly important to describe a promotion of his officers not as increased privilege but merely as an increase in duty and recommended to the newly appointed officers honorable conduct, fairness, self-discipline, and chivalry.
As the deputy of Office Group A the defendant and Fanslau had only formal tasks to fulfill such as signing travel vouchers; permissions to use cars; but he did not have the authority to issue orders. Even after he was appointed Chief of Office Group A in May or June 1944,there was a very little change in his position.
After the curtailments and cutting down of personnel in the administration of the tasks of the troop administration had been so much reduced that the position of Office Group A was scarcely necessary from a factual point of view, the office chiefs of Office Group A continued to submit the few things which they could not decide on themselves directly to defendant Pohl. Such a practice was observed after defendant Frank had joined the police administration in 1943. Office A/1 after that was no longer in charge of budget problems. We then had an open and unlimited budget. The agencies and units did not have to report their requirements of money to WVHA. They could draw direct from the Reich Bank or the Wehrmacht Main Treasuries. The inevitable expenses could be taken care of by the agencies to an unlimited amount, and no permission of the part of WVHA was necessary.
THE PRESIDENT: When was the open budget established, Dr. Von Stakelberg?
DR. VON STAKELBERG: I am not quite sure of the date, your Honor; but I think it became clear in this trial that it happened at the time when Fanslau was chief of the office group. It was then already in practice. Unless I am very much mistaken, it must have been roughly in February of 1944. At that time the simplification measures had been
THE PRESIDENT: I think it was earlier than that, wasn't it?
DR. VON STAKELBERG: Yes, perhaps it was earlier. I'm not sure. Perhaps it was earlier. All I know as that the open budget was in force when Fanslau became Chief of Office Group A.There were only two administrative officers working in Office A/II. They had scarcely any factual task to fulfill. The Chief of Office A/II had been transferred to the field unit because he had nothing left to do.
The legal office A/III worked only on car accidents and compensation. The purchase of land had been discontinued in wartime. In the whole of Office A/ III, there was only one administrative officer apart from the office chief who was also chief of an office in another office group. Office A/IV, finally, was no longer located in Berlin at that time. Codefendant Vogt had his own post office outside Berlin, and incoming and outgoing mail was no longer dealt with by the WVHA. The current auditing had been completely discontinued and spot tests locally had been almost completely discontinued. Administrative officers and NCO's of that office on the basis of the cutting down of personnel had been reduced by eighty per cent and transferred to the field unit.
He himself regarded the most important thing in his life as being an honorable soldier without any political speculations; and in wartime he advocated decent conduct and decent treatment of the civilian population. (Affidavit Egle, Defense Exhibit Fanslau 25.) To fulfill purely military tasks in good faith without knowledge of any criminal purposes could never be regarded as criminal.
I may refer here to what the presiding judge said on 10 July 1947. "There's nothing improper in supplying guards in concentration camps with ammunition. They were SS soldiers and they needed arms and ammunition. There's nothing improper in that." Judge Musmanno added, and I quote: "I should like to add, Dr. Hoffmann, that it depends on whether the defendant knew that the ammunition had been used in an improper and inhumane manner, that the guards shot down inmates; but simply supplying ammunition is certainly a legal affair during the war." These sentences might also be applied to the military conduct of Fanslau. If, therefore, the group declared to be criminal according to the terminology quoted above of the IMT consists in cooperation for criminal purposes, I might state in summation that in the typically military attitude and activity of defendant Fanslau such contribution to criminal purposes cannot be seen.
5. Moreover, the IMT has expressly insisted that knowledge must exist that the SS had been used for criminal activities. My learned colleague Dr. Haensel in his trial brief of 3rd August 1947 analyzed analogously the principles of conspiracy and said that knowledge of that type must have been consent. A similar result is arrived at if you regard the crime of membership as an independent accessory because to assist a criminal entails knowledge of the intention and why the crime is committed. In Part B of my plea I have already discussed the point that defendant Fanslau had no knowledge of the crimes charged to the SS. On the contrary, wherever he saw excesses -- which we regard today as an expression of a criminal system but which looked to him at the time like purely individual ex ses -- he vented his indignation and interfered wherever he could. As for a number of points of the Party program, the attitude taken by Fanslau was a negative one. He particularly refuted the exaggerated racial policy of the Third Reich.
The Jewish pogrom of November 30 moved him to the acutest indignation. I am here referring to our affidavit of Rechenberg, Exhibit Fanslau Number 23. He kept up friendly relations with Jewish friends. In January 1945 he put a lorry at the disposal of some friends to evacuate them from the Kreis Landsberg. These included the Jewish family Hans Rechenberg. When his brother-in-law married a half-Jew, Fanslau was best man. When his brother-in-law was sent to a camp later on because of that marriage, Fanslau did everything he could and told his sister not to get a divorce. When Else Pleil, who was a Jehovah's Witness, was allocated to his household as an assistant, he respected her faith and did not put any obstacles in her way when she wanted to read books about Jehovah's Witnesses and continue her studies.
When he was reported to about the Russian atrocities against the civilian populations in Lemberg and Tarnopol, he voiced his indignation about such inhumanity and said that the civilian population must not be involved in military events and that he would never have stood for anything of the sort from his own troops.
This refers to the affidavit of Egle, Fanslau Exhibit Number 25.
His young administrative officers were trained by him in the traditional spirit of the army, and he expected them to be honorable, chivalrous and show self-discipline. Thus we have a complete picture of defendant Fanslau as a soldier and as a man. It is the picture of a man full of ideals and pure in heart, who kept up his moral integrity even under the difficult era of National Socialism. This becomes clear. He was not a member of the group declared to be criminal by the IMT within the SS. It, therefore, seems impossible to sentence him under Count IV.
6. May, I, for the sake of completeness, point out that the IMT had limited the extent of the sentence for the crime of membership in an organization declared to be criminal. I quote: "The Tribunal recommends that in no case should punishment imposed under Law Lumber 10 upon any members of an organization or group declared by the Tribunal to be criminal exceed the punishment fixed by the de-Nazification law." The de-Nazification law, however, regards only the committing to a labor camp as a suitable punishment, not to a penitentiary or prison, up to at the most ten years. I refer here to Defense Exhibit Fanslau Number 20.
May it please the Tribunal, I have thus reached the end of my final plea for defendant Fanslau. In your sentencing of the former Field Marshal Erhardt Milch, you described the principle of democratic jurisdiction as a most important one, that is, that a defendant is assumed to be innocent unless guilt has been proved beyond any reasonable doubt. Basing my request on that principle, I ask you to find defendant Fanslau not guilty.
THE PRESIDENT: All right, the Tribunal is ready to hear the final argument on behalf of the defendant Sommer.
DR. BELZER (for the defendant Sommer): May it please the Tribunal.
There can be no doubt that under the National Socialist regime in Germany, especially during the time after the 1st of September 1939, the gravest crimes which could be thought of by human brain were committed. There can be no excuse for these crimes. There should be no doubt that the guilty ones must be called to account and must atone for their deeds. Which courts are competent for the sentencing of these criminals is irrelevant for the following reasons. It is sufficient in this connection to refer to the rules of Control Council Law Number 10.
As grave as the crimes described in Article II, Number 1(b) and (c) of the Control Council Law and forming the object of the present indictment may be weighed individually and as terrible as their consequences may have been for the whole of civilized mankind, it is and remains supreme law for every court which is engaged in judging them to call to account only the really guilty ones and, consequently, to apply to the examination of the question of guilt the rule of the strictest impartiality. As terrible as the crimes under the indictment may have been, it would be irresponsible to punish even one innocent person for them. Wrong which has been committed is not atoned by adding to it additional wrong. The responsible task of a court can be mastered the easier the more complete is the evidence available, the exonerating in the same degree as the incriminating.
The task must appear the more insoluble the more doubtful is the evidence regarding completeness and manner. In this respect the evidence presented in this case gives cause for the severest doubt. The proof of facts and manner of the crimes committed was given mainly by the interrogation of witnesses who, with one single exception, were concentration camp inmates in whose eyes, when they made their statements, as is perhaps humanly understandable, burned hatred against the defendants in whom, as members of the SS, they saw the representatives of the system to which, as they thought, they owed their misery and past sufferings.
As much as one or the other of these witnesses may have endeavored to exercise greatest impartiality, they could not and cannot be really impartial.
Regarding the other paramount part, especially as far as the question of the participation of the individual defendants was concerned, the prosecution undertook to prove its case by presenting captured documents. One tried to fill gaps in the chain of evidence, especially regarding the connections of the individual defendants to the happenings, which could not be closed by captured documents, with affidavits of more or less questionable content. Thus one could again and again witness in this case that defendants used the occasion of the interrogation as witnesses in their own behalf to correct the affidavits made by them or that, as far as third persons were concerned and were in rea* of the defense, affidavits had to be furnished by the defense, in which these persons could correct their affidavits presented by the prosecution.
In this connection I may be allowed to refer also to the affidavit of the witness Georg Rammler, interrogated by me on 28 June 1947, who declared on remonstrance that his statements contained in the affidavit of 24 January 1947, presented by the prosecution as Document Number 1581, Exhibit Number 136, regarding the responsibility of Office D-II for prisoner transports, were based on presumptions and not on knowledge as he had told it also to the interrogator who took the affidavit but which was not considered by him. Regarding the captured documents, it should not be overlooked that these documents generally are accessible to the defense only insofar as they were presented by the prosecution itself as evidence - and often separated from their context - but, on the other hand, considerable doubt seems to be justified as to whether the prosecution has presented all documents of importance for the proof which it possesses, which is what should be done in the interest of an objective finding of the truth It is of no use to close the eyes before these things.
My short references may, however, be sufficient to throw a flash of light upon the dubiousness of the evidence presented by the prosecution with its deficiencies and dangers for a truly objective and just finding of the verdict. They show in any case that the entire evidence presented by the prosecution may be used only with extreme caution and all reservations. I cannot refrain, in fulfilling my duties as defense counsel, from referring to other sources of danger as well. But in order to exclude at once any possibility of misunderstanding, I should like at this juncture to take the opportunity of thanking the honorable Court for the procedure which in every phase of this case was objective beyond any doubt and for the understanding shown with regard to the difficulties of the defense. Just the evident efforts of this Court to get to the bottom of things encourages me to make the following statements.
As far as difficulties and misunderstandings resulted during the trial on account of the two languages, they could always easily be cleared up thanks to the loyalty of all participants. The task of the Court becomes extremely difficult regarding the examination of the question of criminal responsibility on account of the fact that prosecutor and judge lived in a wholly different world from that of the defendants and witnesses, in entirely different circumstances than the ones under which things which form the object of the indictment happened. I emphasize once again: Not a word of excuse and defense for the true crimes and the really guilty ones! In peace and war prosecutor and judge lived under entirely different living conditions and saw things from an entirely different perspective than the defendants and the defense witnesses presented by the defense. This has a tremendous importance in judging the credibility of defendants and defense witnesses.
Here once again I should like to refer to the example of the witness Rammler interrogated by me. Everybody who knew the conditions in the offices of the German military administration, such as the WVHA also was, knows that the witness in his position as Hauptscharfuehrer with Division D had no insight into the internal markings of individual offices and therefore by his own knowledge cannot be in a position to make statements, for example, regarding the responsibility of Office D-II for prisoner transports.