Decision No. 29

The Attorney General has requested to hear the evidence of his Honour Judge Musmanno, who presided over one of the subsequent trials at Nuremberg and who participated as a judge in two other subsequent trials.

We were also told by the Attorney General that this witness conducted investigations after the Second World War on subjects relating to this trial, both on behalf of the United States Navy and also, after the completion of the aforementioned trials, on his own initiative.

The Attorney General requests that we should hear his evidence on matters which came to the knowledge of the witness in the course of these investigations. Defence Counsel objects to the admission of such evidence.

We shall admit evidence on matters which became known to the witness in connection with subjects relating to this trial, from people who are no longer alive. We do so for the reasons which were given in our Decision No. 7, regarding the affidavits of Wisliceny.

This will apply also to the proof of facts relating to evading obedience to superior orders.

With regard to subjects which came to the knowledge of the witness from people who are still alive - we shall decide each such case on its merits.

Furthermore, the Attorney General wishes to hear the testimony of the witness regarding the content of evidence which was submitted to the Nuremberg court, in those trials where the witness sat in judgment. We shall not admit such evidence from the witness, unless it can first be proved to us that there is no practical way open to the Prosecution of bringing the content of such evidence before this Court by means of submitting a copy of the transcript or the exhibits themselves.

Attorney General: Judge Musmanno, please take the stand.

[The witness is sworn.]

Presiding Judge: What is your full name please?

Witness: Michael A. Musmanno.

Attorney General: Justice Musmanno, you are a judge in the Supreme Court of Pennsylvania, I believe?

Witness Musmanno: I am, Sir.

Q. How long have you been a judge?

A. I am on the Supreme Court of Pennsylvania for a little over nine years, and I was a trial judge for twenty years.

Presiding Judge: Justice Musmanno, you may sit down if you wish.

Witness Musmanno: Thank you very much, Mr. Justice.

Attorney General: You were also a member of the Pennsylvania legislature for some time - is that correct?

Witness Musmanno: Yes, I was a member of the Pennsylvania legislature for two terms.

Q. And you have served on international tribunals. Which were those?

A. For a time, I was Presiding Judge of the United States- Soviet Board of Forcible Repatriation in Austria. Then I was appointed by President Truman to the International War Crimes Tribunal in Nuremberg. There I sat as a judge on the case involving Erhard Milch, deputy to Goering. That trial lasted about four months. Then I sat as a judge on the trial of the administrators of the concentration camps. That trial lasted about eight months. Then I was the Presiding Judge of the Einsatzgruppen Trial, which lasted about seven months.

Q. While in Nuremberg, did you learn of the defendant, Adolf Eichmann?

A. I did

. Q. Did you obtain any information on Eichmann's activities apart for that disclosed in the Nuremberg Trials?

A. I did.

Q. Will you please explain?

A. Immediately after the War ended, I was directed, by my Navy superiors, to conduct an investigation into the fate of Hitler, because there was a great deal of doubt as to whether he was actually dead or not.

Q. What did you do in that connection?

A. I visited prisoner-of-war camps, displaced persons camps, German and Allied establishments - seeking all the surviving Hitler intimates.

Q. Who were they?

A. The list would be too long to enumerate here, but I did see and talk with Hitler's admirals, generals, aides, adjutants, secretaries, bodyguards, barber, cook, butler and many others.

Q. Would it be correct to say that you spoke to more than a hundred persons, Judge Musmanno?

A. That is correct, Mr. Attorney General.

Q. Now, did any of these persons close to Hitler speak of Eichmann or of his activities?

A. They did.

Q. How did this come about?

A. At that time, there was a great deal of discussion about the appalling conditions that had been found in the concentration camps by the Allied troops who liberated them. There was also a great deal of discussion about the horrible atrocities committed by Nazi forces. It was inevitable that, in conversations at that time, this subject of atrocities would be discussed.

Q. Did you speak to Hermann Goering in the course of your investigation?

A. Yes, I did.

Q. Did the subject of atrocities come up in the conversation with Goering and, if it did, what did he say?

A. He said that he was not aware that the programme of Jewish extermination had reached the reported proportions. And the persons mostly responsible for that programme were Hitler, Bormann, Goebbels, Heydrich and Eichmann. Yes - and Himmler of course.

Q. Can you mention other people who were close to Hitler who spoke of Eichmann?

A. Yes.

Q. Who were they?

A. Ribbentrop, Kaltenbrunner, Hans Frank, Walter Schellenberg, General Karl Koller and others.

Q. What did Ribbentrop say about Eichmann?

A. Ribbentrop said that he resented very much Eichmann's interference in his Foreign Ministry. He also said that he was very sorry that Hitler had put so much authority into Eichmann's hands in the programme of Jewish extermination.

Q. What did Kaltenbrunner say about Eichmann?

A. Kaltenbrunner said that the persons who ran the Jewish extermination programme were Hitler, Bormann, Himmler, Heydrich and Eichmann.

Presiding Judge: The men who operated, who managed the programme of extermination of the Jews.

Attorney General: What did Hans Frank say on the subject of the atrocities?

Witness Musanno: Hans Frank said that during the latter part of the War he decided to "wade in blood" no longer, so he went to see Himmler to complain and to ask that the slaughter of the Jews cease. Himmler told him that at that time he was very busy with a military assignment which had been given to him by Hitler, and he recommended that Frank talk to Eichmann.

Q. According to Frank, did he talk to Eichmann?

A. Yes. Frank said he talked with Eichmann, but could get nowhere with him.

Q. Did you pursue the questioning further on this subject with Frank?

A. No, I did not, because my immediate task was to get information with regard to Hitler - as to whether he was dead or was still living. Of course, I was quite distressed over all the atrocities which had been reported, and particularly because the United States Congress had sent a committee to investigate the concentration camp disclosures - the committee had been invited by General Eisenhower; but I had no authority to conduct any official investigation in that respect. My queries with regard to these persons whom you have indicated and about whom I have spoken were with regard to Hitler's disappearance.

Q. So you let the matter rest there?

A. Yes, that is correct.

Q. Did anyone else close to Hitler mention Eichmann?

A. Yes, there was General Karl Koller, who was very close to Hitler. He was in the bunker, in the Reich Chancellery bunker with Hitler almost until the very last day.

Q. You spoke to him?

A. I did.

Q. Did he bring up Eichmann's name in any manner?

A. Of course. I was talking with General Koller as with all the others, on the subject of Hitler and Eichmann's name came into the conversation very fortuitously. I was asking General Koller about the attitude of Hitler during the very last days when he must have known that he could not win the War and in addition was confronting the very possibility of capture. How did he carry on? How did he act? I put these questions to General Koller.

Q. Please, continue. Did he mention anything about Allied captured fliers?

A. He said that Hitler was in a constant rage and passion, fulminating against everybody and everything, and in the course of these fulminations he demanded that all captured Allied fliers be executed. Koller said that he refused to obey this order and went to Kaltenbrunner about it because the order was that the captured Allied fliers were to be turned over to the SD for execution.

Q. According to what he said, did Koller go to Kaltenbrunner?

A. He went to see Kaltenbrunner and Kaltenbrunner agreed with General Koller and said that the Allied fliers should not be shot, but that he was having one great difficulty, and that was that Eichmann, who was in charge of the Jewish extermination programme, insisted that all Allied fliers of Jewish parentage be executed.

Q. What did Koller say? Did he meet Eichmann?

A. Well, Koller then went to see Eichmann and Eichmann would not budge from his position, namely that Allied pilots who were of Jewish parentage or lineage should be shot. Koller saved the pilots by scattering them through many prisoner-of- war camps among the many, many, many thousands of prisoners, and this way they could not be readily identified as the fliers.

Q. Now, you yourself were in the Navy at the time, I take it?

A. I was.

Q. What rank did you hold?

A. I was Commander, then I was promoted to a Captaincy.

Q. Do you hold any Navy rank now?

A. I am a Rear Admiral in the reserves, retired.

Q. How long were you engaged in post-war assignments in Europe?

A. About three years.

Q. At that time, did you become acquainted with Eichmann's status in the Nazi regime?

A. I did.

Q. What was it?

Presiding Judge: Mr. Hausner, what we said in our decision, applies here.

Attorney General: I shall immediately pass over these questions, Your Honour.

Witness Musmanno: There was introduced in the Concentration Camps Case and also in the Einsatzgruppen Case a chart of the RSHA. This chart shows that Eichmann was chief of an office for projects which on the chart were identified by one word - Jews.

Q. Did you meet some other persons, whose name was mentioned in that chart? I refer particularly to Schellenberg.

A. Yes, the chart showed who were the chiefs of these various offices. It showed Ohlendorf as head of Amt III and so on, and Schellenberg was head of the foreign secret service, Amt VI.

Q. By the way, according to what you know, is Schellenberg still alive?

A. No, he is dead.

Q. What about General Koller?

A. He is dead.

Q. You spoke to Schellenberg; did you know what Schellenberg's position was? Was he one of those close to the principal leaders?

A. Schellenberg was very close to Hitler and performed many secret missions for him. Schellenberg did not testify at the Einsatzgruppen Trial but he did testify at the I.M.T. trial. But after the Einsatzgruppen Trial, I had many conversations with him on the subject of Hitler. And Schellenberg was also very close to Himmler.

Q. What was the purpose of your talks with Schellenberg, Justice Musmanno?

A. I was now preparing my work on Hitler and in view of Schellenberg's very close relationship with Hitler, I was able to get from him a great deal of information on Hitler.

Q. What did he say about Eichmann's position in the Nazi hierarchy?

A. He said that Eichmann was subordinate only to Heydrich, and that then, when Kaltenbrunner succeeded Heydrich, Eichmann usually bridged over Kaltenbrunner and went to Himmler. Of course, when I say that he was subordinate only to Heydrich, naturally I mean after Hitler and Himmler. Between the assassination of Heydrich in June 1942, and the appointment of Kaltenbrunner as Chief of the RSHA in January 1943, there was an interregnum during which time Eichmann ran his Section with a completely free hand.

When Kaltenbrunner then took over, he was reluctant to limit the authority of Eichmann - whom he had known as a boyhood friendin Linz; and thus Eichmann continued to dominate the entire Jewish extermination programme emanating from the RSHA.

The fact that Eichmann's rank was only that of a lieutenant coloneldid not impede him at all in the fulfilment of his commitments and plans because he had the approval at all times of Himmler; and when it was necessary, he could use the name of Hitler. This was demonstrated in the summer of 1944, when an SS court in Berlin ordered the arrest of Eichmann and issued a warrant of arrest. Kaltenbrunner informed the court that it could have no jurisdiction over Eichmann because he was engaged in fulfilling a special mission for Hitler.

Presiding Judge: Did Schellenberg state who applied to the SS court in order to obtain the arrest of Eichmann?

Attorney General: The Court will find reports on this in Vol. 20 in the German edition of the International Military Tribunal on pages 531-563, in the evidence of Georg Konrad Morgen. He spoke about the warrant for arrest he issued against Eichmann. This was towards the end of the evidence.

Judge Raveh: Whose evidence?

Attorney General: The evidence of Morgen before the International Millitary Tribunal. We even have the actual warrant for arrest.

Witness Musmanno: This warrant for arrest was issued on the application of Georg Konrad Morgen who was conducting an investigation into charges of cruelty and corruption in the SS administration.

Presiding Judge: Were there accusations levelled only against the Accused or also against others?

Witness Musmanno: Yes, of course, one must presume that there were others.

Presiding Judge: What did Schellenberg say?

Attorney General: Justice Musmanno, did Schellenberg have any connection with the Einsatzgruppen?

If the Court is interested, I have here a transcript of Morgen's evidence.

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