Dahlerus flew in my own private plane to London at that time. Tension was very acute then; all states were mobilizing and a state of war was imminent. Official air transport had been cut off so that it was not a very simple matter for a German plane to fly to London or that, vice versa, a British plane could fly to Berlin with a courier. Such a plane would have run into danger from anti-aircraft. I wanted, as far asp ossible, to obviate this danger by telephoning Dutch and English offices. This was the reason for my telling Dahlerus that I hoped he would go and return safely because in those times it would have been easy for an accident to take place. being sent. I never discussed the matter of Dahlerus with Ribbontrop. He did not even know that he was flying or that there were any negotiations between me and the British Government; in other words there was confusion there. Dahlerus and Hitler?
Q What did Hitler say then about Poland? situation that existed in Poland before the outbreak of war could, now that peace had come about, no longer be considered. Now, of course, he wanted to get back again those German provinces that had been taken from Germany in 1919. But, at that time he pointed out that a General Government in Warsaw would not interest him but he pointed out strongly to Dahlerus that this was a question which concerned Germany and Russia, in first order, and there could be no question of a solution with England because a great part of Poland had already been turned over to Russia. This, in other words, was an agreement that he could no longer settle unilaterally with England Russia would also have to participate in it.
DR. STAHMER: I have no further questions. BY DR. JUSTICE JACKSON:
and ask you if it is correct.
"I think I was Deputy Chairman (referring to the Reich Defense Council), I don't even know, I heard about that but I assure you under my oath, I assure you under my oath, that at no time and at no date did I participate in a single meeting when the Council for the Defense of the Reich was called together as such."
Is that a correct transcription of your testimony?
Q I ask to have your attention called to 3575. PS (U.S.A. Exhibit 781) which is the minutes of the Reich Defense Council of the 18 of October, 1938, with your presiding?
I call your attention to the statement that the "meeting consisted solely of a three hour lecture by the Field Marshal, No discussion took place."
Is that correct?
(witness handed document) document. document, did you? Would you pause to answer that question?
A I had not previously seen this document. I have to read it now first. It says:
"Notes on the 18.of November; meeting of the Reich Defense Council." people. There were present all Reich Ministers and Secretaries of State, finally the High Commands, Chiefs of Staff of the three parts of the army, Bormann as deputy of the Fuehrer, General Deluege, SS Gruppenfuehrer Heydrich, Reich Work Leader, Reich Commissar, the President of the Reichsarbeitsamt and others. Council as such. This is a meeting about the Reich Defense Council within the framework of a much larger program. Hence then, there is a question here of a meeting regarding the Reich Defense Council, part of a program that was much larger than the Reich Defense Council itself.
Q I call your attention to the fact that the "Field Marshal stated it to be a task of the Reich Defense Council to corelate all the forces of the nation for accelerated building up of German armament."
Do you find that?
Q Thesecond paragraph?
Q And II, "The first task, the assignment is to raise the level of armament from a current index of 100 to one of 300."
DR. SIEMERS: (Counsel for the defendant Raeder): I cannot quite see the reason why documents are not submitted to the Defense before they are submitted to the Court. I had not previously known of this document. ments were suddenly presented by the Prosecution without its having made any effort to inform theDefense of their existence.
MR. JUSTICE JACKSON: That is perfectly true, and I think every lawyer knows that oneof the great questions in this case is credibility, and that if we have to, in cross-examination, submit every document before we can refer to it in cross-examination after we hear their testimony, the possibility of useful cross-examination is destroyed. Now, of course he did not know, and we have had the experience of calling document after document to their attention, always to be met with some explanation, carefully arranged and read here from notes. No defendant has over had better opportunity to prepare his case than these defendants, and I submit that cross examination of them should not be destroyed by any requirement that we submit documents in advance.
THE PRESIDENT: Did you wish to say something?
DR. SIEMERS: Yes. I should like to make two points. First, I am entirely agreeable if Justice Jackson wants to make use of the element of surprise. I should only be thankful if the Defense would be permitted in its turn to use the element of surprise. Nevertheless, we have been told heretofore that we must show every document we intend to use weeks ahead of time so that the Prosecution has several weeks in order to take an attitude towards this document. as defense counsel, should be provided withthis surprise at the same time that the document is submitted to the Court. However, I have no copy either of this document or of the previous documents.
THE PRESIDENT: What you have just said is entirely inaccurate. You have never been compelled to disclose any documents which you wished to put to a witness in cross examination, This is cross examination and therefore it is perfectly open to counsel for the Prosecution to put any document without disclosing it beforehand, just as defense counsel could have put any document to witnesses called on behalf of theProsecution if they had wished to do so in cross examination.
any such document as this, a copy of it will be supplied to them for that purpose.
DR. SIEMERS: Does the Defense have the opportunity, now that the document is becoming known to the entire Tribunal, of becoming familiar with this document, in other words, of getting a copy of it?
THE PRESIDENT: Yes, certainly.
DR. SIEMERS: We should be thankful if we could have a copynow.
MR. JUSTICE JACKSON: I am frank to say I don't know whether we have adequate copies to furnish them to all of the defense counsel now.
THE PRESIDENT: May be you haven't, but you can lot them have one or more copy.
MR. JUSTICE JACKSON: But I do not think we should furnish copies until the examination with reference to that document is completed.
THE PRESIDENT: Yes, Dr. Dix.
DR DIX: I should like to make request, would it be technically impossible that at least the counsel of these defendants who are being cross examined also receive a copy of the .document at the same time that the document is submitted, so that defense counsel will be in a position, just as the Tribunal is, to follow' the cross examination? When Justice Jackson says that it is his opinion that it is correct that the Defense should only receive the document after the cross examination, I ask, in the interest of the dignity and prestige of the Defense, to object to that. I do not believe that he means by that, that should the Defense have these documents in its hands at the same time as the Tribunal, through signs or some other means the counsel would influence the witness or would in any way disturb the Prosecution.
Justice Jackson certainly did not mean that, but one might draw that conclusion.
I therefore make this request; If, for the purposes of cross examination, in view of the altogether justified element of surprise, a document is presented and at the same time is submitted to the Tribunalm then at least it should be given at the same time to the counsel for the witness who is on the stand or who has called the witness so that he can have some idea of what the witness is being confronted with.
Goering could read this document, but Dr.Stahmer could not. In other words, he is not in a position to follow Justice Jackson's cross examination. That is certainly not the intention of the Tribunal and is certainly not good. I should therefore like to ask Justice Jackson to reply to my application in order to assist the Tribunal in its decision on what appears to me to be a matter of course.
THE PRESIDENT: Justice Jackson, the Tribunal is inclined to think -the Tribunal certainly thinks -- that you are perfectly right, that there is no necessity at all, as I have already stated, to disclose the document to the defendants before you use it in cross-examination. But, at the time you use it in cross examination, is there any objection to handing a copy of it to the counsel for the defendant who is being cross examined?
MR. JUSTICE JACKSON: In some instances it is physically impossible because of our situation in reference to these documents. A good many of these documents have come to us very lately Our photostatic facilities are down.
THE PRESIDENT: I am not suggesting that you should hand it to all of them, but only to Dr. Stahmer.
MR. JUSTICE JACKSON: If we have copies, I have no objection to doing that, but if we do not have them in German -- our difficulty has always been to get German copies of these documents.
DR. DIX: May I say one thing more. If it is not possible in German, then it should at least be possible in English. One English copy will certainly be available. If it is a question of a German witness, the document will be submitted to him in German since German is his native tongue. I believe that will certainly be possible.
(Dr. Seimers approached the lectern) THE PRESIDENT:
We don't really need to hear more than one Counsel on this short point. I have already ruled upon your objection which was that this document should be produced beforehand the Tribunal has already ruled that objection should be denied.
DR. SEIMERS (Counsel for the Defendant Raeder): Mr. President, my application was that the defense should receive these documents at the same time the Tribunal does. I am, not of the opinion onbraced by Dr. Dix, that only one Defense Counsel should receive it. If it is a document regarding the Reich Defense Counsel, then as a document it is important to several of the Defendants. One copy is therefore not sufficient. Each Defense lawyer must have one.
THE PRESIDENT: But not at this moment. There are, as we all know, the very greatest difficulty in producing all these documents, and extraordinary efforts have been made by the Prosecuand the Translating Division to supply the Defendants with documents, and with documents in German, and it is not necessary that every member of the Defense Counsel have these documents at the time the witness is being cross-examined. I am sure the Prosecution will do everything they can to lot you have the documents in due course--any documentsthat is being used. one copy of the document is supplied to the Counsel for the witness who is being cross-examined. As I say, the Prosecution will doubtless let you have copies of these documents in due course. You are appearing for the Defendant Raeder, and the Defendant Raeder, I on afraid at the present rate, will not be in the witness box for some time.
DR. SIEMERS: The result of that is that the Defense Counsel who does not have a copy does not understand what is point on, I ash the Court to Consider that it is not because of technical matters that the procedure cannot be followed. The document is, however, mimeographed and with, the help of a stencil; it is entirely indifference whether 20, 40, 80, or 150 copies are drawn from the stencil.
It makes no difference from the point of view of time, perhaps four or five minutes.
I belkeve for this reason that one can hardly take refuge in this matter in the technical difficulties.
THE PRESIDENT: Counsel for the Prosecution will consider what you say, but no rule has been made by the Tribunal that every document should be supplied to every Counsel during crossexamination.
THE WITNESS: I should like to say in regard to the document that this -
MR. JUSTICE JACKSON: I ask that the witness be instructed to answer the question and reserve his explanations until his Counsel takes him on. Otherwise, this cross-examination cannot successfully be conducted, in the sense of being reasonable in time.
THE PRESIDENT: I have already explained, on several occasions, that it is the duty of the defendants when they are in the witness-box, and the duty of witnesses, to answer questions directly in the affirrmative or in the negative, and if they have any explantaions to make afterwards, they can make it, after answering the question directly. BY MR. JUSTICE JACKSON:
Q. I call your attention to Item 3, under II, "Finances"; reading as follows:
"Very critical situation in the Reich Exchequer. Relief initially through billion imposed on Jewry and through profits accruing to the Reich in the Aryanization of Jewish enterprises".
You find that in the minutes, do you not?
A. Yes, that is there.
Q. And you find the minutes signed by Woermann, do you not?
A. No, that is not true. I beg your pardon. Woermann (pronounced differently from Mr. Justice Jackson) signed that. I know Bermann's signature.
Q. I said Woermann-- all right, my poor pronunciation. Well, was it not a fact that you set up a working committee under the Reich Defense Council which did meet from time to time and did carry on certain work?
A. I have already testified to that effect.
Q. And I call your attention to Exhibit E.C. 4-5 (U.S.A. 781) minutes of a meeting of the working Committee of the Reich Defense Council, meeting No. 10.
A. I have already told the President that if I am to answer the question, afterwards I trust explain it in More detail; now that I have answered these questions as you want no, with a single notation or affirmation, I want now to make further explanation.
I want to explain that this was not a meeting of the closed Reich Defense Council but a general calling together of all Ministers, Secretaries of State and many other people. Roman numeral I, organization of the Reich Defense Council. The Reich Defense Council was already, by decision of the Cabinet, called into being. But it never met. Through the Reich Defens, Law of the 4th of September, 1939, it was re-established. The Chairman was Field Marshal Goering. In this Reich Defense Council, in which this speech took place, in which Schacht made a definitive speech, he, as I have stated in writing, this Council novae met. document. in advance.
Q How long? Working Committee of the Reich Defense Council, F.C. 405 (U.S.A. 781), 3575 P.S., toward the end of that document, the discussion on the 6th month, 26th day of 1935, which reads as follows: -
A May I ask what page?
A If you don't tell me what page, I will have to read the whole document. "Commitment to writing of directives for mobilization purposes is permissible only in so far as it is absolutely necessary to the smooth execution of the measure provided for the demilitarized zone and without exception such material must be kept in safes." Do you find that part? of various people. It is a different log. It seems to have no such last paragraph as you are quoting. Perhaps there is some difference between the German and English texts. The last paragraph here is altogether unimportant. Where, please, am I to read the document? document is correct -- have we got the same document?
A You must tell me who was speaking. Various people are speaking in this document.
(A member of the Prosecution indicated a place in the document for the witness.)
It has been shown, to now. I have to read through it first.
Q Do you find this: "The demilitarized zone requires special treatments. In his speech of 21.5.35 and other utterances, the Fuehrer and Reichschancellor has stated th t the stipulations of the Versailles Treaty and the Locarno Part regarding the demilitarized zone are being observed." Do you find that?
Q And do you find the next paragraph, "Since political intangible elements abroad must be avoided at present under all circumstances, only those preparatory measures that are urgently necessary may be carried out. The existence of such preparations, or the intentional expression of them must be kept in strictest secrecy in the zone itself, as well as in the rest of the Reich."
Do you find that?
Q You will also find, "These preparations include in particular the following." A and B are not important to my present question. "C. Preparation for the liberation of the Rhine."
A Oh, no, here you have made a great mistake. The original word in German is "C. Preparation for the Freimachung of the Rhineland, a purely technical matter that had nothing to do with the liberation of the Rhineland, first of all, mobilization of transports and, C, preparation for the Freimachung of the Rhineland. That has to do with transportation; the river had to be cleared for military measures. Then, "D, Preparation for local defense," and so on. These, in other words, are very small local preparations for mobilization -the demilitarized zone, general preparations for mobilization should be made, I mentioned the purchase of horses and so on. I wanted to point out the difference between Freimachung, which means clearing the Rhine, and liberation the Rhineland. occupation of the Rhineland, were they not?
A No, that is altogether wrong. If Germany had become involved in a war, no matter from what side, let us assume the East, then mobilization would have to be carried out for security reasons throughout the Whole Reich, also in this part of the Reich, even in the determined Rhineland, but not for the purpose of liberating it.
Q You mean the preparations were not military preparations? every land carries out, and not for the purpose of the occupation of the Rhineland.
Q But of a character which had to be kept entirely secret from foreign powers?
preparations of the United States for mobilization.
MR. JUSTICE JACKSON: I respectfully submit to the Tribunal that this witness is not being responsibe, and has not been in his examination, and that it is -
(The witness interposed a few words here)
It is perfectly futile to spend our time if we can't have responsive answers to our questions.
(The witness interposed slightly here) I don't want be spend time doing that, but this witness, it seems to me, is adopting, and has adopted in the witnessbox and in the dock, an arrogant and contemptuous attitude toward the Tribunal, which is giving him the trial which he never gave a living soul -nor the dead ones either. notes, if he wishes, of his explanations, but that he be required to answer my questions and reserve his explanations for his Counsel to bring cut.
THE PRESIDENT: I have already laid down thegeneral rule, which is binding upon this defendant as upon other witnesses. And perhaps we had better adjourn now at this stage.
(The Tribunal adjourned until 20 March 1946 at 1000 hours). Official transcript of the International
MR. JUSTICE JACKSON : If the Tribunal please, the last question which I asked last night referring to mobilazation preparations in the Rhineland, as shown in the official transcript, was this, " But of a character which had to be kept entirely secret from foreign powers ? " The answer was, " I do not believe I can recall the publication of the preparations of the United states for mobilization." with these choices -- to ingnore that remark and to allow it to stand for people who do not understand our system, or to develop at considerable expense of time, its falsity, or to answer it in rebuttal. The diffeculty arises from this, Your Honor, that if the witness is permitted to volunteer statements in cross-examination there is not opportunity to make objection until they are placed on the record. Of course, if such an answer had been indicated by a question of Counsel, as I respectfully submit would be the orderly procedure, there would have been objection; the Tribunal would have been in a position to discharge its duty under the Charter and I would have been in a position to have shortened the case by not having that remark placed. rule out irrelevant issues of any kind whatsever. We are confronted with that question; we cannot descharge those duties if the Defendant is to volunteer these statements without question which bring them before them. I respectfully submit that if the ruling of the Tribunal that the Defendant may volunteer answers of this kind is to prevail, the control of these proceedings is put in the hands of this Defendant and the United States has been substantially denied its right of cross-examination cannot be effective under this kind of procedure. Since we cannot anticipate we cannot meet-
THE PRESIDENT: I quite agree with you that any reference to the United States' secrecy with reference to mobilization is entirely irrelevant, and that the answer ought not to have been made, but the only rule which the Tribunal can lay down generally is the rule -- already laid down -- that the witness must answer, if possible, yes or no, and that he may make such explanations as may be necessary after answering questions directly in that way, and that such explanations must be brief and not be speeches.
As far as this particular answer goes, I think it is entirely irrelevant.
MR. JUSTICE JACKSON : I must, of course, bow to the ruling of the Tribunal, but it is the secon part. I quite recall the admonition of the Court that there shall be answers yes or no. This witness, of course, made not the slightest pretension of that, and I must say that I can't blame him : He is pursuing his interests. But we have not way of anticipating, and here we are confronted with this statement in the record, because when these statements are volunteered they are in the record before the Tribunal can rule upon them and I have not opportunity to make objections -- and the Tribunal have not opportunity to rule. And it puts, as I said before, the control of these proceedings in the hands of the Defendant, if he first makes the charges and then puts it up to us to ignore them, by long cross-examination or answer them in rebuttal; and I think the specifick charge made against the United States of America from the witness-stand presents that. answer, but it is in the record and we must deal with it. I respectfully submit that unless we have -
The PRESIDENT : What objection are you making ? Are you asking the Tribunal to strike the answer out of the record ?
MR. JUSTICE JACKSON : Well, no; in a trial of this kind, where propaganda is one of the purposes, striking out does no good after the answer is made, and Goering knows that as well as I. The charge has been made against the United States and it is in the record. I am now moving that this witness be instruct that he maust answer my questions yes or no if they permit an answer, and that the explanation be brought out by his Counsel in a fashion that will permit us to make objections if they ere irrelevant and to obtain rulings of the Tribunal so that the Tribunal can discharge its functions of ruling out irrelevant issues and statements of any kind whatsoever. We must not let the trial degenerate into a bickering contest between Counsel and the witness.
That is not what the United States expeckts.
I respectfully suggest that if he can draw any kind of challenge -
THE PRESIDENT : Are you submitting to the Tribunal that the witness has got to answer every question yes or no and wait until he is re-examined fort the purpose of making any explanations at all ?
MR. JUSTICE JACKSON : I think that is the rule of crossexamination under ordinary circumstances. The witness, if the question permit s it, must answer, and that if there are relevant explanations they be reserved until later. here this morning. Here is an answer given which the Tribunal now rules is irrelevant. But we have not opportunity to objeckt to it. The Tribunal had no opportunity to rule upon it. The witness asks, " Did you ever hear of the United States publishing its plan of mobilization ? " Of course, we would have objected. The difficulty is that the Tribunal loses control of these proceedings if the Defendant in a case of this kind, where we all know propaganda is one of the purposes of the Defendant, is permitted to put his propaganda in, and then we ask to meet it afterwards. I really feel that the United States is deprived of the opportunity of the right of cross-examination if this is the procedure.
THE PRESIDENT : Surely it is making too much of a sentence of the witness's, whether the United States makes its orders for mobilization public or not. Surely that is not a matter of very great importance. Every country keeps certain things secret. Certainly it would be much wiser to ignore a statement of that sort. But as to the general rule, the Tribunal will now consider the matter. I have already laid down what I believe to be the rule and I think with the assent of the Tribunal, but I will ascertain -
MR. JUSTICE JACKSON : Let me say that I agree with Your Honor that as far as the United States is concerned we are not worried by anithing the witness can say about it-- and we expected plenty The point is, Do we answer these things or leave them,apart from the control of the trial ? And it does seem to me that this marks the beginning of this trial's getting out of hand, if I may say so, if we do not have control of this situation. I trust the Tribunal will pardon my earnestness in presenting this. I think it is a very vital thing.
The President : I have never heard it suggested that the Counsel for the Prosecution have to answer every irrelevant observation made in cross-examination.
MR. JUSTICE JACKSON : That would be true in a private litigation, but I trust the Court is not unaware that outside of this courtroom is a great social question of the revival of Nazism and that one of the purposes of the Defendant Goering -- I think he would be the first to admit -- is to revive and perpetuate it by propaganda from this trial.
THE PRESIDENT: Yes, Doctor Stahmer?
DR. STAHMER: I just wanted explain the following: The accusation has been made as if we intended to make propaganda here for Naziism or in any other direction. I don't think this accusation is justified. Neither do I believe that the defendant intened to male an accusation against the United States. I believe we have to consider the question that was put to him. That is, it was pointed out to him by the Prosecution that this document which was submitted to him was designated " secret." Then he stated had he had never read or heard that a document of that kind would have been made public in the United States. If he would have just said any other nation, then this thing would have been considered harmless.
In my opinion the answer was quite justified. The witness should be given the possibility not only to answer by yes or no, but to give reasons for his answer, such as the Court has ruled.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal considers that the rule which it has laid down is the only possible rule and that the witness must be confined strictly to answering the question directly where the question admits of a direct answer, and that he must not make his explanation before he gives a direct answer, but after having given a direct answer to any question which admits to a direct answer, he may make a short explanation, and that he is not to be confined simply to making the direct answer yes or no not and leaving the explanation until his counsel puts it to him in indirect examination. ought not ot have referred to the United States, but it is a matter which I think you might well ignore.
MR. JUSTICE JACKSON: I shall bow to the ruling, of course. At the conclusion of the session yesterday we were considering Document EC 405. The defendant Goering challenged the use of a word with he said should have been translated " clearance" rather than " liberation." We have since had he translation checked and find that the defendant is correct. This document was introduced under the number GB 160 on the 9th of January, at page 2396 of the Tribunals' records, and since it has already been received in evidence and it is before the Tribunal, we think it is incumbent upon the Prosecution to make that correction now for the record.