1947-01-09, #1: Doctors' Trial (early morning)
Official transcript of the American Military Tribunal in the matter of the United States of America, against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 9 January 1947, 0930, Justice Beals presiding.
THE MARSHAL: The Honorable Judges of Military Tribunal 1.
Military Tribunal 1 is now in session.
God save the United States of America and this Honorable Tribunal.
There will be order in the courtroom.
THE PRESIDENT: Mr. Marshal, will you ascertain that the defendants are all present in the courtroom.
THE MARSHAL: May it please Your Honor, all the defendants are present in the courtroom.
THE PRESIDENT: The Secretary-General will note for the record the fact that all the defendants are present in the court.
Because of transportation difficulties one of the judges is late. We cannot proceed with the taking of testimony, but the court has an announcement to make and we will proceed with that.
In the matter of the need for an established procedure for obtaining written statements from persons having knowledge of facts deemed by the defendants to be material and of probative value to their respective defenses having been called to the attention of the Tribunal, and the members of the Tribunal having met with representatives of the prosecution and with a committee of defense counsel, and thereafter the representatives of both the prosecution and counsel for the defendants having presented to the Tribunal a written and signed outline of a method mutually satisfactory to the prosecution and to the defendants' counsel, whereby written statements signed and witnessed may, if of probative value and otherwise in proper form, be offered in evidence before the Tribunal and received in evidence if in the judgment of the Tribunal they should be so received, notwithstanding the fact that such statements may be signed by the person making the same without having been sworn to before an officer or any person having by virtue of an office lawful authority to administer an oath in due form of law.
The Tribunal has considered the written stipulation signed by representatives of the prosecution's staff and by representatives of counsel for the defendants and desires the following order in connection with the subject matter thereof: First, it is ordered by Military Tribunal 1 that the rule heretofore promulgated and adopted by the Tribunal concerning the requirements to be observed by the defendants in the preparation of written statements by defense witnesses "in lieu of oath" be and the same is hereby rescinded. Second, it is further ordered by Military Tribunal 1 that the following rule concerning the subject matter above referred to shall be, and the same is hereby adopted and "promulgated by the Tribunal for the information of all concerned."
a. Statements of witnesses made "in lieu of an oath" may be admitted in evidence if otherwise competent and admissible and containing statements having probative value if the following conditions are met.
1. The witness shall have signed the statement before defense counsel. or one of them, and defense counsel shall have certified thereto; or 2. The witness shall have signed the statement before a notary, and the notary shall have certified thereto; or 3. The witness shall have signed the statement before a burgomeister, and the burgomeister shall have certified thereto, in case neither defense counsel nor a notary is readily available without great inconvenience; or 4. The witness shall have signed the statement before a competent prison camp authority, and such authority shall have certified thereto in case the witness is incarcerated in a prison camp.
3. The statement "in lieu of an oath" shall contain a preamble which shall state, "I, (name and address of the witness), after having first been warned that I will be liable for punishment for making a false statement in lieu of an oath, state and declare that my statement is true in lieu of an oath, and that my statement is made for submission as evidence before Military Tribunal 1, Palace of Justice, Nuremberg, Germany, the following:"
4. The signature of the witness shall be followed by a certificate stating: "The above signature of (stating the name and address of the witness) identified by (state the name of the identifying person or officer) is hereby certified and witnessed by me. (To be followed by the date and place of the execution of the statement and the signature and witness of the person or officer certifying the same).
(b) 1. If special circumstances make compliance with any one of the above conditions impossible or unduly burdensome, then defense counsel may make application to the Tribunal for a special order providing for the taking of the statement of a desired witness concerning conditions to be complied with in that specific instance.
Finally, it is further ordered by Military Tribunal 1 that the foregoing rule as adopted and announced by the Tribunal be incorporated in the minute book and in the journal of Military Tribunal 1, and that copies thereof, together with correct translations thereof into the German language, properly certified by the Secretary General, be delivered to each of the defendants or their respective counsel.
The Prosecution may now proceed.
MR. HARDY: Defense counsel for the defendant Hoven was cross examining at the recess yesterday. I wonder if he has completed his cross examination.
THE PRESIDENT: Any further cross examination of this witness by any defendant's counsel?
FRITZ KIRCHHEIMER - Resumed CROSS EXAMINATION (Continued)
BY DR. GAWLIK: (Counsel for Defendant Hoven):
Q: Witness, I am submitting to you document No.265). It is the diary of the Division for Typhus and Virus Research at the Hygiene Institute of the Waffen SS. It is at Page 40 of the English Document Book. Witness, can you find the entry of the 11th of February, 1942?
A: Yes.
Q: It is on the 30th of November 1942. It is on Page 40 of the English Document Book. Did you find that, Witness?
A: Yes.
Q: You see an entry there that "the lice and their cages must be burned immediately, as the latter become leaky during transport and therefore represent a danger of epidemic in Camp Buchenwald."
A: Yes.
Q: With reference to this burning of the lice, I have one question. You remember Rudolph Hart, don't you?
A: Yes.
Q: You also know the chief nurse at the TBC station, Willie Jellinek, who was called "Jumbo"?
A: Yes.
Q: Do you know that Hart and Jellinek informed the defendant Hoven about the delivery of the lice and asked him to prevent using these lice for that purpose?
A: No.
Q: Do you know that the Defendant Hoven appeared in Block 46 where these cages with three thousand lice were contained?
A: Yes.
Q: Did you at that time listen to a conversation between political inmates and the Defendant Hoven where it was said that these cages were leaky and that, therefore, these lice would have to be exterminated?
A: Yes. I remember that conversation. It was with the clerk Liebrand.
Q: And do you know that after that the Defendant Hoven burned these lice in the oven of the big room which was before the tailor and shoe shop?
A: No. Dr. Hoven didn't burn them himself.
Q: Do you know, then, -- well, I want to put to you another question first. But you do remember that this conversation with reference to the burning of the lice was carried on with the Defendant Hoven?
A: Well, the matter was as follows: Liebrand and another few men, amongst them I, knew of the pain which these people experienced.
Q: Witness, you probably are mixing up something. Lice was sent on two occasions. Please take a look at this diary.
A: I was only once present when these lice were used.
Q: And what you have told me up to now only referred to an incident, with lice, lice that have actually been used?
A: Yes.
Q: Do you know that before these lice were applied another delivery of lice had arrived which was completely destroyed?
A: No.
Q: And now I am coming to the second delivery of lice of which you know, during which part of these lice were actually applied. Do you know that these lice were taken by a technical inspector of the Army who was supposed to supervise these lice and the way they were used?
A: I cannot say with certainty whether this officer of the Armed Forces was actually a technical officer or not. He brought these lice along accompanied by two couriers who after these lice were delivered left the block. However, the officer remained.
Q: Do you know that this officer or inspector -- it makes no difference -- was supposed to supervise the way these lice were applied?
A: I don't know whether he was supposed to supervise it. At any rate, he was present.
Q: Do you know that Ding knew and was informed of the arrival of this lice contingent and that he ordered the execution of this experiment?
A: No.
Q: Do you know anything about an agreement between the political inmates and in particular Gellinek with the Defendant Hoven to the effect that this technical inspector or officer was to be removed in order to be able to destroy these lice once more?
A: No. At that time Gellinek had no access to Block 46.
Q: Well, he didn't have to have access to Block 46. This agreement was made outside Block 46, and contact was made with the motor pool, and this officer or the technical inspector was given a motor car, and he was then told that "Here is a car for you, and if you are not willing to take this car, you have to walk to Weimar, "which was ten kilometers away. Do you know anything about that?
A: I know that this officer approximately at the middle of the experiment left Block 46. I know nothing about an agreement with Gellinek.
Q: But you can confirm that this officer left the Block at the middle of the experiment?
A: Yes.
Q: Do you know that at the time the Defendant Hoven entered the room where these experiments were conducted, the Capo Dietsch had already applied these lice to the larger part of the experimental subjects?
A: I can remember that about six persons had already received these lice.
Q: Weren't there a little more? Wasn't it the case that there were two rows of people, that there were two rows of chairs where the inmates were sitting, and one row had already been finished with, and then the Capo Dietsch had already arrived at the second row?
A: It was quite impossible for one row to be finished already since one inmate was always seated opposite to another.
Q: But you remember that six persons wore approximately finished with?
A: Yes, approximately.
Q: Do you know that the Defendant Hoven after entering the room could determine that among the experimental subjects there was one political inmate by the name of Wacht?
A: Yes.
Q: And did the Defendant subsequently order immediately that this political inmate Wacht was to be sent away?
A: Yes.
Q: You already told me, witness, that the inspector left the room during the experiment?
A: Yes.
Q: Is it correct that the Defendant Hoven immediately thereafter gave the following order: "Take the lice away; burn the cages"?
A: No. After these lice were applied, we discussed the best way to remove these lice.
Q: Excuse me. Who do you mean by "we"?
A: It was the clerk, Liebrand, a nurse whose name I don't remember, and I, and we decided that one such case was to be destroyed, that the lice were to be put into a basin, and then to go to Dr. Hoven and tell that this meant a danger for the entire camp, and that it would be much better to burn these lice. This was actually done in the C Wing of this Block.
Q: I am now coming to another point. Is it correct that the Defendant Hoven never actually had an injection needle in his hand for vaccination?
A: I never saw that.
Q: Is it correct that the Defendant Hoven never conducted any infections on experimental subjects?
A: No, not he himself.
Q: The Defendant Hoven admits that he was present in Block 46 every day. He maintained, however, that he visited the tailor and shoe shop which was there, in particular, Joseph Knittel, who was employed there. We are concerned with Knittel who was to be sent away on a transport and was hidden by the Defendant Hoven in the workshop located there, is that correct?
A: Yes. It is correct that Knittel worked there. However, I know nothing about these connections with reference to the transport of Knittel.
Q: And how about the visits of the Defendant Hoven into this workshop?
A: Yes. Dr. Hoven repeatedly visited Block 46. With the exception of two occasions he only visited the tailor and shoe shop.
Q: And if I understood you correctly, witness, that the Defendant Hoven only visited the hospital ward on two occasions.
A: Yes. I only saw him visit the ward on two occasions.
Q: And now will you please tell the High Tribunal how long you were in Block 46?
A: I remained in Block 46 until the beginning of 1943, and I was then transferred to Block 50, that is, Spring, 43. At that time Block 50 had not been furnished yet, and I had to furnish it.
A: Then how long exactly were you in Block 46?
A: From the time leaving Block 49.
Q: Well, give me the exact date, about one year and a quarter?
A: Yes.
Q: That is really from the end of 41 until the beginning of '43, and during that period you only saw the Defendant Hoven on only two occasions in the hospital ward?
A: Yes.
Q: Is it correct that the Jewish inmate, August Kohn, was employed there as a nurse?
A: Yes.
Q: Do you know that the defendant Hoven among others transferred this August Kohn, and a few ether Jews in Block 46, since they were supposed to be transported to Auschwitz?
A: Yes.
Q: Do you think it is possible, witness, that the two or three visits of which you spoke, the visits in the ward room, were intended for this purpose of Capo Dietsch towards August Kohn?
A: I can not say that since I was not present personally in the room.
Q: However, you can not exclude the possibility?
A: Yes, it could have been possible.
Q: Is it correct that the Capo Dietsch acted completely independently?
A: In the organization of the Block 46 he had a free hand. However, he conducted no serious experiments without the approval of one of the responsible physicians. He was an executive organ.
Q: Do you know that the defendant Hoven only because of requests by the political inmates was nominated as being their representative?
A: No.
Q: You don't know that?
A: No.
Q: Yesterday, you stated that there was only one basin in the washroom, and one shower, and that, therefore, you could not conduct the baths of the inmates in the prescribed periods.
A: Yes.
Q: What exactly do you mean by baths at the prescribed periods?
A: For the purposes of the therapy of typhus, they had to have a luke warn bath, and because of the insufficient opportunities, I could not bathe the inmates at the prescribed periods.
Q: Who was being the representative in Block 46 after the arrest of the defendant Hoven?
A: I think it was the camp physician at that time.
Q: Do you know his name?
A: I believe it was Dr. Schiedlauski.
DR. GAWLIK: Thank you. I have no further questions.
THE PRESIDENT: Any further cross examination of this witness by any of defense counsel? Any re-direct examination of this witness by the Prosecution?
RE-DIRECT EXAMINATION BY MR. HARDY:
Q: Now, witness, you have stated to the defense counsel's question, if Dr. Hoven had personally administered any injections in Block 46, and your answer was, "No, he did not himself." Now do you know whether or not Dr. Hoven ever issued any of the orders to carry out the experiments to administer injections to the others working in Block 46?
A: Because of Capo Dietsch who was the executive organ, and in spite of all liberties which he enjoyed, he could not permit himself to conduct any suck experiments on his own initiative.
Q: Therefore, in the absence of Dr. Ding before Capo Dietsch could act, he must have received orders from Dr. Hoven, is that correct?
A: Yes.
Q: Now you have stated that you personally said Dr. Hoven during your time in Block 46 only two times in the hospital section of Block 46. Now, witness, do you know whether or not Dr. Hoven visited that section in Block 46 more than the times you saw him?
Q: There is a possibility since Block 46 had two floors, and I could not possibly see every visitor that came along.
Q: Now, witness, would you say then tint Dr. Hoven, or, would you assume that Dr. Hoven in his capacity as Deputy to Dr. Ding, visited the section where experiments were being conducted in Block 46 frequently, tint is, the times which you personally did not see him?
A: It is possible that he visited this department on frequent occasions. However, most of his visits were intended for Wing C, where the tailor shop and the work shop were located.
Q: Now, do you know in your limited capacity in the Block 46 what the specific duties of Dr. Hoven consisted of in that connection? In other words, witness, what weight did you give to Dr. Hoven whenever he issued an order, and what respect was given to him by Dietsch, or did Dietsch. Make his report to Hoven on his experiments that were conducted in the absence of Dr. Ding?
A: Whether Dietsch reported to Dr. Hoven, well, this is something that is possible. However, we could see from the chart and the diagram which Dietsch had in his possession how the experiments were progressing.
Q: Then would you say in the absence of Dr. Ding that Dr. Hoven was considered the commanding officer of Block 46?
A: Yes.
Q: Now, witness, did Dr. Hoven over try to prevent in any way the sabotage of those typhus experiments?
A: I cannot say as to that since during my work I was only confronted with facts on everything that had already been decided.
Q: In your knowledge then the defendant Hoven never initiated any action to prevent or to sabotage the typhus experiments in Block 46?
A: According to my knowledge, no.
Q: Now, witness, the defense counsel for the defendant Hoven is trying to present a picture of Hoven as a Sir Galahad in Buchenwald, saving and doing good for political prisoners, and doing no wrong. Is that a correct picture?
A: Among the inmates he had a good reputation.
Q: Now tell me, witness, your personal view of the defendant Hoven in his activities in the Buchenwald Concentration Camp. Did you consider him, as I have said before, a Sir Galahad or do you consider him an inferior person or did you consider him a man scheming for his own gain? What was your personal opinion, witness?
A: According to my opinion the main active of his work to us and the main motive of saving us was based on reasons of corruption.
MR. HARDY: I lave no further questions, Your honor.
DR. GAWLIK: Mr. President, I shall ask you to permit me to put a few more questions as to the other aspects which have cue up on has re-direct examination.
THE PRESIDENT: The defense counsel will re-cross examine the witness.
RE-CROSS EXAMINATION BY DR. GAWLIK:
Q: Witness, were you at any time present when the defendant Hoven issued any orders to Capo Dietsch at the beginning of the typhus experiments?
A: Yes.
Q: You, therefore, do not know whether the defendant Hoven ever issued any such orders to Dietsch?
A: No.
Q: The Prosecutor put the question to you whether the defendant Hoven over tried to prevent the execution of the typhus experiments?
A: Yes.
Q: In this connection I should like to put to you the testimony of the witness who proceeded you, a Dr. Kogon. This witness testified that all the typhus experiments started, or rather were started by Dr. Ding?
A: Yes, Dr. Ding was the chief. Yes, that is correct.
Q: Therefore, did the defendant Hoven, after these experiments had started; in other words, after the experimental subjects were already infected, did he have any possibility to prevent the experiments?
A: No.
Q: Then a question was put to you, witness, whether Dietzsch sent any reports to the defendant Hoven.
A: Yes.
Q: Did you ever hear that Dietzsch made such reports?
A: It was in the manner of Dietzsch to report regularly to his chiefs.
Q: Then you have to differentiate the following: there were purely administrative matters in Block 46.
A: Yes. These administrative matters were of very, very slight significance. Everything was running very, very smoothly, so there was nothing to be discussed with reference to administrative matters.
Q: If as you said, witness, everything was running so smoothly, then a deputy or a representative had to make no suggestions at all?
A: I was merely speaking of administrative matters.
Q: Thank you. I have no further questions.
MR. HARDY: The prosecution has no further questions to put to this witness, your Honor.
THE PRESIDENT: The prosecution will proceed. The witness is excused.
MR. McHANEY: If the Tribunal please, we have several more documents to put in with respect to the typhus experiments at Buchenwald; one of which is NO-484 on page 59 of the English Document Book, and this will be Prosecution Exhibit 291. This is a statement sworn to by Alfred Balachowski.
DR. NELTE: Dr. Nelte, counsel for the defendant Handloser. The document which the prosecutor just mentioned in our Document Book bears the number 484; the translation said before 485.
Mr. President, I ask that this statement be only admitted under the condition that Mr. Balachowski be called here as a witness and he subject to cross-examination. The very extensive statement of Dr. Balachowski is based, according to his own words, to a large part, on reports of the third party.
The manner in which the witness makes the statement does not show how far his statements are based on his own knowledge and his own observation, and how far this was not the case. The High Tribunal, in their ruling of the 21st of December 1946 and which was also confirmed today, has stated exactly how the submission of affidavits was to be carried out. According to this ruling, the preamble of the affidavit should have the wording: "I hereby establish the following facts under oath which are known to me from my own knowledge." I may assume that this ruling applies to affidavits which are being submitted by the prosecution as well as to affidavits submitted by the defense. The statement of Dr. Balachowski is obviously not in compliance with this rule. I, therefore believe that in order to establish the objective truth, it is necessary to examine this witness personally; at any rate, to give the defense the possibility to cross-examine that witness.
MR. McHANEY: If it pleases the Tribunal, I am not aware of any ruling of the Tribunal with respect to the precise wording of the preamble except as concerns statements made by witnesses for the defense--statements not under oath. The only point which I think worthy of discussion raised by Dr. Nelte is the question whether or not Balachowski should be brought to Nurnberg and subjected to cross-examination, if this document is admitted. We have received very extensive and prolonged testimony from the Witness Kogon and he was subjected to a rather intensive cross-examination. I think that there are very few new matters in this affidavit, that in, matters which were not covered by the witness Kogon. But we are interested in putting in this affidavit; first, because it corroborates what the witness testified to here, and as a matter of fact, Kogon mentioned the name of Balachowski as being on of the people who worked with him in Block 50; and also, I think it adds to the weight of the prosecution's case.
It's quite true, and revealed on the face of this affidavit, that Balachowski is not making all of the statements herein from personal knowledge; that is to say, he did not see all these things any more than the witness Kogon saw them.
That, of course, does not mitigate the admittance of this document. We, therefore, submit that it should be admitted at this time, and I think it would be rather difficult and unfortunate to have to call Balachowski from Paris to Nurnberg. Of course it can be done, but I don't think it can be done before the prosecution plans to rest its case; so if the Tribunal rules that it's necessary to bring him here as condition to the admissibility of this affidavit, it would have to be done at a time following next Wednesday or Thursday when the prosecution expects to complete its case in chief.
THE PRESIDENT: We will now take a recess.
(A recess was taken.)