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THE PRESIDENT: I call upon counsel for the United States.

MR. ALDERMAN: May it please the Tribunal, at this point we distribute document book lettered “N”, which will cover the next phase of the case, as I will now undertake to present it. Of the five large phases of aggressive warfare, which I undertake to present to the Tribunal, I have now completed the presentation of the documents on the first phase, the phase lasting from 1933 to 1936, consisting of the preparation for aggression.

The second large phase of the program of the conspirators for aggression lasted from approximately 1936 to March 1939, when they had completed the absorption of Austria and the occupation of all of Czechoslovakia. I again invite the Court’s attention to the chart on the wall. You may be interested in glancing at it from time to time as the presentation progresses.

The relevant portions of the Indictment to the present subject are set forth in Subsection 3, under Section IV (F), appearing on Pages 7 and 8 of the printed English text. This portion of the Indictment is divided into three parts: First, the 1936 to 1938 phase of the plan, planning for the assault on Austria and Czechoslovakia; second, the execution of the plan to invade Austria, November 1937 to March 1938; third, the execution of the plan to invade Czechoslovakia, April 1938 to March 1939.

As I previously indicated to the Tribunal, the portion of the Indictment headed “(a) Planning for the assault on Austria and Czechoslovakia” is proved for the most part by Document Number 386-PS, which I introduced on Monday. That is Exhibit USA-25. That was one of the handful of documents with which I began my presentation of this part of the case. The minutes taken by Colonel Hossbach of the meeting in the Reich Chancellery on 5 November 1937, when Hitler developed his political last will and testament, reviewed the desire of Nazi Germany for more room in central Europe, and made preparations for the conquest of Austria and Czechoslovakia as a means of strengthening Germany for the general pattern of the Nazi conspiracy for aggression.

I shall present the material on this second, or Austrian phase of aggression, in two separate parts. I shall first present the materials and documents relating to the aggression against Austria. They have been gathered together in the document book which has just been distributed. Later I shall present the material relating to the aggression against Czechoslovakia. They will be gathered in a separate document book.

First, we have the events leading up to the autumn of 1937, and the strategic position of the National Socialists in Austria. I suggest at this point, if the Tribunal please, that in this phase we see the first full flowering of what has come to be known as Fifth Column infiltration techniques in another country, and first under that, the National Socialist aim of absorption of Austria.

In order to understand more clearly how the Nazi conspirators proceeded, after the meeting of 5 November 1937, covered by the Hossbach minutes, it is advisable to review the steps which had already been taken in Austria by the Nazi Socialists of both Germany and Austria. The position which the Nazis had reached by the fall of 1937 made it possible for them to complete their absorption of Austria much sooner and with much less cost than had been contemplated at the time of the meeting covered by the Hossbach minutes.

The acquisition of Austria had long been a central aim of the German National Socialists. On the first page of Mein Kampf Hitler said: “German Austria must return to the Great German Motherland.” He continued by stating that this purpose of having common blood in a common Reich could not be satisfied by a mere economic union. Moreover, this aim of absorption of Austria was an aim from 1933 on and was regarded as a serious program which the Nazis were determined to carry out.

At this point, I should like to offer in evidence our Document Number 1760-PS, which, if admitted, would be Exhibit USA-57. This document is an affidavit executed in Mexico City on 28 August of this year by George S. Messersmith, United States Ambassador, now in Mexico City. Before I quote from Mr. Messersmith’s affidavit, I should like to point out briefly that Mr. Messersmith was Consul General of the United States of America in Berlin from 1930 to late spring of 1934. He was then made American Minister in Vienna where he stayed until 1937.

In this affidavit he states that the nature of his work brought him into frequent contact with German Government officials, and he reports in this affidavit that the Nazi Government officials, with whom he had contact, were on most occasions amazingly frank in their conversation and concealed none of their aims.

If the Court please, this affidavit, which is quite long, presents a somewhat novel problem of treatment in the presentation of this case. In lieu of reading this entire affidavit into the record, I should like, if it might be done in that way, to offer in evidence, not merely the English original of the affidavit, but also a translation into German, which has been mimeographed. This translation of the affidavit into German has been distributed to counsel for the defendants.

DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): An affidavit of a witness who is obtainable has just been turned over to the Court. The content of the affidavit offers so many subjective opinions of the witness, that it is imperative we hear the witness personally in this matter.

I should like to take this occasion to ask that it be decided as a matter of principle, whether that which a witness can testify from his own knowledge may, without further ado, be presented in the form of an affidavit; or whether if a witness is living and can be reached the principle of oral proceedings should be applied, that is, the witness should be heard directly.

MR. ALDERMAN: If the Tribunal please, I should like to be heard briefly on the matter.

THE PRESIDENT: You have finished what you had to say, I understand?

DR. KUBUSCHOK: Yes.

THE PRESIDENT: Very well, we will hear Mr. Alderman.

MR. ALDERMAN: May it please the Tribunal, I recognize, of course, the inherent weakness of an affidavit as evidence where the witness is not present and subject to cross-examination. Mr. Messersmith is an elderly gentleman. He is not in good health. It was entirely impracticable to try to bring him here; otherwise, we should have done so.

I remind the Court of Article 19 of the Charter:

“The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence, which it deems to have probative value.”

Of course, the Court would not treat anything in an affidavit such as this as having probative value unless the Court deemed it to have probative value; and if the defendants have countering evidence, which is strong enough to overcome whatever is probative in this affidavit, of course the Court will treat the probative value of all the evidence in accordance with this provision of the Charter.

By and large, this affidavit and another affidavit by Mr. Messersmith which we shall undertake to present cover background material which is a matter of historical knowledge, of which the Court could take judicial notice. Where he does quote these amazingly frank expressions by Nazi leaders, it is entirely open to any of them, who may be quoted, to challenge what is said, or to tell Your Honors what they believe was said. In any event, it seems to me that the Court can accept an affidavit of this character, made by a well-known American diplomat, and give it whatever probative value the Court thinks it has.

As to the question of reading the entire affidavit, I understand the ruling of the Court to be that only those parts of documents, which are quoted in the record, will be considered to be in the record. It will be based upon the necessity of giving the German counsel knowledge of what was being used. As to these affidavits, we have furnished them complete German translations. It seems to us that a different rule might obtain where that has been done.

THE PRESIDENT: Mr. Alderman, have you finished what you had to say?

MR. ALDERMAN: Yes, sir.

DR. KUBUSCHOK: The representative of the Prosecution takes the point of view that the age and state of health of the witness makes it impossible to summon him as a witness. I do not know the witness personally. Consequently, I am not in a position to state to what extent he is actually incapacitated. Nevertheless, I have profound doubts regarding the presentation of evidence of such an old and incapacitated person. I am not speaking specifically now about Mr. Messersmith. I do not think the Court can judge to what extent old age and infirmity can possibly influence memory and reasoning powers; so, personal presence would seem absolutely indispensable.

Furthermore, it is important to know what questions, in toto, were put to the witness. An affidavit only reiterates the answers to questions which were put to the person. Very often conclusions can be drawn from unanswered questions. It is here a question of evidence solely on the basis of an affidavit. For that reason we are not in a position to assume, with absolute certainty, that the evidence of the witness is complete.

I cannot sanction the intention of the Prosecution in this case to introduce two methods of giving evidence of different value; namely, a fully valid one through direct evidence of a witness, and a less complete one through evidence laid down in an affidavit. The situation is this: Either the evidence is sufficient, or it is not. I think the Tribunal should confine itself to complete and fully valid evidence.

THE PRESIDENT: Mr. Alderman, did you wish to add anything?

MR. ALDERMAN: I wish to make this correction, perhaps of what I said. I did not mean to leave the implication that Mr. Messersmith is in any way incapacitated. He is an elderly man, about 70 years old. He is on active duty in Mexico City; the main difficulty is that we did not feel we could take him away from his duties in that post, combined with a long trip and his age.

THE PRESIDENT: That is all, is it?

MR. ALDERMAN: Yes.

THE PRESIDENT: The Tribunal has considered the objection which has been raised. In view of the powers which the Tribunal has under Article 19 of the Charter, which provides that the Tribunal shall not be bound by technical rules of evidence, but shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure and shall admit any evidence which it deems to have probative value, the Tribunal holds that affidavits can be presented, and that in the present case it is a proper course.

The question of the probative value of an affidavit as compared with a witness who has been cross-examined would, of course, be considered by the Tribunal. If, at a later stage, the Tribunal thinks the presence of a witness is of extreme importance, the matter can be reconsidered. I add this: If the defense wish to put interrogatories to the witness, they will be at liberty to do so.

MR. ALDERMAN: Thank you, Your Honor. I offer then our Document 1760-PS as Exhibit USA-57, affidavit by George S. Messersmith. Rather than reading the entire affidavit, unless the Court wishes me to do so, I intend to paraphrase and state the substance of what is covered in various parts of the affidavit.

THE PRESIDENT: The Tribunal think it would be better to adhere to the rule which we have laid down: That only what is read in the court will form part of the record.

MR. ALDERMAN: I shall read then, if the Tribunal please, from the fourth paragraph on the third page of the English copy, the following list of names, headed by President Miklas of Austria and Chancellor Dollfuss:

“From the very beginnings of the Nazi Government, I was told by both high and secondary government officials in Germany that incorporation of Austria into Germany was a political and economic necessity and that this incorporation was going to be accomplished ‘by whatever means were necessary.’ Although I cannot assign definite times and places, I am sure that at various times and places, every one of the German officials whom I have listed earlier in this statement told me this, with the exception of Schacht, Von Krosigk and Krupp von Bohlen. I can assert that it was fully understood by everyone in Germany who had any knowledge whatever of what was going on that Hitler and the Nazi Government were irrevocably committed to this end, and the only doubt which ever existed in conversations or statements to me was how and when.”

In connection with that paragraph, I invite your attention to the list of German officials to whom he refers on Page 2 of the affidavit. They are listed as Hermann Göring, General Milch, Hjalmar Schacht, Hans Frank, Wilhelm Frick, Count Schwerin von Krosigk, Joseph Goebbels, Richard Walter Darré, Robert Ley, Hans Heinrich Lammers, Otto Meissner, Franz von Papen, Walter Funk, General Wilhelm Keitel, Admiral Erich von Raeder, Admiral Karl Dönitz, Dr. Bohle, Dr. Stuckert, Dr. Krupp von Bohlen, and Dr. Davidson. The affiant states he was sure that at various times and places, everyone of those listed German officials had made these statements to him, with the exception of Schacht, Von Krosigk, and Krupp von Bohlen. I shall continue with the next paragraph:

“At the beginning of the Nazi regime in 1933, Germany was, of course, far too weak to permit any open threats of force against any country, such as the threats which the Nazis made in 1938. Instead it was the avowed and declared policy of the Nazi Government to accomplish the same results which they later accomplished through force, through the methods which had proved so successful for them in Germany: Obtain a foothold in the Cabinet, particularly in the Ministry of the Interior, which controlled the police, and then quickly eliminate opposition elements. During my stay in Austria, I was told on any number of occasions by Chancellor Dollfuss, Chancellor Schuschnigg, President Miklas, and other high officials of the Austrian Government that the German Government kept up constant and unceasing pressure upon the Austrian Government to agree to the inclusion of a number of ministers with Nazi orientation. The English and French ministers in Vienna, with whom I was in constant and close contact, confirmed this information through statements which they made to me of conversations which they had with high Austrian officials.”

I shall read other portions of the affidavit as the presentation proceeds, on the question of pressure used against Austria, including terror and intimidation, culminating in the unsuccessful Putsch of July 26, 1934. To achieve their ends the Nazis used various kinds of pressure. In the first place, they used economic pressure. A law of 24 March 1933, a German law, imposed a prohibitive 1,000 Reichsmark penalty on trips to Austria. It brought great hardship to this country which relied very heavily on its tourist trade. For that I cite the Reichsgesetzblatt, 1933, Part I, Page 311, and ask the Court to take judicial notice of that German law.

The Nazis used propaganda and they used terroristic acts, primarily bombings. Mr. Messersmith’s affidavit, Document 1760-PS, from which I have already read, goes into some detail with respect to these outrages. I read again from Page 4 of the affidavit, the English version:

“The outrages were an almost constant occurrence, but there were three distinct periods during which they rose to a peak. During the first two of these periods, in mid-1933 and in early 1934, I was still in Berlin. However, during that period I was told by high Nazi officials in conversation with them, that these waves of terror were being instigated and directed by them. I found no concealment in my conversations with high Nazi officials of the fact that they were responsible for these activities in Austria. These admissions were entirely consistent with the Nazi thesis that terror is necessary and must be used to impose the will of the Party not only in Germany but in other countries. I recall specifically that General Milch was one of those who spoke frankly that these outrages in Austria were being directed by the Nazi Party, and expressed his concern with respect thereto and his disagreement with this definite policy of the Party.

“During the wave of terroristic acts in May and June 1934, I had already assumed my duties as American Minister in Vienna. The bomb outrages during this period were directed primarily at railways, tourist centers, and the Catholic Church, which latter, in the eyes of the Nazis, was one of the strongest organizations opposing them. I recall, however, that these outrages diminished markedly for a few days during the meeting of Hitler and Mussolini in Venice in mid-June 1934. At that time Mussolini was strongly supporting the Austrian Government and was strongly and deeply interested in maintaining Austrian independence and sovereignty, and in keeping down Nazi influence and activity in Austria. At that time also Hitler could not afford an open break with Mussolini and undoubtedly agreed to the short cessation of these bomb outrages on the insistence of Mussolini because he, Hitler, wished to achieve as favorable an atmosphere for the meeting between him and Mussolini as possible. The cessation of the bomb outrages during the Hitler-Mussolini conversations was considered by me and by the Austrian authorities and by all observers at that time as an open admission on the part of Hitler and the German Government that the outrages were systematically and completely instigated and controlled from Germany.”

Turning to Page 7 of the English version, following the line which reads, “Official dispatch from Vienna” dated July 26, 1934, I quote the following paragraph:

“In addition to these outrages, the Nazis attempted to bring pressure upon Austria by means of the ‘Austrian Legion’. This organization, a para-military force of several thousand men, was stationed near the Austrian border in Germany as a constant and direct threat of violent action against Austria. It was without any question sanctioned by the Nazi Government of Germany, as it could otherwise not have existed, and it was armed by them. It was made up of Austrian Nazis who had fled from Austria after committing various crimes in Austria, and by Austrians in Germany who were attracted by the idle life and pay given by the German authorities.”

These terroristic activities of the Nazis in Austria continued until July 25, 1934. It is a well-known historical fact of which I ask the Court to take judicial notice that on that day members of the NSDAP, the Nazi Party, attempted a revolutionary Putsch in Austria and killed Chancellor Dollfuss.

At this point I should like to invite your attention to the fact that the Indictment alleges in Count Four, Crimes against Humanity, Paragraph B on Page 26 of the English printed text, that the Nazis murdered amongst others Chancellor Dollfuss. I do not have available an official authenticated account of the details of that Putsch but I think that it will suffice if I briefly recall to the Court what is, after all, a well-known matter of history.

On July 25, 1934, about noon, 100 men dressed in the uniform of the Austrian Army seized the Federal Chancellery. Chancellor Dollfuss was wounded trying to escape, being shot twice at close quarters. The radio building in the center of the town was overwhelmed, and the announcer was compelled to broadcast the news that Dollfuss had resigned and that Dr. Rintelen had taken his place as Chancellor. Although the Putsch failed, the insurgents kept control of the Chancellery building, and agreed to give it up only after they had a safe conduct to the German border. The insurgents contacted the German Minister Dr. Rieth by telephone and subsequently had private negotiations with him in the building. At about 7 p.m. they yielded the building, but Chancellor Dollfuss breathed his last about 6 p.m., not having had the services of a doctor.

It is also a well-known historical fact that the German Government denied all complicity in this Putsch and in this assassination. Hitler removed Dr. Rieth as Minister on the ground that he had offered a safe conduct to the rebels without making inquiry of the German Government, and had thus without reason dragged the German Reich into an internal Austrian affair in public sight.

This statement appears in a letter which Hitler sent to Defendant Papen on July 26, 1934. I shall offer that letter a little later.

Although the German Government denied any knowledge or complicity in this Putsch, we think there is ample basis for the conclusion that the German Nazis bear responsibility for these events. It is not my purpose, with respect to this somewhat minor consideration, to review the extensive record in the trial of the Austrian Nazi Planetta and others who were convicted for the murder of Dollfuss. Similarly I have no intention of presenting to the Court the contents of the Austrian Braunbuch, issued after July 25. The Court will, I think, take judicial notice.

I should like, instead, to mention a few brief items which seem to us sufficient for the purpose. I quote again from our Exhibit Number 1760-PS, from the Messersmith affidavit, USA-57, on Page 7, the paragraph in the middle of the page:

“The events of the Putsch of July 25, 1934, are too well known for me to repeat them in this statement. I need say here only that there can be no doubt that the Putsch was ordered and organized by the Nazi officials from Germany through their organization in Austria made up of German Nazis and Austrian Nazis. Dr. Rieth, the German Minister in Vienna, was fully familiar with all that was going to happen and that was being planned. The German Legation was located directly across the street from the British Legation, and the Austrian secret police kept close watch on the persons who entered the German Legation.

“The British had their own secret service in Vienna at the time, and they also kept a discreet surveillance over the people entering the German Legation. I was told by both British and Austrian officials that a number of men who were later found guilty by the Austrian courts of having been implicated in the Putsch had frequented the German Legation. In addition, I personally followed very closely the activities of Dr. Rieth, and I never doubted, on the basis of all my information, that Dr. Rieth was in close touch and constant touch with the Nazi agents in Austria, these agents being both German and Austrian. Dr. Rieth could not have been unfamiliar with the Putsch and the details in connection therewith. I recall, too, very definitely from my conversations with the highest officials of the Austrian Government after the Putsch their informing me that Dr. Rieth had been in touch with Von Rintelen, who, it had been planned by the Nazis, was to succeed Chancellor Dollfuss, had the Putsch been successful.

“It may be that Dr. Rieth was himself not personally sympathetic with the plans for the Putsch, but there is no question that he was fully familiar with all these plans and must have given his assent thereto and connived therein.

“As this Putsch was so important and was a definite attempt to overthrow the Austrian Government and resulted in the murder of the Chancellor of Austria, I took occasion to verify at the time for myself various other items of evidence indicating that the Putsch was not only made with the knowledge of the German Government but engineered by it. I found and verified that almost a month before the Putsch Goebbels told Signor Cerruti, the Italian Ambassador in Berlin, that there would be a Nazi government in Vienna in a month.”

I should also like to offer in evidence Ambassador Dodd’s diary, 1933-38, a book published in 1941, our Document 2832-PS, and particularly the entry for July 26, 1934. We have the book with the two pages to which I have reference. I should like to offer that portion of the book in evidence as Exhibit USA-58, further identified as our Document 2832-PS.

Mr. Dodd, then Ambassador to Berlin, made the following observations in that entry. First he noted that in February 1934 Ernst Hanfstaengl advised Mr. Dodd that he brought what was virtually an order from Mussolini to Hitler to leave Austria alone and to dismiss and silence Theodor Habicht, the German agent in Munich, who had been agitating for annexation of Austria. On June 18 in Venice, Hitler was reported to have promised Mussolini to leave Austria alone. Mr. Dodd further states, and I quote from his entry of July 26, 1934:

“On Monday, July 23, after repeated bombings in Austria by Nazis, a boat loaded with explosives was seized on Lake Constance by the Swiss police. It was a shipment of German bombs and shells to Austria from some arms plant. That looked ominous to me, but events of that kind had been so common that I did not report it to Washington.

“Today evidence came to my desk that last night, as late as 11 o’clock, the Government issued formal statements to the newspapers rejoicing at the fall of Dollfuss and proclaiming the Greater Germany that must follow. The German Minister in Vienna had actually helped to form the new cabinet. He had, as we now know, exacted a promise that the gang of Austrian Nazi murderers should be allowed to go into Germany undisturbed, but it was realized about 12 o’clock that although Dollfuss was dead the Loyal Austrians had surrounded the Government Palace and prevented the organization of a new Nazi regime. They held the murderers prisoners. The German Propaganda Ministry therefore forbade publication of the news sent out an hour before and tried to collect all the releases that had been distributed. A copy was brought to me today by a friend.

“All the German papers this morning lamented the cruel murder and declared that it was simply an attack of discontented Austrians, not Nazis. News from Bavaria shows that thousands of Austrian Nazis living for a year in Bavaria on German support had been active for 10 days before, some getting across the border contrary to law, all drilling and making ready to return to Austria. The German propagandist Habicht was still making radio speeches about the necessity of annexing the ancient realm of the Hapsburgs to the Third Reich, in spite of all the promises of Hitler to silence him. But now that the drive has failed and the assassins are in prison in Vienna, the German Government denounces all who say there was any support from Berlin.

“I think it will be clear one day that millions of dollars and many arms have been pouring into Austria since the spring of 1933. Once more, the whole world is condemning the Hitler regime. No people in all modern history has been quite so unpopular as Nazi Germany. This stroke completes the picture. I expect to read a series of bitter denunciations in the American papers when they arrive about 10 days from now.”

As I stated before, the German Government denied any connection with the Putsch and the murder of Dollfuss. In this connection, I should like to invite attention to the letter of appointment which Hitler wrote to the Defendant Von Papen on 26 July 1934. This letter appears in a standard German reference work Dokumente der Deutschen Politik, Volume 2, Page 83. For convenience we have identified it as Document 2799-PS, and a copy translated into English is included in the document book. The defendants may examine the German text in the Dokumente der Deutschen Politik, a copy of which is present in my hand, Page 83 of Volume 2.

I ask the Court if it will take judicial notice of this original German typing.

I should like to read this letter which Chancellor Hitler sent to Vice Chancellor Von Papen. I think it will provide us with a little historical perspective and perhaps freshen our recollection of the ways in which the Nazi conspirators worked. In considering Hitler’s letter to the Defendant Von Papen on July 26, we might bear in mind as an interesting sidelight, the widespread report at that time, and I mention this only as a widespread report, that the Defendant Von Papen narrowly missed being purged on June 30, 1934, along with the Nazi Ernst Roehm and others. The letter from Hitler to Von Papen is as follows:

“Dear Herr Von Papen:

“As a result of the events in Vienna, I am compelled to suggest to the Reich President the removal of the German Minister to Vienna, Dr. Rieth, from his post, because he, at the suggestion of Austrian Federal Ministers and the Austrian rebels, respectively consented to an agreement made by both these parties concerning the safe conduct and retreat of the rebels to Germany without making inquiry of the German Reich Government. Thus, the Minister has dragged the German Reich into an internal Austrian affair without any reason.

“The assassination of the Austrian Federal Chancellor which was strictly condemned and regretted by the German Government has made the situation in Europe, already fluid, more acute, without any fault of ours. Therefore, it is my desire to bring about, if possible, an easing of the general situation, and especially to direct the relations with the German Austrian State, which have been so strained for a long time, again into normal and friendly channels.

“For this reason, I request you, dear Herr Von Papen, to take over this important task, just because you have possessed, and continue to possess, my most complete and unlimited confidence ever since we have worked together in the Cabinet.

“Therefore, I have suggested to the Reich President that you, upon leaving the Reich Cabinet and upon release from the office of Commissioner for the Saar, be called on a special mission to the post of the German Minister in Vienna for a limited period of time. In this position you will be directly subordinated to me.

“Thanking once more for all that you have at one time done for the co-ordination of the Government of the National Revolution, and since then together with us for Germany, I remain, yours very sincerely, Adolf Hitler.”

Now let us look at the situation 4 years later, on July 25, 1938, after the Anschluss with Austria. At that time the German officials no longer expressed regrets over the death of Dollfuss. They were eager and willing to reveal what the world already knew, that they were identified with and sponsors of the murder of the former Chancellor.

I offer in evidence at this point Document L-273, which I offer as Exhibit USA-59. That document is a dispatch from the American Consul General, Vienna, to the Secretary of State, dated July 26, 1938. Unfortunately, through a mechanical slip, this document which is in English in the original, was not mimeographed in English and is not in your document book. However, it was translated into German, and is in the document book which counsel for the defendants have. I read from a photostatic copy of the dispatch: