Показания О. Штамера комиссии Мэддена (юнит 5)

TESTIMONY OF DR. OTTO STAHMER (THROUGH THE INTERPRETER,
MR. VON HAHN)

Mr. Flood. What is your name ?
Dr. Stahmer. Otto Stahmer.
Mr. Flood. You are a member of the German bar?
Dr. Stahmer. Yes, I am.
Mr. Flood. For how long have you been engaged in the practice
of law in Germany?
Dr. Stahmer. Since IMarch 1907, with the Oberlandesgericht, Kiel.
Mr. Flood. Have you ever been identified with a German bar association
or confederation of lawyers?
Dr. Stahmer. No, immediately after having finished my training
I became an attorney at law.
Mr. Flood. Were you ever an official of the German Bar Association
or an association of German lawyers?
Dr. Stahmer. After 1945 I was appointed by the British Occupation
Power to the Bar Association in Schleswig-Holstein. In October
1945, 1 was elected to the chairmanship, and later on became the
president of the Bar Association, and left it again in 1947, owing to
pressure of work.
Mr. Flood. Now, I direct your attention, doctor, to the Nuremberg
trials and ask you whether or not you were ever identified with those
proceedings?
Dr. Stahmer. I was defense counsel for the former Reichsmarshal
Goering at the war crimes trials at Nuremberg.
Mr. Flood. Will you tell us in what way you came to be identified
with the defense of Goering ?
Dr. Stahmer. Yes, I can.
The various bar associations called for attorneys who would be
prepared to act as defense counsel in Nuremberg, prior to the opening
of the trial. The Oherlandesgericht president of Kiel, in Schleswig-
Holstein, made a list of the men willinjr to act as defense counsel.
Five names were suggested, and I was one of them. Tliis list was
forwarded to Nuremberg and, from all the lists collected from the
various districts, an ultimate list, or an accumulated list, was established.
This list was submitted to the accused, and they were authorized
to select defense counsel from this list. Goering selected me from
the list, and he told me later that I had been recommended to him by
the Reichsgerichtent-fuehrer ; that was the leader of the Reich legal
men, Frank.
Before that I had no contacts with Goering.
Mr. Flood. Now, doctor, we are concerned with that part of the
Goering indictment or the Nuremberg proceedings that have to do only
with the Katyn massacre. I am sure you are entirely capable of
presenting that story to us without my interrupting with questions.
I will try not to, unless there is some particular thing that we happen
to think of.
Therefore, will you take ns from the beginning to the end of that
part of the Nuremberg proceedings that had to do with Katyn?
Dr. Stahiher. As Dr. Kempner pointed out, quite correctlv, the
charge in Nuremberg contained a short sentence, running as follows:
"In the Katyn forest 11,000 Polish officers were murdered in September
1941."
Mr. Flood. May I interrupt, for the record, and read you the exact
language, so you may begin ? I quote from the statement of Dr. Stahmer
on page 274 of the International Military Tribunal Trial of the
Major War Criminals, volume 17: "In September 1941, 11,000 Polish
officers, prisoners of war, were killed in the Katyn woods near
Smolensk."
Dr. Stahmer. Yes, that is correct. As it was, here, a question of
prisoners of war, it could safely be assumed that the crime could only
have been perpetrated by German troops. I discussed this matter
with Goering and asked him whether the German Army could possibly
have had anything to do with this matter. Goering declared
to me, being his defense counsel, that he could state with a clean conscience
that the German Army was not responsible for this crime.
I thereupon told him that in that case it was our duty to deal with
this matter in detail for the sake of the honor of the German Wehrmacht.
I suggested that I would take up this matter in connection with his,
Goering's, own case, being defense counsel for Goering, and in view
of the fact that Goering was the highest ranking officer in the German
Army there. Goering agreed, and thus I engaged in this matter.
Mr. Flood. Now, may I interrupt for the procedural problem
again?
As I understand it, the Katyn charge brought by the Russians was
not brought against any specific defendant.
Dr. Stahmer. No. That is correct. The accusation did not contain
any more than the sentence which was read out a few minutes
ago, and I could only get a little further in this matter when, as Dr.
Kempner correctlv pointed out previously, the Russians submitted
the document U. S. S. R. 54 on April 14, 1946.
I established the following: facts from this document:
A construction battalion of engineers with the number 537 was
mentioned in this accusation. The document also mentioned that this
battalion was under the command of a certain Colonel Arnes. The
document also mentioned the names of three officers : First Lieutenant
Rex, First Lieutenant Holdt, and Lt. Graf Berg.
I got hold of these three names and established and proved that
they could not possibly have perpetrated the crime. The news of this
evidence was published over the radio. It was also heard by Lieutenant
Arnes, who actually was Colonel Ahrens.
A few days after that Colonel Ahrens came to see me and offered to
testify as a witness, and with his assistance I succeeded in bringing
some more light into the matter. In the meantime, a 1st lieutenant
von Eichborn had also reported to me. and these two gentlemen also
brought me into contact with General Oberhaeuser.
The situation now developed as follows:
Colonel Ahrens stated that he had arrived in the area of Katyn in
November 1941 and had taken command of Signal Regiment 537.
The former designation of Engineer's Construction Battalion was
incorrect; it was actually Signal Regiment No. 537. I learned from
him, too, that immediately upon the occupation of Smolensk, in
July of 1941, a small advance unit had been in that area near Katyn,
and at the beginning of August of the same year the regimental staff
headquarters had been established in the Dnieper Castle. The commander
of the regiment and in that regimental staff at that time was
Colonel Bedenk, who, as I said before, was succeeded by Colonel
Ahrens in November 1941.
That, in brief, was the material which I had at my disposal for proving
my case. My aim was to prove to the Nuremberg Tribunal that the
German Wehrmacht was not responsible for this crime. The Russians
were not accused, and therefore I had neither the task nor the
duty to clear up the matter.
At first the court allowed me to call the five witnesses which I had
named before. It was then suggested that in view of the fact that the
case was a comparatively simple one, the number of witnesses should
be reduced to three. The selection of the witnesses was left to the defense
counsel or to the prosecution.
In this connection I should like to mention the following incident.
One day the secretary general of the court telephoned me and asked
whether I was prepared to discuss the Katyn matter with the Russian
prosecution. I said that I was prepared to do so, but requested in
view of the fact that although it did not concern all the defense
counsel it still did concern a large number of them, I requested Professor
Exner, who was a defense counsel for General Jodl, to accompany
me. The two of us met Colonel Prochownik. Colonel Prochownik
pointed out that a few days before the chairman. Lord
Lawrence, had requested that the proceedings be made shorter if possible.
He was of the opinion that we could shorten the proceedings
by not hearing the witness, or by submitting affidavits instead of having
the witnesses testify, with the request that the court should take
official knowledge of these affidavits.
I refused this suggestion, and Professor Exner did likewise, for the
result of such an action would have been that the documents would
have been submitted without the pubHc getting to know anything about
their contents.
I have my response for refusing by pointing out that the Russian
prosecution had accused the German Wehrmacht publicly of having
murdered eleven thousand prisoners of war, and for the sake of the
honor of the German Wehrmacht I thought it imperative that the
public should be informed in the same way, that this accusation was
without foundation.
This suggestion of mine was rejected. Colonel Prochownik said that
such a procedure would again take a much longer time. I had declared
that, provided the other German defense counsel would agi'ee,
I would agree to have affidavits submitted, but only on condition that
they should be read out during the proceedings. I forgot to mention
that previously. That was for the reason that it would take more time
again, and that the Lord Justice's wishes would not be fulfilled that
way, of shortening the proceedings.
A further suggestion of mine, to limit the proceedings to a certain
time, was also rejected. This was the contents of our discussion, which
was also mentioned by Dr. Kempner, although I do not believe that
Dr. Kempner had knowledge of what was said during those discussions.
The chairman then declared that, in view of the fact that no agreement
had been reached, the suggestion that both sides should only
call three witnesses each should be adhered to.
My witnesses were Colonel Ahrens, General Oberhaeuser, and First
Lieutenant von Eichborn.
The Russians proposed the former Buergermeister of Smolensk,
who was Buergermeister while Smolensk was occupied by the Germans.
I forget the name at present, but it is in the documents, in the protocol.
Then, a Bulgarian professor. Dr. Markov. Professor Markov had
been a member of the commission which had gone to Smolensk and
Katyn, on the instigation of the Germans, and had given expert evidence
on the probable time, gathered from the state of the decayed
bodies, or the condition of the dead bodies, when the crime had been
promulgated.
The evidence and the results of this investigation were laid down
in the German official white book. Professor Markov had, by then,
been captured by the Russians, and that was how he got to Nuremberg
as a witness. I cannot say exactly whether he was still a prisoner at
that time.
The third witness produced by the Russians was a professor of
anatomy who had been working there in Smolensk after the Germans
had evacuated. The Russians, after Smolensk and Katyn had been
evacuated by the Germans, had hauled a connnission of physicians,
which had to work on the same lines as the previous commissions
under the Germans had been working. This Russian commission
arrived at a different result, to the effect that the murder had been
committed in September 1941, that is, at the time when the area was
already under German occupation.
As I established by cross-examining during the proceedings, this
Russian commission consisted exclusively of Russian physicians, no
neutrals or members of the Allied nations taking part in it. The result
was as laid down by me in my arguments. From the testimony
of the witnesses Ahrens, Oberhaeuser, and von Eichborn, I had my
opinion proved clearly that the crime could not possibly have been
perpetrated by the German Wehrmacht.
It was already stated that the Russians, in their final argument,
which took place after the arguments of the Germans had been given,
did not refer to the Katyn case with a single word.
That was generally how this case was handled in Nuremberg.
Mr. Flood. Did the tribunal, in its findings, refer to the Katyn
matter ?
Dr. Staiimer. No.
Mr. Flood. Do you know of any reason, as a matter of fact, that
they did not ?
Dr. Stahmer. No ; of course, I do not know them.
We must, however, not forget that a large number of crimes were
put to the debit of the Germans which were also not dealt with in the
finals, even if they were not dealt with in such detail.
Mr. Flood. Were you satisfied, as far as you were concerned, that
the tribunal did not mention the Katyn matter one way or the other?
Dr. Stahmer. Yes; it is so.
Mr. Flood. As counsel for the defense and defending an indictment,
you were satisfied that the whole matter was dropped, as far as that
detail was concerned; is that right?
Dr. Stahmer. It had been dropped because the Russians had simply
not referred to it any more. But it was not so, either, as it should
have been in accordance with German law, that the accusation had
also been dropped.
Mr. Flood. This conference that you. spoke about, at which the
submission of affidavits was discussed with the Russians, that conference,
as I understand it, was called at the request of the Russians.
Dr. Stahmer. Yes. General Mitchell had actually asked me whether
I would be prepared to confer with the Russians so as to shorten the
proceedings. I was of the opinion that the Russian prosecution had
approached General Mitchell with a request to arrange such a
conference.
Mr. Flood. The Americans did not take part in that conference,
did they?
Dr. Stahmer. No. The only ones were the Russian, myself, and
Professor Exner.
Mr. Flood. And during your entire handling of the Katyn matter
with the Russians, the matter was handled only between you and the
Russians and the court; is that correct?
Dr. Stahmer. Yes, that is so.
Mr. Flood. Your three witnesses for the German side were presented
in open court and the testimony was fully developed ?
Dr. Stahmer. Yes; that is correct.
Mr. Flood. Were you satisfied with the presentation of your case
and did you consider that you had an ample opportunity to present
the German side?
Dr. Stahmer. Yes. It was like that, that there was one gap for me.
That was a gap of time between July and November 1941, before
Colonel Ahrens took over the command of the regiment. But the
reason for that was that I did not know the address of First Lieutenant
Hodt and, as far as I recollect, was also unable to contact Colonel
Bedenk.
Mr. Flood. And the Russians had an opportunity to present the
same number of witnesses, that is, three, that the German side did?
Dr. Stahmer. Yes. The court had distributed the witnesses on
an equal basis.
Mr. Flood. And the Russians did present their three witnesses?
Dr. Stamhner. Yes, they did so.
Mr. Flood. And the Russians had an opportunity to cross-examine
the German witnesses?
Dr. Stahmer. They did have the opportunity, and they availed
themselves of the opportunity.
Mr. Flood. And the Germans had the opportunity and availed
themselves of the opportunity of cross-examining the Russian witnesses?
Dr. Stahmer. Yes. I did cross-examine the Russian witnesses.
There was a certain restriction imposed on that, because some German
defending; counsels wanted to cross-examine the witnesses and were
only allowed to do so in case their witnesses had actually been connected
with a specific case.
Mr. Flood. And the eminent counsel for Goering made an eloquent
and persuasive argument to the tribunal?
Dr. Stahivier. Yes, I did so.
Mr. Flood. With reference to the Katyn matter.
Dr. Stahmer. Yes.
Mr. Flood. And the Russians, in closing to the tribunal, never
mentioned the Katyn matter?
Dr. Stahmer. That is correct; because they gave their final argument
after me.
Mr. Flood. And the result was that you had, insofar as the Katyn
indictment was concerned, a victory as against the Russian charge?
Dr. Stahmer. In my opinion, I had fulfilled my task of proving
that the Germans were not the perpetrators of the crime.
Mr. Flood. You were not concerned with trying to find out who
was?
Dr. Stahmer. I believe that the court would have objected to that,
in view of the fact that the Russians were not the accused. We had
this experience on several occasions, when we ventured to point out
that the other side had also occasionally sinned, that it was immediately
pointed out to us that the other side was not sitting on the bench
of the accused.
Mr. Flood. And, of course, the doctor knows, as a distinguished trial
lawyer, that when you are trying an indictment, in which A is indicted,
you cannot convict B who was not indicted?
Dr. Stahmer. The Russians had not charged anyone else.
Mr. Flood. Doctor, when I arrived in Germany for this committee,
I spoke to the German press at Bremen. I subsequently spoke to the
German and international press at Bonn. Among other things, I
stated that this committee felt that it had been charged by the American
House of Representatives to find out whether or not any of the
Americans participating in the Nurenberg trials, or anybody else, for
that matter, were engaged in any consipracy with the Russians or anybody
else to drop or not to prosecute this Katyn indictment.
Dr. Stahmer. T think that impossible.
Mr. Flood. Will you state, then, whether or not, in your opinion,
any of the Americans, as far as you know, were so engaged?
Dr. Stahmer. No. I could not even imagine how that could have
been done, in view of the fact that I was not at all restricted or ham-
pered in my defense. The only thing I was actually interested in was
to prove that the German Army and the German officers who had been
accused were not guilty.
That I was successful in that respect is proved to me by the fact
that the Russians never again leveled this accusation and left the
officers which they had mentioned in their allegation out of it altogether
later on. Otherwise, the Russians were very prolific in accusing
everybody and anybody. In my opinion, the Russians would never
have dropped the case and would have pursued it with all energy if
there had only been a shadow of tagging the thing onto the Germans.
Mr. Flood. As a matter of fact, in the early part of your statement,
you told us that the Katyn case had been brought as a charge by the
Russians.
Dr. Stahmer. That is not quite correct. At first, in this document,
the accusation was a general one. A more detailed description and
explanation was added to it later on.
Mr. Flood. That's exactly what I want to say and the additional
documentation and additional detail consisted entirely of a document
which was the official report of the Extraordinary State Commission
which was officially authorized by the Russians to investigate
the Katyn case; isn't that it?
Dr. Stahmer. Yes; that is correct. The Russians said, as already
pointed out by Dr. Kempner, that they had another 120 witnesses,
but they did not produce an eyewitness.
Mr. Flood. As a matter of fact, as a practical trial lawyer, what
really happened was that the Russians were pretty good trial lawyers
themselves in that case, they had pretty good lawyers there, didn't
they ?
Dr. Stahmer. I should rather say that they were slightly unlucky
in their choice of witnesses.
Mr. Flood. As a matter of fact, as good lawyers, the Russian prosecution
knew they had no case on the Katyn indictment, and that's
why they dropped the whole matter ; isn't it ?
Dr. Stahmer. I do not know that.
...
Mr. O'Konski. Doctor, do I understand that the indictment on
Katyn was part of a general indictment?
Dr. Stahmer. Yes ; that is correct.
Mr. O'Konski. Could the Russian prosecution, under the procedure
under which you were operating, have asked that that part of
the indictment regarding Katyn be dismissed?
Dr. Stahmer. No ; I do not think so.
Mr. O'Konski. Could the defense have asked that that part of the
indictment pertaining to Katyn be dropped from the general charge?
Dr. Stahmer. No; not that either.
Mr. O'Konski. After these three witnesses were called on each
side and you gave your closing argument, did the Russians ask that
the charge be dismissed?
Dr. Stahmer. No; they did not.
Mr. O'KoxsKi. Now, when the decision was handed down by the
Tribunal, that is, the court at Nuremberg, was the decision based on
the entire indictment or did they leave some parts of the indictment
out in their findings ?
Dr. Stahmer. The entire indictment.
Mr. O'Konski. Is it reasonably safe to assume then that the
Russians assumed that the world would assume that, since it was a
part of the indictment, and since it was not stricken from the indictment,
and the decision was handed down on the whole indictment,
was it possible for the Russians to assume that the world would think
that that was one of the crimes of which the Germans were guilty ?
Dr. Stahmer. I do not know what to reply to that question.
Mr. O'KoNSKi. It would seem to me, as an observer, not being
schooled in law, that if the general indictment contained a clause
indicating the crimes at Katyn, and if that part of the indictment was
never dropped, and a decision was handed down on the entire indictment,
that I, as a layman, would draw the conclusion that the Germans
were guilty and that was one of the crimes for which they were
convicted.
Mr. DoNDERO. Well, Dr. Stahmer, no decision was ever reached by
the court.
Dr. Stahmer. No, it was never reached.