The remark has its place among themes which deal with matters of an entirely different kind and has no point in this conjuncture.

Besides, Goering, had he approved and. wished it, could himself have immediately issued such an order without further ado, as everyone knew the Fuehrer was well disposed to him.

The decisive fact is that the statement is in the sharpest contradiction with the fundamental attitude of the defendant. He always stood for the view that the enemy airman who is shot down is his comrade and must be treated as a comrade, a fact which I have already remarked upon in another connection. Moreover, in the question as to how terror airmen are to be treated, he has defended his position with all frankness against the conception upheld by Hitler and has made no secret to Hitler of his entirely different opinion.

In view of this unwavering attitude and its resulting policy, it is utterly out of the question that he should suddenly have urged Hitler to issue the above-mentioned order against the terror airmen -an order which he opposed with all his might and the execution of which he sought to prevent by every means as soon as it came to his knowledge. And he did succeed in fact in preventing the execution of this order.

If the terror airmen were actually discussed at the session, this discussion could only have occurred with the implication that the Fuehrer suggested such a measure.

With reference to the minutes, the following fundamental remarks must be added:

We have here the combined notes of a young officer, stretching over a two-day session during which there has been a great deal of talking and cross-talking. Experience made in many other cases. has shown that such recordings are often very unreliable and have even at times reproduced the subject of the discussion in an utterly perverted form, precisely because the author of the script, especially when several participants were present and were talking at random, could not follow the course of the discussion and conse quently did not reproduce the substance of it accurately, especially when, in addition to this, he was relayed by other people. This explains many factual errors as well as the inadequacy and unreliability of such records.

The minutes were never submitted to the defendant. He has not therefore been able to verify their contents nor to correct their

errors.

Records of this sort, which are built up in the way described above and which are not submitted to the perusal and approval of the parties concerned are worthless in the production of evidence.

They cannot in themselves alone serve as an adequate means of proof either to charge or convict the defendant. They can therefore only be made use of to the detriment of the parties implicated when the contended facts are confirmed by other material brought for evidence from sources external to these minutes. In the present case, there is no confirmation from other evidence that Goering actually made the statement contained in item 20 or made a request to Hitler to that effect.

The note dated 21 May (731-PS) fails to provide support for the claim. The note "General Korten teilt nach Vortrag des Reichsmarschalls mit" cannot, in view of the defendant's undisproved statement, possibly mean that the Reichsmarshal delivered an address on this matter in Hitler's quarters, but solely that Korten reported on this subject to the Reichsmarshal and that Korten informed the Reichsmarshal of Hitler's order.

The rest of the examination of evidence has made it clear beyond doubt that Goering was against a special treatment of enemy terror airmen who had been shot down, and that he opposed Hitler's order. These attacks by enemy airmen were directed, within Germany, against civilians working in the fields, minor railway lines without any military importance, and against pedestrians and cyclists.

This constituted a gross violation of the Hague Rules of Land Warfare, according to which any combat act against the noncombatant population of the country is prohibited, and any attack or shelling of open cities, villages, residences, or buildings is forbidden.

According to the opinion of the witness v. Brauchitsch this behavior which quite evidently violated international law caused Hitler to order measures against these aviators themselves, besides defensive measures. Relative to this Hitler advocated-as far as it is known to the witness-the most severe measures; lynching justice was to be given the right of way.

This stand of Hitler toward the violations of international law by enemy aviators, however, did not meet with the approval of the Armed Forces, especially not with that of Reichsmarshal Goering and that of his Chief of Staff (Generalstabschef), General Korten. Both of them did condemn to the utmost the attacks of enemy aviators which were exclusively directed against the defenseless civilian population. However, they nevertheless opposed the handing over of defenseless shot down aviators to the aroused mob for the carrying out of lynching justice, and they did not think these measures an appropriate means of combating this conduct which was in violation of international law.

The witness General Koller expressed himself to the same effect.

Early in June 1944 General Korten informed this witness of the fact that the Fuehrer intended to decree an order to the effect that terror aviators were to be surrendered to public fury.

In the course of repeated conversations the witness Koller and General Korten arrived at the opinion that the conception of the Fuehrer was to be rejected. They did consider the direct attacks of enemy low-flying planes on individual civilian persons, women and children, concentration of civilian persons, school-classes and kindergartens out on walks, farmers at work in the fields, as well as attacks on public passenger trains and hospitals, as ruthless; however, neither did the two see a passable road or a solution of the difficult problem in the Fuehrer's order. They were of the opinion that such an order was contrary to basic military conceptions, the articles of war, and to international law, and that it would give cause to numerous evils through which also other enemy as well as our own crews would have to come to harm. And finally such an order could exercise also in its effects, a harmful influence on the morale of our own crews.

All these reasons caused the Armed Forces to reject Hitler's demand, and the attempts of the Armed Forces were now directed toward preventing the disapproved conception of Hitler. The witness v. Brauchitsch therefore credibly states that the Armed Forces now looked for a way out, which way was seen in the fact that the higher command levels were deceived by measures which were not actually carried out.

The witness Brauchitsch was ordered by Reichmarshal Goering to define in discussions with the OKW the concept of terror aviators. In the subsequent discussions and exchange of correspondence those cases were mentioned which represented violations of international law and which were to be considered criminal acts. By this definition of the concept a lynching justice was to be prevented. The exchange of correspondence which lasted for a longer period of time showed the tendency of the agency to prolong the matter as much as possible.

The witness Koller is justified in emphasizing that this exchange of correspondence shows all signs of a "delaying action to gain time," i.e., those concerned either did not want any decision, or they wanted to postpone it as long as only possible. In particular the margin note on document D-785 (Exhibit GB 318) entitled "No answer received from Commander in Chief of the Air Force", allows for the conclusion that the Reichmarshal purposely wanted to prolong the matter. Furthermore Reichmarshal Goering, as can be seen from the letter of 19 June 1944 (D-779) maintained the opinion, that in every instance he considered legal procedures also

against terror aviators as definitely necessary. If it is stated in a subsequent document of 26 June 1944 "The Reichmarshal agrees with the announced formulation defining the concept of terror aviators and with the suggested procedure", then the agreement with the procedure refers exclusively to the suggested procedure of publication suggested in the final paragraph of the letter of 15 June 1944, for which Reichmarshal Goering's approval had been requested. That the Reichmarshal until the end of the war maintained the old aviator standpoint, according to which enemy aviators as soon as they have been shot down are to be considered and treated as comrades, was not only expressly deposed by the witness General Field Marshal Milch, but is also emphasized by General Koller with the following words: "Undamaged by occasional expressions of displeasure the attitude of the Reichmarshal always remained correct and valiant in accordance with his frequently emphasized flying tradition which he had retained from the First World War. In understandable anger about great difficulties in the air defense, pressed by the Fuehrer, he perhaps for once used harsher words, which were quickly forgotten", and the witness does not know of any case "in which such a spontaneous displeasure caused the Reichmarshal to take incorrect or harsh measures against members of the enemy air forces".

The behavior of the air force as a whole was also correct and humane at all times. To fight chivalrously was a matter of honor with the German aviators. The Air Force as well as the defendant Goering retained this point of view, although as Koller expressly mentioned, the flying personnel felt extremely bitter over the strafing attacks on German crews suspended on parachutes, and individual hotheads spoke of equal measures as reprisals.

The best testimonial for the exemplary comradely behavior of the Air Force even toward an enemy, who did not observe the rules of warfare, can be clearly seen from the description of the witness Koller about the establishment of a sea emergency service of the Air Force, which brought aid to Germans as well as the enemy in an equal measure and which carried on despite enemy attacks in violation of international law, with its attempt to provide aid for both friend and enemy in need. Accordingly it must be determined:

The Armed Forces and the defendant Goering have rejected the lynching justice as well as all procedure against the terror aviators not in accordance with legal regulations and have not issued any orders to troops under his command; in no case have enemy aviators been shot by the Air Force or by the Army, or handed over to the Security Service (SD).

Gestapo-KZ

The prosecution accuses the defendant Goering of having established a reign of terror in Prussia immediately after 30 January 1933 in his capacity as Prussian Minister of the Interior and soon afterwards as Prussian Minister President in order to suppress all opposition against the Nazi program.

In order to carry out his plans he had used the Prussia police, which he had ordered as early as in February 1933 to protect the new government by proceeding ruthlessly against all political opponents without consideration of the consequences.

In order to safeguard the power, he had created the feared Secret State Police and established concentration camps as early as spring of 1933.

To these accusations the following is to be said:

It was natural and cannot serve as an accusation against the defendant, and it would rather have been a severe violation of the duties intrusted to the defendant, if he had not devoted himself with all his strength to the safeguarding of the new government and taken every imaginable precaution in order to make any attack on this new government impossible from the very beginning. In order to achieve this goal first of all the police institutions had to be considered.

It only remains to be examined, if the means, whose application the defendant considered necessary, were objectionable.

The question is to be answered in the negative because of the following considerations:

In every state the police is the inner-political instrument of power; in every state it has the task to support the government, to protect it in all directions and to render the disturber of the peace and the violator of the law harmless by force of arms, if necessary. The defendant transferred the same tasks to the police under his direction, whom he ordered in the speech mentioned by the Prosecution to act energetically and to fulfill their duties conscientiously. To what extent such an appeal for the performance of duty should not be permissible remains incomprehensible.

In his interrogation the defendant Goering described expressly for what reasons and along which lines he considered a reorganization of the police as necessary and carried it out. Against these directives no objections whatever can be raised.

I should like to point out in this connection that according to the recognized rules of international law a sovereign state has the right to regulate its internal affairs as it deems fit to do.

The reform of the police is an exclusively internal affair. The