Afternoon Session (continued 2)
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THE PRESIDENT: I am not sure that I understood the question, but I understood the witness was not able to answer it. But I do not think it can be of very great importance. The witness was not able to answer the question.
DR. NELTE: No, I thought that the Soviet prosecutor meant that Dr. Lammers had been called as a witness to give certain evidence and I did not ask the witness any such question. I only want to make it clear that this is not the case; otherwise I have no query on the matter, nor have I personally any further questions to put to the witness on behalf of the Defendant Keitel.
THE PRESIDENT: I do not think the Tribunal think that it is necessary for you to go into that. You have covered the ground fully in your examination-in-chief. Then, Dr. Nelte, have you any other witnesses to call?
DR. NELTE: I can finish in half an hour tomorrow morning. I have no further witnesses to examine.
THE TRIBUNAL (Mr. Francis Biddle, Member for the United States): I would like to ask two or three questions about the Reich Cabinet. You said the first meeting was on 30 January 1933 and the last was in November 1937. Were there any other meetings in 1937?
LAMMERS: No, the Cabinet meetings were not replaced by any other meetings.
THE TRIBUNAL (Mr. Biddle): I did not ask you that. Would you listen? You said there was a meeting in November 1937. Were there any other meetings in the year 1937?
LAMMERS: Yes, there were some before that. There were several Cabinet meetings but not very many. There were comparatively few in 1937.
THE TRIBUNAL (Mr. Biddle): How many would you say in 1937?
LAMMERS: How many? There might have been five or six Cabinet meetings. I do not think there were more.
THE TRIBUNAL (Mr. Biddle): Do you know how many there were in...
LAMMERS: There may have been less.
THE TRIBUNAL (Mr. Biddle): Do you know how many there were in 1936?
LAMMERS: There were rather more Cabinet meetings then, but not as many as at the beginning of 1933 and 1934. The number of Cabinet meetings has...
THE TRIBUNAL (Mr. Biddle): That is enough, thank you.
THE PRESIDENT: Yes, Dr. Laternser?
DR. LATERNSER: Mr. President, I have no questions to put to the witness, but I simply wanted to interpose a few remarks on the following matter:
My colleague, Dr. Nelte, has dispensed with the examination of further witnesses. By so doing he has dispensed with Colonel General Halder, among others and, of course, he is entitled to do so, although in dispensing with the examination of the witness Halder, he is encroaching on my rights. The Tribunal will recall that when a written statement by the witness Halder was submitted, the Tribunal...
THE PRESIDENT: Doctor, if Dr. Nelte does not call General Halder then you can apply for calling him yourself and the matter will be considered. Presumably you have already asked for him and you have been referred to the fact that he has been specified by Dr. Nelte. Now, Dr. Nelte has not called him. You can renew your application if you want to, in writing.
DR. LATERNSER: Mr. President, I do not believe that that point of view is quite correct. When the written statement was presented by the Russian Prosecution it was stated, upon objection by the Defense, that the witness Halder should be called for cross-examination and in agreement with my other colleagues, I changed this so that Halder would be heard during the proceedings for the Defendant Keitel. Dispensing with this witness will encroach upon my rights. I believe, consequently, that I have a right to ask that the witness be put at my disposal for interrogation.
THE PRESIDENT: Dr. Laternser, we will consider the matter of General Halder and let you know in the morning. It is 5 o’clock now.
DR. LATERNSER: Yes.
DR. SEIDL: Mr. President, I should have liked to ask the witness some questions which have been made necessary by the cross-examination and which touch on certain questions...
THE PRESIDENT: You cannot do it tonight at any rate. We will consider it and let you know tomorrow morning, but you cannot do it tonight.
DR. SEIDL: I simply wanted to bring it up so the witness would still be at hand tomorrow morning.
THE PRESIDENT: Very well, he shall be at hand.
MR. DODD: Your Lordship, if I may have one minute of the Tribunal’s time, Justice Jackson asked me to bring to the attention of the Tribunal for its information these facts apropos of the discussion of this morning.
We have received from Colonel Dostert the original transcript which was handed to him by Dr. Thoma and it shows that there was a red line drawn in the margin beside this passage which was translated and mimeographed and included in the document book. Dr. Thoma this morning felt that he had not underlined it and he also felt that there was undoubtedly a mistake in the translation and Colonel Dostert tells us that there is no mistake in the translation and that it was underlined.
THE PRESIDENT: Well now, Dr. Nelte, we should like to know what your position is about General Westhoff and—I think it is the Obergruppenführer Wielen or something of that sort. You were given the opportunity of calling those witnesses and we understand you do not desire to do so.
DR. NELTE: Gentlemen of the Tribunal, I think that the cross-examination has made it clear that the Prosecution has abandoned the original charge against Keitel, namely, that he issued an order, or transmitted an order from Hitler, to the effect that the 50 Royal Air Force officers should be shot.
Sir David Maxwell-Fyfe confronted the defendant with the four points of which he accused the Defendant Keitel in connection with this case; and the defendant admitted these four points.
Since I named General Westhoff as a witness only to testify that Keitel did not issue the order and he did not pass it on, and as Westhoff was not present at the conference at the Obersalzberg and has no first-hand knowledge, there is no further need for me to call this witness.
THE PRESIDENT: Dr. Nelte, you, of course, are to decide whether you call him or not. But unless Sir David Maxwell-Fyfe says that he has withdrawn any charge against Keitel I do not think that you ought to refrain from calling him on the ground that a charge has been abandoned. There has not been any express abandonment of any charge. Subject to anything that Sir David Maxwell-Fyfe says I should not have thought that that would be a good reason for not calling him, but it is entirely a matter for you.
Yes, Sir David?
SIR DAVID MAXWELL-FYFE: My Lord, there is no abandonment of any charge. In fact, the Prosecution stands by what is stated by General Westhoff in his statement which I put to the Defendant Keitel. That is the evidence for the Prosecution and the Prosecution stands by that as it is put in.
DR. NELTE: May I ask whether the Prosecution wish to assert that General Westhoff has testified that Keitel did issue this order or transmit it?
THE PRESIDENT: Dr. Nelte, you have seen the document which contains an excerpt of the statement by General Westhoff. You therefore know what he says in that statement. The Tribunal, subject to what counsel desires to address them on the subject—they will, of course, hear them—but the Tribunal propose to call General Westhoff themselves in order to hear his statement whether he adheres to his statement; and also Wielen, Wielen’s evidence, of course, is principally against the Defendant Kaltenbrunner.
DR. NELTE: Then may I also ask the Prosecution to submit to the Tribunal the affidavit deposed by General Westhoff with regard to this matter, so as to make clear...
THE PRESIDENT: When you say affidavit, do you mean the statement?
DR. NELTE: No; I mean the affidavit, not an unsworn statement. So far, the Prosecution have dealt only with statements not made under oath. Apart from these, however, Colonel Williams required and received an affidavit from the witness Westhoff, and this affidavit contains a precise statement from Westhoff to the effect that he does not wish to say and never has said that Keitel ever issued or transmitted any such order.
SIR DAVID MAXWELL-FYFE: I have no affidavit. I have checked with Mr. Roberts and we have not got one. There were two interrogations, if my recollection is correct, one which was early and one on 2 November. There were two interrogations, one of which I put in. They are in Dr. Nelte’s document book. I have no affidavit. If I had, of course, I should produce it at once. I do not know where Dr. Nelte got the information, but certainly no affidavit has ever been brought to my attention.
THE PRESIDENT: The only thing the Tribunal has got is a statement made by General Westhoff which is annexed to the report of a certain brigadier whose name I have forgotten. Oh yes, Brigadier Shapcott. The course which the Tribunal proposes to do is to call General Westhoff and to ask him whether his statement made in that document is accurate and also true.
SIR DAVID MAXWELL-FYFE: The Prosecution has not the slightest objection to that.
THE PRESIDENT: The Marshal will have General Westhoff and also Wielen—they will be here tomorrow morning at 10 o’clock.
MARSHAL (Colonel Charles W. Mays): Yes.
THE PRESIDENT: The Tribunal will now adjourn.