about a line of training when he was not yet in charge of the Kommando?
A I do not understand that question. Could you express it a little bit clearer? 1942 he was not immediately put in charge of the Kommando, but only after a period of training lasting about four weeks?
A I am sorry, Counsel, I cannot find any point of that. If you want to, I will read to you this paragraph where he says word by word what he did. "I was also in Russia, from the 15th February 1942 until January 1943, mainly in Orel." "With which unit there?" "Einstazgruppe B, Soncerkommando VII-B." "Thank you." I cannot find in addition any paragraph where he refers to any training. put in charge of the Kommando. interrogatee at that time. I asked him in the same connection: "Who at your time was in charge of Einsatzkommando VII-B?" "I commanded it myself; my predecessor was Obersturmbannfuehrer Rasch."
Q Thank you. What statements did Ott make on the operation Eisbaer?
A He stated that this operation was under Colonel Ruebsam; that it was in different locations; that it lasted from the middle of February to May; and that at this tine he went on leave; and then he continues to talk about executions.
Q May I ask what is your opinion about executions; is that in connection with the operation Eisbaer?
A I don't think so, but I cannot say because I have just here in the record that he states that before he went on leave, it might have been twenty to twenty-five persons.
THE PRESIDENT: Yes, Mr. Walton.
MR. WALTON: Your Honors, this type of examination is going far beyond the affidavit which is now in evidence before the Tribunal.
It is used as a device to bring out information Contained in interrogations which the Court felt should not be turned over to the Defense Counsel. The Defense Counsel has a perfect right to ask what the interrogation said concerning the statements said in the indictment, and the Prosecution believes that it has a, right to ask about any of the facts concerning the signing of the affidavit or the holding of interrogations; but we wish to object to going beyond such facts in order to bring out everything that was said at this interrogation, We don't see that it is material or relevant at this time.
THE PRESIDENT: I might suggest to Defense Counsel that the only thing before us, the only thing that the Defense Counsel need to worry about, is what is contained in the affidavit, Even if the defendant should have in his conversation with the interrogator admitted many other things which are not in the affidavit and not before the Court, he does not have to answer to that. So, therefore, it seems to me entirely unnecessary to go into things which are not before the Tribunal.
DR. KOESSL: The purpose of my question will be shown clearly by my next question. BY DR. KOESSL: of interrogation there are not statements contained as to executions in connection with the "Operation Eisbaer." I, therefore, would like to ask you how does the sentence: "Within the Operation Eisbaer I also carried out executions of band leaders and partisans or persons suspected of being partisans", got into the affidavit draft. That is the sentence which the defendant Ott has crossed out after signing it. I have made a mistkae by putting down: "Within the Operation Eisbaer" a number of executions carried out, and he said it was not so, he had a perfect right to cross it out and initial it.
Q Did he not say that during the interrogation? is not very clear, because after talking of the "Operation Eisbaer", he mentioned executions and therefore when I took the affidavit out of the material Ott had given me during interrogations, I was at that time under the impression that executions were carried out during that "Operation Eisbaer", but when he lateron stated it was not so, he crossed it out and initialed it.
Q Thank you. Now I have a few more questions from Document Book No. 1, the affidavit of Schubert, the German page 151, Exhibit No. 28, NO-3055, the affidavit of Schubert of 24 February 1947. Witness, when did the interrogation take place on which the affidavit of Schubert of 24 February 1947 is based?
4th of February, and on 23rd of January, and, I myself have interrogated Schubert still during my Army career sometime in December 1945, and out of all information I personally had obtained the affidavit was made. February 1947 is based was on the 18th of February, is that correct? the interrogation of 23 January, so I will not say that it was done only on one particular interrogation, but on a number of them. interrogation of 18 February, was put into an unheated single cell in the defendant is wing of the prison? there, he was not allowed to go for walking any more? possibility which I do not recall definitely, but I am quite sure that I am informed the prison authorities after that confession he made that there is a possibility of suicide, and I have no knowledge which or what kind of precautions the prison authorities are taking in such a case.
THE PRESIDENT: I assume, you mean "were taking"?
THE WITNESS: Yes, Your Honor. BY DR. KOESSL: was handed the affidavit to sign in which Schubert made at least one dozen corrections?
arose about the words "Intend" and "Supervise" because these words, according to Schubert, do not adequately give the meaning of the actual order? but I have over here particularly the copy of the draft, and Schubert made eight corrections, and as I thought that the document would not look very neat and clean, after he had made the corrections, I had the whole affidavit re-written and presented to him on the 24th February. "intend" ? find the point you want to make. If you would give me a little bit more of the information I will try to find the point you want to bring out, counsel. about twelve, I only ask whether one of these corrections which can be discovered easily concern the word "intend"?
A In what connection, please?
Q In connection with the description of Schubert's tasks in the Action Simferopol? that all the money and valuables, which were taken away from those people earmarked for execution were delivered to Einsatzgruppe-D, but the correction which Schubert made later-on is that they went to the administrative officers and their deputies, as you said "Beauftragte" for sending them to the Einsatzgruppen. Is that the point you wanted to stress?
DR. KOESSL: I believe the Prosecution will permit me to look at the corrected record of 21 February. If so I think I can save myself asking other questions on that point.
THE PRESIDENT: Have you any observation to make on that, counsel?
MR. WALTON: If your Honor please, the witness is here, and he has offered to aid him in any way, The counsel for Schubert has a copy of the affidavit before him, and Mr. Wartenberg has the original draft and a copy of the affidavit before him, I think as to this particular word, if he will read the context in which it was used, Mr. Wartenberg can locate it without making a search.
DR. KOESSL: In that case I would like to ask the witness to tell me every single correction made in the affidavit draft of 21 February?
A I will read these corrections in German. The word "Town" was crossed out and replaced by "Free and Hanseatic City in the Reich" (Freie und Hansestadt im Reich). The figure containing the number of people shot of about "700 to 800" was added in handwriting. "Einsatzgruppe D" was crossed out, and "Administration Leaders and their commissioners for transferring to Einsatzgruppe D" ("Verwatlungsfuehrer und deren Beauftragte zur Weiterleitung an Einsatzgruppe D") replaced instead, "Gypsies and other national groups" was crossed out. "Under my supervision was the whole" was crossed out and replaced by: "Among other things I also convinced myself that he ..." paragraph 6: added "and rifles". Paragraph 7 was cancelled. BY DR. KOESSL:
Q May I ask for paragraph 6 again. In paragraph six what is the word?
A It was added "For the executions not only machine pistols were used but also rifles."
Q The next correction? with the disposal of the corpses, and was cancelled, because Schubert claimed he was not present. As a matter of fact, that was only in the draft, because I did not put in the numbers and so on.
Q Why was this paragraph entered in the affidavit? Schubert the idea that he knew something about the disposal of the corpses, but he stated when he was present with the affidavit that he did not have any knowledge to that effect, so I cancelled the whole paragraph.
Q The next corrections?
A These were all the corrections. Only in the affidavit itself in paragraph 3 it reads: "In January or February 1942" and he changed the date there to "December 1941". the effect that a discussion about the contents of the order and Schubert's being authorized to carry out inspections is contained therein?
A No. I have started over here a record of 21 February, but I think as we were busy in correcting the copies that my secretary did not take everything down during that interrogation because at the time we were only concerned with the different corrections which we made in handwriting, as a matter of fact, in Schubert's own handwriting.
MR. WALTON: The Prosecution fails to see the materiality of this line of questioning. The Defendant Schubert can relate any detail everything that took place at this interrogation. Mr. Wartenberg has testified to the essential facts which took place. He has delineated a number of corrections, and I see no reason in pursuing this line of questioning, Your Honors, unless it is for your own information.
THE PRESIDENT: It has only incidentally brought out a very important item, and, that is, the care with which the affidavit was made out, and the entire opportunity and extreme latitude allowing the interrogatee to make changes, so to that extent it has shed a great deal of light on the entire procedure, so we would say this has been very illuminating to the Tribunal.
DR. KOESSL: For that reason, Your Honor, I notice that on the main point itself this generosity did not exist.
THE PRESIDENT: I don't quite grasp the point. What do you regard as the main point?
DR. KOESSL: Nothing seems to be contained in the interrogation record concerning the considerable objections of Schubert on the question whether he ever made use of his right of intention ("Beabsichtigungsrecht"). Considerable discussion on that point took place. That is to What my entire questioning was directed, to find out whether the record of interrogation on this most important point mentioned anything, and, whether the record of 21 February mentioned anything about that, in particularly whether alterations of Schubert's on that point were carried out. All other corrections are, of course, only of irrelevant nature and in my opinion cannot prove very much generosity.
THE PRESIDENT: Well, the corrections were not considered irrelevant by the interrogatee, because he made the corrections himself, and it must be understood that this interrogation did not intend to be the entire story of the defendant's case. That will come in the trial which we are now, of course, conducting, and the defendant will be given every possible chance and opportunity to tell his entire story.
DR. KOESSL: Yes. BY DR. KOESSL: Defendant Schubert that the co-defendant Siebert incriminates him, and give him the responsibility for it? I had numerous inquiries with Schubert, starting in November or Decem ber 1945, and of these interrogations I have no record because they were conducted in the vicinity of Frankfurt, and not by this office for which I am working right now.
I cannot answer you that question. you blamed the defendant Schubert on this point, you told the secretary not to write down this part of the interrogation? interrogations that I am telling to my secretary not to take down a certain point, because it happens that some of the interrogatees are asking me personal questions in regard to leaves, or in regard to movement to another wing, and, these questions are usually not taken down, but questions to facts are always taken down. page 19, of the German, wherein Schubert affidavit, Exhibit No. 4, No. 2716, of 4 February 1947 is contained. Can you remember, witness, that Schubert objected to the formulation of this affidavit in a few parts, and considered it to be ambiguous, and you confirmed to him that he would have plenty of opportunity to clarify the sense of such paragraphs. It concerned mostly, but not entirely, the figure 7 of this affidavit, which at the end says something about "the civilian sector" and of "burning" in any case which is not quite clear in its formulation. will take at a later date an additional affidavit, and that points which are not clear could be clarified then. I have taken a later affidavit, but I do not recall that Schubert, while taking the additional affidavit, referred to this paragraph 7 of the affidavit of February 1947. If I have told him that he has a possibility to clarify it, it is possible, and, according to my records, I have continued to interrogate him, and I have continued to take affidavits from him. If he had certain points which he, at a later time, wanted to bring out, he could have done so, as on the 21 of February he was given the draft of an additional affidavit which was completely changed, and re-written, so even if he had the intention to add anything he had the chance there.
of the place in the Eastern territories where actions took place, and that the "course of operations" contained the number of losses, number of locations destroyed and persons killed, arrest of agents, reports about interrogations, reports on civilian sectors. Can you confirm to me that this "course of operation" speaking of losses, number of towns destroyed, only and exclusively concerned fights of the Wehrmacht against partisans?
A I don't think so, because I asked Schubert sofar as I recall at that time what was in the reports his unit forwarded to the Reichssicherheits Hauptamt in Berlin ; and he claimed that these things were in it, and I had the feeling that the reports of the Wehrmacht would go through the Wehrmacht channels, and not through the channels of an Einsatzgruppe. I had the impression that these were the actions of the units. How far the Army was connected with it, that is a completely different thing. Schubert explained to me his position that he was something like a file clerk and adjutant to Ohlendorf, that he filed the reports away, and that is what he saw in the reports. this particular Wehrmachts area?
THE PRESIDENT: Counsel, I am afraid that now we are getting into a discussion on the facts themselves, and not of the affidavit. You may inquire as to whether the affidavit represents what the interrogatee said, but to go into the merits of the facts themselves is a little beyond the scope of this present inquiry.
DR. KOESSL: If Your Honor please, I only come to talk about it because this place in this affidavit is not quite explicit in the German, at least, it is not at all to be understood.
THE PRESIDENT: If it becomes meaningless, then, of course, it is Meaningless. That is what the defendant signed, and that is the only thing he will be charged with sofar as that document is concerned, naturally.
also later, Schubert was interrogated by you. time.
Q Did you also interrogate him on 14 March?
A What year?
Q '47. the Defendant Schubert? the mission of Siebert.
THE PRESIDENT: Suppose you look for that during the recess, Mr. Wertenberg. We will now recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: Take your seats, please.
MR. WALTON: The Prosecution at this time desires to object to the line of inquiry into the interrogation of 14th of March, 1947, which was made some eighteen dry subsequent to the signing of the affidavit under discussion. We object for the some reasons, that it is not materiel. It is a device to pry into the files of the Prosecution. We feel that it is a matter totally irrelevant to the signing of the affidavit, and for matters of relevancy we object.
THE PRESIDENT: Let's hear what question you will present, and then we will rule.
BY DR. KOESSL:
Q Witness, in the affidavit of the 24th of February under No. 3, you have said the following: "In December 1941, 1 don't recall the exact date, I was ordered by Ohlendorf or Siebert,", etc. In connection with this formulation a discussion developed as to whether the addition of Siebert may be adopted in the affidavit. Do you recall this?
A I have this in my draft of 21st of February. I have already both names in, "Ohlendorf or Siebert", and I am right now under the impression that the Defendant Schubert did not know who gave him the order to attendance, but I cannot tell you off-hand if we had a discussion about the point or not.
Q Wasn't it the object of all the discussions which took place about the position of Siebert? can check it. You referred before to the interrogation of 14th of March. and the following affidavit of 21st of February, and the affidavit of the 24th which followed from this and the interrogation of the 18th of March which again is in connection with the previously mention ed one.
MR. WALTON: I renew my objection, Your Honors, to any interrogation subsequent to the signing of the affidavit.
THE PRESIDENT: This does seem perhaps a, little rambling and a little undecisive.
DR. KOESSL: Yes, sir; Your Honor. I would like to formulate my question somewhat differently. BY DR. KOESSL: Schubert discussions took place about the question of whether Siebert gave an order to Schubert at all?
A I have questioned Schubert on the position of Siebert. It is quite possible that in finding out the chain of command and the personnel in the unit and to find out their positions that I have asked him the question, "Did Siebert ever give you an order?" That is very probable.
Q Can you remember that Schubert said, "No, not Siebert but Ohlendorf gave me this order?" vit that Ohlendorf gave the order, but as in my mind on account of Schubert that fact was not stated definitely, I put both names down with the word "or" in between them. February; does this affidavit correspond with the one of the 24th of February verbatim? on the 24th of February in my presence, yes. As far as I can see right now, there might be a word changed, but in regard to the meaning, the statement of the 21st was the material for the statement of the 24th because there I showed him the affidavit, he made the corrections, it was re-typed and presented to him for signature.
of February also contained the formulation, "I superfised".
A In what paragraph, please?
Q The phrase, "I supervised", is contained several times in the affidavit.
A What paragraph, please?
Q Under No. 3 it says: "I was ordered to supervise the execution." Is this formulation also to be found in the affidavit of the 21st of February?
Q Then I have one final question. During the interrogation at Oberursel around November 1945, did you threaten the Defendant Schubert with a broom and tell him that you would, if necessary, help to refresh his memory?
DR. KOESSL: I have no further questions, Your Honor. BY MR. WALTON:
Q One question on the interrogation of the Defendant Schubert. Mr. Wartenberg can you recall whether you ever held any contraversial discussions with Schubert as to his position in Einsatzgruppe D? of the interrogation if it took place?
THE PRESIDENT: Next counsel. BY DR. HEIM (Attorney for Defendant Ruehl): sional preasons. I ask that I may be premitted to put a few questions to the witness, as his assistant. I refer to Document Book III_D, page 121, in the German, page 76 in the English text, Document No. 4149, Exhibit No. 169. This is an affidavit of the Defendant Ruehl.
Q Witness, may I ask you the following: According to the German and English document book, one would have to assume that the affidavit was made out on the 24th of May, 1947. At end of the document book it says that the affidavit comes from the 26th of June, 1947. May I ask you when the affidavit was actually given? that it was the 26th of June 1947 and on the English part also on the 26th of June.
to be a mistake, that is, the date of the 26th of May?
Q When did you interrogate the Defendant Ruehl for the first time? at that time?
A I don't think so, because, as I recall, this is the only affidavit I took of Ruehl.
Q Did you interrogate the defendant again, and when was that? between 1400 and 1530 and on the 24th of June between ten and tenthirty.
Q I did not get the last number, on the 21st of June? out which the Defendant Ruehl signed or was this affidavit made out as a result of the interrogation of the 9th of June?
AAs far as I can recall, I don't have these dates in my mind any more - what day I made out an affidavit, but usually an affidavit is prepared after all interrogations have been completed, unless some new items come out or the interrogatee informs me about some other interesting items and I have the feeling that this affidavit was made out after all interrogations. of the 24th of June expressed misgivings about the first draft of an affidavit? because in my record here I have the notification, which I will read in German, "I had the affidavit written out once again. Please read this and sign it."
of June, but on the 26th of June, is that correct? certain information or refusing the oath, may I assume that after you what you have already said, you have not done so in this case -
MR. WALTON: If it please the Tribunal, Counsel for Ruehl is now going into the subject of constitutional rights as regards the giving of testimony against one's own interest. Constitutional rights do not apply to these defendants. The defendant is presented with the affidavit. He can read it over and make what corrections he so desires, or he can refuse to sign it. There is no burden on the interrogator to inform him of any rights he may have, but there is no pressure on him to sign or not to sign. How any questions concerning the constitutional rights of these defendants are entirely irrelevant and of no material value to this case.
THE PRESIDENT: The Court disagrees with you, Mr. Walton, that the defendants are not entitled to constitutional rights.
These defendants are entitled to every right guaranteed by the United States Constitution as introduced in all subsequent agreements with other nations which brought about these trials. However, the Tribunal does not see up to this point that the defendants have been deprived of any of those constitutional rights. It would appear that, at least up to this point, that every opportunity was given the defendant to read, the statement which he signed and the statement itself indicates an opportunity was given for correction, so, therefore, the constitutional rights were protected, so it isn't that they are not entitled to constitutional rights. It is that those constitutional rights were preserved.
MR. WALTON: If I understood the question of Counsel for the defendant Ruehl, he asked him if Mr. Wartenberg informed him as to whether or not he could sign or not sign.
THE PRESIDENT: It is so obvious that anyone presented with a document to sign may sign or not sign; that question put in that fashion is entirely superfluous. If there is any discussion that the defendant refused to sign and then was threatened or was cajoled, or was persuaded, or was offered some definite gain, if he signs, then that is highly relevant.
MR. WALTON: I quite agree with you, Your Honor, but the question in its present frame, as I understood it, I am objecting to as superfluous and as irrelevant.
THE PRESIDENT: Counsel, you have now heard this discussion, so please frame your question keeping in mind what the Tribunal has uttered.
DR. HEIM: My question did not refer to the signing of the affidavit. It was supposed to be formulated in the sane way as my colleagues have stated it.
THE PRESIDENT: Please put the question. that the interrogatee, namely, the Defendant Ruehl in this case, had a right to refuse to give testimony? to me that he does not want to talk about certain incidents.
THE PRESIDENT: Did you ever state to the defendant that he was compelled to sign any document which you presented to him?
THE WITNESS: Never, sir.
DR. HEIM: I thank you.
THE PRESIDENT: Next counsel, please. BY DR. ERICH M. MAYER (Attorney for the Defendant Braune):
DR. MAYER: My questions refer to Document 4234, Exhibit No, 160, in the German Document Book III B, on pages 96 and 97. This is the interrogation of the Defendant Braune by the witness Wartenberg.