[Testimony on 3/19/1946]
MR.JUSTICE JACKSON: I ask to have your attention called to Document Number 3575-PS (Exhibit Number USA-781) which is the minutes of the Reich Defense Council of 11/18/1938, with you presiding.
I call your attention that the "meeting consisted solely of a 3-hour lecture by the Field Marshal. No decision took place."
Is that correct?
[Document 3575-PS was submitted to the defendant.]
GOERING: I have to read it first, this is the first time I have seen the document.
MR. JUSTICE JACKSON: You did not know when you testified yesterday that we had this document, did you? Would you kindly answer that question?
GOERING: I have not seen this document before. I have to look at it first. It says here: "Notes on the session of the Reich Defense Council on 11/18/1938."
The Reich Defense Council, as it was described here, comprise few people. Here there were present, however, all Reich ministers and state secretaries, also the commanders-in-chief of the Army and the Navy, the chiefs of the General Staff, of the three branches of the Armed Forces, Reichsleiter Bormann for the Deputy of the Fuehrer, General Daluege, SS Gruppenfuehrer Heydrich, the Reich Labor Fuehrer, the Price Commissioner, the President of the Reich Labor Office, and others.
When I gave my testimony I was thinking only of the Reich Defense Council as such. This is dealing with the Reich Defense Council within the framework of a large assembly. Nevertheless I was not thinking of that; this concerns, over and beyond the Reich Defense Council, an assembly that was much larger than that provided for under the Reich Defense Council.
MR. JUSTICE JACKSON: I call your attention to the fact that the "Field Marshal stated it to be the task of the Reich Defense Council to correlate all the forces of the nation for accelerated building up of German armament."
Do you find that?
GOERING: Yes, I have it now.
MR. JUSTICE JACKSON: The second paragraph?
MR.JUSTICE JACKSON: Under II, "The Physical Task: The assignment is to raise the level of armament from a current index of 100 to one of 300."
DR.SIEMERS: I cannot quite see the reason why it repeatedlY happens that the Defense does not receive documents that are discussed in Court and that are submitted to the Court. The document now discussed is also not known to us, at least not to me. During the last few days I have noticed that several times documents were suddenly presented by the Prosecution without any effort having been made to inform us of their existence.
MR. JUSTICE JACKSON: That is perfectly true, and I think every lawyer knows that one of the great questions in this case is credibility, and that if we have, in cross-examination, to submit every document before we can refer to it in cross-examination after we hear their testimony, the possibilities of useful cross- examination are destroyed.
Now, of course, he did not know; and we have had the experience of calling document after document to their attention, always to be met with some explanation, carefully arranged and read here from notes. No defendant has ever had better opportunity to prepare his case than these defendants, and I submit that cross-examination of them should not be destroyed by any requirement that we submit documents in advance.
THE PRESIDENT: Did you wish to say something?
DR. SIEMERS: Yes. I should like to make two points. First, I am entirely agreed if Mr. Justice Jackson wants to make use of the element of surprise. I should merely be thankful if the Defense then were also permitted to use the element of surprise. Yet we have been told heretofore that we must show every document we want to submit weeks ahead of time, so that the Prosecution has several weeks to form an opinion on it.
Secondly, if the element of surprise is being used, I believe that at least we, as Defense Counsel, should not be given this surprise at the moment when the document is submitted to the Court and to the witness. I have at this moment neither today's documents nor the documents of the previous days.
THE PRESIDENT: What you have just said is entirely inaccurate. You have never been compelled to disclose any documents which you wished to put to a witness in cross-examination. This is cross-examination and therefore it is perfectly open to Counsel for the Prosecution to put any document without disclosing it beforehand; just as Defense Counsel could have put any document to witnesses called on behalf of the Prosecution, if they had wished to do so, in cross-examination.
I am sure that if counsel for the defendants wish to re-examine upon any such document as this, a copy of it will be supplied to them for that purpose.
The Tribunal now rules that this document may be put to the witness now.
DR. SIEMERS: Does the Defense also have the opportunity, now that it is known to the entire Court, of receiving the document?
THE PRESIDENT: Yes, certainly.
DR. SIEMERS: I should be thankful if I could have a copy now.
MR. JUSTICE JACKSON: I am frank to say I do not know whether we have adequate copies to furnish them to all the Defense Counsel now.
THE PRESIDENT: Maybe you have not, but you can let them have one or more copies.
MR. JUSTICE JACKSON: But I do not think we should furnish copies until the examination with reference to that document is completed, that is to say...
THE PRESIDENT: Yes, Dr. Dix.
DR. DIX: I should like to make one request that at least the technical possibilities that at least the counsel of these defendants who are being cross-examined also be given the document that is submitted to the defendant, so that they are in a position, just as the Tribunal is, to follow the examination.
If Justice Jackson says that it is his opinion that it would be right for the defense counsel-in this case my colleague Stahmer to receive this document only after the examination-in this case of Goering-has ended, I beg earnestly, in the interest of the dignity and prestige of the Defense, to take objection to this suggestion of Justice Jackson's. I do not believe that he means by that to insinuate that the Defense Counsel would be able-having these documents in its hands at the same time as the Tribunal and at the same time as the witness-somehow through signs or otherwise to influence the defendant and thereby disturb the cross-examination by Mr. Justice Jackson, or by the prosecutor. Mr. Justice Jackson certainly did not mean that, but one might draw that conclusion.
I therefore make this request: If in the cross-examination, for the purpose of the cross-examination, in view of the altogether justified element of surprise, a document is presented to a witness that at the same time is presented to the Tribunal, that at least a copy of this document be given at the same time to the defense counsel, the defense counsel concerned, either the one who has called the witness or the one whose defendant is in the witness box, so that he can have some idea of what the witness is being confronted with, for Goering could read this document, but Dr. Stahmer could not. In other words, he was not in a position to follow the next part of Mr. Justice Jackson's cross-examination. That is certainly not intended, and would certainly not be fair, and I should therefore like to ask Mr. Justice Jackson to reply to My suggestion, and my application, in order to arrive at an understanding and thereby to relieve the Tribunal of the decision on a question that to me seems self-evident.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal is inclined to think-the Tribunal certainly thinks-that you are perfectlY right, that there is no necessity at all, as I have already stated, to disclose the document to the defendants before you use it in cross-examination. But, at the time you use it in cross-examination is there any objection to handing a copy of it to the counsel for the defendant who is being cross-examined?
JUSTICE JACKSON: In some instances it is physically impOssible because of our situation in reference to these documents. A good many of these documents have come to us very lately. Our photostatic facilities are limited.
THE PRESIDENT: I am not suggesting that you should hand it to all of them, but only to Dr. Stahmer.
DR. JUSTICE JACKSON: If we have copies, I have no objection to doing that, but if we do not have them in German-our difficulty has always been to get German copies of these documents.
DR. DIX: May I say something else. If it is not possible in German, then it should at least be possible in English, for one English copy will certainly be available. Furthermore, if it is a question of German witnesses, such as Goering, the document will be shown him in German anyhow; it will certainly be shown the witness in German. I believe that will surely be possible.
[Dr. Siemers approached the lectern.]
THE PRESIDENT: We do not really need to hear more than one counsel on this sort of point. I have already ruled upon your objection, which was that the document should be produced before hand, but the Tribunal has already ruled that objection should be denied.
DR.SIEMERS: Mr. President, I am sorry. My motion was that the Defense Counsel should receive these documents at the same time the Tribunal does. I am not of the opinion expressed by Dr. Dix, that only one defense counsel should receive it. If it is a report regarding the Reich Defense Council, then it is a document important to several defendants. One copy is therefore not sufficient, but each defense counsel must have one. I believe that Mr. Justice Jackson...
THE PRESIDENT: But not at this moment. There are, as we all know, the very greatest difficulties in producing all these documents, and extraordinary efforts have been made by the Prosecution and the Translating Division to supply the defendants with documents, and with documents in German, and it is not necessary that every member of the Defense Counsel have these documents at the time the witness is being cross-examined. I am sure the Prosecution will do everything it can to let you have the documents in due course- any document that is being used.
In the opinion of the Tribunal it is perfectly sufficient if one copy of the document is supplied to the counsel for the witness who is being cross-examined. As I say, the Prosecution will doubtless let you have copies of these documents in due course.
You are appearing for the Defendant Raeder, and the Defendant Raedfer, I am afraid, at the present rate will not be in the witness.
DR. SIEMERS: The result of that is that the defense counsel who is not momentarily concerned, cannot understand the cross examination. As to the technical question, I ask the Court to consider that I cannot follow Justice Jackson on this technical point. The document is mimeographed by means of a stencil. In mimeographing it makes no difference at all whether 20, 40, 80, or 150 copies are produced It makes no difference from the point of view of time except perhaps 4 or 5 minutes. I consider for this reason that one can hardly refer to technical difficulties in this matter.
THE PRESIDENT: Counsel for the Prosecution will consider what you say, but no rule has been made by the Tribunal that every document should be supplied to every counsel during cross examination.
GOERING: I should like to say again in regard to the document that this is not.. .
MR. JUSTICE JACKSON: May I respectfully ask that the witness be instructed to answer the question and reserve his explanations until his counsel takes him on. Otherwise, this cross-examination cannot successfully be conducted, in the sense of being reasonable in time.
THE PRESIDENT: I have already explained, on several occasions, that it is the duty of defendants when they are in the witness box, and the duty of witnesses, to answer questions directly, if they are capable of being answered directly, in the affirmative or in the negative; and if they have any explanation to make afterwards, they can make it after answering the question directly.
MR. JUSTICE JACKSON: I call your attention to Item 3, under II. "Finances," reading as follows:
"Very critical situation of the Reich Exchequer. Relief initially through the milliard imposed on the Jews and through profits accruing to the Reich from the Aryanization of Jewish enterprises."
You find that in the minutes, do you not?
GOERING: Yes, that is there.
MR.JUSTICE JACKSON: And you find the minutes signed b Woermann, do you not?
GOERING: No, that is not true. I beg your pardon? Here on the photostat Woermann has signed it, that is not Bormann. I know Bormann's signature well, it is quite different.
MR. JUSTICE JACKSON: I said Woermann.
GOERING: Woermann, yes.
MR. JUSTICE JACKSON: All right, my poor pronunciation Well, as it not a fact that you set up a working committee under the Reich Defense Council which did meet from time to time and did carry on certain work?
GOERING: I have already explained recently: That was the committee of departmental chiefs.
MR. JUSTICE JACKSON: And I call your attention to Document Number EC-405, minutes of a meeting of the Working Committee of the Reich Defense Council, Meeting Number 10.
GOERING: I understood the President to say before that when I have answered the question, I can add an explanation that seems necessary to me. Now that I have clearly answered your question with regard to the first document, I want to stress once again that his was not a meeting of the close Reich Defense Council but a general calling together of all ministers, state secretaries and numerous other persons. And that I began my statements as follows:
"I. Organization of the Reich Defense Council: The Reich Defense Council was already, by decision of the Cabinet of 1933-1934, called into being; but it has never met. Through the Reich Defense Law of 9/4/1938 it was re-established. The Chairman is the Fuehrer, who has appointed General Field Marshal Goering his permanent deputy."
Concerning the Reich Defense Council, about which we have been talking, consisting of Schacht-or rather of the triumvirate-it is attested here in writing once more, as I have correctly said, that this Council never met. I ask to have the question about the second document repeated, as I have forgotten it.
MR. JUSTICE JACKSON: You testified that the movement into the Rhineland had not been planned in advance.
GOERING: Only a short time in advance, I emphasized.
MR. JUSTICE JACKSON: How long?
GOERING: As far as I recall, at the most 2-3 weeks.
MR. JUSTICE JACKSON: Now, I call your attention to the minutes of the 10th meeting of the Working Committee of the Reich Defense Council, Document Number EC-405 toward the end of that document, the discussion on 6/26/1935, which reads as follows...
GOERING: May I ask what page? This document is very long and is new to me. What page, please, otherwise I shall have to read the whole document.
MR. JUSTICE JACKSON: Turn to the last paragraph and we will work backwards.
"Commitment to writing of directives for mobilization purposes is permissible only insofar as it is absolutely necessary for the smooth execution of the measures provided for the demilitarized zone. Without exception such material must be kept in safes."
Do you find that part?
GOERING: This document that has been handed to me contains alternating statements of various individuals, that is, a dialogue. May I ask once more . . . The last paragraph contains nothing of what you have stated, apparently there must be a difference between the German and English texts. The last paragraph here is altogether irrelevant. Where, please, am I to read in the document?
MR. JUSTICE JACKSON: Do you find the third paragraph from the end? If my document is correct we have got the same document.
GOERING: You must tel me who was speaking, for different persons speak here.
[The place in the document was indicated to the defendant.]
Now it has been shown to me. Under the name Jodl; I have to read through it first.
MR. JUSTICE JACKSON: Do you find this:
"The demilitarized zone requires special treatment. In his speech of 5/24/1935 and in other statements, the Fuehrer and Reich Chancellor declared that the stipulations of the Versailles Treaty and the Locarno Pact regarding the demilitarized zone would be observed."
Do you find this?
MR. JUSTICE JACKSON: And do you find the next paragraph,
"Since at present international entanglements must be avoided under all circumstances, all urgently needed preparations may be made. The preparations as such, or their planning, must be kept in strictest secrecy in the zone itself as well as in the rest of the Reich."
Do you find this?
MR. JUSTICE JACKSON: And you also find, "These preparations include in particular"-a) and b) are not important to my present question-"c) Preparation for the liberation of the Rhine."
GOERING: Oh, no, here you have made a great mistake. The original phrase-and this alone is the point in question-is: "c) Preparation for the clearing of the Rhine" It is a purely technical preparation that has nothing at all to do with the liberation of the Rhineland- Here it says, first, mobilization measures for transportation and communications, then "c) Preparation for the clearing of the Rhine," that is, in case of mobilization preparations the Rhine is ; not to be overburdened with freighters, tugboats, et cetera, but the river has to be clear for military measures. Then it continues: "d) Preparation for local defense," et cetera. Thus you see, it figures among small quite general, ordinary and usual preparations for mobilization. The phrase used by the Prosecution . . .
MR. JUSTICE JACKSON: Mobilization, exactly.
GOERING: That, if you remember, I stressed clearly in my statement, that in the demilitarized zone general preparations for mobilization were made. I mentioned the purchase of horses, et cetera. I wanted only to point out the mistake regarding "clearing of the Rhine," which has nothing to do with the Rhineland, but only with the river.
MR. JUSTICE JACKSON: Well, those preparations were preparations for armed occupation of the Rhineland, were they not?
GOERING: No, that is altogether wrong. If Germany had become involved in a war, no matter from which side, let us assume from the East, then mobilization measures would have had to be carried out for security reasons throughout the Reich, in this event even in the demilitarized Rhineland; but not for the purpose of occupation, of liberating the Rhineland.
MR. JUSTICE JACKSON: You mean the preparations were not military preparations?
GOERING: Those were general preparations for mobilization, such as every country makes, and not for the purpose of the occupation of the Rhineland.
MR. JUSTICE JACKSON: But were of a character which had to be kept entirely secret from foreign powers?
GOERING: I do not think I can recall reading beforehand the publication of the mobilization preparations of the United States.
MR. JUSTICE JACKSON: Well, I respectfully submit to the Tribunal that this witness is not being responsive, and has not been in his examination, and that it is . . .
[The defendant interposed a few words which were not recorded.]
It is perfectly futile to spend our time if we cannot have responsive answers to our questions.
[The defendant interposed a few words which were not recorded.]
We can strike these things out. I do not want to spend time doing that, but this witness, it seems to me, is adopting, and has adopted in the witness box and in the dock, an arrogant and contemptuous attitude toward the Tribunal which is giving him the trial which he never gave a living soul, nor dead ones either.
I respectfully submit that the witness be instructed to make notes, if he wishes, of his explanations, but that he be required to answer my questions and reserve his explanations for his counsel to bring out.
THE PRESIDENT: I have already laid down the general rule which is binding upon this defendant as upon other witnesses.
Perhaps we had better adjourn now at this state.
[The Tribunal adjourned until 3/20/1946 at 1000 hours.].