Chapter XXVII: Section C: of my Appendix A, that the crimes of the SS were committed, (9)

Furthermore, here is a letter addressed by Schacht to General Field Marshal Von Blomberg. It deals with restriction of armaments, et cetera, and its relevancy is, I think, obvious.

Still a word about Subparagraph (c). This is a Hitler memorandum of August 1936 regarding the Four Year Plan. This memorandum, in which Hitler reproaches Schacht most bitterly, even with sabotage, is of decisive importance to us. Contrary to what appears in the list, I am not in a position to produce a reliable copy of this memorandum, which under certain circumstances could replace the original. What I have is an extract, which in no way can be considered reliable and thus cannot be submitted to the Tribunal as evidence. In order to ascertain the exact contents of this memorandum, we must have the original. To my knowledge the original was among the files of the Dustbin Camp in the Taunus, and again I ask the Prosecution to assist in procuring it.

Then there is the letter written by Schacht to Göring in November 1942. Göring’s answer was to dismiss Schacht for defeatism, or rather in consequence of this letter Schacht was dismissed for defeatism. A further consequence of this letter was that Göring excluded him from the Prussian State Council. A copy of this letter was last seen by Schacht in the possession of one Von Schlaberndorff, who worked with General Donovan, but who is no longer here. Where Schlaberndorff is now, I do not know. May I ask the Prosecution to assist us also in this matter. Furthermore, there is a telegram of January 1943 from Göring to Schacht, excluding him from the State Council.

As to Subparagraph (f), I have to ask the Russian Prosecution to assist us in procuring this item. It is made up of miscellaneous notes, records of Schacht’s reflections, written soliloquies and letters, which were kept in a box at Schacht’s country seat, Guehlen, near Lindow, Mark Brandenburg—that is in the Russian occupation zone. According to information received, this box has been confiscated by Soviet troops. I should be very much obliged to the Russian Delegation if they would do their utmost to procure the box with its contents.

The documents under Number 4 are already in our possession. I do not think it necessary to enumerate and comment on them here; they will be included in our document book and the Prosecution will then have the opportunity of making observations on their relevancy. That is all I have to say now regarding the documents.

SIR DAVID MAXWELL-FYFE: With the approval of the Tribunal I shall confine the very few remarks I have to make to Paragraph 3 of Dr. Dix’ memorandum. With regard to the document for which Dr. Dix has made a request, it is not yet procured. I have asked my colleagues to make inquiries, but at the moment they cannot find certain of these documents, although a search has been made. For example, (a), the note handed to Hitler on the same day, is Document Number 1168-PS. Mr. Dodd tells me that an exhaustive search was made by the American Delegation two months ago, and they are convinced that that document is not in their possession, and the same applies to the Soviet Delegation regarding (e).

THE PRESIDENT: Who was the interrogator, Judge Gurfein?

SIR DAVID MAXWELL-FYFE: Colonel Gurfein is the one who started the American Prosecution, who conducted the interrogations at the earlier stages.

THE PRESIDENT: Where is he now?

SIR DAVID MAXWELL-FYFE: New York. That point has been borne in mind in the usual interrogations. If the document is used, it is very carefully referred to, and the American Delegation informs me that they took that line of search, and they had that in mind, and that they have not been able to find it. Similarly, in regard to Number (e), my Soviet colleagues told me that they have no trace of the document there mentioned.

THE PRESIDENT: You mean there is no reference, to that document in the interrogation conducted by Judge Gurfein?

SIR DAVID MAXWELL-FYFE: That is so, yes. They are unable to find any reference, I am told, going through the interrogation.

THE PRESIDENT: Have you any knowledge of any communication that has been sent to Judge Gurfein?

SIR DAVID MAXWELL-FYFE: I am not sure; he had gone when the search was made two months ago. I am sure that the American Delegation will look into that. What I was going to say in regard to Number (e) was that my Soviet colleagues informed me that no trace of this document has been discovered by the Russian authorities. With regard to the others, the Prosecution would like some further time to make further inquiries, and then they will report to Dr. Dix and to the General Secretary if anything can be done. With regard to the other documents, the ones which are referred to by Dr. Dix, and the many extracts, his plan is one which entirely suits the Prosecution if it suits the Tribunal.

THE PRESIDENT: I call on Counsel for the Defendant Dönitz.

FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for Defendant Dönitz): I should like to call the following witnesses: First, Judge Admiral Kurt Eckhardt. He was expert on international law in the Naval War Staff. He is to testify that the rules of international law were considered when the German U-boat war policy was laid down. This testimony is relevant in view of the documents submitted by the Prosecution, according to which the U-boat war was conducted without regard for international law.

SIR DAVID MAXWELL-FYFE: Again it might help Dr. Kranzbühler and the Tribunal, if I indicated the view of the Prosecution. They consider that Number 1, Admiral Eckhardt, and Number 2, Rear Admiral Wagner, and Number 4, Rear Admiral Godt, should not be the subject of objections; they do not make objections to these three. With regard to Commander Hessler, Number 3, it seems to the Prosecution that he is really cumulative to Rear Admiral Godt, as he ceased to be a U-boat commander at the end of 1941, before most of the material orders were issued. That is really the only point; as I said, we raise no objections to the other three. With regard to the second portion, the interrogatories, the interrogatory of Mr. Messersmith has been granted. With regard to the next three, Vice Admiral Kreisch, Captain Roesing, and Commander Suhren, these were granted on 14 February, and a slight error crept into the Prosecution’s action which was purely mechanical. The Prosecution replied that they did not object in principle and did not wish to file cross-interrogatories; they objected to two of the questions to be addressed to Commander Suhren, Numbers 7 and 8. It was intended that the same objection to the same questions should be made with regard to the other two. It appears that the document only related to Commander Suhren, but in general there is no objection; with regard to Number 5, that has been done.

THE PRESIDENT: Well, Sir David, have those mistakes been rectified, in reference to 2 and 3?

SIR DAVID MAXWELL-FYFE: I am not quite sure. I want to mention that same objection, to narrow the issues of this objection to two of the interrogatories, and in connection with all three sets of interrogatories, I do not think this has been before the Tribunal so far as I know.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: And with regard to Captain Eck, that evidence has been taken on commission, and so there is no objection. Finally, with regard to Admiral Nimitz, the Prosecution do object to that application; that is a new application, and if the Tribunal will look at the grounds, they are that the United States submarines attacked all ships apart from the United States and Allied vessels without warning, and that the United States submarines attacked all Japanese ships without warning, at the latest from the time when it could be surmised that the Japanese ship would resist being taken as a prize. And third, that the United States submarines did not assist shipwrecked people in such waters where the submarine would have endangered herself through such assistance. The reason which Dr. Kranzbühler gives is that this testimony proves that the United States Admiralty made the same strategical and legal considerations in carrying out its submarine warfare. In the submission of the Prosecution this is irrelevant. That they followed the same legal considerations might have been done as retaliation, and if so, the question whether the United States broke the laws and usages of war is quite irrelevant; as the question before the Tribunal is whether the German High Command broke the laws and usages of war, it really raises the old problem of evidence directed to _tu quoque_, an argument which this Prosecution has always submitted throughout this Trial is irrelevant.

FLOTTENRICHTER KRANZBÜHLER: I shall confine myself to the points to which Sir David has raised objections.

First of all, witness Number 3, Commander Hessler. I do not consider his testimony to be cumulative. He is to testify as to when Order 154, which has been submitted by the Prosecution, was abrogated. This testimony is important because the Prosecution contend that the order of September 1942 need not have been issued at all but that it would have been sufficient to refer to the old Order 154. To counter this contention Hessler is to testify that Order 154 was no longer in force at that time.

Moreover, Captain Hessler, being on the staff of the U-boat commanders from 1941 on, instructed nearly all U-boat commanders putting to sea about the orders issued, particularly the orders regarding treatment of shipwrecked persons. For these reasons, his testimony is, in my opinion, indispensable as a check on the statement of witness Moehle.

I now turn to the interrogatories for Numbers 2, 3, and 4: Admiral Kreisch, Captain Roesing, and Commander Suhren. I think that the objections of the Prosecution to two of the questions asked in my interrogatory can be dealt with only after these questions have been answered. I heard only today that objections would be raised, but I do not yet know on what grounds.

THE PRESIDENT: Have the Tribunal got the interrogatories and the objections of the Prosecution to Number 4?

FLOTTENRICHTER KRANZBÜHLER: The Tribunal have received only the interrogatories from me.

THE PRESIDENT: Have the Prosecution given us their objection to one question? This, I understand, was an objection that was made to the interrogatories put to Suhren, which should have been an objection to a particular question on the other two as well.

SIR DAVID MAXWELL-FYFE: Yes. It is very short. I will indicate it, if Dr. Kranzbühler will allow me.

The two questions were: “Is it known to you that in September 1942 German submarines saved shipwrecked people after torpedoing the British steamer _Laconia_ and while doing so were bombed by an Allied plane?” Number 8, “Do you know whether this incident was the reason for the commander of the U-boat fleets issuing an order by which assistance at the risk of endangering one’s own boat was prohibited, and for the declaration that this was not at variance with the laws of sea warfare?”

The objections—I will read them out: “Question 7. Objection is entered on the ground that this question is unnecessary and the facts are admitted.”

“Question 8: Objection entered. It is not seen how the witness could possibly know the reason for the orders from the Defendant Dönitz.”

These are the objections that were made.

THE PRESIDENT: Yes.

FLOTTENRICHTER KRANZBÜHLER: May I say something to this? I think that the officers mentioned can testify as to the reasons for the orders received by them from the commander of the U-boat fleet, because the events which led to the order of September 1942 were generally known among the U-boat commanders, and U-boat commanders in the various theaters of war may possibly have picked up the wireless messages sent to the U-boats concerned with the _Laconia_ incident. That is all.

I now turn to the application regarding the interrogatory to be put to Admiral Nimitz. The stand taken by the Prosecution differs entirely from the conception on which my application is based. I in no way wish to prove or even to maintain that the American Admiralty in its U-boat warfare against Japan broke international law. On the contrary, I am of the opinion that it acted strictly in accordance with international law. In the United States’ sea war against Japan, the same question arises as in Germany’s sea war against England, namely the scope and interpretation of the London Submarine Agreement of 1930. The United States and Japan were also signatories to this agreement.

My point is that, because of the order to merchant vessels to offer resistance, the London Agreement is no longer applicable to such merchantmen; further, that it was not applicable in declared operational zones in which a general warning had been given to all vessels, thus making an individual warning unnecessary before the attack.

Through the interrogatory to Admiral Nimitz I want to establish that the American Admiralty in practice interpreted the London Agreement in exactly the same way as the German Admiralty, and thus prove that the German conduct of sea warfare was perfectly legal. The same applies to the treatment of shipwrecked persons in waters where the U-boat would endanger herself by rescue measures.

THE PRESIDENT: Yes, Dr. Kranzbühler.

FLOTTENRICHTER KRANZBÜHLER: I now turn to the documents.

THE PRESIDENT: If you are departing from Admiral Nimitz I should like to ask a question of Sir David.

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.

THE PRESIDENT: Sir David, I understood you to submit that these questions to Admiral Nimitz were entirely irrelevant?

SIR DAVID MAXWELL-FYFE: Yes.

THE PRESIDENT: Would it make any difference to your submission whether the German Navy had attacked merchant ships without warning in the first instance in the beginning of their war against England?

SIR DAVID MAXWELL-FYFE: Well, that of course would be a clearer breach of the treaty, as, at that time, there was no question of armament, so far as I am aware; and there was certainly no question that the German submarines thought that they were attacking armed vessels which were really ships of war. Then, of course, one comes to the position which the Prosecution developed in evidence, that, the German Navy having indulged in the beginning in that form of submarine warfare, the position changed, and armament had to be installed in British ships. In my submission it would make a difference even if one takes the argument as Dr. Kranzbühler has put it now; he is saying that he is not alleging breaches of the laws and usages of war, but is relying on his interpretation of the London Agreement, that merchant ships that were armed could be attacked. It really becomes a very difficult matter if one is to construe these treaties by a sort of general investigation of the interpretation by various commanders. Within the point that Your Lordship put to me there is that very clear point which appears in our documents that the arming of merchant ships was the result of the attacks without warning which took place in the first months of the war.

THE PRESIDENT: But would you say that these questions to Admiral Nimitz are irrelevant because the United States came into the war in December 1941 when the sea warfare between Germany and England had developed to that stage, when attacks were being made without warning?

SIR DAVID MAXWELL-FYFE: That is so, My Lord. That is what I was saying. I am very grateful to Your Lordship for clarifying the argument that I wanted to make.

THE PRESIDENT: Is that clear to you, Dr. Kranzbühler? The argument which I understand Sir David is putting forward with reference to these interrogatories is that they are truly irrelevant because of the date at which the United States came into the war; a date when the sea war between England and Germany had, for reasons which must be investigated, arrived at the stage that submarines were attacking merchant vessels without warning, and merchant vessels were defending themselves against those attacks.

FLOTTENRICHTER KRANZBÜHLER: Yes, Mr. President. It is, however, my opinion that the conditions which developed in the sea war between Germany and England do not necessarily have a bearing on the measures applied in the sea war between the United States and Japan, as here an entirely different theater of war was involved, in which German forces did not operate. In my opinion, the directives for sea warfare in the East Asia theater of war should be based on the conditions prevailing there and not be derived from experiences made in the European theater of war.

THE PRESIDENT: Then the Tribunal will consider these arguments.

THE TRIBUNAL (Mr. Biddle): How can what any navy did show the proper construction of a law? It may show what a particular admiral thought about it, but how are we interested in knowing what one admiral or another admiral thought about the law? Isn’t that for us to decide? How is that any evidence? Isn’t that your point, Sir David?

SIR DAVID MAXWELL-FYFE: Yes.

THE TRIBUNAL (Mr. Biddle): How does that really throw any light on the meaning of a law?

FLOTTENRICHTER KRANZBÜHLER: I do not think that the principles for the conduct of sea war originate from one admiral, but that in view of their far-reaching implications they have become a matter for the government. It is recognized in international law that it springs not only from treaties, but also from acts of governments. May I give as an example that Mr. Justice Jackson in his first report to President Truman specially emphasized that international law is developed by acts of governments. Consequently, if the London Naval Agreement of 1930 did not originally imply that merchant vessels which had orders to resist were excluded, then acts to this effect on the part of the governments of all nations would have been instrumental in creating new international law to this end. I am therefore of the opinion that the attitude taken in this question by the United States as one of the greatest sea powers is decisive as to the interpretation of the London Agreement and hence as to the legality of Germany’s conduct.

THE TRIBUNAL (Mr. Biddle): Do you claim that the London Agreement is ambiguous?

FLOTTENRICHTER KRANZBÜHLER: Yes.

THE TRIBUNAL (Mr. Biddle): What words in the London Agreement are ambiguous?

FLOTTENRICHTER KRANZBÜHLER: The term “merchant vessels.”

THE TRIBUNAL (Mr. Biddle): You have not got the citation there, have you?

FLOTTENRICHTER KRANZBÜHLER: Which is it?

THE TRIBUNAL (Mr. Biddle): The phrase in the London Agreement which you claim is ambiguous.

FLOTTENRICHTER KRANZBÜHLER: I have not got it here, but I can give a fairly accurate quotation. It says that submarines are subject to the same rules as surface vessels in their conduct towards merchant vessels.

I shall later submit proof that the term “merchant vessel,” even at the Washington Conference of 1922, was considered ambiguous, and that also in books on international law published later it had repeatedly been stressed that this term is ambiguous.

THE TRIBUNAL (Mr. Biddle): Dr. Kranzbühler, you want Admiral Nimitz to give us his opinion of his construction of the treaty, do you not? Isn’t that the purpose of these interrogatories?

FLOTTENRICHTER KRANZBÜHLER: No, I do not want to hear Admiral Nimitz’ opinion, but the policy pursued by the United States in its sea war against Japan.

THE PRESIDENT: The Tribunal will consider the arguments you have addressed to them, Dr. Kranzbühler.

FLOTTENRICHTER KRANZBÜHLER: I now turn to the documents. As I have just heard from Sir David, there are no objections on the part of the Prosecution. I do not know whether I need give my reasons for submitting the individual documents.

First of all, there are the war diaries and the standing orders of the Admiralty and of the commander of the U-boat fleet. They have already been admitted, and the Prosecution do not raise any objections.

Under Number 3, I ask for the “British Confidential Fleet Orders” and “Admiralty Merchant Shipping Instructions” of the British Admiralty to be produced.

SIR DAVID MAXWELL-FYFE: My Lord, this matter came up before the Tribunal in closed session on an application from Dr. Kranzbühler. I have not heard definitely from the British Admiralty whether they agreed to do this, but I have asked Dr. Kranzbühler if he will leave this matter over for 10 days in the hope that we may be able to meet him. If Dr. Kranzbühler will not press it for 10 days, I shall, of course, let him know as soon as I have any definite information.

THE PRESIDENT: Yes.

FLOTTENRICHTER KRANZBÜHLER: I agree to that. Under Number 4 I declare my intention to submit a number of statements and letters I have received from German U-boat commanders and officers, some of them through the General Secretariat. These statements contain items from the lecture given at Gydnia by the Commander-in-Chief of the Navy and referred to by witness Heisig, including the instruction of U-boat commanders by witness Moehle and the orders regarding the treatment of shipwrecked persons. I understand the Prosecution have no objections.

THE PRESIDENT: Have you got any objection, Sir David?

SIR DAVID MAXWELL-FYFE: My Lord, many of these matters may have to be considered when the actual document is put before us. There are no class objections to them.

FLOTTENRICHTER KRANZBÜHLER: I should like to mention that I shall probably have to submit some further documents later, after I have spoken to Judge Admiral Eckhardt. May I again ask the Tribunal to allow me as soon as possible to call this witness, who is particularly important for the defense of the methods employed in U-boat warfare.

THE PRESIDENT: Yes, I think the Tribunal would grant that, subject, of course, to there being no delay regarding further applications.

FLOTTENRICHTER KRANZBÜHLER: Yes.

THE PRESIDENT: The Tribunal will now adjourn.

[_The Tribunal adjourned until 6 March 1946 at 1000 hours._]

SEVENTY-FIFTH DAY
Wednesday, 6 March 1946

_Morning Session_

THE PRESIDENT: I desire to announce a slight change in the order of business.

Dr. Stahmer has submitted a motion in writing, stating that he desired a little more time in the preparation of his documents and for other reasons would be grateful if the case of the Defendant Göring did not come on on Thursday, as announced.

The Tribunal realizes that the case of the first defendant to be heard may present some difficulties in getting the documents translated in time. As the Tribunal has announced that they would continue the hearing of the applications for witnesses until they are all completed, they will adhere to this decision. It is anticipated that this will give Dr. Stahmer one day more, but at the conclusion of the hearing of the applications for witnesses the case of the Defendant Göring will come on without further delay.

The Tribunal wishes to make it quite clear that no further applications for delay or postponement on the part of the defendants will be entertained, save in the most exceptional circumstances.

DR. SIEMERS: For the Defendant Raeder, I should like to apply first for a witness who will testify to the defendant’s character.

SIR DAVID MAXWELL-FYFE: My Lord, if it would be convenient, I might first indicate the views of the Prosecution, and then Dr. Siemers can deal with this point.

The Prosecution has no objection to the following witnesses being called for oral testimony: Number 3, the retired Minister Severing; Number 5, Vice Admiral Schulte-Moenting; Number 6 has already been sought for and not objected to by the Prosecution—a witness for the Defendant Dönitz; Number 10, Admiral Boehm.

Then, with regard to the following witnesses the Prosecution suggest an affidavit as the suitable procedure: Number 2, Vice Admiral Lohmann. . .

THE PRESIDENT: Do you mean an affidavit or interrogatories?

SIR DAVID MAXWELL-FYFE: Well, in this case I should prefer an affidavit, because it is only a history of past events that is involved.

THE PRESIDENT: Very well. Affidavit in which case?

SIR DAVID MAXWELL-FYFE: In the case of Number 2—Lohmann.

Then with regard to Number 4—that is Admiral Albrecht—his evidence covers the same ground as Number 5. It might be that interrogatories would be more convenient, but that would be a matter for my friends to decide.

Then the next, Number 7. That is Dr. Süchting, who is an engineer, and it is desired to have him speak about the Anglo-German Naval Treaty and technical questions. The Prosecution suggest an affidavit there, because apparently it is desired that he speak on technical matters.

Number 8, Field Marshal Von Blomberg, I am told, is still ill. I think that Dr. Siemers has already submitted questions and has received the answers. He ought to be dealt with by interrogatories. That is probably the easiest thing for the Field Marshal and the most suitable.

THE PRESIDENT: Was that not suggested in the case of one of the other defendants?

SIR DAVID MAXWELL-FYFE: Von Blomberg, yes. I have a note that the Defense Counsel have submitted questions. I was not quite sure whether this was Dr. Siemers or another Defense counsel. I think it was Dr. Nelte, for Keitel.

THE PRESIDENT: I think so, yes. That is Number 8.

SIR DAVID MAXWELL-FYFE: Then the next one, Von Weizsäcker, who was the Secretary of State at the Foreign Office. He is asked for with regard to the _Athenia_ case. At the moment I cannot see the point for which the Defense want this gentleman, but I suggest that if they get an affidavit from Weizsäcker we should know what he can speak about.

Then the other one is Number 14, Colonel Soltmann. It is desired to give the results of the interrogation of certain British prisoners of war at Lillehammer. It would appear that the object was merely to give further evidence which would be cumulative to the statements in the German _White Book_, and therefore the Prosecution suggest an affidavit.

There are two witnesses that the Prosecution think are in the border line between admissibility and affidavits. They are really, in the submission of the Prosecution, not relevant witnesses, but the Tribunal might like to consider the question. These are Number 1, a naval chaplain who really speaks as to the general moral and religious outlook of the Defendant Raeder. That is, in the submission of the Prosecution, really irrelevant, and at the most it would be a matter for an affidavit. The position of the Prosecution is that it is really irrelevant, but it certainly should not be more than an affidavit, even if a different view was taken.

The other is Number 16, Admiral Schultze. He speaks as to an interview with the late Admiral Darlan, and the Prosecution submit that that is irrelevant; if there are any approaches to relevance—which the Prosecution have been unable to see—why then it could only be a matter for an affidavit.

The Prosecution submit that the following are unnecessary: Number 11. . .

THE PRESIDENT: Sir David, dealing with Number 16, would that not be more suitably dealt with by interrogatories? The Tribunal granted interrogatories on 9 February in that case, but I suppose they have not yet been produced.

SIR DAVID MAXWELL-FYFE: Which one was that?

THE PRESIDENT: Number 16.

SIR DAVID MAXWELL-FYFE: Yes. Well, if the Tribunal feel that it is a matter that should be explored, I agree that interrogatories would be suitable.

Then, My Lord, the ones that the Prosecution make objection to _in toto_ are:

Number 11, Vice Admiral Bürckner, because he is cumulative to Numbers 5 and 10; Number 12, Commander Schreiber, because on 21 February Dr. Siemers said that he was willing not to call this witness if Number 5, Schulte-Moenting, was allowed; Number 13, Lackorn, who is a Norwegian merchant, who is supposed to speak of the Allied plans, without any means of knowledge being stated. This witness was temporarily given up on 21 February; Number 15, Alf Whist, who was Secretary of Commerce in the Quisling cabinet, as I understand the application. There is no indication why this witness should be competent to speak on the reputation of the Defendant Raeder; and Number 16 has been dealt with; Number 17 is Colonel Goldenberg, who was the interpreter at the meeting between the Defendant Raeder and Darlan. The Defendant Raeder gives evidence and Admiral Schultze answers an interrogatory. It will appear that that interview is well covered.

THE PRESIDENT: Yes, Dr. Siemers?

DR. SIEMERS: I thank Sir David for taking up the individual points, as a consequence of which I can, as I presume, count on the Tribunal’s approval of the points to which Sir David has agreed, without giving specific reasons.

THE PRESIDENT: The Tribunal thinks that the best course would be for you to go through the ones upon which Sir David has not agreed as to being called as oral witnesses, and then perhaps it may be necessary to deal with the ones where he has agreed. I would begin in the order in which he took them up—2, 4, 7, 8, 9—if that is convenient for you.

In the case of Number 2 he suggested an affidavit.

DR. SIEMERS: Number 2 is the Vice Admiral Lohmann. In this connection I refer to the last page of my brief, where I have discussed the documents under “III.” There I have stated that I suggested to the British Delegation that we come to some agreement as to the figures with regard to the Treaty of Versailles and the Naval Treaty. The British Delegation has promised me that such an agreement may be possible and has in the meantime communicated with the British Admiralty in London on this matter. If, as I expect, an understanding is reached, I am agreeable to an affidavit from Vice Admiral Lohmann, for then he is to testify on only a few points. I ask, therefore, that he be approved for the time being, and I undertake not to call him if the agreement mentioned is reached with the Prosecution. If this understanding is not reached, the proof of some important figures would be very difficult, and I could not do without Lohmann who is well informed about the figures; otherwise, I could.

THE PRESIDENT: What do you say about that, Sir David?

SIR DAVID MAXWELL-FYFE: I have circulated Dr. Siemers’ note and request for agreement to my colleagues, and I have also sent it to the Admiralty, and I hope that we may be able to give the information and probably to agree on these matters, but I am waiting to get that confirmed from the Admiralty in Britain; so I think if we could leave over the question of this witness until I see if I can get an agreement which will satisfy Dr. Siemers on the point. . .

THE PRESIDENT: Yes. Then if you cannot make the agreement, probably the witness would have to be called?

SIR DAVID MAXWELL-FYFE: Yes. I can let Dr. Siemers know whether there is any controversy on the point, whether I am going to challenge what he puts forward. If I am going to challenge it, obviously I should not object to the witness being called.

DR. SIEMERS: Under these circumstances, I shall be satisfied with the submission of an affidavit. I have written to Vice Admiral Lohmann, asking him to answer the other brief questions; and regarding the main points the principles just stated by Sir David will be adhered to.

THE PRESIDENT: Very well.

DR. SIEMERS: Witness Number 4, Admiral Albrecht, was one of the closest collaborators of Grand Admiral Raeder. From 1926 to 1928 he was Raeder’s Chief of Staff in Kiel; from 1928 to 1930, chief of the Navy personnel office of the OKM. From then on he was commanding admiral in Kiel, and finally Navy Group Commander East in 1939.

I should like to remark in this connection that in this last year he also joined, upon the suggestion of the Security Group commander, this organization, and from this point of view also he appears important to me. Admiral Albrecht has also, as I know, written directly to the Tribunal for this reason.

Albrecht has known the Defendant Raeder so long that he is well acquainted with his main ideas and thus orientated on the main charges of the Indictment. He has known Raeder’s trend of thought since 1928, that is to say, from the time in which the charges against Raeder have their beginning. I ask that consideration be given to the tremendous charges which are brought against Raeder covering a period of 15 years. I cannot refute all the accusations with one or two witnesses. The differences among the testimonies are so great that in such a case one cannot speak of “cumulative.”

Furthermore I ask that note be taken of the fact that so far I have been unable to talk to Vice Admiral Schulte-Moenting, who has been approved by the Tribunal and the Prosecution.

The Tribunal has also not yet informed me where Schulte-Moenting is. I presume that he is in a prisoner-of-war camp in England, but I do not know whether he will really be at my disposal, and whether I will be able to talk with him in time.

THE PRESIDENT: You are dealing with Admiral Konrad Albrecht, are you not? You are dealing with Number 4?

DR. SIEMERS: No; regarding Admiral Albrecht, we know that he is in Hamburg. I simply pointed out that it would not be cumulative if both Albrecht and Schulte-Moenting are heard by the Court.

THE PRESIDENT: You see, what Sir David was suggesting was an interrogatory in the case of Admiral Albrecht and an affidavit in the case of Admiral Schulte-Moenting.

SIR DAVID MAXWELL-FYFE: I will agree to Admiral Schulte-Moenting’s being called orally.

THE PRESIDENT: I beg your pardon. I was mixing the numbers. Yes, that is right, to call the one and have interrogatories from the other. Have you any objection to that?

DR. SIEMERS: Yes, I request that I be allowed to call both witnesses because Schulte-Moenting is to testify about a later period and Albrecht about the earlier period that was immediately subsequent to the Versailles Treaty. The position of both is entirely different. In addition, as I have just pointed out, the Tribunal has not yet informed me whether I can with absolute certainty count on the witness Schulte-Moenting, whether he has been found, whether it is known where he is.

THE PRESIDENT: Our information is that Schulte-Moenting has not been located.

DR. SIEMERS: I have no information as yet.

THE PRESIDENT: One moment. I am not sure that is right. Yes, he has been located in a prisoner-of-war camp in the United Kingdom. At least I think so.

Yes, I have a document before me here which shows that he is in a prisoner-of-war camp in the United Kingdom.

DR. SIEMERS: I thank you very much. I did not know that. Under the circumstances I am prepared, in regard to Admiral Albrecht, to accept an affidavit or an interrogatory, provided Schulte-Moenting really appears.

Number 7, Dr. Süchting. In this connection Sir David suggests an affidavit in order to speed up the Trial. I am satisfied with an affidavit.

THE PRESIDENT: Yes.

DR. SIEMERS: Again, however, with the one reservation that the matter of the figures will be clarified between me and the British Prosecution, in accordance with my letter as already discussed in connection with Admiral Lohmann, I believe that Sir David is agreeable to this.

THE PRESIDENT: The Tribunal would like to know how you suggest that these questions of shipbuilding in connection with the German-English Naval Agreements of 1935 and 1937 are relevant to any charge made here.

DR. SIEMERS: The Defendant Raeder is accused of not having adhered to the Treaty of Versailles and the Naval Agreement. Such a treaty violation is mainly a question of the building of ships. Consequently I must demonstrate what could be built according to the Treaty of Versailles and the Naval Agreement and what actually was built and what thoughts and orders the Navy had in this connection. As I said, however, I shall be satisfied with an affidavit.

THE PRESIDENT: Very well, the Tribunal will consider the arguments on that.

DR. SIEMERS: Number 8, Field Marshal Von Blomberg. The Prosecution have suggested an affidavit or an interrogatory. In consideration of Von Blomberg’s state of health, I am agreeable to this for the sake of simplicity. Since it does not involve any great number of questions, I suggest an affidavit.

Number 9, Ambassador Baron Von Weizsäcker. I submitted the application on 6 February and do not know thus far the position of the Tribunal. At the time of the _Athenia_ case Weizsäcker was State Secretary in the Reich Ministry for Foreign Affairs. At that time, in September 1939, Weizsäcker spoke with the American Ambassador on the subject of the _Athenia_. Weizsäcker spoke with Hitler and with Raeder. He knows the details and must be heard on these details. I do not believe that an affidavit will suffice. First let me remark that I do not know where Weizsäcker is. But aside from that, the charge which has been made against the Defendant Raeder in the case of the _Athenia_ is morally so grave that, although otherwise it might not be such an important point, I have to put particular stress on this point.

The British Delegation has given particular emphasis to the case of the _Athenia_ and has made insulting attacks on the defendant in connection with this case. In the interest of the absolutely irreproachable life of my client I feel obliged to clarify this case completely. That can only be done by Weizsäcker.

THE PRESIDENT: Dr. Siemers, as far as the application goes, there is nothing to show, beyond the position of the suggested witness, that he knew anything about it at all. Under these circumstances would not interrogatories be the most appropriate course? You did not show whether he knew anything about it at all. All you say in your application is that he was State Secretary in the Reich Ministry for Foreign Affairs.

DR. SIEMERS: I may point out that I stated in my application that the witness is informed regarding the events connected with the _Athenia_ case.

THE PRESIDENT: You say that he must know on the basis of his position as State Secretary.

DR. SIEMERS: The American Ambassador approached Weizsäcker immediately after the _Athenia_ case in order to clarify the case. Thereupon Weizsäcker spoke with Raeder; however, only after he had already told the American Ambassador that no German submarine was involved. The question as to whether a German submarine was involved in the _Athenia_ case was settled only after the return of the German submarine. Prior to that the Defendant Raeder had not known of it either. The German submarine returned on 27 September; the sinking was on 3 September.

THE PRESIDENT: Did you state these facts about conversations between the American Ambassador and State Secretary Weizsäcker in one of your previous applications?

DR. SIEMERS: Yes, on 6 February I did submit the application, and also mentioned in general terms the _Athenia_ case. I may add that Weizsäcker knows also the subsequent occurrences. Weizsäcker knows exactly that the Navy, and particularly the Defendant Raeder, had nothing, absolutely nothing to do with the article which the Propaganda Ministry published in the newspapers. Weizsäcker was just as outraged about this article as was the Defendant Raeder. But it is precisely this that the Prosecution charges against Raeder.

THE PRESIDENT: Well, the Tribunal will consider what you say.

DR. SIEMERS: Let me add that I have made a mistake. I just heard that Weizsäcker is still at the Vatican in Rome; in other words, it is known where he is.

THE PRESIDENT: Yes.

DR. SIEMERS: Number 14, Colonel Soltmann. As far as I know, Colonel Soltmann will be requested as a witness also by the Defendant Jodl, and an affidavit or an interrogatory has already been sent to him. I therefore concur with Sir David that an affidavit from Soltmann will suffice, subject to the consent, or the applications of the Defense Counsel for General Jodl.

THE PRESIDENT: He does not appear to have been located yet.

DR. SIEMERS: Yes—the witness Soltmann? I have given his address in my application.

THE PRESIDENT: Have you?

DR. SIEMERS: It is Falkenberg near Moosach in Upper Bavaria.

Number 16, Admiral Schultze is in Hamburg, and it is an easy matter to have him testify personally here in Nuremberg. The Prosecution have accused the Defendant Raeder of participating in the National Socialist policy of conquest. This accusation is unfounded. Raeder, both in Norway and in France, constantly directed his efforts towards bringing about peace; in other words, not towards the effecting of any final conquest of the countries. In this Raeder found himself in a strong opposition to Hitler, and only after much urging did Raeder succeed in enabling himself to negotiate with Darlan in Paris concerning the possible conclusion of a peace. I believe that such a positive intervention for a quick termination of the war with France is important enough, in a trial like this, to have the witness testify personally. I cannot understand how Sir David, in view of his accusation, can say that this point is irrelevant. The Prosecution has constantly declared that the Defendant Raeder was agitating for war.

THE PRESIDENT: I do not believe that Sir David did say it was irrelevant. He suggested interrogatories.

DR. SIEMERS: I made a note that Sir David said the witness was irrelevant, but that he would, as a concession, agree to an affidavit.

THE PRESIDENT: Then I was wrong.

DR. SIEMERS: I simply wanted to make my position clear on the question as to whether or not this witness is irrelevant. I believe I have shown that he is relevant.

THE PRESIDENT: You want the witness? You would not agree to an affidavit or an interrogatory? Is that right?

DR. SIEMERS: I ask the Tribunal to hear Schultze as a witness here in Nuremberg, because, in my opinion in view of the principles of the Indictment, it is a vital point that Raeder’s attitude toward the entire problem is shown by facts prevailing at that time, and not by present assertions and statements.

I come now to the witness to whom Sir David has objected, witness Number 11, Admiral Bürckner. I asked for him on 31 January. So far I have received no answer. I asked to be allowed to speak to the witness Bürckner in order to acquaint myself with the details. The interview is denied me so long as he has not been approved as a witness. In order to speak with him therefore I am dependent on his being approved first as a witness. Should it then prove that this evidence is cumulative, I am willing to forego the witness. I presume that Sir David is agreeable to this.

THE PRESIDENT: Sir David, the Tribunal does not quite understand why the counsel should not have seen this officer who is in prison in Nuremberg, subject of course to security.

SIR DAVID MAXWELL-FYFE: We have no objection to the counsel’s seeing Admiral Bürckner. I think up to now the Prosecution have always taken the view that what Dr. Siemers wanted to see him about was not relevant. I do not think the Tribunal has ruled on that.

THE PRESIDENT: The view of the Tribunal is that Counsel for the Defense ought to be in touch with the witnesses before, in order to see whether they are able to give relevant evidence or not. They cannot give the evidence or the relevancy of it unless they know what the witness is going to say.

SIR DAVID MAXWELL-FYFE: No objection will be made, and Dr. Siemers can make arrangement, as far as the Prosecution are concerned, to see Admiral Bürckner at the earliest date he likes.

DR. SIEMERS: I am grateful to the Tribunal for clarifying this point. This point has made the work of the Defense Counsel extremely difficult. I have been waiting for more than a month to speak to Bürckner. For four weeks I have not been able to speak to Admiral Wagner for the same reason. I should like to speak to others also who are in the courthouse prison. They were all denied me because the Tribunal had not yet approved them as witnesses. I believe that the point is now clarified.

THE PRESIDENT: Go on, Dr. Siemers.

DR. SIEMERS: It is quite possible that, after speaking with the witness, I may not call him to the stand, particularly since I hear today that Schulte-Moenting can be called, and provided that Boehm is approved.

THE PRESIDENT: That who is approved?

DR. SIEMERS: Boehm, Number 10.

THE PRESIDENT: Oh, yes. That was Sir David’s only objection to Number 11, was it not, that it was cumulative to 5 and 10?

DR. SIEMERS: Number 12, Captain Schreiber. Sir David has rightly pointed out that I have already stated the possibility that I may give up this witness. This still stands. If the witness Schulte-Moenting and the witness Boehm actually appear, the witness Schreiber is not necessary.

Number 13, the witness Lackorn, in Leipzig. Before the occupation of Norway Lackorn was on business in Oslo. He had nothing to do with the military. It was purely by accident that he learned, in the Hotel Bristol in Oslo, that the landing of English troops was imminent. This point is important because one can only judge the defendant’s attitude toward the Norwegian undertaking if one considers the general situation of Norway. The general situation of Norway means, however, the relations of Norway with Germany, England, Sweden, and all the other countries adjacent to Norway. It is not proper, in such a decisive question, to state that only a small part is relevant. I am agreed, however, that the witness is not to be heard here. I have, therefore, while I was waiting for the decision of the Prosecution, written to the witness in order to obtain an affidavit. It is therefore agreeable to me if an affidavit only is submitted here. He need not be approved as a witness.

THE PRESIDENT: Sir David, you did not deal with that aspect of the matter, with an affidavit.

SIR DAVID MAXWELL-FYFE: Well, My Lord, I am afraid the view of the Prosecution is that the story, which apparently started in the bar of a hotel in Oslo, is not evidence which is really admissible, relevant, or of any weight in a matter of this kind. That is the view we have taken throughout.

THE PRESIDENT: Dr. Siemers, it appears from the application which is before us that you originally made a request for this witness on 19 January 1946, which appears to have been in perfectly general terms, and that the Tribunal ordered, on 14 February, that you should furnish supplementary details of the evidence which you wanted to obtain by calling this witness. Thereupon, on 21 February, you withdrew your application.

You now submit the application again without giving any details at all, simply saying that the witness had been in Oslo on business and received information there of the imminent landing of Allied forces in Norway. Well, that is a perfectly general statement, just as general as the original statement. It does not seem to comply with the orders of the Tribunal at all.

DR. SIEMERS: On 21 February I withdrew my application because of the basic point of view which I have also presented to the Court.

I have pointed out that, in my opinion, the Defense cannot be expected to give every single detail, when we have not for three months after we were consulted had the slightest word, not one word, about a single witness of the Prosecution. When we of the Defense have not had the opportunity even of taking a stand on the relevancy of their witnesses. . .

THE PRESIDENT: I have already pointed out on several occasions that the reason why the defendants’ counsel have to submit applications for their witnesses is because they are unable to get their witnesses themselves and because they are applying to the Tribunal to get their witnesses for them and their documents for them. It is a work of very considerable magnitude to find and to bring witnesses to Nuremberg.

I understand from you that with reference to this witness you are trying now to get an affidavit from him.

DR. SIEMERS: Yes. At any rate I have been making the effort. Whether I shall receive the answer in time from Leipzig, which is in the Russian Zone, remains to be seen. In the meantime, in order to facilitate matters and to avoid delay, I have written to the witness Lackorn.

THE PRESIDENT: Yes.

DR. SIEMERS: I hope that an affidavit will be available in time.

For this reason I am willing to waive having him testify here.

THE PRESIDENT: If you get the affidavit, you will be able to give the Tribunal particulars of the evidence which the witness would give, and also to show it to the Prosecution, who will then be able to say whether they wish to have the witness brought here for cross-examination.

DR. SIEMERS: Certainly.

THE PRESIDENT: Well, the Tribunal will consider this application.

DR. SIEMERS: Witness Number 15 is a Norwegian, Alf Whist, former Secretary of Commerce. By decision of the Court on 14 February he was rejected as irrelevant.

Whist can testify that the reputation of the German Navy in Norway was very good throughout the occupation, and that in Norway the complaints were directed exclusively against the civil administration and not against the German Navy. Whist knows definitely, as does every other Norwegian, that the Navy was not involved in a single illegal or criminal measure in Norway during the occupation.

If this is considered irrelevant, I presume that Sir David means that the Navy, during the occupation of Norway, behaved correctly. Of course this is a question that must be sharply distinguished from the question which I shall discuss later, that is, the question of the occupation and the attack on Norway. I am speaking now only of the time after the occupation had been carried out.

SIR DAVID MAXWELL-FYFE: The point of the Prosecution is this: That whatever the facts were, assuming for the moment that the facts were that the German Navy had behaved with meticulous correctness on every point, the view of Mr. Alf Whist, who was Secretary of Commerce in the Quisling cabinet in Norway, as to how the German Navy behaved would not have the slightest interest or relevance or weight with anyone. That is the view of the Prosecution.

DR. SIEMERS: I hoped that Sir David would make his position clear as to whether charges in this connection will be made against the Navy. Sir David speaks of the Germans in general. I draw attention to the fact that the entire administration in Norway was a civil administration, and that, in the Terboven jurisdiction, the Navy had nothing to do with this administration; if I have named a single witness where I might have named hundreds, I did this only to give the Tribunal a picture of how Admiral Boehm, the Navy, and Raeder conducted themselves.

THE PRESIDENT: The Tribunal will consider it, Dr. Siemers.

DR. SIEMERS: Thank you.

THE PRESIDENT: Then you have still Number 17, the interpreter.

DR. SIEMERS: Regarding Lieutenant Colonel Goldenberg, it is Sir David’s point of view that he is unnecessary; if Admiral Schultze is approved as witness, an affidavit from Goldenberg will suffice for me. A short affidavit appears to me to be important, because Goldenberg was present as an impartial interpreter at every conference which took place between Darlan and Raeder. An affidavit will suffice in this case.

THE PRESIDENT: I think you can pass now to your documents. I ought to call your attention to an observation at the end of your application, which is that you intend to summon one or more witnesses. Who are they?

DR. SIEMERS: The Tribunal has declared that the details about a witness have to be submitted a long time in advance only because the Tribunal must procure the witness. When it is a question of a witness who comes to Nuremberg on his own initiative, I should be obliged for a decision on the point in connection with my defense, as to whether or not the Tribunal will admit such a witness.

THE PRESIDENT: Dr. Siemers, I have stated one of the principal reasons why Defense Counsel have to make applications, and another principal reason is a necessity for expedition in this Trial—expedition and security. The question of security is important, and therefore we must insist on being told who the witnesses are that you wish to call, Dr. Siemers. Otherwise, you will not be able to call them.

DR. SIEMERS: Am I obliged to do this even when the witness is already in the building?

THE PRESIDENT: Certainly, because, as I have told you, there are 20 or 21 defendants in the dock; and we have to try and make this Trial expeditious and we therefore cannot allow them to call as many witnesses as they choose to call. But if it is a question of your not having the names of the witnesses in your mind at the moment, you can certainly specify them after a short delay, or tomorrow.