28 Nov. 45

any purpose to incriminate the Defendant Seyss-Inquart that it is being offered at this point.

DR. LATERNSER: May I add to my motion that the witness, Von Schuschnigg, on 19 November 1945, was questioned in Nuremberg, and that if an interrogation on 19 November was possible, then a short time later--that is now--it ought to be possible to call him before the Court, especially as the interrogation before this court is of special importance.

THE PRESIDENT: The Tribunal will recess now to consider this question.

[A recess was taken.]

THE PRESIDENT: The Tribunal has considered the objection to the affidavit of Von Schuschnigg and upholds the objection.

If the Prosecution desires to call Von Schuschnigg as a witness, it can apply to do so. Equally if the Defense wishes to call Von Schuschnigg as a witness, it can apply to do so. In the event Von Schuschnigg is not able to be produced, the question of affidavit-evidence by Von Schuschnigg being given will be reconsidered.

MR. ALDERMAN: May it please the Tribunal, in view of the strategy and tactics of the Nazis' concessions as indicated in the portion of the Messersmith affidavit that I read, substantial concessions were made by Austria to obtain Germany's diplomatic formal assurance of Austrian independence and non-intervention in Austrian internal affairs.

The release of imprisoned Nazis presented potential police problems, and as Mr. Messersmith pointed out in a 1934 dispatch to the United States State Department quoted on Pages 12 to 13 of his affidavit:

"Any prospect that the National Socialists might come to power would make it more difficult to obtain effective police and judicial action against the Nazis for fear of reprisals by the future Nazi Government against those taking action against Nazis even in the line of duty. The preservation of internal peace in Austria was less dependent upon Germany's living up to her obligations under the accord."

Next, Germany's continuing program of weakening the Austrian Government. In the pact of 11 July 1936 Germany agreed not to influence directly or indirectly the internal affairs of Austria, including the matter of Austrian National Socialism.

On 16 July 1936, just 5 days later, Hitler violated that provision. I quote from Document 812-PS, which is Exhibit USA-61, the