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DR. ALFRED SEIDL (Counsel for the Defendant Frank): May it please the Tribunal, I have a motion to make.

THE PRESIDENT: On behalf of whom?

DR. SEIDL: I want to make a motion which concerns the indictment of Frank.

The Charter of the Tribunal contains, in Part IV, regulations for a fair trial, and Article 16 prescribes that for the purpose of safeguarding the right of the defendants the following procedure shall be followed. “The Indictment shall include full particulars specifying in detail the charges against the defendant. A copy of the Indictment, and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the defendant at a reasonable time before the Trial.”

At the beginning of the Trial the Defendant Frank was handed a copy of the Indictment. This is the Indictment which was read on the first day. This is, if I may say so, a general indictment. All actions are listed therein which, according to the opinion of the Signatories of the London Agreement, are regarded as Crimes against Peace, War Crimes, and Crimes against Humanity. The Indictment does not contain in detail the criminal actions of each defendant. I am now thinking about positive actions or concrete actions or omissions.

This morning I received a document. It has the title, “The Individual Responsibility of the Defendant Hans Frank for Crimes against Peace, War Crimes, and Crimes against Humanity”—or in German “Die persönliche Verantwortlichkeit des Angeklagten Frank für Verbrechen gegen den Frieden, für Kriegsverbrechen und Verbrechen gegen die Menschheit.” This document is without any table of contents. It consists of 30 typewritten pages. In addition to this document, or indictment, as I should like to call it, another document book has been given to me, namely, “Document Book Hans Frank.” The first document, as well as the second document is not in German but in English. This first document is in reality what I should call the indictment against Frank, because here in this document of 30 pages for the first time those individual activities of Frank are listed which are to be regarded as criminal actions. At least one ought to say that this document is an essential part of the Indictment. . .

THE PRESIDENT: Forgive me for interrupting you. The Tribunal has already expressed its desire that a motion such as this should be made in writing. The Tribunal considers that a motion of the sort which you are now making orally is a waste of the Tribunal’s time and it therefore desires you to put your motion in writing. It will then be considered.

DR. SEIDL: I regret myself that I must make this motion now, but I was not able to make this motion in writing before receiving this document only two and a half hours ago. My motion is that the Prosecution should submit these two documents to the Defendant Frank in the German language.

THE PRESIDENT: The Tribunal has not got the documents to which you are referring. It is quite impossible for us to understand the motion you are making unless you make it in writing and attach the documents or in some other way describe or explain to us what the documents are. We have not got the documents that you are referring to.

DR. SEIDL: Then I shall make my motion in writing.

THE PRESIDENT: Mr. Roberts, can you explain to me what the counsel who has just spoken is complaining about?

MR. G. D. ROBERTS (Leading Counsel for the United Kingdom): I gather he was complaining that the trial brief and the document book which had been served on his client, Frank, were in English and not in German.

THE PRESIDENT: Who is dealing with the case against Frank?

MR. ROBERTS: It is being dealt with by the United States.

THE PRESIDENT: Perhaps I had better ask Colonel Storey then.

COLONEL ROBERT G. STOREY (Executive Trial Counsel for the United States): If the Tribunal please, I think what counsel is referring to is the practice we have made of delivering in advance a copy of the document book and a copy of the trial brief. In this particular instance I happen to know that what counsel refers to is the trial address, which is to be read over the microphone, and as a courtesy to counsel they have been delivered in advance of the presentation, just like all the other document books and briefs against the other individual defendants. That’s what it is, as I understand it.

THE PRESIDENT: The documents which will be presented against the Defendant Frank will be all translated?

COL. STOREY: I am sure they are; yes, Sir. I don’t know about the individual case, but the instructions are that the documents will have two photostats, each one in German, plus the English translation, for counsel, and that is what has been delivered, plus the trial address, if Your Honor pleases. We handed that to him in advance—what the attorney will read over the microphone.

THE PRESIDENT: Colonel Storey, I thought the Tribunal ordered, after consulting the prosecutors as to the feasibility of the scheme, that sufficient translators should be supplied to the defendants’ counsel so that such documents as trial briefs, if in the English language, might be translated to defendants’ counsel. You will remember it was suggested that at least four translators, I think, should be supplied to the defendants’ counsel.

COL. STOREY: If the Tribunal will recall, I think this is what was finally determined; that document books and briefs could be submitted in English and the photostatic copies submitted to defendants’ counsel and that if they wanted additional copies of the German, then they should request them and they would be furnished. I think that is what the final order was.

THE PRESIDENT: There was, at any rate, a suggestion that translators should be ordered to translate such documents as trial briefs.

COL. STOREY: That is correct; yes, Sir, and whenever counsel wanted more copies, then they would request them and they would be available for them. The translators or translations or photostats would be available if they requested them.

Were there any other questions, Your Honor?

THE PRESIDENT: Do you mean that translators have not been supplied to defendants’ counsel?

COL. STOREY: If Your Honor pleases, as I understand, the defendants’ Information Center 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 the 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 Funk and Von Schirach): Your Honor, you may be assured that we Defense Counsel do not like to take up the time of the Tribunal for such discussions which we ourselves would rather avoid. But the question just raised by a colleague of mine is really very unpleasant for us Defense Counsel and makes our work extremely difficult for us.

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

Last night, for example, we received a big volume of documents all of which were in English. Now, in the evening in the prison we are supposed to spend hours discussing with our clients the results of the proceedings, a task which has now been rendered still more difficult by the installation of wire screens in the consultation room. In addition we are also required to talk over whole volumes of documents written in English, and that is practically impossible. Time and again these documents are not received until the evening before the day of the proceedings; 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 trial briefs; and I do not know whether the actual trial briefs, such as we receive 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, are documents which have been referred to previously in the Trial and which must have been before the defendants’ counsel for many days—for weeks—and therefore there can be no lack of familiarity with those documents. The 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 defendants’ counsel in German and can be studied by German counsel tomorrow morning in the transcript of the shorthand notes; and 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 Defense, have been giving them their trial briefs in English beforehand. But there is no strict obligation to do that; and insofar 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 those 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 Honor. This is the complaint which we of the Defense Counsel, because we dislike to approach the Tribunal with such complaints, have been discussing among ourselves—the complaint that we do not receive German documents. You may be assured, Mr. President, that if things were as you believe, none of us would complain but we would all be very grateful; but in reality it is different.

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

DR. SAUTER: Suppose, for instance, I receive this morning a volume on Funk. I know, for instance, when Funk’s case comes on—perhaps tomorrow. It is quite impossible for me to study this volume of English documents upon my return from the prison at 10 o’clock in the evening. That simply overtaxes the physical strength of a Defense Counsel. I could go through it if it were in German, but even so, it is impossible for me after finishing my visit to the prison at 9 or 10 o’clock in the evening to go through such a volume. We absolutely cannot do it.

THE PRESIDENT: You see, Dr. Sauter, it is not as though you had to cross-examine witnesses immediately after the evidence is given. The documents are put in and it is not for you then to get up and argue upon the interpretation of those documents. You 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 defendants’ counsel in the system which is being adopted.

And you will not forget that the rule, which, in a sense, penalizes the Prosecution, is that every document which is put in evidence and every part of the document which is put in evidence, has 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 available only 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 given against the defendants, and it contains it in German.

DR. SAUTER: Yes, Mr. President, what we are most anxious to have done and what we have been asking for many weeks is that the documents, or at least those parts of the document which come into question, should be given to us in German translation. It is very difficult for us, even if we know English, to translate the documents in the time which is at our disposal. It is practically impossible for any of us to do this. It is for this reason that we regret that our wish to get the documents in German is not being taken into consideration. We are conscious of the difficulties and we are very grateful for any assistance given. We assure you we are very sorry to have to make such requests, but the conditions are really very difficult for us. The last word I wish to say is that the conditions are really very difficult for us.

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.

HERR GEORG BOEHM (Counsel for the SA): I have repeatedly asked to receive copies of everything presented in English. The accusation against the SA was presented on the 19th or 18th of December, and at the same time a document book was presented. Today I received a few photostats, but I have not received the greater part of the photostats or other pertinent translations. This shows that we do not receive the German translations immediately after the presentation. Nor are we ever able to read the transcript of the proceedings on the next day or on the day after that. The minutes of the session. . .

THE PRESIDENT: We are not dealing with the SA or the organizations 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.

HERR BOEHM: Mr. President, will you permit me one more remark? The minutes of December 17 and 18, 1945 I have received today.

THE PRESIDENT: Do you mean the transcript of it?

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

THE PRESIDENT: Well, we will inquire into that. One moment.

[There was a pause in the proceedings while the Judges conferred.]

THE PRESIDENT: Will the last counsel who was speaking stand up?

I am told 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 that delay.

HERR BOEHM: But I hardly believe that in the case of the translation of the document book the delay is due to those reasons. But even if the delay in this particular case should be justified, it means that week after week I am hampered in my defense. I do not know the day before what is going to be presented, and I do not know until weeks afterwards what has been presented. I am therefore not in a position to study the evidence from the standpoint of a Defense Counsel. I do not even know what is contained in the document book. I am thus obviously handicapped in my defense in every way. The Prosecution keeps saying that it will furnish the documents on time. This is apparently not the case.

THE PRESIDENT: Perhaps you will kindly make your complaint in writing and give the particulars of it. Do you understand that?

HERR 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 for permission, if it is thought right, that those two cases should be presented together in the interest 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 cases 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 recognize 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 make, 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 (Volume I, Page 77) 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 (Volume I, Page 68) 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 the individual responsibility. . . .”

And then the Tribunal will see:

“. . . Keitel used the foregoing positions, his personal influence, and his intimate connection with the Führer in such a manner that: He promoted the military preparations for war set forth in Count One. . . .”

If I may read it shortly—he participated in the planning and preparation for wars of aggression and in violation of treaties, he executed the plans for wars of aggression and wars in violation of treaties, and he authorized and participated in War Crimes and Crimes against Humanity.

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 Führer 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 Führer, but that, I apprehend, would not be enough.

And then it is alleged against Jodl that he promoted the preparations for war, that he participated in the planning and preparation of the war, and that he authorized and participated in War Crimes and Crimes against Humanity.

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 OKW, 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 and in 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-OKW period—to two documents, one of which is new. The first document I desire to mention without reading is EC-177. 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 Defense. The date is the 22d of 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 submit, if I may be allowed to make this short comment, it is interesting to see in those very early days of 1933 that the heads of the Armed Forces of Germany contemplated using lying 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 fixes Jodl with 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 Defense Council, dated the 26th of June 1935.

The Court will see that, a quarter of the way down the page, Subparagraph F, Lieutenant Colonel Jodl gives a dissertation on mobilization preparation; and it is only the fourth and fifth paragraphs on that same page, the last paragraph but one from the bottom, that I desire to read:

“The demilitarized zone requires special treatment. In his speech of the 21st of May and other utterances, the Führer has stated that the stipulations of the Versailles Treaty and the Locarno Pact regarding the demilitarized zone are being observed. To the aide-mémoire of the French chargé d’affaires on recruiting offices in the demilitarized zone, the Reich Government has replied that neither civilian recruiting authorities nor other offices in the demilitarized zone have been entrusted with mobilization tasks, such as the raising, equipping, and arming of any kind of formations for the event of war or in preparation therefor.

“Since political complications 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 making such preparations must be kept in strictest secrecy in the zone itself as well as in the rest of the Reich.”

My Lord, I need not read more. I submit that fixes Jodl clearly with knowledge of the forthcoming breach of Versailles.

My Lord, the day before the Rhineland was reoccupied on the 7th of March 1936, the Defendant Keitel issued the directive which has been read before, Document C-194, Exhibit USA-55, ordering an air reconnaissance and certain U-boat movements in case any other nation attempted to interfere with that reoccupation.

My Lords, I pass now to the 4th of February 1938, when the OKW was formed. My Lords, shortly after its formation there was issued a handbook, which is a new exhibit, from which I want to read short passages. The number of the exhibit is L-211. It is Document GB-161. Now, this is dated 19 April 1938; “top secret; Direction of War as a Problem of Organization.” I read only from the appendix which is entitled, “What is the War of the Future?”; and if the Court will kindly turn over to the second page, I am going to read, 12 lines from the bottom of the page, the line beginning “Surprise”: