MR. ALDERMAN: May it please the Tribunal, I recognize, of course, the inherent weakness of an affidavit as evidence where the witness is not present subject to cross examination. Mr. Messerschmidt is an elderly gentleman. He is not in good health. It was entirely impracticable to try to bring him here; otherwise, we should have done so.
I remind the Court of Article 19 of the Chanter:
"The Tribunal shall not be bound by technical rules of evidence.
It shall adopt and apply to the greatest to have probative value."
such as this as having probative value unless the Court deemed it to have probative value; and if the Defendants have countering evidence, which is strong enough to overcome whatever is probative in this affidavit, of course, the Court will treat the probative value of evidence in accordance with this provision of the Charter.
By and large, this affidavit and another affidavit by Mr. Messerschmidt, which we shall undertake to present, covers background material, which is a matter of historical knowledge, of which the Court could take judicial knowledge. Where he does quote these amazingly frank expressions by Nazi leaders, it is entirely open to any of them, who may be quoted, to challenge what is said, or to tell your Honors what they conceive as what they said. In any event, it seems to me that the Court can accept an affidavit of this character, made by a well known American diplomat, and give it whatever probative value it seems to have to the Court. I understand the ruling of the Court, that only those parts of documents, which are quoted into the record, will be considered in the record, to have been based upon the necessity of giving the German Counsel knowledge of what was being used. As to these affidavits, we have furnished them complete German translations so that it seems to us that a different rule might obtain where that has been done.
THE PRESIDENT: Mr. Alderman, have you finished with what you have to say?
MR. ALDERMAN: Yes.
DR. KUBUSCHOK: The representative of the Prosecution, takes the point of view that the age and state of health of the witness makes it impossible to summon him as a witness. I do not know the witness personally, and consequently am not in a position to state to what extent he is actually incapacitated.
Nevertheless, I have profound doubts regarding the presentation of such evidence of such an old and incapacitated person. I am speaking now not about Mr. Messersmith but I should like to open the question to what extent the state of health of a witness determines whether or not a person can be heard by this Court. witness, since an affidavit only reiterates the answers to the questions which were put to the person. Very often conclusions can be drawn from questions, which were not in fact put to the witness. It is here a question of evidence on the basis of an affidavit and for that reason we are not in a position to assume, with absolute certainty, that the evidence of the witness is complete. are being introduced two pieces of evidence of different value; namely, on the one hand the evidence of a witness and on the other hand the evidence as laid down in an affidavit. The situation is rather this: That either the evidence is sufficient, or it is not. I think the Tribunal should confine itself to complete evidence.
MR. ALDERMAN: May it please the Tribunal, I want-
THE PRESIDENT: Just a moment.
MR. ALDERMAN: Yes.
THE PRESIDENT: Yes, Mr. Alderman, did you wish to add anything?
MR. ALDERMAN: I wish to make this correction, perhaps, of what I had said. I did not mean to leave the implication that Mr. Messersmith is in any way incapacitated. He is an elderly man, about 70 years old. He is on active duty in Mexico City, and the main difficulty is that we didn't feel that we could take him away from his duties in that post combined with a long trip at his age.
THE PRESIDENT: That's all, is it?
MR. ALDERMAN: Yes.
THE PRESIDENT: The Tribunal have considered the objection which has been raised, and in view of the powers which the Tribunal has under Article 19 of the Charter, which provides that the Tribunal shall not be bound by technical rules of evidence, but shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value.
In view of those provisions, the Tribunal holds that affidavits can be presented, and that in the present case it is a proper course. The question of the probative value of an affidavit as compared with a witness who has been cross-examined would of course be considered by the Tribunal; and if at a later stage, the Tribunal thinks the presence of a witness is of extreme importance, the matter can be reconsidered. And they would add this: That if the defense wish to put interrogatories to the witness, they will be at liberty to do so.
MR. ALDERMAN: I offer then our document 1760-PS as Exhibit USA 57, affidavit by George S. Messersmith; and rather than reading the entire affidavit, unless the court wish me to do so, I had intended to paraphrase the substance of what it covers at various parts of the affidavit.
THE PRESIDENT: The Tribunal thinks it would be better and that you must adhere to the rule which we have laid down, that only what is read in the court will form part of the record.
MR. ALDERMAN: I shall read then, if this Tribunal please, on the third page of the English mimeograph; to identify it, it is the fourth paragraph following the list of names, starting with President Miklas of Austria and Chancellor Dollfuss:
"From the very beginnings of the Nazi Government, I was told by both high and secondary Government officials in Germany--"
THE PRESIDENT: Will you tell us again which page you are on?
MR. ALDERMAN: Page 3 of the English version, the fourth paragraph below the list of names. There are two Messerschmidt affidavits and counsel confuses between the two, I think.
"From the very beginnings of the Nazi Government, I was told by both high and secondary Government officials in Germany that incorporation of Austria into Germany was a political and economic necessity and that this incorporation was going to be accomplished 'by whatever means were necessary.' Although I cannot assign definite times and places, I am sure that at various times and places, every one of the German officials whom I have listed earlier in this statement told me this, with the exception of Schacht, von Krosigk and Krupp von Bohlen.
I can assert that it was fully understood by everyone in Germany who had any knowledge whatever of what was going on that Hitler and the Nazi Government were irrevocably committed to this end, and the only doubt which ever existed in conversations or statements to me was how and when." list of German officials to whom he refers on page 2 of the affidavit; and they are listed as Hermann Goering, General Milch, Hjalmar Schacht, Hans Frank, Wilhelm Frick, Count Schwerin von Krosigk, Joseph Goebbels, Richard Walter Darre', Robert Ley, Hans Heinrich Lammers, Otto Meissner, Franz von Papen, Walther Funk, General Wilhelm Keitel, Admiral Eric von Raeder, Admiral Karl Doenitz, Dr. Bohle, Dr. Stuckert, Dr. Krupp von Bohlen, Dr. Davidson. Now, the statement was that he was sure that at various times and places, everyone of those listed German officials had made these statements to him with the exception of Schacht, von Krosigk, and Krupp von Bohlen. Continuing with the next paragraph:
"At the beginningsof the Nazi regime in 1933, Germany was, of course, far too weak to permit any open threats of force against any country, such as the threats which the Nazis made in 1938. Instead it was the avowed and declared policy of the Nazi Government to accomplish the same results which they later accomplished through force through the methods which had proved so successful for them in Germany: Obtain a foothold in the Cabinet, particularly in the Ministry of the Interior, which controlled the police, and then quickly eliminate the opposition elements. During my stay in Austria, I was told on any number of occasions by Chancellor Dollfuss, Chancellor Schuschnigg, President Miklas, and other high officials of the Austrian Government that the German Government kept up constant and unceasing pressure upon the Austrian Government to agree to the inclusion of a number of ministers with Nazi orientation. The English and French ministers in Vienna, with whom I was in constant and close contact confirmed this information through statements which they made to me of conversations which they had with high Austrian officials."
proceeds. On this question of pressure used against Austria, including terror and intimidation, culminating in the unsuccessful putsch of July 26, 1934, to achieve their ends the Nazis used various kinds of pressure. In the first place, they used economic pressures. A law of 24 March 1933, German law, imposed a prohibitive 1,000 Reichsmark penalty on trips to Austria and brought great hardship to this country, which relied very heavily on its tourist trade. For that I cite the Reichsgesetzblatt, 1933, Roman I, page 311, and ask the court to take judicial notice of that German law. bombings. Mr. Messersmith's affidavit, Document 1760-PS, from which I have already read, goes into some detail with respect to these outrages, I read again from page 4 of the affidavit, the English version, the second paragraph on the page:
"The outrages were an almost constant occurrence, but there were three distinct periods during which they rose to a peak.
early 1934, I was still in Berlin. However, during that and directed by then.
I found no concealment in my con were responsible for these activities in Austria.
These policy of the Party."
And the next paragraph:
"During the wave of terroristic acts in May and June in Vienna.
The bomb outrages during this period were directly the strongest organizations opposing them.
I recall, however 1934.
At that time Mussolini was strongly supporting the keeping down Nazi influence and activity in Austria.
At early 1934, I was still in Berlin.
However, during that and directed by then.
I found no concealment in my con were responsible for these activities in Austria.
These policy of the Party."
And the next paragraph:
"During the wave of terroristic acts in May and June in Vienna.
The bomb outrages during this period were directly the strongest organizations opposing them.
I recall, however 1934.
At that time Mussolini was strongly supporting the keeping down Nazi influence and activity in Austria.
At for the meeting between him and Mussolini as possible.
The instigated and controlled from Germany."
int the line which reads, "Official dispatch from Vienna paragraph:
"In addition to these outrages, the Nazis attempted to Legion.
' This organization, a para-military force of against Austria.
It was without any question sanctioned by have existed, and it was armed by them.
It was made up of authorities."
continued until July 25, 1934. It Is a well-known histori the indictment alleges in Count IV, Crimes Against Humanity, paragraph B on page 26 of the English printed text, that the Nazis murdered amongst others Chancellor Dollfuss.
I do not have available an official authenticated account of the details of that putsch, but I think it will suffice if I briefly recall to the court what is after all a well-known matter of history. On July 25, 1934, about noon, 100 men dressed in the uniform of the Austrian army attacked the federal chancellery. Chancellor Dollfuss was wounded in trying to escape, being shot twice at close quarters. The Radio Vienna in the center of the town was overwhelmed, and the announcer was compelled to broadcast the news that Dollfuss had resigned and that Dr. Rintelen had taken his place as chancellor. Although the putsch failed, the insurgents kept control of the chancellery building and agreed to give it up only after they had a safe conduct to the German border. The insurgents contacted the German Minister Dr. Reith by telephone and subsequently had private negotiations with him in the building. At about 7 p.m. they yielded the building, but Chancellor Dollfuss breathed his last about 6 p.m. not having had the services of a doctor. denied all complicity in this putsch and in this assassination. Hitler removed Dr. Reith as minister on the ground that he had offered a safe conduct to the rebels without making inquiry of the German government and had thus without reason dragged the German Reich into an internal Austrian affair in public sight. Papen on the 26th day of July 1934. I shall offer that letter a little later. this putsch, we think there is ample basis for the conclusion that the German Nazis bear responsibility for these events. It is not my purpose with respect to this somewhat minor question to review the expansive record in the trial of the Austrian Nazi Planetta and others who were convicted for the nurder of Dollfuss. Similarly I have no intention of showing to the court the contents of the Austrian Braunbuch, issued after July 25, without which the court will, I think, take judicial notice.
sufficient for the purpose. I quote again from our Exhibit No.1760-PS, from the Messersmith affidavit, U.S.57, on page 7, the paragraph in the middle of the page:
"The events of the putsch of July 25, 1934, are too well known for me to repeat them in this statement. I need say here only that there can be no doubt that the putsch was ordered and organized by the Nazi officials from Germany through their organization in Austria made up of German Nazis and Austrian Nazis. Dr. Rieth, the German Minister in Vienna, was fully familiar with all that was going to happen and that was being planned. The German Legation was located directly across the street from the British Legation, and the Austrian secret police kept close watch on the persons who entered the German Legation. The British had their own secret service in Vienna at the time, and they also kept a discreet surveillance over people entering the German Legation. I was told by both British and Austrian officials that a number of the men who were later found guilty by the Austrian courts of having been implicated in the putsch had frequented the German Legation. In addition, I personally followed very closely the activities of Dr. Rieth, and I never doubted on the basis of all my information that Dr. Rieth was in close touch and constant touch with the Nazi agents in Austria, these agents being both German and Austrian. Dr. Rieth could not have been unfamiliar with the putsch and the details in connection therewith. I recall too very definitely from my conversations with the highest officials of the Austrian Government after the putsch their informing me that Dr. Reith had been in touch with von Rintelen, who it had been planned by the Nazis was to succeed Chancellor Dollfuss had the putsch been successful.
"It may be that Dr. Rieth was himself not personally sympathetic with the plans for the putsch, but there is no question that he was fully familiar with all these plans and must have given his assent thereto and connived therein.
court the contents of the Austrian Braunbuch, issued after July 25, without which the court will, I think, take judicial notice. sufficient for the purpose. I quote again from our Exhibit No.1760-PS, from the Messersmith affidavit, U.S.57, on page 7, the paragraph in the middle of the page:
"The events of the putsch of July 25, 1934, are too well known for me to repeat them in this statement. I need say here only that there can be no doubt that the putsch was ordered and organized by the Nazi officials from Germany through their organization in Austria made up of German Nazis and Austrian Nazis. Dr. Rieth, the German Minister in Vienna, was fully familiar with all that was going to happen and that was being planned. The German Legation was located directly across the street from the British Legation, and the Austrian secret police kept close watch on the persons who entered the German Legation. The British had their own secret service in Vienna at the time, and they also kept a discreet surveillance over people entering the German Legation. I was told by both British and Austrian officials that a number of the men who were later found guilty by the Austrian courts of having been implicated in the putsch had frequented the German Legation. In addition, I personally followed very closely the activities of Dr. Rieth, and I never doubted on the basis of all my information that Dr. Rieth was in close touch and constant touch with the Nazi agents in Austria, these agents being both German and Austrian. Dr. Rieth could not have been unfamiliar with the putsch and the details in connection therewith. I recall too very definitely from my conversations with the highest officials of the Austrian Government after the putsch their informing me that Dr. Reith had been in touch with von Rintelen, who it had been planned by the Nazis was to succeed Chancellor Dollfuss had the putsch been successful.
"It may be that Dr. Rieth was himself not personally sympathetic with the plans for the putsch, but there is no question that he was fully familiar with all these plans and must have given his assent thereto and connived therein.
"As this putsch was so important and was a definite attempt to overthrow the Austrian government and resulted in the murder of the Chancellor of Austria, I took occasion to verify at the time for myself various other items of evidence indicating that the putsch was not only made with the knowledge of the German government but engineered by it. I found and verified that almost a month before the putsch Goebbels told Signor Cerruti, the Italian Ambassador in Berlin, that there would be a Nazi government in Vienna in a month".
I should also like to offer in evidence Ambassador Dodd's diary, 1933-1938, a book published in 1941, our document 2832 PS, and particularly the entry for July 26, 1934. We have the book with the page to which I have reference, two pages. I should like to offer that portion of the book in evidence as Exhibit USA 58, further identified as our document 2832 PS.
Mr. Dodd, then Ambassador to Berlin, made the following observations in that entry. First he noticed that in February 1934 Ernst Hanfstaengl advised Mr. Dodd that he brought what was virtually an order from Mussolini to Hitler to leave Austria alone and to dismiss and silence Theodor Habicht the German agent in Munich, who had been agitating for annexation of Austria. On June 19th in Venice Hitler was reported to have got Mussolini to leave Austria alone. Mr. Dodd further states, and I quote from his entry of July 26, 1934: "On Monday, July 23, after repeated bombings in Austria by Nazis, a boat loaded with explosives was seized on Lake Constance by the Swiss police. It was a shipment of German bombs and shells to Austria from some arms plant. That looks ominous to me, but events of the kind have been so common that I did not report it to Washington."
THE PRESIDENT: Mr. Alderman, we don't seem to have this document. Our document 2832 PS begins July 26, Thursday.
MR. ALDERMAN: That is right. Yes.
THE PRESIDENT: You began with Monday, did'nt you?
MR. ALDERMAN: I think you misunderstood me. I began reading at a sentence which began on Monday, July 23rd.
THE PRESIDENT: I want to know where that is.
MR. ALDERMAN: Yes, sir. It is in the third paragraph.
THE PRESIDENT: About twelve lines down.
MR. ALDERMAN: Yes, sir.
"Today evidence came to my desk that last night, as late as 11:00 o'clock, the government issued formal statements to the newspapers rejoicing at the fall of Dollfuss and procaliming the greater Germany that must follow. The German Minister in Vienna had actually helped to form the new cabinet.
He had, as we now know, exacted a promise that the gang of Austrian and Nazi murderers should be allowed to go into Germany undisturbed, but it was realized about 12:00 o'clock that, although Dollfuss was dead, the loyal Austrians had surrounded the government palace and prevented the organization of a new Nazi regime. They held the murderers prisoners. The German propaganda ministry therefore forbade publication of the news sent out an hour before and tried to collect all the releases that had been distributed. A copy was brought to me today by a friend.
"All the German papers this morning lamented the cruel murder and declared that it was simply an attack of discontented Austrians, not Nazis. News from Bavaria shows that thousands of Austrian Nazi living for a year in Bavaria on German support had been active for ten days before, some getting across the border contrary to law, all drilling and making ready to return to Austria. The German propagandish Habicht was still making radio speeches about the necessity of annexing the ancient realm of the Hapsburg to the Third Reich, in spite of all the promises of Hitler to silence him. But now that the drive has failed and the assassins are in prison in Vienna, the German government denounces all who say there was any support from Berlin. arms have been pouring into Austria since the Spring of 1933. Once more the whole world is condemning the Hitler regime. No people in all modern history have been quite so unpopular as Nazi Germany. This stroke completes the picture. I expect to read a series of bitter denounciations in the American papers when they arrive about ten days from now". the Putsch and the murder of Dollfuss. In this connection, I should like to invite attention to the letter of appointment which Hitler wrote to the Defendant von Papen on 26 July 1934. This letter appears in a standard German reference work Dokumente der Deutschen Politik, Volume 2, at Page 83. For convenience we have identified it as Document 2799-PS, and a copy translated into English is included in the document book. The Defendants may examine the German text in the Dokumente der Deutschen Politik, a copy of which is present in my hand, Page 83 of Volume 2. German typing.
THE PRESIDENT: Can you tell us where it occurs in our document book?
MR. ALDERMAN: It is our document 2799-PS, a letter from Adolf Hitler.
THE PRESIDENT: It appears to come opposite 2510-PS.
MR. ALDERMAN: I should like to read this letter which Chancellor Hitler sent to Vice-Chancellor von Papen. I think it will provide us with a little historical perspective and perhaps freshen our recollection of the ways in which the Nazi conspirators worked. In considering Hitler's letter to the Defendant von Papen on July 26th, we Ernst Roehm, and others.
The letter from Hitler to von Papen is as follows:
"Dear Mr. von Papen "As a result of the events in Vienna I am compelled to Minister to Vienna; Dr. Rieth, from his post, because be, German Reich Government.
Thus the Minister has dragged the "The assassination of the Austrian Federal Chancellor more acute, without any Fault of ours.
Therefore, it is my "For this reason, I request you, dear Mr. von Papen, to "Therefore, I have suggested to the Reichs-President for a limited period of time.
In this position you will be "Thanking once more for all that you have at a time done "Yours, very sincerely, "Adolf Hitler".July 23, 1938, after the Anschluss with Austria.
At that time of their consultant.
They were eager and willing to reveal I offer as exhibit USA 59.
That document is a dispatch from State, dated July 26, 1938.
Unfortunately, through a mechani book.
However, it was translated into German and is in the document book which counsel for the defendants have.
I read from a photostatic copy of this dispatch:
"The two high points of the celebration"--here was a celegration-- "with the memorial assembly on the 24th at attack on the Chancellery in 1934", a reconstruction of the crime, so to say.
"The assembled thousands at Klagenfurt were addressed by the Fuehrer's Deputy, Rudolf Hess, in the who were hanged for their part in the July Putsch.
The Gauleiters of this Ostmark.
From the point of view of the who spread the idea of a new war.
'The world was fortunate' declared Hess' that German's leader was a man who would not allow himself to be provoked.
The Fuehrer ways what is peace of Europe', even though provocators 'completely ignor distinctly claim that he is a menace to the pence of Europe.
' the original attack.