(8 of 9)
The custody and treatment of war criminals and suspects appeared to require immediate attention. I asked the War Department to deny those prisoners who are suspected war criminals the privileges [that] would appertain to their rank, if they were merely prisoners of war; to assemble them at convenient and secure locations for interrogation by our staff; to deny them access to the press; and to hold them in the close confinement ordinarily given suspected criminals. The War Department has been subjected to some criticism from the press for these measures, for which, it is fair that I should acknowledge responsibility. The most elementary considerations for insuring a fair trial, and for the success of our case, suggest the imprudence of permitting these prisoners to be interviewed indiscriminately, or to use the facilities of the press to convey information, to each other, and to criminals not yet captured. Our choice is between treating them as honorable prisoners of war with the privileges of their ranks, or to classify them as war criminals, in which case they should be treated as such...June 21, 1945: During a joint US-UK conference, Sir David Maxwell-Fyfe presents a list of ten defendants for consideration: Schacht is not named at this point. Chosen mainly because their names are well known to the public, they are assumed to be criminals; little effort has yet to be made to determine the actual evidence that will be available against them. The initial ten: Goering, Hess (though the British warned that he was possibly insane), Ribbentrop, Ley (see October 25, 1945, below), Keitel, Streicher, Kaltenbrunner, Rosenberg, Frank and Frick. (Taylor)
General Niktchenko: The Soviet Delegation takes the view that the indictment should be accompanied by the evidence, the evidentiary material. I point out that the United States’ proposal rather assumes lengthy investigation is involved, whereas the evidence and material is all available. Therefore, I do not see why there should be a separation between those two. After all, it is just a summary of the facts of the case, and statement of the charge.
General Donovan: Perhaps I see the difficulty. I wonder if they think we propose that the indictment and the material could be separated by a great lapse of time. That is not what we propose. The indictment would be submitted to the court on a given day and, perhaps on that very day, the evidence would be taken by the court, under oath, but separately.
Niktchenko: But before the trial begins.
General Donovan: We submit the indictment to the court, and notify the defendants, so that they can prepare for trial. The day for the trial is set, and then all evidence on which the indictment is based, the evidence which will prove that charge, is submitted under oath, together with such documents as the court will receive.
Mr. Roberts: That is what we, on this side of the table, visualize. The court is to try the case at the time set, not to try it before, but try it in court on the evidence which is presented.
General Donovan: And the evidence is submitted in the presence of the defendant and his counsel, to the admission of which, the objection of the defense might be sustained, so that the court must sit as a referee.
General Niktchenko: The details of this we could deal with later. The point, at present, would be for us to see whether there is any difference of opinion on the principles involved.
Justice Jackson: I agree...
Maxwell-Fyfe: I am reminded that article 6 of the agreement already provides that "Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court, established or to be established, in any allied territory or in Germany, for the trial of war criminals." It is already covered.
Justice Jackson: The difficulty of that is that, if you take the banker as an example, for instance Schacht, who is our prisoner at the moment, he is either a big war criminal, or nothing. If you take him out from under this agreement, you have nothing to try him on at all. Nothing except the common-plan or conspiracy theory will reach that type of man and, therefore, if you, by a deadlock, shove him out of this Tribunal, you have shoved him out of the possibility of being tried anywhere, because you have no law to try him, except under this agreement.
Niktchenko: Referring to the example by Mr. Justice Jackson in reply to Professor Gros, the example of Schacht: we are of the opinion that, whether we have this clause or not, the point is that we have a provision for dealing with persons who organized, or incited, or otherwise caused all these war crimes, who were the instigators of the wars of aggression, and who are, in fact, much greater criminals than the minor people who carried out murders, ill-treatment of prisoners, et cetera. Whether this provision is in this paragraph or not, the agreement, as it is, provides for the punishment of these people, of whom Schacht is a good example...
Niktchenko: One point is not quite clear. If the defendant does not want to answer, then neither his own counsel, nor the prosecution can examine him. It is only the Tribunal, and it does not appear how the Tribunal will enter into the interrogation.
Maxwell-Fyfe: If he does not give evidence, does not want to answer, then, as I understood 24 (f), the Tribunal may put any question to any defendant; the Tribunal would simply make the defendant, say Goering, stand up in the dock and ask him any questions. He cannot be forced to answer...
Justice Jackson: ... I think that every one of the top prisoners that we have is guilty, and provably guilty, of joining in a plan of warfare that involved ordering the execution of American prisoners of war, etc., and they can be tried in our military courts, and disposed of within the next two months. So far as it affects our nationals, our interest in an international trial of offenses set out in that paragraph is rather secondary. About the only difference we have about that, is that we left out of our draft the destruction of villages and towns, because I have seen the villages and towns of Germany. I think that you will have great difficulty distinguishing between the military necessity for that kind of destruction, as distinguished from some done by the Germans, assuming the war to be legitimate. It seems to me [that] those subjects invite recriminations that would not be useful in the trial. The provision as to atrocities against civilians is much the same as the draft we submitted, except that we expressly provided for disregard of domestic law, because otherwise there would be difficulty reaching some of the German activities toward their own population...July 19, 1945 International Conference on Military Trials: From the minutes of this day’s Conference Session:
Niktchenko: It is quite impossible to give an exhaustive list of the crimes. If, on the other hand, we should confine ourselves to a few matters, that too would not be right. Therefore we should work out a formula [that] would make it possible to bring to trial and punish those who have committed all the various atrocities. At the same time, we should not, of course, confine ourselves to persons who have actually committed the crimes...July 31, 1945 From the letters of Thomas Dodd, Executive Trial Counsel for the Prosecution at Nuremberg:
Much gossip is abroad about friction between the US, Great Britain, France, and Russia over these trials. The truth is there is no trouble between US, Britain, and France; but the Russians are just holding up the whole proceeding. They are impossible, in my opinion. I do not know the details, but I do know they are not cooperative on this problem so far. I believe they want to put on another Russian farce for a trial. If that happens, I go home, and promptly! The English appointed their chief counsel 21 days after the US appointed Jackson (who was the first to be appointed). The French followed soon after. Thus far, no one has been appointed for Russia. Our people meet with certain Russian representatives, but nothing happens. When representatives of the United Nations went to Nuremberg to look it over as a possible site for the trial, only the Russians failed to make the trip.August 1, 1945 Potsdam Conference: At the Twelfth Plenary Session, the subject of trying Nazi war criminals is raised:
Truman: You are aware that we have appointed Justice Jackson as our representative on the London Commission. He is an outstanding judge, and a very experienced jurist. He has a good knowledge of legal procedure. Jackson is opposed to any names of war criminals being mentioned, and says that this will hamper their work. He assures us that the trial will be ready within thirty days, and that there should be no doubt concerning our view of these men.
Stalin: Perhaps we could name fewer persons, say three.
Bevin: Our jurists take the same view as the Americans.
Stalin: And ours take the opposite view. But perhaps we shall agree that the first list of war criminals to be brought to trial should be published not later than in one month...
Experience has taught that we can hardly expect them to try each other. The scale of their attack leaves no neutrals in the world. We must summon all that we have of dispassionate judgment to the task of patiently and fairly presenting [in these trials], the record of these evil deeds. We must make clear to the Germans that the wrong, for which their fallen leaders are on trial, is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned...August 25, 1945 International Conference on Military Trials: Representatives of the Big Four (Jackson, Fyfe, Gros, and Niktchenko) agree on a list of 22 defendants, 21 of whom are in custody. The 22nd, Martin Bormann, is presumed to be in Soviet custody, but Niktchenko cannot confirm it. The list is scheduled to be released to the press on August 28. (Conot)
Grave precedents are being set. For the first time, the leaders of a state are being tried for starting a war and breaking treaties. We may expect after this that, at the end of any future war, the victors, whether they have justice on their side or not--as this time we firmly believe we have--will try the vanquished.August 30, 1945: The Glasgow Herald reacts to the release of the list of defendants:
Scanning this list, one cannot but be struck by the completeness of the Nazi catastrophe. Of all these men who, but a year ago, enjoyed wide influence or supreme power, not one could find a refuge in a continent united in hate against them.September 17, 1945: From the letters of Thomas Dodd:
Yesterday, Jackson told the press that the US would be ready to start the trial on November 1. By the way, the Russian representative (Niktchenko) had been suddenly withdrawn. No explanations: mere notice that he will no longer represent Russia in this matter. After weeks of negotiating, weeks of work with him as chief counsel for Russia, he simply goes home and does not come back. These Russians are impossible. What effect this will have on the trial or the trial date, no one knows, but you can imagine the confusion that may arise out of it.October 5, 1945: Andrus loses his first German prisoner to suicide: Dr Leonard Conti, Hitler’s Head of National Hygiene.
Rudolf Hess arrived today. He is gone mentally, and I doubt that he can answer for his offenses. Kesselring, Schacht, and some others, also, are new guests in the jail. It is a secret, but Dr (Leonardo) Conti, one of those who worked medical experiments on concentration camp inmates, hung himself in the jail Saturday morning. No announcement has been made so far, so keep this to yourself.October 19, 1945: British Major Airey Neave presents each defendant, in turn, with a copy of the Indictment. Gilbert, the Nuremberg psychologist, asks the accused to write a few words on the document’s margin, indicating their attitude toward the development. Schacht: "I quite fail to understand why I have been accused." (Heydecker)
I am among the people who have watched and gone through the frightful events of the last twelve years in Germany, from nearby, and with open eyes. Thanks to my official position, I think I know more [than many others] of the background of [Hitler’s policy]. I welcome the installation of the International Military Tribunal, the competence of which, nobody, who takes into consideration how dreadfully the Hitler crime has affected the whole world [can doubt]. I submit myself voluntarily to this court, in the justice of which I have full confidence. I do it the more willingly, as the trial will prove that I am in no way guilty of any crime or any immorality. I would therefore be very grateful, if an officer of your high standing, of your experience and wisdom, and of your well-known international reputation, would be willing to look into a brief summary of the underlying reasons and conditions of the dreadful Nazi regime, as I have experienced them. I would greatly prefer to submit such a summary to a man of your judgement and capacity, than to any of the lawyers or defense counsels [who] may appear before courts. (Conot)November 14, 1945: Donovan sends off a memorandum to Chief Prosecutor Justice Jackson:
I have carefully gone over the briefs and proofs on the Schacht matter . . . . Schacht made possible the rearmament project. It was his support in financial matters that strengthened Hitler’s position. Aided by influences, and what he should have known about Hitler’s character, we may have enough to hold him for aggressive war. There is strong argument in this . . . . I return to the suggestion that consideration be given to the possibility of giving him the opportunity to fight his way out, by actual testimony dealing with the facts. He could strengthen his case considerably and, without promises, he could be given the chance, in the direct case, to state his position. As I have already told you, there have come certain suggestions . . . .November 19, 1945: After a last inspection by Andrus, the defendants are escorted, handcuffed, into the empty courtroom, and given their assigned seats. Schacht, having been assigned the seat next to Streicher, is somehow able to switch places with Funk. This not only provides Schacht with a comfortable corner seat, but moves him away from Streicher, whom he considers repulsive. For the first time ever, Funk, who constantly fidgets, now precedes Schacht. During the trial, Schacht will ignore Funk’s attempts at conversation, pretending disinterest with the entire affair. (Speer, Conot, Tusa)
The present Trial can, therefore, as far as Crimes against Peace shall be avenged, not invoke existing international law; it is rather a proceeding pursuant to a new penal law, a penal law enacted only after the crime. This is repugnant to a principle of jurisprudence sacred to the civilized world, the partial violation of which, by Hitler’s Germany, has been vehemently discountenanced outside and inside the Reich. This principle is to the effect that only he can be punished who offended against a law in existence at the time of the commission of the act...November 20, 1945 Nuremberg Tribunal: On day 1 of the historic trial, the prosecutors take turns reading the Indictment in court. Unfortunately, no one had given any thought to the prisoners’ lunch break so, for the first and only time during 218 days of [courtroom hearings], the defendants eat their midday meal in the courtroom itself. This is the first opportunity for the entire group to mingle, and though some know each other quite well, there are many who have never met. (Tusa, Conot)
Dr Dix: As speaker for the Defense I should like to broach a technical question, and voice a question to this effect, on behalf of the Defense. May I do so? The Defense Counsel were forbidden to talk to the defendants this morning. It is absolutely necessary that the Defense Counsel should be able to speak to the defendants before the session. It often happens that, after the session, one cannot reach one’s client at night. It is quite possible that counsel may have prepared something overnight that he wishes to discuss with the defendant before the session. According to our experience, it is always permissible for the Defense Counsel to speak to the defendant before the session. The question of conferring between Defense Counsel and clients during sessions could be dealt with at a later date. At present, I request, on behalf of the entire Defense, that we be allowed to confer with our clients in the courtroom, into which they usually are brought at a very early hour. Otherwise, we shall not be in a position to conduct the defense in an efficient and appropriate manner.
The President: I am afraid that you cannot consult with your clients in the courtroom, except by written communication. When you are out of the courtroom, security regulations can be carried out and, so far as those security regulations go, you have full opportunity to consult with your clients. In the courtroom, we must confine you to written communications to your clients. At the end of each day’s sitting, you will have full opportunity to consult with them in private...
The President: I will now call upon the defendants to plead guilty or not guilty to the charges against them. They will proceed, in turn, to a point in the dock opposite to the microphone.
Schacht: I am not guilty in any respect.
Jackson: The Charter, by which this Tribunal has its being, embodies certain legal concepts [that] are inseparable from its jurisdiction, and which must govern its decision. These, as I have said, also are conditions attached to the grant of any hearing to defendants. The validity of the provisions of the Charter is conclusive upon us all, whether they have accepted the duty of judging, or of prosecuting under it, as well as upon the defendants, who [are debarred from pointing to any] other law [that] gives them a right to be heard at all. My able and experienced colleagues believe, as do I, that it will contribute to the expedition and clarity of this Trial, if I expound briefly the application of the legal philosophy of the Charter to the facts I have recited. While this declaration of the law by the Charter is final, it may be contended that the prisoners on trial are entitled to have it applied to their conduct, only most charitably, if at all. It may be said that this is new law, not authoritatively declared at the time [that] they did the acts it condemns, and that this declaration of the law has taken them by surprise. I cannot, of course, deny that these men are surprised that this is the law; they really are surprised that there is any such thing as law. These defendants did not rely on any law at all. Their program ignored and defied all law...November 23, 1945: From the diary of the assistant defense attorney for Erich Raeder, Dr. Victor von der Lippe:
Among the American prosecutors, General Donovan ... played a special role. A lawyer by [profession, he] was head of the American intelligence system [during the war]. The relations between Donovan and the Chief Prosecutor Jackson were very tense. From an apparently well informed source, it was heard that Donovan had a very different plan for the trial, than Jackson and his men. He had the intention of making Goering, the second man in the Third Reich, a privileged witness for the prosecution, and giving him opportunity ... to save his head. Goering, in discussion with Donovan, accepted this plan. The plan collapsed because of Jackson’s opposition . . . . Also, as regards the handling of ... the greater part of the military, Donovan had his own opinions. (Taylor)November 26, 1945: From the letter by Justice Jackson to General Donovan, virtually excluding him from participating further in the trial:
In short, I do not think we can afford to negotiate with any of these defendants, or their counsel, for testimony . . . . To use one of them ourselves, will create the impression that there was some kind of a bargain about his testimony, opening the door for that defendant to plead for leniency, on the ground he was ’helpful’, and may give a background for claims that promises were made to that effect. My view is, therefore, that we should prove our case against these defendants with no use of them as witnesses . . . . Frankly, Bill, your views and mine appear to be so far apart, that I do not consider it possible to assign to you examination or cross-examination of witnesses. Therefore, I did not respond to your request for access to Goering. I repeat that time may prove you right, and me wrong. I do not claim any great wisdom in so novel and complex matter. I only have responsibility. (Taylor)November 27, 1945: From General Donovan’s reply to Justice Jackson:
It is true that I have frequently told you squarely and honestly that (1) the case needed centralized administrative control. (2) that there was a lack of intellectual direction. (3) that it was not handled as an entity. (4) that, because it was a lawsuit plus something else, it needed an affirmative human aspect, with German as well as foreign witnesses. I never knew there was ever disagreement on these points. As I told you several weeks ago, I am leaving within a few days. Time will not be concerned with our opinions--right or wrong. (Taylor)November 29, 1945 Nuremberg Tribunal: The prosecution presents as evidence a film shot by US troops as they liberated various German concentration camps. That evening in their cells, the defendants react to the horrific images. Schacht, who had kept his gaze averted throughout the showing, comments: "How dare they make me sit there with those criminals, and watch a film on concentration camp atrocities!" (Conot)
Schacht is in the front row; it is an honor that he does not seem to enjoy very much. There is something of the catfish in the inverted ’U’ of the mouth, and his goggly eyes. He wears an air of complete aloofness; he cannot understand what has happened that he, the ex-president of the great Reichsbank, intimate of honored American, British, and French friends in the banking world, should now find himself in the dock with criminals.December 15, 1945 Nuremberg Tribunal: The Tribunal finally approves the first payment of monetary compensation to the defense counsel: 3,000 marks now, more in three months. Dix had suggested 50,000 marks for the first three months, followed by 10,000 mark refreshers for subsequent months. (This schedule of diminishing returns could, presumably, have possibly been an effective incentive encouraging a speedy trial). (Tusa)
Lieutenant Brady O. Bryson, Assistant Trial Counsel for the United States: Before commencing our proof, we wish to state our understanding that the Defendant Schacht’s control over the German economy was on the wane after November 1937 and that, by the time of the aggression on Poland, his official status had been reduced to that of Minister without Portfolio, and personal adviser to Hitler. We know, too, that he is sometimes credited with opposition to certain of the more radical elements of the Nazi Party; and I further understand that, at the time of capture by United States forces, he was under German detention in a prison camp, having been arrested by the Gestapo in July 1944.
Be this as it may, our proof will show that, at least up until the end of 1937, Schacht was the dominant figure in the rearming of Germany and, in the economic planning and preparation for war that, without his work, the Nazis would not have been able to wring from their depressed economy the tremendous material requirements of armed aggression, and that Schacht contributed his efforts with full knowledge of the aggressive purposes which he was serving.
The details of this proof will be presented in four parts:
First, we will very briefly show that Schacht accepted the Nazi philosophy prior to 1933, and supported Hitler’s rise to power.
Second, proof of the contribution of Schacht to German rearmament and preparation for war will be submitted. This evidence will also be brief, since the facts in this respect are well known and have already been touched upon by Mr. Dodd, in his presentation of the case on economic preparation for war.
Third, we will show that Schacht assisted the Nazi conspiracy, purposely and willingly, with knowledge of, and sympathy for, its illegal ends.
And last, we will prove that Schacht’s loss of power in the German Government did not, in any sense, imply disagreement with the policy of aggressive war.
We turn now to our proof that Schacht helped Hitler to power...
Lieutenant Brady O. Bryson: In addition to the foregoing direct evidence, the Tribunal is asked to take into consideration the fact that, to such a man as Schacht, the events of the period certainly bespoke Hitler’s intention. Schacht was a close collaborator of Hitler and a member of the Cabinet, during the period of the Nazi agitation in Austria, the introduction of conscription, the march into the Rhineland, the overthrow of the Republican Government in Spain, the ultimate conquest of Austria, and the acquisition of the Sudetenland by a show of force. During this period, the Reich’s debt tripled under the stress of mounting armaments, the expenditures from 750,000,000 Reichsmarks in 1932, to 11,000,000,000 Reichsmarks in 1937, and 14,000,000,000 Reichsmarks in 1938. During the entire period, 35,000,000,000 Reichsmarks were spent on armaments. It was a period in which the burning European foreign policy issue was the satisfaction of Germany’s repeated demands for additional territory. Hitler, committed to a policy of expansion, was taking great risks in foreign policy, and laying the greatest stress upon utmost speed in preparation for war.
Certainly, in this setting, Schacht did not proceed in ignorance of the fact that he was assisting Hitler and Germany along the road toward armed aggression...
Goering: Both of us, I, as Delegate for the Four Year Plan, and Herr Schacht, as Minister of Economics and President of the Reichsbank, were able to exercise very great influence on German economy. As Herr Schacht also had a very, strong personality, and felt his position keenly, and I, likewise, was not inclined to hide my light under a bushel, whether we were friends or not, we could not help getting in each other’s way, because of this question of authority, and one of us had finally to give in to the other...March 26, 1946 From the letters of Thomas Dodd:
I had a long talk with Bill Jackson tonight about the case. I told him that unless we moved it along, we would never finish it. The Justice is ill in bed, and will not be back for a few days. I think he is worn out from his experience with Goering--he has been on the bench too long to take the cross-examination work.March 28, 1946 Nuremberg Tribunal: Schacht reacts to Ribbentrop’s first day of testimony:
Such a wash rag for a Foreign Minister . . . . [Ribbentrop] should be hanged for his stupidity; there is no worse crime than stupidity. (Tusa)April 8, 1946 Nuremberg Tribunal: Chief US prosecutor Justice Jackson writes a long message to the US War Department; an excerpt:
My position was stated to be first, that no commitment by the United States to participate in another international trial exists, and none should be made, until the result of this trial is known. Second, one trial will accomplish one of the primary purposes, which was to authenticate and document the history of the Nazi conspiracy, aggression, and atrocities. Third, if this tribunal should hold the case against Schacht insufficient, the precedent would embarrass the trial, and probably preclude the conviction of other industrialists. Fourth, that the United States has not undertaken to act as host at Nuremberg to more than one trial, which has involved very considerable cost, and that I am not now prepared to recommend a repetition . . . .
From the point of view of proving our case for history, I am completely satisfied, and would think another trial would add little relatively to that. Rumors about the judges’ attitude float about Nuremberg, just as they do about any county seat. Without relying too much on them, it is possible, of course, that some defendants, possibly Schacht, will be acquitted. In that event, we should certainly not proceed with weaker cases before an International Military Tribunal. (Conot)
Dr Dix: Witness: Other witnesses, and you too: you, on the strength of vast experience, and your position as Chief of the Reich Chancellery from the seizure of power until the collapse, have stated that applications for resignation were prohibited by Hitler. I therefore do not want to put any more questions on that subject; I merely want to discuss the attempts to resign [that] Schacht actually made. I ask you, first of all, to answer the general questions with "Yes" or "No " Did Schacht send in applications for resignation or not?
Dr Dix: I should now like to discuss with you the individual applications for resignation. I cannot expect you, without any help, to recall individual occasions. I permit myself, therefore, to help your memory along a little, in connection with the first question. Please recall March 1937, when Schacht stopped Reichsbank credits, that is gave notice with reference to them, and you visited him in connection with this. Was that the first application for resignation?
Lammers: I remember that very exactly, since Herr Schacht’s application for resignation was very unpleasant for Hitler; and he gave me the task of straightening the matter out with Schacht. Thus, I made several personal visits to Schacht, but he refused to withdraw his application for resignation; and he gave, as his reason, the fact that he could not approve, any longer, the Fuehrer’s credit policy; and that he was afraid of inflation, and would have to protect the German nation from that. As for the freedom of action, he had to.
The President: Dr. Dix, is it necessary to go into details? We gather that there are several offers to resign. Is it necessary to go into the details of each one?
Dr Dix: In that case, we leave it. It is enough for me, Dr. Lammers, if you confirm that in March 1937 Schacht made his first application for resignation.
Lammers: And then there was a compromise, and Herr Schacht, first of all, was to remain in office one more year, although the law called for a term of four years...
Lammers: As to the reasons [that] caused the Fuehrer to dismiss Schacht, I know merely that a letter from Schacht to Reich Marshal Goering caused the Fuehrer to dismiss Schacht from his position. The Fuehrer did not inform me of the actual reasons. He was very violent, and ordered me to use this text, implying that he even wanted it to be somewhat sterner; but I put it in the rather acceptable form [that] you find in this letter. The Fuehrer did not tell me, of course, what further measures were intended against Schacht. But he had expressly ordered me to use the word ’temporary’...April 18, 1946 Nuremberg Tribunal: On day 111, Hans Frank delivers his controversial testimony.
From The Nuremberg Trial by Ann and John Tusa: The defendants in the dock had listened to Frank’s testimony intently, leaning forward and following every word. At lunch, Papen and Seyss-Inquart gave him some words of encouragement. But most of the others had been horrified by what they heard. Fancy saying that Germany had been disgraced! Frank, however, was delighted with his testimony, proud that he had stood out from the other defendants, who always claimed ignorance of what was going on.
"I DID know what was going on. I think that the judges are really impressed when one of us speaks from the heart, and doesn’t try to dodge the responsibility." Schirach had certainly been impressed. Having wavered for so long, he was now inspired to make a clean breast of things, himself: to declare that everyone had been misled by Hitler on the racial question. As Schacht noticed, Schirach’s mood was the first sign that Goering had lost control over the other defendants. Frank had damaged the united front. Schacht himself was prepared to go further. He wanted to make accusations against fellow defendants--Goering, Ribbentrop, Keitel, and Raeder were his chosen targets. "My people must be shown," he declared, "how the Nazi leaders plunged them into an unnecessary war." So, by mid-April, the defendants were clearly divided." (Tusa)
Hans Bernd Gisevius: ... I am thinking now of Reich War Minister von Blomberg, two of whose generals were shot, and who, in spite of that, signed this law. I intentionally mention Blomberg’s name, and ask to be permitted to pause here, to tell the Tribunal about an incident that occurred this morning. I was in the room of the defendants’ counsel, and was speaking to Dr. Dix. Dr. Dix was interrupted by Dr. Stahmer, counsel for Goering. I heard what Dr. Stahmer told Dr. Dix . . .
Dr. Otto Stahmer (Counsel for Defendant Goering): May I ask whether a personal conversation, which I had with Dr. Dix, has anything to do with the taking of evidence?
Hans Bernd Gisevius: I am not speaking...
The President: Witness, don’t go on with your evidence whilst the objection is being made. Yes, Dr. Stahmer.
Hans Bernd Gisevius: If you please, I didn’t understand. . .
Dr. Otto Stahmer: I do not know whether it is in order, when giving evidence, to reveal a conversation [that] I had with Dr. Dix in the Defense Counsel’s room.
Hans Bernd Gisevius: May I say something to that?
The President: Will you kindly keep silent.
Hans Bernd Gisevius: May I finish my statement?
The President: Will you keep silent, sir.
Dr. Otto Stahmer: This morning, in the room of the Defense Counsel, I had a personal conversation with Dr. Dix, concerning the Blomberg case. That conversation was not intended to be heard by the witness. I do not know the witness; I didn’t even see the witness, as far as I can remember, and I don’t know whether this should come into the evidence by making such a conversation public here.
Mr. Justice Jackson: This incident has been reported to me, and I think it is important that this Tribunal know the influence--the threats that were made at this witness in this courthouse while waiting to testify here--threats, not only against him, but against the Defendant Schacht. Now, the affair was reported to me. I think it is important that this Tribunal know it. I think it is important that it come out. I should have attempted to bring it out on cross-examination if it had not been told, and I think that the witness should be permitted. These other parties have had great latitude here. This witness has been subjected to threats, as I understand it, which were uttered in his presence, whether they were intended for him or not, and I ask that this Tribunal allow Dr. Gisevius, who is the one representative of democratic forces in Germany, to take this stand to tell his story.
The President: Dr. Stahmer, the Tribunal would like to hear, first of all, anything further you have to say upon the matter. They will then hear what Dr. Dix has to say--if he wishes to say anything--and they will then hear whether the witness himself wishes to say anything in answer.
Dr. Otto Stahmer: I have no qualms about telling the Court exactly what I said. Last night, I discussed the case with the Defendant Goering, and told him the witness Gisevius...
The President: We don’t want to hear any communications which you had with the Defendant Goering, other than those you choose to make in support of your objection to this evidence that has been given.
Dr. Otto Stahmer: Yes, Mr. President; but I must say, briefly, that Goering told me that it was of no interest to him, if the witness Gisevius did incriminate him; but that he did not want Blomberg, who died recently--and I assumed it was only the question of Blomberg’s marriage--he, Goering, did not want these facts concerning the marriage of Blomberg to be discussed here in public. If that could not be prevented, then, of course, Goering, in his turn, and it is only a question of Schacht, because Schacht, as he had told me, wanted to speak about these things, then he, Goering, would not spare Schacht. That is what I told Dr. Dix this morning, and I am sure Dr. Dix will confirm that, and if I may add . . .
The President: We will hear you in a moment, Dr. Dix.
Dr. Otto Stahmer: I said, and I was not referring to Schacht, to the witness, or to Herr Pannenbecker; I said [that], for reasons of professional [etiquette, I] should like to inform Dr. Dix. That is what I said, and what I did. In any case, I did not even know that the witness Gisevius was present at that moment. At any rate, it was not intended for him. Moreover, I was speaking to Dr. Dix aside.
The President: So that I may understand what you are saying: You say you had told Dr. Dix the substance of the conversation you had had with the Defendant Goering, and said that Goering would withdraw his objection to the facts being given, if the Defendant Schacht wanted them to be given. Is that right?
Dr. Otto Stahmer: No, I only said that Goering did not care what was said about himself; he merely wanted the deceased Blomberg to be spared, and he did not want things concerning Blomberg’s marriage to be discussed. If Schacht did not prevent that--I was speaking only of Schacht--then he, Goering, in his turn, would have no consideration for Schacht: would no longer have any consideration for Schacht. That is what I told Dr. Dix, for reasons of personal etiquette . . . . And I made it quite clear to Dr. Dix that I told him that, only as one colleague to another . . . .
Dr. Dix: I remember the facts, I believe, correctly and reliably, as follows: This morning, I was in the room of the Defense Counsel, speaking to the witness Dr. Gisevius. I believe [that] my colleague, Professor Kraus, was also taking part in the conversation. Then, my colleague, Stahmer, approached me and said he would like to speak to me. I replied that, at the moment, I was having an important and urgent conversation with Gisevius, and asked whether it could wait. Stahmer said "no," and that he must speak to me at once. I then took my colleague, Stahmer, aside, probably five or six paces from the group with whom I had been speaking. My colleague, Stahmer, told me the following--it is quite possible [that] I don’t remember the actual words he used--that he started by saying that he was telling me this for professional reasons, as one colleague to another. If he says so now, I am sure that it is so. Anyhow, I don’t remember that any longer. He said to me, "Listen, Goering has an idea that Gisevius will attack him as much as he can. If he attacks the dead Blomberg, however, then Goering will disclose everything against Schacht: and he knows lots of things about Schacht, which may not be pleasant for [him]. He, Goering, had been very reticent in his testimony; but if anything should be said against the dead Blomberg, then he would have to reveal things against Schacht."
That was what he meant: that he would bring things up against Schacht. That was the conversation. I cannot say with absolute certainty whether my colleague told me I should call Gisevius’ attention to it. If he says he did not say so, then it is certainly true, and I believe him; but I could only interpret that information to mean that I should notify Gisevius of this development promised by Goering. I therefore thought--and did not have the slightest doubt--that I was voicing Goering’s intention, and that I was acting as Dr. Stahmer wished, and that that was the purpose of the whole thing. What else could be the reason for Dr. Stahmer’s telling me at that moment, immediately before my discussion with Gisevius, even while I was in conversation with Gisevius, that he could not wait, that I must break off my conversation? Why should he inform me at that time, unless he meant that the mischief hinted at, and threatened by, Goering might possibly be avoided: in other words, that the witness Gisevius, on whom everything depended, should think twice before making his statement? I did not have the slightest doubt that what Stahmer meant by his words to me was that I should convey them to Gisevius. As I said, even if Stahmer had not asked me, (and he was certainly speaking the truth when he said he did not ask me to take action), I would have replied, if I had been questioned before he made this statement, and that probably with an equally good conscience, that he had asked me to pass it on to Gisevius. But I will not maintain that he actually used those words. Anyway, it is absolutely certain that this conversation did take place, and it was in the firm belief that I was acting as Dr. Stahmer and Goering intended, that I went straight to Gisevius. He was standing only five or six steps away from me, or even nearer. I think I understood him to say, when I addressed him, that he had heard parts of it. I don’t know whether I understood him correctly. I then informed him of the gist of this conversation. That is what happened early this morning.
Dr. Otto Stahmer: May I say the following: It goes without saying that I neither asked Dr. Dix to pass it on to Gisevius, nor did I count upon his doing so; but I surmised that Gisevius would be examined this morning, and that Dr. Dix would question the witness concerning the circumstances of Blomberg’s marriage. That is what I had been told previously, namely that Dr. Dix intended to put this question to the witness. Therefore, I called Dr. Dix’s attention to it, assuming that he would abstain from such a question concerning Blomberg’s marriage. That was not intended for the witness in any way, and I know definitely that I said to Dr. Dix that I was telling him this, merely as one colleague to another, and he thanked me for it. He said, "Thank you very much." At any rate, if he had said to me, "I am going to tell the witness," I would have said immediately, "For heaven’s sake; that is information intended only for you personally." Indeed, I am really surprised that Dr. Dix has, in this manner, abused the confidence which I placed in him.
The President: Dr. Stahmer, we have heard the facts, and we do not think we need hear anything more about it, beyond considering the question as to whether the witness is to go on with his evidence. Witness, has the explanation which has been given by Dr. Stahmer and Dr. Dix sufficiently covered the matters, with which you were proposing to deal with reference to Field Marshal Von Blomberg? Is there anything further that you need say about it?
Hans Bernd Gisevius: I beg your pardon. Perhaps I did not quite understand the question. Concerning Blomberg, at this point, I did not want to say anything further; I merely wanted, on the first occasion that Blomberg’s name came up, to make it clear that the whole thing gave me the feeling that I was under pressure. I was standing so near, that I could not help hearing what Dr. Stahmer said, and the manner in which Dr. Dix told me about it--for I had heard at least half of it--could not be understood in any other way than to mean that Dr. Dix, in a very loyal manner, was instructing me, a witness for the Defendant Schacht, to be rather reticent in my testimony, on a point which I consider very important. That point will come up later, and has nothing whatsoever to do with the marriage of Herr Von Blomberg. It has to do with the part [that] the Defendant Goering played in it, and I know quite well why Goering does not want me to speak about that affair. To my thinking, it is the most corrupt thing Goering ever did, and Goering is just using the cloak of chivalry, by pretending that he wants to protect a dead man, whereas he really wants to prevent me from testifying in full, on an important point, that is the Fritsch crisis...