[Page 105]

COLONEL STOREY: That is correct, yes, Sir, and whenever counsel wanted more copies they would request them, and they would be available for them. The translators, for translation of the photostats, would be available if they requested them. Were there any other questions, your Honour?

THE PRESIDENT: Do you mean that translators have not been supplied to defendant's counsel?

COLONEL STOREY: If your Honour pleases, as I understand it, the defendants' Information Centre is now under the jurisdiction of the Tribunal, and my information is - I would like to check it - that when they want extra copies all they have to do is ask for them and they may obtain them, and sufficient translators are available to provide the extra copies if they want them. That is my information. I have not checked it in the last few days, but sufficient copies in English are furnished for all counsel, and these briefs and document books are furnished to them in advance. In this case I am told that the document book and the briefs were furnished.

THE PRESIDENT: Yes.

DR. FRITZ SAUTER (Counsel for defendants Ribbentrop, Funk and von Schirach):

Your Honour, you may be assured that we defence counsel do not like to take up the time of the Tribunal for discussions such as these, which we ourselves would rather avoid. But the question just raised by a colleague of mine is really very unpleasant for us and makes our work extremely difficult.

You see, it does not help us if after agreements are made or regulations issued, the actual practice is entirely different.

Last night, for example, we received a big volume of documents, all documents being in English. Now, in the evening, in prison, we are supposed to discuss with our clients for hours the result of the proceedings - a difficulty which has now been greatly augmented by the installation of wire screens in the consultation room. In addition, we are also required to talk over, volume by volume, documents written in English; and that is practically impossible. One does not receive these documents until the evening of the day before, and it is not possible, even for one who knows English well, to make the necessary preparation.

The same thing is true of the individual accusations, and I do not know whether these individual accusations, as we receive them for each defendant, have also been submitted to the Tribunal.

THE PRESIDENT: Nearly every document which has been referred to in this branch of the case, which has been presented by Mr. Albrecht and by Sir David Maxwell Fyfe, is a document which has been referred to previously in the trial

[Page 106]

Documents which have been referred to, which are fresh documents, are very few indeed and the passages in them, which are now being put in evidence, are all read over the microphone and, therefore, are heard by defendant's counsel in German, and can be studied by German counsel to-morrow morning in the transcript of the shorthand notes. I do not see, therefore, what hardship is being imposed upon German counsel by the method which is being adopted.

You see, the counsel for the prosecution, out of courtesy to counsel for the defendants, have been giving them their trial briefs in English beforehand. But there is no strict obligation to do that and, in so far as the actual evidence is concerned, all of which is contained in documents, as I have already pointed out to you, the vast majority of these documents have already been put in many days ago and have been in the hands of German counsel ever since, in the German language, and also the documents which are now put in.

DR. SAUTER: No, this is not true, your Honour. This is the complaint which we of the defence counsel, since we dislike to approach the Tribunal with such complaints, have been discussing among ourselves, the complaint that we do not receive the German documents. You may be assured, Mr. President, that if things were as you believe, none of us would complain but would all be very grateful; but in reality it is different.

THE PRESIDENT: Dr. Sauter, surely, when you have a reference to a German document, that German document is available to you in the Information Centre. As these documents have been put in evidence, some of them as long ago as the 20th November or shortly thereafter, surely there must have been adequate time for defendant's counsel to study them.

DR. SAUTER: For instance, this morning I received a volume on Funk. I have no idea when this volume will be presented in court - to-day or to-morrow. It is completely impossible for me to study this volume of English documents upon my return from the prison at nine or ten in the evening. That overtaxes the physical strength of a defence counsel. I could study it if it were in German, but even so it is impossible for me to do so until nine or ten in the evening as I have to make a visit to the prison. It is absolutely impossible for us.

THE PRESIDENT: You see, Dr. Sauter, it is not as though you have to cross-examine witnesses immediately after the evidence is given. The documents are put in and it is not for you to get up and argue upon the interpretation of those documents. You will have, I regret to say, a considerable time before you will have to get up and call your own evidence and ultimately to argue upon the documents which are now being put in. Therefore, it is not a question of hours, it is a question of days and weeks before you will have to deal with these documents which are now being put in. And I really do not see that there is any hardship upon defendant's counsel in the system which is being adopted.

And you will not forget that the rule, which, in a sense, penalises the prosecution, is that every document which is put in evidence and every part of the document which is put in evidence, has got to be read in open Court, in order that it should be translated over the earphones and then shall get into the shorthand notes. I am told that the shorthand notes are not available in German the next morning but are only available some days afterwards. But they are ultimately available in German. And, therefore, every defendant's counsel must have a complete copy of the shorthand notes, at any rate up to the recess, and that contains all the evidence that has been given against the defendants, and it contains it in German.

[Page 107]

THE PRESIDENT: Dr. Sauter, I am most anxious and the other members of the Tribunal are most anxious that every reasonable facility should be afforded to the defendants and their counsel. But, as I have pointed out to you, it is not necessary for you, for any of you, at the present moment, to get up and argue upon these documents which are now being put in. By the time that you have to get up and argue upon the documents which are now being put in, you will have had ample time in which to consider them in German.

DR. SAUTER: Thank you, Sir.

DR. BOEHM (Counsel for the S.A.): I have repeatedly asked to receive copies of everything presented in English. After the accusation against the S.A. on the 18th or the 19th December, 1945, had already been presented and a document book had been presented as evidence at this time, I received to-day a few photostats, but I have not received most of the photostats or other pertinent translations. This shows that we do not receive the translations right after the court presentation. It shows further that one can never read the session minutes on the next day or on the day after that. The minutes of the last session ...

THE PRESIDENT: We are not dealing with the S.A. or the organisations at the present moment. If you have any motion to make, you will kindly make it in writing and we will now proceed with the part of the trial with which we are dealing.

DR. BOEHM: Mr. President, will you permit me one more remark? The minutes of 17th and 18th December, 1945, I have received only to-day.

THE PRESIDENT: Do you mean the transcript?

DR. BOEHM: The German transcript for the 18th and 19th December, 1945, I have received only to-day. You see, it is not a fact that we receive the transcript the day after or only a few days after the session. I received it weeks later, after I asked for it repeatedly. I asked the appropriate offices repeatedly to give me a copy of the document book in German, but I have not got it yet.

THE PRESIDENT: We will inquire into that. One moment. Will the last counsel who was speaking stand up?

I am told that is a special case; that the reason for the delay in the case you have mentioned was that there had been an error in the paging and, therefore, the transcripts of those shorthand notes had to be recopied. I understand that the delay ordinarily is not anything like so long as this.

DR. BOEHM: But I hardly believe that, in so far as the translation of the document book is concerned, this delay is due to those reasons. But even if the delay in this particular case should be justified, it would hamper my defence from week to week. I do not know on the day before what is going to be presented and I do not know for weeks afterwards what has been presented. I am therefore not in a position to study the evidence from the standpoint of the defence counsellor. I do not even know what is contained in the document book. According to the procedure of the trial the evidence should be presented in time. This is, apparently, not the case.

[Page 108]

DR. BOEHM: Yes.

THE PRESIDENT: Very well.

MR. ROBERTS: May it please the Tribunal:

It is my duty to present the evidence against Keitel and also against the defendant Jodl, and I would ask the Tribunal's permission, if it is thought right, that those two cases should be presented together in the interests of saving time, a matter which I know we all have at heart.

The story with regard to Keitel and Jodl runs on parallel lines. For the years in question they marched down the same road together. Most of the documents affect them both and, in those circumstances, I submit, it might result in a substantial saving of time if I were permitted to present the case against both of them together.

THE PRESIDENT: Yes.

MR. ROBERTS: Then I shall proceed, if I may, on that basis.

My Lords, may I say, that I fully recognise that the activities of both these defendants have been referred to in detail many times, and quite recently by Colonel Telford Taylor, and my earnest desire is to avoid repetition as far as I possibly can. And may I say, I welcome any suggestions, as I travel the road, which the Tribunal have to offer, to make my presentation still shorter.

There is a substantial document book, document book, number 7, which is a joint document book, dealing with both the defendants. Practically all the documents in that book have already been referred to. They nearly all, of course, have a German origin. I propose to read passages from only nine new documents, and those nine documents, I think, are shown in your Lordship's bundle and in the bundles of your colleagues.

May I commence by referring, as shortly as may be, to the part of the Indictment which deals with the two defendants. That will be found on Page 33 of the English translation. It begins with "Keitel" in the middle of the page, and it says:

"The defendant Keitel between 1938 and 1945 was -" the holder of various offices. I only want to point out there, that although the commencing date is 1938, the prosecution rely on certain activities of the defendant Keitel before 1938, and we submit that we are entitled so to do because of the general words appearing on Page 28 of the Indictment, at the head of the Appendix:

"The statements hereinafter set forth, following the name of each individual defendant, constitute matters upon which the prosecution will rely, inter alia, as establishing their responsibility:"

Then the defendant Jodl between 1932 and 1945 was the holder of various positions. He "used the foregoing positions, his personal influence, and his close connection with the Fuehrer in such a manner" - and this is not to be found in the text relating to Keitel - "that he promoted the accession to power of the Nazi conspirators and the consolidation of their control over Germany - "

May I say, my Lords, here, that I know of no evidence at the moment to support that allegation that he promoted the Nazi rise to power before 1933. There is plenty of evidence that he was a devoted, almost a fanatical admirer of the Fuehrer, but that, I apprehend, would not be enough.

[Page 109]

My Lords, with regard to the position of the defendant Keitel, it is well-known that in February of 1938 he became Chief of the O.K.W., Supreme Commander of all the Armed Forces, and that Jodl became Chief of the Operations Staff, and that is copiously proved, in the shorthand notes, on the documents. Perhaps I ought to refer to his position in 1935, at the time when the reoccupation of the Rhineland was first envisaged. Keitel was head of the Wehrmachtsamt in the Reich War Ministry, and that is proved by a document, 3019-PS, which is to be found in "Das Archiv," and I ask the Court to take judicial notice of that. It is not in the bundle.

Jodl's positions have been proved by his own statement, Document 2865-PS, which is also Exhibit USA 16, and in 1935 he held the rank of Lieutenant Colonel, Chief of the Operations Department of the Landesverteidigung.

May I just refer to the pre-1938 period - that is the pre- O.K.W. period - and to two documents, one of which is new. The first document I desire to mention without reading is 177-EC. I do not want to read it. It is Exhibit USA 390. My Lords, those are the minutes, shortly after the Nazi rise to power, of the Working Committee of the Delegates for Reich Defence. The date is the 22nd May, 1933. Keitel presided at that meeting. The minutes have been read. There is a long discussion as to the preliminary steps for putting Germany on a war footing. Keitel regarded the task as most urgent, as so little had been done in previous years, and perhaps the Tribunal will remember the most striking passage where Keitel impressed the need for secrecy, "documents must not be lost, oral statements can be denied at Geneva."

And I will submit, if I may be allowed to make this short comment, that it is interesting to see in those very early days of 1933, that the Heads of the Armed Forces of Germany concentrated upon using lies as a weapon.

My Lord, the next document I desire to refer to is a new one, and it is EC-405, Exhibit GB 160. I desire to refer to this shortly, because in my submission it shows Jodl to have had knowledge of and complicity in the plan to reoccupy the Rhineland country, contrary to the Versailles Treaty. The Tribunal will see that these are the minutes of the Working Committee of the Reich Defence Council, dated the 26th June, 1935.

The Court will see that, a quarter of the way down the page, in subparagraph (F), Lt.-Colonel Jodl gives a dissertation on mobilisation preparation, and it is only the fourth and fifth paragraphs on that same page that I desire to read:

"The demilitarised zone requires special treatment. In his speech of the 21st May and other utterances, the Fuehrer has stated that the stipulations of the Versailles Treaty and the Locarno Pact regarding the demilitarised zone are being observed. To the Aide Memoire of the French Charge d'affaires on recruiting offices in the demilitarised zone, the Reich Government has replied that neither civilian recruiting authorities nor other offices in the demilitarised zone have been entrusted with mobilisation talks, such as the raising, equipping and arming of any kind of formations for the event of war, or in preparation therefore.

Since political entanglements abroad must be avoided at present" - I stress the "at present" - "under all circumstances, only those preparatory measures that are urgently necessary may be carried out. The existence of such preparations or the intention of them must be kept in strictest secrecy in the zone itself as well as in the rest of the Reich."

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