THE Mixed Claims Commission met on September 18, 1930, at The Hague to render a judgment on the evidence presented by Germany and the United States in the Black Tom and Kingsland cases. The Umpire was the Honorable Roland W. Boyden
Mr. Bonynge outlined the charge: That during the period of American neutrality, the Imperial German Government, in accordance with the policy now admitted to have been inaugurated by the Foreign Office of the Imperial German Government, authorizing and directing sabotage against munitions and munition plants in the United States, did employ, through its agents thereunto duly authoized, men who actually set fire to the Black Tom Terminal and to the Kingsland plant of the Agency of Canadian Car & Foundry Company,
He then went on to point out the difficulties which Germany had set up in the way of the American investigators to prevent their obtaining information. He quoted the numerous instances of obstruction and lack of cooperation which we have already mentioned in the pre- ceding chapters, and finally stressed two specific instances. One of these related to the famous cablegram of January 26, 1915. In his oral argument reviewing the evidence Mr. Bonynge pointed out that the importance of this cablegram had been fully recognized by the Umpire at a previous preliminary hearing in Washington. On that occasion he had indicated by his questions that, in his opinion, this message could not have been the first message relating to sabotage in the United States because of the abrupt manner in which the cablegram starts: "Information regarding persons suitable for carrying out sabotage in the United States and Canada can be obtained from the following." He went on to state that on the motion of the American Agent, the Umpire had requested Germany to produce all the other documents preceding and relating to this cable and had indicated to Germany, by analyzing the legends upon the cable of January 26, where they might find these other documents. Germany had thereupon filed an affidavit signed by Nadolny that this cablegram was just a passing incident, a blunder of a subordinate, that as a staff officer in the office of Section III B of the Great General Staff he had allowed himself to be overpersuaded by a fanatic, Sir Roger Casement, to issue this cablegram; and that the fact that this cablegram had been sent through the Foreign Office was of no significance, because in this instance the Foreign Office had merely acted as a forwarding medium.
In response to the order of the Commission a document had then been produced from the files of the Foreign Office which had been there all the time but could not be found until the American Agent had told the Germans where they could find it. This document was a letter from the Foreign Office to Section III B to Nadolny and to Marguerre directing them to forward the above cable. This proved that if anyone had been persuaded by Sir Roger Casement it was not Nadolny, but the Foreign Office. Germany had then filed another statement from Nadolny in which he said that after the sending of the cable "the Foreign Office took the position that even sabotage at that time was not permissible, as America, in spite of its war support, which was contrary to the spirit of neutrality, was officially a neutral country." When urged by the Commission to produce the original document on which the cablegram of January 26 was based, Germany had produced it. On it were found the signatures of Count Montgelas, one of the highest officials of the Foreign Office, and of Zimmermann, as we already know.
The Germans next had filed a brief in which they stated that "the officials of the Foreign Office in charge of this matter changed their minds and came to the conclusion that they had permitted themselves to be led into a blunder." The brief further stated that "the cable of January 26, 1915, was not acted upon but was completely disregarded by the addressee. Neither does it make any difference in judging the reasons why von Papen disregarded the message and why he was in position to do so." Mr. Bonynge continued his argument by pointing out that one year after Nadolny and Marguerre had sent the cablegram, and more than a year before America entered the war, these same two men met Herrmann, Hilken, and Dilger in the office of Section III B, handed them incendiary pencils, authorized Hilken to pay out any moneys that might be required, and ordered them to go back to the United States as quickly as possible. He then moved on to a discussion of Herrmann's relations with von Olshausen, emphasizing Germany's failure to produce the documents demanded by him relative to the interviews between the two. According to Mr. Bonynge, he had demanded that the German agent produce the cables between von Olshausen and the German Government concerning Herrmann, the existence of which had been brought out in Herrmann's affidavit. Instead of producing them the Germans had filed an unsworn statement by von Olshausen, dated June i, 1930, in which he had denied that Herrmann had confessed to him participation in the destruction of Kingsland, and had denied that he had stated to Herrmann that "we have to shut an eye now and then," and had denied sending a cable to Berlin about Herrmann, but had admitted sending a written report. As Mr. Bonynge was about to continue after this recapitulation of what had gone on at the previous hearings, the German Agent indignantly intervened, claiming it was unnecessary for a diplomatic representative of Germany to swear to a statement and that his word was sufficient. Then, referring to the cables and von Olshausen's written report, he dramatically stated that he had them in his pocket but could not produce them as they were in code to decipher them would mean compromising the German code. To this Mr. Bonynge replied: Nobody asks anything about the German code. I would not know what to do with it if I had it. I do not want the German code. I want what was stated in this message. They can have somebody decode it and have somebody swear that it is a proper decoding of the message, if they want to be frank and give all the evidence in their possession bearing upon this matter. The failure of Germany to produce these documents is certainly to be construed against Germany, and to be construed as confirming Herrmann's testimony, rather than the testimony of Minister Olshausen, because as a witness he is no different from Herrmann, except that we would give more credence to his testimony if he were not referring to written documents. I have never yet learned in my practice that when a man takes the witness stand he is exempt from the rules governing all other witnesses because he is an ofBcial, whether he is Secretary of State or whatever his position is. If this were an ordinary proceeding in a domestic court in the United States, and we wanted a document from the Secretary of State we would, either through a subpoena duces tecum or by a writ of mandamus, compel the production of the document. The Secretary of State could not protect himself by simply going on the stand and saying, "I have read the document, and the document states so and so." He would have to produce the document. On page 3 of his report of June i, 1930, the Minister refers to telegraphic instructions of the Foreign Office, dated February 15, 1929, which instructions the Minister thinks were sent before the Foreign Office had received his written report with respect to Herrmann's call about the middle of January, 1929. It certainly would be interesting to see and to learn what the instructions of the Foreign Office were which were drafted without the knowledge of the contents of the Minister's report on Herrmann. Who was keeping the Foreign Office advised with reference to Herrmann at this time in February, 1929, before the Minister had made any report at all? With the receipt of these instructions from the Foreign Office, the German Minister to Chile first commenced, according to his testimony, to take an interest in the Herrmann matter. Why do we not have the instructions he received? I think he tried to tell us what the instructions were, but the instructions came either by a coded message or came by a letter to him, and that could be produced and set at naught forever the argument I am now making, if my argument is not founded upon the facts. Yet Germany stands here before this Commission and says that it has made an honest and a fair submission of all facts within its knowledge bearing upon these cases. Then in an argument which lasted for four days Mr. Bonynge pre- sented to the Commission all the evidence which has been outlined in the preceding chapters. In the course of this argument he also analyzed the evidence which Germany had filed to establish alibis for Witzke and Jahnke. His attack on these alibis is best given in his own words: The first attempt to prove an alibi for Witzke was when evidence was produced that on July 25, 1916, I think that is the correct date he made application for American citizenship. Witzke, on July 25th, four days before the blowing up of the Black Tom, made an application for American citizen- ship when he had no intention of ever becoming an American citizen, and it is so admitted by the German Agent in his briefs. He must have made it for some ulterior purpose. That fact goes to establish that he was laying the foundation for establishing an alibi. Then it was demonstrated that even though he had made his application for American citizenship on July 25, 1916, it was still possible, having made it in San Francisco, for him to be in New York fifteen hours, I think it was, before the blowing up of the Black Tom. The attempt to prove an alibi by making application for American citizenship was thus disposed of. It was a common practice, as shown in this case, for German agents to apply for American citizenship. Witzke did it. Wozniak did it just a few weeks before he made his dramatic appearance at the office of the German Consul General in New York. It is proven in reference to a number of the other German agents. Having destroyed the attempt to prove that alibi, they then examined Witzke over again and sought to establish an alibi on another and a different basis, although Witzke is supposed to have told his entire story at the time he was first examined. He was asked on that examination by Dr. Paulig whether he had any documentary evidence, any letters or any documents that would establish the truth of his statement that he was not in New York at the time of the blowing up of the Black Tom. He assured Dr. Paulig that he had nothing. He only referred to his notebook, and Dr. Paulig at the conclusion of that examination assured Witzke, with clasped hands, in a dramatic scene, that under no circumstances would that notebook ever be disclosed to the American Government. . . . The only evidence that was introduced that has any bearing at all towards establishing an alibi . . . was the letter which was addressed by Witzke to his parents. The post mark on that letter is rat