Chapter XVII: Part 17

I cannot sanction the intention of the Prosecution in this case to introduce two methods of giving evidence of different value; namely, a fully valid one through direct evidence of a witness, and a less complete one through evidence laid down in an affidavit. The situation is this: Either the evidence is sufficient, or it is not. I think the Tribunal should confine itself to complete and fully valid evidence.

THE PRESIDENT: Mr. Alderman, did you wish to add anything?

MR. ALDERMAN: I wish to make this correction, perhaps of what I 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; the main difficulty is that we did not feel we could take him away from his duties in that post, combined with a long trip and his age.

THE PRESIDENT: That is all, is it?

MR. ALDERMAN: Yes.

THE PRESIDENT: The Tribunal has considered the objection which has been raised. 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 nontechnical procedure and shall admit any evidence which it deems to have probative value, 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. If, at a later stage, the Tribunal thinks the presence of a witness is of extreme importance, the matter can be reconsidered. I add this: If the defense wish to put interrogatories to the witness, they will be at liberty to do so.

MR. ALDERMAN: Thank you, Your Honor. I offer then our Document 1760-PS as Exhibit USA-57, affidavit by George S. Messersmith. Rather than reading the entire affidavit, unless the Court wishes me to do so, I intend to paraphrase and state the substance of what is covered in various parts of the affidavit.

THE PRESIDENT: The Tribunal think it would be better to 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 the Tribunal please, from the fourth paragraph on the third page of the English copy, the following list of names, headed by 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 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.”

In connection with that paragraph, I invite your attention to the list of German officials to whom he refers on Page 2 of the affidavit. They are listed as Hermann Göring, General Milch, Hjalmar Schacht, Hans Frank, Wilhelm Frick, Count Schwerin von Krosigk, Joseph Goebbels, Richard Walter Darré, Robert Ley, Hans Heinrich Lammers, Otto Meissner, Franz von Papen, Walter Funk, General Wilhelm Keitel, Admiral Erich von Raeder, Admiral Karl Dönitz, Dr. Bohle, Dr. Stuckert, Dr. Krupp von Bohlen, and Dr. Davidson. The affiant states 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. I shall continue with the next paragraph:

“At the beginning of 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 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.”

I shall read other portions of the affidavit as the presentation proceeds, on the 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 pressure. A law of 24 March 1933, a German law, imposed a prohibitive 1,000 Reichsmark penalty on trips to Austria. It brought great hardship to this country which relied very heavily on its tourist trade. For that I cite the _Reichsgesetzblatt_, 1933, Part I, Page 311, and ask the Court to take judicial notice of that German law.

The Nazis used propaganda and they used terroristic acts, primarily 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 outrages were an almost constant occurrence, but there were
three distinct periods during which they rose to a peak. During
the first two of these periods, in mid-1933 and in early 1934, I
was still in Berlin. However, during that period I was told by
high Nazi officials in conversation with them, that these waves
of terror were being instigated and directed by them. I found no
concealment in my conversations with high Nazi officials of the
fact that they were responsible for these activities in Austria.
These admissions were entirely consistent with the Nazi thesis
that terror is necessary and must be used to impose the will of
the Party not only in Germany but in other countries. I recall
specifically that General Milch was one of those who spoke
frankly that these outrages in Austria were being directed by
the Nazi Party, and expressed his concern with respect thereto
and his disagreement with this definite policy of the Party.

“During the wave of terroristic acts in May and June 1934, I had
already assumed my duties as American Minister in Vienna. The
bomb outrages during this period were directed primarily at
railways, tourist centers, and the Catholic Church, which
latter, in the eyes of the Nazis, was one of the strongest
organizations opposing them. I recall, however, that these
outrages diminished markedly for a few days during the meeting
of Hitler and Mussolini in Venice in mid-June 1934. At that time
Mussolini was strongly supporting the Austrian Government and
was strongly and deeply interested in maintaining Austrian
independence and sovereignty, and in keeping down Nazi influence
and activity in Austria. At that time also Hitler could not
afford an open break with Mussolini and undoubtedly agreed to
the short cessation of these bomb outrages on the insistence of
Mussolini because he, Hitler, wished to achieve as favorable an
atmosphere for the meeting between him and Mussolini as
possible. The cessation of the bomb outrages during the
Hitler-Mussolini conversations was considered by me and by the
Austrian authorities and by all observers at that time as an
open admission on the part of Hitler and the German Government
that the outrages were systematically and completely instigated
and controlled from Germany.”

Turning to Page 7 of the English version, following the line which reads, “Official dispatch from Vienna” dated July 26, 1934, I quote the following paragraph:

“In addition to these outrages, the Nazis attempted to bring
pressure upon Austria by means of the ‘Austrian Legion’. This
organization, a para-military force of several thousand men, was
stationed near the Austrian border in Germany as a constant and
direct threat of violent action against Austria. It was without
any question sanctioned by the Nazi Government of Germany, as it
could otherwise not have existed, and it was armed by them. It
was made up of Austrian Nazis who had fled from Austria after
committing various crimes in Austria, and by Austrians in
Germany who were attracted by the idle life and pay given by the
German authorities.”

These terroristic activities of the Nazis in Austria continued until July 25, 1934. It is a well-known historical fact of which I ask the Court to take judicial notice that on that day members of the NSDAP, the Nazi Party, attempted a revolutionary Putsch in Austria and killed Chancellor Dollfuss.

At this point I should like to invite your attention to the fact that the Indictment alleges in Count Four, 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 that 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 seized the Federal Chancellery. Chancellor Dollfuss was wounded trying to escape, being shot twice at close quarters. The radio building 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. Rieth 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.

It is also a well-known historical fact that the German Government denied all complicity in this Putsch and in this assassination. Hitler removed Dr. Rieth 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.

This statement appears in a letter which Hitler sent to Defendant Papen on July 26, 1934. I shall offer that letter a little later.

Although the German Government denied any knowledge or complicity in 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 consideration, to review the extensive record in the trial of the Austrian Nazi Planetta and others who were convicted for the murder of Dollfuss. Similarly I have no intention of presenting to the Court the contents of the Austrian _Braunbuch_, issued after July 25. The Court will, I think, take judicial notice.

I should like, instead, to mention a few brief items which seem to us sufficient for the purpose. I quote again from our Exhibit Number 1760-PS, from the Messersmith affidavit, USA-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 the people
entering the German Legation. I was told by both British and
Austrian officials that a number of 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. Rieth
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, 1933-38, a book published in 1941, our Document 2832-PS, and particularly the entry for July 26, 1934. We have the book with the two pages to which I have reference. 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 noted 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 18 in Venice, Hitler was reported to have promised 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 looked ominous
to me, but events of that kind had been so common that I did not
report it to Washington.

“Today evidence came to my desk that last night, as late as 11
o’clock, the Government issued formal statements to the
newspapers rejoicing at the fall of Dollfuss and proclaiming 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 Nazi murderers
should be allowed to go into Germany undisturbed, but it was
realized about 12 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 Nazis living for a year in Bavaria on German support
had been active for 10 days before, some getting across the
border contrary to law, all drilling and making ready to return
to Austria. The German propagandist Habicht was still making
radio speeches about the necessity of annexing the ancient realm
of the Hapsburgs 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.

“I think it will be clear one day that millions of dollars and
many 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 has been quite so
unpopular as Nazi Germany. This stroke completes the picture. I
expect to read a series of bitter denunciations in the American
papers when they arrive about 10 days from now.”

As I stated before, the German Government denied any connection with 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, 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.

I ask the Court if it will take judicial notice of this original German typing.

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 26, we might bear in mind as an interesting sidelight, the widespread report at that time, and I mention this only as a widespread report, that the Defendant Von Papen narrowly missed being purged on June 30, 1934, along with the Nazi Ernst Roehm and others. The letter from Hitler to Von Papen is as follows:

“Dear Herr Von Papen:

“As a result of the events in Vienna, I am compelled to suggest
to the Reich President the removal of the German Minister to
Vienna, Dr. Rieth, from his post, because he, at the suggestion
of Austrian Federal Ministers and the Austrian rebels,
respectively consented to an agreement made by both these
parties concerning the safe conduct and retreat of the rebels to
Germany without making inquiry of the German Reich Government.
Thus, the Minister has dragged the German Reich into an internal
Austrian affair without any reason.

“The assassination of the Austrian Federal Chancellor which was
strictly condemned and regretted by the German Government has
made the situation in Europe, already fluid, more acute, without
any fault of ours. Therefore, it is my desire to bring about, if
possible, an easing of the general situation, and especially to
direct the relations with the German Austrian State, which have
been so strained for a long time, again into normal and friendly
channels.

“For this reason, I request you, dear Herr Von Papen, to take
over this important task, just because you have possessed, and
continue to possess, my most complete and unlimited confidence
ever since we have worked together in the Cabinet.

“Therefore, I have suggested to the Reich President that you,
upon leaving the Reich Cabinet and upon release from the office
of Commissioner for the Saar, be called on a special mission to
the post of the German Minister in Vienna for a limited period
of time. In this position you will be directly subordinated to
me.

“Thanking once more for all that you have at one time done for
the co-ordination of the Government of the National Revolution,
and since then together with us for Germany, I remain, yours
very sincerely, Adolf Hitler.”

Now let us look at the situation 4 years later, on July 25, 1938, after the Anschluss with Austria. At that time the German officials no longer expressed regrets over the death of Dollfuss. They were eager and willing to reveal what the world already knew, that they were identified with and sponsors of the murder of the former Chancellor.

I offer in evidence at this point Document L-273, which I offer as Exhibit USA-59. That document is a dispatch from the American Consul General, Vienna, to the Secretary of State, dated July 26, 1938. Unfortunately, through a mechanical slip, this document which is in English in the original, was not mimeographed in English and is not in your document 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 the dispatch:

“The two high points of the celebration”—here was a
celebration—“were the memorial assembly on the 24th at
Klagenfurt, capital of the Province of Carinthia, where in 1934
the Vienna Nazi revolt found its widest response and the march
on the 25th to the former Federal Chancellery in Vienna by the
surviving members of the SS Standarte 89, which made the attack
on the Chancellery in 1934.”—a reconstitution of the crime, so
to say.

“The assembled thousands at Klagenfurt were addressed by the
Führer’s deputy, Rudolf Hess, in the presence of the families of
the 13 National Socialists who were hanged for their part in the
July Putsch. The Klagenfurt memorial celebration was also made
the occasion for the solemn swearing in of the seven recently
appointed Gauleiter of the Ostmark. From the point of view of
the outside world, this speech of Reich Minister Hess was
chiefly remarkable for the fact that after devoting the first
half of his speech to the expected praise of the sacrifices of
the men, women, and youths of Austria in the struggle for
Greater Germany, he then launched into a defense of the
occupation of Austria, an attack on the ‘lying foreign press’
and on those who spread the idea of a new war. The world was
fortunate, declared Hess, that Germany’s leader was a man who
would not allow himself to be provoked. The Führer does what is
necessary for his people in sovereign calm and labors for the
peace of Europe, even though provocators ‘completely ignoring
the deliberate threat of the peace of certain small states,’
deceitfully claim that he is a menace to the peace of Europe.

“The march on the former Federal Chancellery,”—referring back
to the Putsch of 4 years before—“now the Reichsstatthalterei,
followed the exact route and time schedule of the original
attack. The marchers were met at the Chancellery by
Reichsstatthalter Seyss-Inquart, who addressed them and unveiled
a memorial tablet. From the Reichsstatthalterei the
Standarte”—that is the SS organization which made the original
attack and which marched on this occasion 4 years
later—“marched from the old Ravag broadcasting center, from
which false news of the resignation of Dollfuss had been
broadcast, and there unveiled a second memorial tablet.
Steinhaeusel, the present Police President of Vienna, is a
member of the SS Standarte 89.”

Today that original memorial plaque, if the Court please, is rubble, like so much of Nuremberg; but we found a photograph of it in the National Library in Vienna. I should like to offer this photograph in evidence. It was taken on this occasion 4 years later. The Nazi wreath encircles the memorial tablet. A large wreath of flowers with a very distinct swastika Nazi symbol was laid before the wreath. I offer that photograph identified as 2968-PS in evidence. I offer it as Exhibit USA-60. You will find that in the document book. I know of no more interesting or shocking document at which you could look. We call celebrating a murder 4 years later, “Murder by ratification.”

As that photograph shows, this plaque which was erected to celebrate this sinister occasion reads: “One hundred and fifty-four German men of the 89th SS Standarte stood up here for Germany on July 25, 1934. Seven found death in the hands of the hangman.”

The Tribunal may notice that the number “154” at the top of the plaque is concealed in the photograph by the Nazi wreath surrounding the plaque. I must confess that I find myself curiously interested in this tablet and in the photograph which was taken and carefully filed. The words chosen for this marble tablet, and surely we can presume that they were words chosen carefully, tell us clearly that the men involved were not mere malcontent Austrian revolutionaries, but were regarded as German men, were members of a para-military organization, and stood up here for Germany.

In 1934 Hitler repudiated Doctor Rieth because he dragged the German Reich into an internal Austrian affair without any reason. In 1938 Nazi Germany proudly identified itself with this murder, took credit for it, and took responsibility for it. Further proof in the conventional sense, it seems to us, is hardly necessary.

Next we refer to the program culminating in the Pact of July 11, 1936. In considering the activities of the Nazi conspirators in Austria between July 25, 1934 and November 1937 there is a distinct intermediate point, the Pact of July 11, 1936. Accordingly, I shall first review developments in the 2-year period, July 1934-36.

First, we must consider the continued aim of eliminating Austria’s independence, with particular relation to the Defendant Von Papen’s conversation and activity. The first point that should be mentioned is this: The Nazi conspirators pretended to respect the independence and sovereignty of Austria, notwithstanding the aim of Anschluss stated in _Mein Kampf_. But in truth and in fact they were working from the very beginning to destroy the Austrian State.

A dramatic recital of the position of Defendant Von Papen in this regard is provided in Mr. Messersmith’s affidavit, from which I have already quoted. I quote now from Page 9 of the English copy, the second paragraph, 1760-PS, Exhibit USA-57:

“That the policy of Anschluss remained wholly unchanged was
confirmed to me by Franz von Papen when he arrived in Vienna as
German Minister. It will be recalled that he accepted this
assignment as German Minister even though he knew that he had
been marked for execution in the St. Bartholomew’s massacre of
30 June 1934. When, in accordance with protocol, he paid me a
visit shortly after his arrival in Vienna, I determined that
during this call there would be no reference to anything of
importance, and I limited the conversation strictly to
platitudes which I was able to do as he was calling on me in my
office. I deemed it expedient to delay my return call for
several weeks in order to make it clear to Von Papen that I had
no sympathy with, and on the other hand was familiar with the
objectives of his mission in Austria. When I did call on Von
Papen in the German Legation, he greeted me with ‘Now you are in
my Legation and I can control the conversation.’

“In the boldest and most cynical manner he then proceeded to
tell me that all of southeastern Europe, to the borders of
Turkey, was Germany’s natural hinterland, and that he had been
charged with the mission of facilitating German economic and
political control over all this region for Germany. He blandly
and directly said that getting control of Austria was to be the
first step. He definitely stated that he was in Austria to
undermine and weaken the Austrian Government and from Vienna to
work towards the weakening of the Governments in the other
states to the south and southeast. He said that he intended to
use his reputation as a good Catholic to gain influence with
certain Austrians, such as Cardinal Innitzer, towards that end.
He said that he was telling me this because the German
Government was bound on this objective of getting this control
of southeastern Europe and that there was nothing which could
stop it, and that our own policy and that of France and England
was not realistic.

“The circumstances were such, as I was calling on him in the
German Legation, that I had to listen to what he had to say and
of course, I was prepared to hear what he had to say although I
already knew what his instructions were. I was nevertheless
shocked to have him speak so boldly to me, and when he finished
I got up and told him how shocked I was to hear the accredited
representative of a supposedly friendly state to Austria admit
that he was proposing to engage in activities to undermine and
destroy that Government to which he was accredited. He merely
smiled and said of course this conversation was between us, and
that he would of course not be talking to others so clearly
about his objectives. I have gone into this detail with regard
to this conversation, as it is characteristic of the absolute
frankness and directness with which high Nazi officials spoke of
their objectives.”

And again, reading from the same document on Page 10, beginning at the last paragraph at the bottom of the page:

“On the surface, however, German activities consisted
principally of efforts to win the support of prominent and
influential men through insidious efforts of all kinds,
including the use of the German diplomatic mission in Vienna and
its facilities and personnel.

“Von Papen as German Minister entertained frequently and on a
lavish scale. He approached almost every member of the Austrian
Cabinet, telling them, as several of them later informed me,
that Germany was bound to prevail in the long run, and that they
should join the winning side if they wished to enjoy positions
of power and influence under German control. Of course, openly
and outwardly he gave solemn assurance that Germany would
respect Austrian independence and that all that she wished to do
was to get rid of elements in the Austrian Government like the
Chancellor Schuschnigg and Starhemberg as head of the Heimwehr,
and others, and replace them by a few ‘nationally-minded’
Austrians, which of course meant the Nazis. The whole basic
effort of Von Papen was to bring about the Anschluss.

“In early 1935 the Austrian Foreign Minister, Berger-Waldenegg,
informed me that in the course of a conversation with Von Papen,
the latter had remarked, ‘Yes, you have your French and English
friends now, and you can have your independence a little
longer.’ The Foreign Minister, of course, told me this remark in
German, but the foregoing is an accurate translation. The
Foreign Minister told me that he had replied to Von Papen, ‘I am
glad to have from your own lips your own opinion which agrees
with what your Chief has just said in the Saar and which you
have taken such pains to deny.’ Von Papen appeared to be
terribly upset when he realized just what he had said and tried
to cover his statements, but according to Berger-Waldenegg, kept
constantly getting into deeper water.

“Von Papen undoubtedly achieved some success, particularly with
men like Glaise-Horstenau and others who had long favored the
Grossdeutschtum idea, but who nevertheless had been greatly
disturbed by the fate of the Catholic Church. Without conscience
or scruple, Von Papen exploited his reputation and that of his
wife as ardent and devout Catholics to overcome the fears of
these Austrians in this respect.”

May I inquire if the Court expect to take a short recess?

THE PRESIDENT: Yes. We will adjourn now for 10 minutes.

[_A recess was taken._]

THE PRESIDENT: The Tribunal wishes to make it clear, if I did not make it clear when I spoke before, that if Defense Counsel wish to put interrogatories to Mr. Messersmith upon his affidavit they may submit such interrogatories to the Tribunal in writing for them to be sent to Mr. Messersmith to answer.

FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for Defendant Dönitz): I do not know whether my question has yet been answered, or by what it has been made known by the President of the Court.

In the testimony of Mr. Messersmith, Dönitz’ name was mentioned. It appears on Page 4 of the German version. I should like to read the whole paragraph:

“Admiral Karl Dönitz was not always in an amicable frame of
mind. He was not a National Socialist when the National
Socialists came to power”. . . .

THE PRESIDENT: This passage was not read in evidence, was it?

DR. KRANZBÜHLER: No, only the name was mentioned.

THE PRESIDENT: I don’t think the name was mentioned, because this part of the affidavit was not read.

DR. KRANZBÜHLER: The name was read, Mr. President.

THE PRESIDENT: Very well, go on.

DR. KRANZBÜHLER: [_Continuing._]

“Nevertheless, he became one of the first high officers in the
Army and fleet and was in complete agreement with the concepts
and aims of National Socialism.”

As an introduction to this paragraph, Mr. Messersmith said, in Document Number 1760, on Page 2, the last sentence before the Number 1:

“Among those whom I saw frequently and to whom I have reference
in many of my statements were the following. . . .”

Then after Number 16 Dönitz’ name appears. My client has informed me that he has heard the name “Messersmith” today for the first time; that he does not know the witness Messersmith, has never seen him, nor has he ever spoken to him.

I therefore request that the witness Messersmith be brought before the Court to state when and where he spoke to the Defendant Dönitz.

THE PRESIDENT: The Tribunal has already ruled that the affidavit is admissible; that its probative value will of course be considered by the Tribunal, and the defendants’ counsel have the right, if they wish, to submit interrogatories for the examination of Messersmith. Of course defendants will have the opportunity of giving evidence when their turn comes, then Admiral Dönitz, if he thinks it right, will be able to deny the statements of the affidavit.

DR. KRANZBÜHLER: Thank you.

MR. ALDERMAN: I want to call the Court’s attention to a slight mistranslation into German of one sentence of the Messersmith affidavit. In the German translation the word “nicht” crept in when the negative was not in the English.

The English statement was:

“I deemed it expedient to delay my return call for several weeks
in order to make it clear to Von Papen that I had no sympathy
with and on the other hand was familiar with the objectives of
his mission in Austria.”

The German text contains the negative: “Und dass ich anderseits nicht mit den Zielen seiner Berufung in Österreich vertraut war.” The “nicht” should not be in the German text.

The continued existence of Nazi organizations was a program of armed preparedness. The wiles of the Defendant Von Papen represented only one part of the total program of Nazi conspiracy. At the same time Nazi activities in Austria, forced underground during this period, were carried on.

Mr. Messersmith’s affidavit on Pages 9 and 10, the English text, discloses the following. Reading from the last main paragraph on Page 9:

“Nazi activities, forced underground in this period, were by no
means neglected. The Party was greatly weakened for a time as a
result of the energetic measures taken against the Putsch and as
a result of public indignation. Reorganization work was soon
begun. In October 1934 the Austrian Foreign Minister,
Berger-Waldenegg, furnished me the following memorandum, which
he told me had been supplied to the Austrian Government by a
person who participated in the meeting under reference.”

I quote the first paragraph of the memorandum:

“A meeting of the chiefs of the Austrian National Socialist
Party was held on 29 and 30 September 1934, at Bad Aibling in
Bavaria.”

Then, skipping four paragraphs and resuming on the fifth one:

“The Agents of the Party Direction in Germany have received
orders in every Austrian district to prepare lists of all those
persons who are known to support actively the present Government
and who are prepared closely to cooperate with it.

“When the next action against the Government takes place those
persons are to be proceeded against just as brutally as against
all those other persons, without distinction of party, who are
known to be adversaries of National Socialism.

“In a report of the Party leaders for Austria the following
principles have been emphasized:

“A. The taking over of the power in Austria remains the
principal duty of the Austrian National Socialist Party. Austria
has for the German Reich a much greater significance and value
than the Saar. The Austrian problem is the problem. All combat
methods are consecrated by the end which they are to serve.

“B. We must, on every occasion which presents itself, appear to
be disposed to negotiate, but arm at the same time for the
struggle. The new phase of the struggle will be particularly
serious and there will be this time two centers of terror, one
along the German frontier and the other along the Yugoslav
frontier.”

That ends the quotation from the memorandum. I proceed with the next paragraph of the affidavit:

“The Austrian Legion was kept in readiness in Germany. Although
it was taken back some miles further from the Austrian frontier,
it remained undissolved in spite of the engagement which had
been taken to dissolve it. The Austrian Government received
positive information to this effect from time to time which it
passed on to me and I had direct information to the same effect
from reliable persons coming from Germany to Vienna who actually
saw the Legion.”

The fact of the reorganization of the Nazi Party in Austria is corroborated by a report of one of the Austrian Nazis.

I offer in evidence our Document Number 812-PS, as Exhibit USA-61. It contains three parts. First, there is a letter dated August 22, 1939 from Mr. Rainer, then Gauleiter at Salzburg, to the Defendant Seyss-Inquart, then Austrian Reich Minister. That letter encloses a letter dated July 6, 1939 written by Rainer to Reich Commissioner and Gauleiter Josef Bürckel.

DR. HANS LATERNSER: (Co-counsel for Defendant Seyss-Inquart): I object to the presentation of the letters contained in Document Number 812. Of course, I cannot object to the presentation of this evidence to the extent that this evidence is to prove that these letters were actually written. However, if these letters are to serve as proof for the correctness of their contents, then I must object to the use of these letters, for the following reason: Particularly, the third document: It is a letter which, as is manifest from its contents, has a certain bias, for this reason, that in this letter it is explained to what extent the Austrian Nazi Party participated in the Anschluss.

It purports, further, to expose the leading role played by the Party group Rainer-Klausner.

From the bias that is manifest in the contents of this letter, this letter cannot serve as proof for the facts brought forth in it, particularly since the witness Rainer, who wrote this letter, is available as a witness. I have discovered he is at present in Nuremberg.

I object to the use of this letter to the extent that it is to be used to prove the correctness of its contents, because the witness who can testify to that is at our disposal in Nuremberg.

THE PRESIDENT: The Tribunal will hear Mr. Alderman in answer to what has been said. The Tribunal has not yet read the letter.

MR. ALDERMAN: I think perhaps it would be better to read the letter before we argue about the significance of its contents.

THE PRESIDENT: Are you relying upon the letter as evidence of the facts stated in it?

MR. ALDERMAN: Yes.

THE PRESIDENT: From whom is the letter, and to whom is it addressed?

MR. ALDERMAN: The first letter is from Mr. Rainer who was at that time Gauleiter at Salzburg, to the Defendant Seyss-Inquart, then Reich Minister of Austria.

That letter encloses a letter dated July 6, 1939, written by Rainer to Reich Commissioner and Gauleiter Josef Bürckel. In that letter, in turn, Rainer enclosed a report on the events in the NSDAP of Austria from 1933 to March 11, 1938, the day before the invasion of Austria.

I had some other matters in connection with this that I did want to bring to the attention of the Tribunal before it passes upon the admissibility.

THE PRESIDENT: I don’t think that the defendant’s counsel is really challenging the admissibility of the document; he challenges the contents of the document.

MR. ALDERMAN: Yes. On that, in the first place, we are advised by defendant’s counsel that this man Rainer is in Nuremberg. I would assume he is there.

We have also an affidavit by Rainer stating that what is stated in these communications is the truth. However, it seems to us that the communications themselves, as contemporaneous reports by a Party officer at the time, are much more probative evidence than anything that he might testify to before you today.

DR. LATERNSER: I have already said that this letter has these characteristics, that it is biased, that it tends to emphasize and exaggerate the participation of the Austrian Nazi Party on the Anschluss. Therefore, I must object to the use of this letter as objective evidence. It was not written with the thought in mind that the letter would be used as evidence before a court. If the writer had known that, the letter undoubtedly would have been formulated differently, considering his political activity.

I believe, although I am not sure, that the witness is in Nuremberg. In that case, according to a principle which is basic for all trial procedure, the witness should be presented to the Court personally, particularly since, in this case, the difficulties inherent in the question of Messersmith do not here pertain.

THE PRESIDENT: The Tribunal is of the opinion that the letters are admissible. They were written to and received by the Defendant Seyss-Inquart. The defendant can challenge the contents of the letters by his evidence.

If it is true that Rainer is in Nuremberg, it is open to the defendant to apply to the Tribunal for leave to call Rainer in due course. He can then challenge the contents of these letters, both by the Defendant Seyss-Inquart’s evidence and by Rainer’s evidence. The letters themselves are admitted.

MR. ALDERMAN: May it please the Tribunal, I agree quite fully with the statement that if it had been known that these letters were to be offered in evidence in a court of justice, they very probably would have been differently written. That applies to a great part of the evidence that we shall offer in this case. And I would say that if the photographer who took the photograph of the Memorial Plaque had known that his photographs would be introduced in evidence in a conspiracy case, he probably never would have snapped the shutter.

The letter from Rainer to Bürckel indicates that he was asked to prepare a short history of the role of the Party. Perhaps I had better read the covering letter, addressed to the Defendant Seyss-Inquart:

“Dear Dr. Seyss:

“I have received your letter of 19 August 1939, in which you
asked me to inform you what I know of those matters which, among
others, are the subject of your correspondence with Bürckel.

“I do not wish to discuss sundry talks and all that which has
been brought to my notice in the course of time by different
people. I wish to clarify essentially my own attitude.

“On 5 July 1939 I was asked by telephone by the Reich
Commissioner Gauleiter Bürckel if I was in possession of the
memorandum of Globus regarding the events of March. I told him
that I did not have this memorandum, that I never possessed a
single part of it; that I, furthermore, did not then participate
in the matter and do not know its content. Because of official
requests by Bürckel, I have entrusted him with a report
accompanied by a letter written on 6 July.

“If Bürckel now writes to you that certain statements were
confirmed by me, I feel obliged to entrust you with a copy each
of my copies of those two documents, which were only written in
single originals. I shall specially inform Bürckel of this,
adding that I have given—apart from, those written
explanations—no confirmations, declarations, or criticisms
whatsoever regarding you and your attitude and that I have
authorized nobody to refer to any statements of mine.

“Since the beginning of our collaboration, I have always
expressed and represented forcefully my ideas regarding yourself
and my opinion of your personality. This conception of mine was
the very basis of our collaboration. The events of February and
March have not changed this, especially since I considered the
political success of 11 March merely as a confirmation of the
intentions and convictions which have equally induced both of us
to collaborate.

“As far as Globus is concerned, you are fully, aware of his
nature, which I judged always and in every situation only by its
good side. I believe that you have already talked to Globus
about the occurrences between the 11 March 1938 and today, and I
am convinced that he will tell you everything that is bothering
him, if you will speak to him about this matter, as is your
intention.

“With best regards and Heil Hitler!

Yours, Friedl Rainer.”

And so Rainer writes his report, which is enclosed with this letter, to show that the Party as a whole is entitled to the glory which was excessively ascribed to one person, Dr. Seyss-Inquart.

I refer to the third paragraph of the first enclosure, the report to Reich Commissioner Gauleiter Josef Bürckel:

“We saw in March and April how a false picture about the actual
leadership conditions developed from this fact which could not
be corrected in spite of our attempts to that effect. This was
an important factor for the varying moods of Globocnik who hoped
especially from you that you would emphasize for Hitler, and
also for the public, the role of the Party during the events
preceding 12 March 1938. I limited myself to address this verbal
and written declaration to Party member Hess, and furthermore to
secure the documents from the March days. In addition, I spoke
at every available opportunity about the fight of the Party. I
did not undertake steps to give just credit to other persons for
the glory which was excessively ascribed to one person, Dr.
Seyss-Inquart, and I would not do that, primarily because I
appear as a beneficiary, and furthermore, because I believe that
I would not gladden Hitler by doing so.

“I am also convinced that Dr. Seyss-Inquart did not act
crookedly, and furthermore, that Hitler does not want to commit
an act of historical justice by special preference of his
person, but rather that he is attracted to him personally. It
really is of no great account to Hitler if this or that person
were more or less meritorious in this sector of the great fight
of the movement. Because, in the last analysis, by far the
greatest part is to be ascribed only to him; he alone will be
considered by history as the liberator of Austria. I, therefore,
considered it best to accept existing conditions and look for
new fertile fields of endeavor in the Party.

“If I should be asked to describe—without personal
interest—the role of the Party according to my best conviction,
I am ready to do so at any time. For this reason I promised
yesterday to submit to you again a short summary, and to make it
available for your confidential use. Of this letter and of this
abbreviated description I retain the sole copy.

“Heil Hitler! Rainer.”

Now, of course, all of these enclosures went to the Defendant Seyss-Inquart, and he had knowledge of the contents of all of them.

It is an historical fact of which the Court will take judicial notice, that Seyss-Inquart was the original Quisling. It so happened that the Norwegian Seyss-Inquart gave his name to posterity as a meaningful name, but all Quislings are alike.

The Tribunal will observe from this that the Rainer report is hardly likely to be tendentious, as counsel says, or to be prejudiced in favor of Defendant Seyss-Inquart’s contribution to the Anschluss. It tends, on the contrary, to show that Seyss-Inquart was not quite so important as he might have thought he was. Even so, Rainer gives Seyss-Inquart credit enough.

The Rainer report further tells of the disorganization of the Nazi Party in Austria and of its reconstitution. I now quote the second and third paragraphs of the report, appearing on Pages 3 and 4 of the English text of 812-PS, which is Exhibit USA-61; and I believe it is on Pages 1 and 2 of the original German of the report or Bericht, which is the third part of the document:

“Thus the first stage of battle commenced which ended with the
July rising of 1934. The decision for the July rising was right,
the execution of it was faulty. The result was a complete
destruction of the organization; the loss of entire groups of
fighters through imprisonment or flight into the Alt-Reich, and
with regard to the political relationship of Germany to Austria,
a formal acknowledgment of the existence of the Austrian State
by the German Government. With the telegram to Papen,
instructing him to reinstitute normal relationships between the
two States, the Führer had liquidated the first stage of the
battle, and a new method of political penetration was to begin.
By order of the Führer the Landesleitung Munich was dissolved,
and the Party in Austria was left to its own resources.

“There was no acknowledged leader for the entire Party in
Austria. New leaderships were forming in the new Gaue. The
process was again and again interrupted by the interference of
the police; there was no liaison between the formations, and
frequently there were two, three, or more rival leaderships. The
first evident, acknowledged speaker of almost all the Gaue in
Autumn 1934 was Engineer Reinthaler (already appointed
Landesbauernführer, leader of the country’s farmers, by Hess).
He endeavored to bring about a political appeasement by
negotiations with the Government with the purpose of giving the
NSDAP legal status again, thus permitting its political
activities. Simultaneously, Reinthaler started the
reconstruction of the illegal political organization at the head
of which he had placed Engineer Neubacher.”

Next we have secret contacts between German officials, including the Defendant Von Papen, and the Austrian Nazis; the use by the Austrian Nazis of front personalities.

There are two cardinal factors concerning the Nazi organization in Austria which should be borne in mind.

First, although the Führer had, on the surface, cast the Austrian Nazis adrift—as indicated in the document I have just read—in fact, as we shall show, German officials, including Von Papen, maintained secret contact with the Austrian Nazis in line with Hitler’s desires. German officials consulted and gave advice and support to the organization of the Austrian Nazis.

In the second place, the Austrian Nazis remained an illegal organization in Austria, organizing for the eventual use of force in a so-called emergency. But in the meantime they deemed it expedient to act behind front personalities, such as the Defendant Seyss-Inquart, who had no apparent taint of illegality in his status in Austria.

Mr. Messersmith relates, in his affidavit, that he got hold of a copy of a document outlining this Nazi program. I quote from Page 8 of Document 1760-PS, USA-57, the following:

“For 2 years following the failure of the July 25 Putsch, the
Nazis remained relatively quiet in Austria. Very few terroristic
acts occurred during the remainder of 1934 and, as I recall, in
1935 and most of 1936, this inactivity was in accordance with
directives from Berlin, as direct evidence to that effect which
came to my knowledge at that time, proved. Early in January the
Austrian Foreign Minister Berger-Waldenegg, furnished me a
document which I considered accurate in all respects, and which
stated:

“‘The German Minister here, Von Papen, on the occasion of his
last visit to Berlin, was received three times by Chancellor
Hitler for fairly long conversations and he also took this
opportunity to call on Schacht and Von Neurath. In these
conversations the following instructions were given to him: