1947-01-27, #3: Doctors' Trial (afternoon)

AFTERNOON SESSION (The hearing reconvened at 1430 hours, 27 January 1947).

THE PRESIDENT: Defense counsel may cross examine the witness on the stand.

CROSS EXAMINATION (OF DR. WERNER LEIBBRAND)

BY DR. SERVATIUS (Counsel for Defendant Karl Brandt):

Q: Witness, you have stated that the undertaking of experiments on human beings as is under indictment here can be ascribed to biological thinking. What do you mean by biological thinking?

A: Under biological thinking, I understand the attitude of a physician who does not take the subject into consideration at all, but for whom the patient has become a more object so that the human relation no longer exists and a man becomes a more object like a mail package.

Q: You spoke of biologistic thinking. Do I understand you correctly if you mean a development --- a deterioration of biological thinking?

A: It means an exaggeration of the purely mechanical or biological point of view. A physician is not a biologist. A physician is also a biologist. In the first line, however, a physician is a man who assists the human being and not a scientific export of biological events.

Q: Can there not be other causes for the experiments, such as a collective state thinking?

A: Yes.

Q: Witness, you used the expression "order demoniac". What do you mean by that?

A: By demoniac order I understand the following: If I define as a basis for medical activity merely the safeguarding of a racial substance of the people, it has the result that everything which falls outside this fiction is being done away with. That is a mild expression of what actually happened namely, extermination.

Q: Then you refer only to the aspect of blood. Could it not be applied to the state, to the collective aspect as well?

A: May I ask you to mention an example so that I may understand it better?

Q: I mean that by order of the State experiments were undertaken; that the voluntary act of the individual is replaced by the act of the State; that the approval is given by the State.

A: Between the collective idea and the State order on one side and the medical individual on the other, there is a large gap which is the human conscience.

Q: Witness, are you of the opinion that a prisoner who has over ten years' sentence to serve will give his approval to an experiment if he receives no advantages therefrom? Do you consider such approval voluntary?

A: No. According to medical ethics this is not the case. The patient or the inmate basically has been brought into a forcible situation by being arrested, and secondly, as a layman he has no possibility at all to weigh the consequences of such an interference. He, as a layman, cannot judge that.

Q: Are you of the opinion that eight hundred prisoners under arrest at various places who give their approval for, an experiment at the same time do so voluntarily?

A: No.

Q: You do not distinguish as to whether the experiments involve permanent damage, permanent harm or whether it is temporary?

A: No, not oven in the latter case.

Q: If such prisoners are infected with malaria because they have declared themselves willing do you consider that it is admissible?

A: No, because I do not consider such a declaration of willingness right from a point of view of medical ethics. As prisoners they were already in a forced situation.

Q: I ask to be allowed to show the witness a newspaper, a magazine, "Life" of the 4th of June 1945. I submit a copy from the magazine.

(Document handed to witness)

Q: (Cont'd) Witness, you have the German translation of the English text. You see first a picture and under the picture it says, "In testing new medicines the prisoners are examined for unfavorable effects." I am afraid I am in the wrong place. I don't have the text for the first picture. It says, "An Army doctor is observing mosquitoes biting the prisoner Knickerbocker". That is right, isn't it?

A: Yes.

Q: Now, I shall read the text.

MR. HARDY: The Prosecution respectfully requests a copy of the English that Dr. Servatius is now reading so that we may follow.

Q (By Dr. Servatius): The text reads as follows:

Prisoners expose themselves to malaria so that physicians can study it. In three penal institutions of the United States people who are incarcerated as enemies of society are helping to combat other enemies of society. In the Federal prison in Atlanta, in the State prison in Illinois, and in the correction institute in New Jersey about eight hundred prisoners volunteered to let themselves be infected with malaria so that doctors can study the disease. The scientists, acting on the instructions of the Office for Medical Research and Development found the life of prisoners ideal for experiments on human beings under control. There people all eat the same food, sleep the same length of time and are never far away.

The prisoners do not receive any benefits or any pardon for subjecting themselves to this infection. The malaria experiments in the prison underline the fact that malaria is still a very serious medical problem.

In the United States there are one million cases annually. The medicines available, primarily quinine and atabrine, do keep the malaria down, but cannot prevent its recurring after the first infection. The aim of malaria research is to find a new drug which may heal the disease once and for all.

That is the text. Now, if you will look at the magazine, there are four pictures. One picture says,

In testing new medicines, the prisoners are examined for unfavorable effects.

The second from left is Nathan Leopold, still in prison for his participation in the Leopold-Loeb case. Then there is another picture with the following text:

In malarial infection in the prison in Illinois, Army doctors have the patients infected by mosquitoes. The mosquitoes bite through a guaze-covered opening in a glass cage.

Then if you will turn to Page 46, there are two more pictures:

Violent chill is the first step in malaria. The above patient is an inmate of the Atlanta Penitentiary where prison malaria experiments were betun and developed.

And below that there is the last picture. It says:

Fever often as high as one hundred six degrees follows the chill in twenty to sixty minutes. Some of the prison cases are allowed to develop to a considerable extent until they are combatted with drugs.

Now will you please express your opinion on the admissibility of these experiments?

A: On principle I cannot deviate from my view mentioned before on a medical, ethical basis. I am of the opinion that even such experiments are excesses and outgrowths of biological thinking, and I want to point out that when formulating my ideas, I was in agreement, as far as I remember, with the view of the lawyer, Ebermayer, referring to his book, "The Physician and the Law," and where, as far as I remember, he pointed out that the consequences of such an experiment cannot be foreseen; and if as a malaria therapeutic psychiatrist, if I should speak about my experience on malaria cases, I must say that malaria is a very serious disease. As its consequence it has complications such as serious septic thrombosis or heart muscle excitement which have death as their consequence. I am of the opinion that we are not concerned here with a mere cold but a very far-reaching disease where we always have the therapeutic possibility of death.

In consequence, such experiments should be carried out on guinea pigs and not on human beings.

DR. SERVATIUS: I have no more questions to put to the witness.

DR. SAUTER: Dr. Sauter for the Defendant, Blome.

CROSS EXAMINATION BY DR. SAUTER:

Q: Professor, I do not want to discuss with you the subject which has just been under discussion, the question of general experiments and your opinion of them. I want to ask you only a few questions concerning the Defendant, Dr. Blome, whom I am defending whom you mentioned several times. Witness, in answer to a question of the Prosecution about the development of the medical profession from '33 on, you said, among other things, Conti, that is, the later Reich Physicians Leader, in 1936 dissolved the League of German Physicians. I understood you correctly, did I not?

A: The German Physicians Association was dissolved together with the Hartmann Bund in 1933 by the State Commissar, Dr. Wagner, or, rather, was brought under the Fuehrer principle. In my opinion, Conti further carried out an administrative act through the Reich Chamber of Physicians. As far as I remember, the Reich Chamber of Physicians only came into being in 1936.

Q: Witness, I should like to submit to you that you have made an error of recollection. This Gerhard Wagner, who I believe was the predecessor of Dr. Conti, was never State Commissar. That must be a mistake on your part.

A: No, that is not a mistake on my part. That is a mistake of Mr. Ramm who wrote a book in the year of 1943 about this subject, and you can read it there in print.

Q: Witness, I hear the name "Ramm" for the first time today, and I will never read his book.

A: The book can be found in the publishing firm DeGreuter in Berlin.

Q: But I am not interested, witness, in what this Mr. "Crumb" or whatever his name is wrote. I am interested in what was actually the case; in other words, whether you do not want to correct your previous statement that Dr. Gerhard Wagner was never State Commissar.

A: In that case I cannot understand how it came about that on the first of April, 1933, he introduced the Fuehrer principle in medical matters.

Q: Witness, I can give you the answer to that question. It was not Dr. Gerhard Wagner who introduced the leadership principle, the Fuehrer Prinzip, but I must tell you the following: we had two medical organizations. One was the Physicians League and the other was the Hartmann League. These two organizations -- and I am telling you this now so that you can tell me whether my recollection is more correct -- these two organizations were subordinate to Sanitaetsrat Dr. Stauter of Nurnberg. He was in charge of both organizations, and this Dr. Stauter as the head of the two organizations in earlier times in 1933 offered Dr. Gerhard Wagner the leadership of these two organizations. Therefore, there was no compulsory transfer, no "gleichschaltung." Please comment.

A: On principle I am ready to take notice of what you are saying. However, as a historian I want to point out that such office at that period of time had a somewhat unique character.

Q: Witness, today here we cannot investigate all these matters in detail. I only wanted to clear up a question which the Prosecution had submitted to you which today, after thirteen years, you may not remember very clearly.

A: I thank you for what you are saying, and I can only state that my version as a historian referred to a documentary basis and that Dr. Ramm was probably mistaken in his book.

Q: Then, witness, if I have understood you correctly, you said that Dr. Conti, who later became Reich Physicians Leader -- that in 1936 Conti dissolved the League of Physicians? Do I understand you correctly? 2000

A: In the sense in which I stated before that these organizations were so-called absorbed in the Reich Chamber of Physicians.

Q: Witness, I may put the following to you: the Reich Chamber of Physicians was not created by a decree of the Reich Health Leader, Conti, but as you may, perhaps, remember now by a Reich law, by the law, the Reich Physicians Order -- that is a rather unusual title of this law -- in the year 1936. That is true.

A: The Reich Physicians Order, as far as I remember, was issued in December, 1935, and came into effect in 1936.

Q: And through this law the Reich Chamber of Physicians was created; and now I should be interested -- because you said before that Dr. Conti had dissolved these organizations, I would be interested in knowing whether you know who is responsible for this Reich Physicians Order, this law of the end of '35 or the beginning of 1936.

A: That is not known to me.

Q: Perhaps I may aid your memory by reminding you that this Reich Physicians Leader, Dr. Conti, had no part whatever in this law, that this law was worked out by Wagner and then by Hedenkamp and by Dr. Grote, while the Reich Physicians Leader, Dr. Conti, who was later represented by Dr. Blome, had nothing whatever to do with working out this Reich law. Can that be right?

A: The names mentioned are known to me and I deduce therefrom that Hedenkamp, as a former president of the Hartmann Bund, was coordinated.

Q: Yes. In this connection, Professor, I should like to devote one question to the association of social insurance physicians (Kassenaerztliche Vereinigung) which was mentioned earlier today. It was a body of public law, an independent body, and the head or legal representative of this entity was supposed to have been Dr. Conti. But now I should like to know, do you know that this Dr. Conti, in his capacity as head of the association of insurance physicians, was not represented by Dr. Blome by someone else whom I just mentioned, Dr. Grote?

A: I think that is very probable.

Q: Another question, Professor. You were asked today about the Jewish doctors. Are you aware that the question of the activity of Jewish doctors, that is, the regulations of law, the rules and regulations about Jewish doctors, had nothing whatever to do with Dr. Blome, the defendant, but that they were under the responsibility of Dr. Conti and were administered exclusively by this Dr. Grote?

A: I cannot remember that I said this morning anything which would incriminate Dr. Blome in that way.

Q: But what. I have just told you -- is that right?

A: That can be right.

Q: Professor, you made another statement by which you deliberately wanted to incriminate Dr. Blome. The statement ran about as follows: "Ministerialdirektor Dr. Guett, from Dr. Guett there was a straight line in crescendo to the deeds of Conti and Blome." That is about how I understood your statement.

Now, Professor Leibbrand, I am not interested in what you meant by Conti's deeds, for he is dead. I am interested only as the defense counsel of Dr. Blome in what you meant to say about Dr. Blome.

A: I did not want to accuse Dr. Blome of something in particular. I merely mentioned the organizational order which led from Guett from the Department 5 up to the smaller divisions of the health office and how this line went over to the Reich Chamber of Physicians. Since, in that order, Blome was the representative of the Reich Physicians Leader, I thought it correct to mention his name in that connection without making any particular reference to him.

Q: Professor Leibbrand, would you not consider it just to revise this opinion for the following reason: Dr. Conti, as you told us, aside from other phases which are beside the point, had two functions--first, State Secretary in the Reich Ministry of the Interior and therefore, under Frick, head of the Civil Health Administration of the State -- of the Reich; and second, Reich Physicians Leader and thereafter President of the Reich Chamber of Physicians. Now Dr. Blome, and this is what I want to ask you -- I believe you have already indicated it, had nothing whatever to do with the State Health administration and in particular he did not represent Dr. Conti in his capacity as State Secretary in the Reich Ministry of the Interior but only as Reich Physicians Leader, that is in the Reich Chamber of Physicians. The Ministerialdirektor Guett, whom you mentioned in this line in crescendo, he was concerned only with the Ministry of the Interior, only with the State Health Administration in Conti's office as State Secretary. He had nothing whatever to do with the Reich Chamber of Physicians and therefore, Professor, I consider it unjust if, in describing this line in crescendo, you mention Dr. Blome in connection with Ministerialdirektor Dr. Guett and the State Secretary, Dr. Conti.

A: With reference to the order of organization, I took into account what you said, namely that Dr. Blome should not be included in that column which started with Guett. With reference to your expression "crescendo", this is something that may be revised but this revision will hardly lead to a better concept about Mr. Blome's mentality.

I, as a philosopher, am of the point of view that during such happenings as we have witnessed, words always come fast and these words were already being considered as dangerous by philosophers when they were poisoned; and these poisoned words which Mr. Blome expressed are contained in his biography, namely "The Physician in the Fight", and because of this mentality, the persecution of Jewish physicians, the race of the Jewish physicians into death -- Mr. Blome is co-responsible for this mentality.

Q: Can you tell us, Professor, when this book was published?

A: As far as I remember, in 1939, before the beginning of the war.

Q: That is wrong.

A: Of course, I could be mistaken about such date.

Q: I am not mistaken, Professor, because in the book itself, which, of course, I have read from beginning to end, I ascertained that approval for the printing of the book was given only at the end of 1941 and, Professor, I consider it important for the same reason as you say that it was published before 1939, because at the time that the book was published, the operation against Jewish doctors was in general concluded. I will submit the book to the Tribunal. It was published at the end of 1941. Could that be right? That must be right.

MR. McHANEY: May it please the Tribunal, I do not like to object but it seems to me that the cross examination is getting a little bit out of bounds and instead of putting questions the defense counsel is proceeding to lecture the witness and I would ask that defense counsel be asked or ordered to limit himself to putting questions to the witness.

THE PRESIDENT: Questions propounded by defense counsel are rather argumentative in their nature. If Counsel will just propound to the witness direct questions, it will be more in accordance with the recognized procedure.

DR. SAUTER: Mr. President, the nature of the questioning in the case of this witness in particular must, to a certain degree, be determined by the way in which he has testified.

He gives lectures of a professor, too, and not exactly what one is used to at the testimony of a witness; but that is no reproach to the witness, only a justification for the nature of my questions. Besides, Mr. President, up to now I have only touched upon points which the witness has mentioned in answer to questions of the Prosecution. May I continue now?

Q: Witness, you also said that all doctors were under the Reich Physicians Leader, Conti, with the exception of Wehrmacht and SS doctors. That is right, isn't it?

A: Yes.

Q: But could you not make one more exception?

A: Maybe you would ask me what exception you mean.

Q: I do not want to put the answer in your mouth. Witness, were all the official doctors, and in particular the doctors in the insane asylums, under the Reich Chamber of Physicians?

A: During my definition this morning I probably forgot these physicians and I am now including them.

Q: Official physicians and physicians in insane asylums?

A: Yes.

Q: This is important because of the question of Euthanasia. Witness, you said that in 1933 there was an Action Conti. If I understood you right, you and many other physicians too presumably were affected and placed in a subaltern position. Now will you please answer the following question. Did the Reich Chamber of Physicians have anything to do with this Action Conti, as you call it?

A: I can merely say that the order emanated from the Reich Health Office in Berlin and if it was attempted to determine who was the responsible author of that order one would arrive at a position of the Ministry of Interior at Schillingstrasse, Berlin. There was the Oberfeldarzt Dr. Bernhard, who was mentioned by me this morning already. I had this Dr. Bernhard investigated by a third party since I was interested in finding out the real sense of this action and at this opportunity Dr. Bernhard expressly declared the banishing of these physicians was not an organizational question of the war but this action was merely a political action and had as its purpose to cleanse the Reich Capital from Jews and friends of Jews.

Q: Professor, you answered a question which I did not ask. I was not trying to find out whether it was a political action but whether the Reich Chamber of Physicians and the defendant, Dr. Blome, had anything to do with it; whether you have any reason for thinking that they did.

A: Doctor; I did not mention Dr. Blome in that action. I merely tried to develop the Action Conti historically and I brought it in connection with the Ministry of Interior, of which Dr. Conti was a member, as State Secretary.

Q: But witness; you spoke of an Action Conti which might easily give the impression that this action was specifically directed against Jewish or Social Democratic physicians. Therefore I ask you to state whether you do not know that this action was also carried out in exactly the same way in other professions.

A: I know nothing about the analogical developments of action Conti.

Q: Do you know for instance that innumerable attorneys, even those with very large practices, were included by the same action, and with the explanation that they were dispensable?

A: I personally, did not experience it.

Q: And, I am interested in the use of the first name Israel and Sarah; did this apply only to physicians or did this apply to all citizens of Jewish faith?

A: It applied to all citizens of Jewish faith, since every Jew not only had to use the first name, but whenever he appeared before an office he had to name this first name, and at the same time list his identity number. If he did not do this, all sorts of things could happen to him.

Q: Professor, today you spoke of the mis-treatment to which Jewish and Socialist Democratic doctors were subjected to in Berlin on 1 April 1933. Do you have and evidence that the Reich Chamber of physicians or the defendant Blome had anything to do with this thing?

A: The Reich Chamber of Physicians on 1 April 1933 did not exist.

Q: But Doctor Blome existed?

A: I did not know Doctor Blome and I, therefore, do not know whether he was participating in this matter.

Q: This morning, Professor, you spoke of a training camp; that is, an institution for the training of practicing physicians which the defendant, Doctor Blome, had created. Are you aware that attendance at these training courses were completely voluntary, and furthermore that applications for these training courses were so numerous that not all of these could be accepted?

A: I think that is entirely possible considering the large propaganda which National Socialism seduced the young people with at that time.

Q: Now, I have one last question, Professor. As an example of how the level of the medical profession felt during the Hitler regime, you mentioned the fact that during that period a number of parties were accepted. Did I understand you correctly when you added that these men did not have medical training but had only studied two years, I believe it was, Professor. Do you know how many of those who so practiced were accepted into the Reich Chamber of Physicians?

A: That is not known to me.

Q: Then, perhaps I can tell you. Only one, a man by the name of Kersten. I do not know whether you ever heard of the name. This Kersten was formally a Finnish Medizinalrat. He had a good reputation by the treatment of the members of the English and Swedish royal families, and that was the only one doctor whom Doctor Blome told me, who in view of special circumstances was accepted in the Chamber of Physicians. If that is true then, would you really say that this one case, in view of the special circumstances, was proof of the falling level of the medical profession?

A: I did not state at all that the introduction of that spirit of time, a doctor had to study natural sciences, and I did not say that was the reason for the lowering of the standard of the medical profession. However, in addition to many ether plans, I attacked this plan, and I reported on it historically. I may bring it to your attention that it was established by literature, that in the year of 1937, in our periodicals within the Third Reich, surprise was uttered that the academic and medical studies suffered and decreased by quality and quantity.

Q: That has nothing to do with our question, Professor, but I must point out that you are again speaking of the Heilpraktiker. I want to point out quite clearly that a Heilpraktiker is what we use to call a "quack". And, I ask you if this is true, that they had nothing to do with the Reich Chamber of Physicians. From 1934 -- from there, they formed their own organization, the league of Heilpraktikers, but the physicians with the single exception of Doctor Kersten, had nothing to do with it; is that true?

A: It is correct, but I have to point out that the National Socialist would have thought it very wrong of you Doctor if you designated these Heilpraktikers as "quacks"? Therein lies the mentality of the entire structure. I admit to you that the Heilpraktikers were not subordinate to the Reich Chamber of Physicians, but the fact that there was a connection between the educated physicians and with these Heilpraktikers, which you have designated as "quacks" -- such a connection existed, and it was not the case before 1933.

Q: Professor, you are mistaken again. I asked for your opinion of the doctors, as to whether it is true, the Court may be interested in knowing it. The Heilpraktikers, since the introduction of freedom to practice, before and after 1933 -- the only difference was after 1933 -- in 1943 a league was formed and that there was certain requirements for training which did not exist before. Is that the truth?

A: Yes, before. It was attempted to ban this quack practice. This was attempted through the Reichstag in the years 1910 and 1911.

Q: And, since we are on the subject, I do not want the defendant Blome, as Deputy Reich Physician Leader to be incriminated by your statement. I would ask you to tell me, is it true and do you know, that in 1939, a law was issued that for all of Germany the number of Heilpraktikers was reduced to 3000 and that no further admissions were to be allowed so that they had to gradually die out. Do you know that?

A: Yes, that is known to me.

DR. SAUTER: Then, I have no more questions, Mr. President.

BY DR. FROESCHMANN:

Q: Professor, this morning, on the basis of your knowledge of the history of medicine, you gave a detailed explanation to the Court on a certain medical question. May I now ask you, on the basis of your knowledge, to tell the Tribunal where in the history of medicine or philosophy or theology for the first time the concept of Euthanasia crops up?

A: The concept of Euthanasia, as such, only means that to a greater or lesser extent deadly ill patients are being helped in their last hours, and it is up to the discretion of the treating physician to conduct this automatic part of dying with medical aid at his disposal and make it, so to speak comfortable. That is what Euthanasia means.

Q: But, Professor, just a minute. I did not ask you for the meaning of the word Euthanasia. Your statement was not an answer to my question. I wanted to ask you to tell me and to tell the court when you think the term Euthanasia first appeared?

A: According to my opinion, and as far as I remember it, it first crops up in the literature of the 19th century, at the moment when such things were attempted.

Q: That statement does not quite answer my question either. You remarked quite correctly that Euthanasia, in the normal sense, is the action of Doctors to make the last hours of the dying persons easier. And, I merely wanted to knew where and when in the course of your historical research you first heard this term Euthanasia used?

A: I cannot answer this question now. Just when the Greek word Euthanasia was first mentioned -- that would have to be investigated scientifically.

Q: Thank you, now, the procedure which you have just described, that is, alleviating the suffering of dying persons without actually shortening their lives. Did this correspond to the principles of Hippocrates?

A: There is nothing to be said against them.

Q: Now, will you please tell the Tribunal when the conception of Euthanasia and its demand to doctor in the course of the last century or the last decade, had been expanded and in what way?

A: We are here concerned with exactly the same problem with which I already dealt with generally this morning. That through an examination biologically throughout on one side, and through which I designated this morning is a demoniac deranged eugenic point of view became increasingly stranger in the thought of human beings and especially during the second half of the 19th century. And, that then according to these points of view, he acted and changed Euthanasia in its basic meaning in order to use it for the purpose of exterminating the so-called inferior human beings.

Q: Meaning the conception of Euthanasia, in the wider sense, not at first limited to the shortening the so-called life of worthy patients, but only those persons and with the approval of the patients?

A: At first.

Q: And, then subsequently was this effort to apply Euthanasia generally in cases when some one was suffering from an incurable diseases, who were spiritually and mentally dead, was this effort made to apply Euthanasia to those cases without the approval of the patients?

A: That is a very natural mental development, and its use, as I mentioned before, the metaphysical connections were attacked. The moral biologically reaction was exaggerated. The mere it was believed that one was justified to do this thing, and one of the most horrible examples on the propaganda field was the well known film "I Accuse" which dealt with this problem in a very unmedical and unscientific manner.

Q: Perhaps we may have occasion to discuss this film later; but now I merely want to hear from you about those alleged demands of euthanasia--did they appear only in Germany or did they appear in other countries, too?

A: I already mentioned this morning the questions concerning that point with reference to the historical medical effects which were in Germany; but the basic problem is not the problem of a nation but, philosophically speaking, it is an anthropological problem; that is to say, we are hero concerned with a metaphysical lowering of the standards of the modern human beings since the second half of the 19th century.

Q: Was this problem dealt with only by medical men or also by jurists and philosophers?

A: What problems?

Q: The euthanasia problem.

A: It was dealt with by lawyers, medical men, and theologists. I have published a written thesis in that connection.

Q: Is that the writing included in part in your work, "The Human Rights of the Insane"?

A: Yes.

Q: What argumentation did it advocate of the expanded idea of euthanasia advance quite generally?

A: It was expressed in the concept of life, the concept of the unworthy of living, and the life unworthy of living. This concept in itself contains the idea that the sense of living is the life itself; and that is what I consider the lowering of the standard.

Q: Were not other points of view expressed by advocates of euthanasia?

A: I would ask you to make your questions a little more concrete in order to refresh my memory.

Q: Was it not pointed out that these sick persons, especially those who were spiritually dead, had no capacity to realize the world situation; that they were in no relation and no contact with their surroundings; and that, consequently, it was not only expedient but necessary that these poor creatures be released from their suffering?

A: Those ways of thought are naturally known to me. I think that they are the radical expression of a positivistic attitude. I think they are completely one-sided; and it is impossible that as a physician one can adopt such a one-sided attitude, irrespective of your own religious or philosophical attitudes.

Q: You base this on the medical point of view alone?

A: Yes; considering my profession as a medical historian, which deals with medical history and medical questions, this is a matter of course.

A: You admit that from the philosophical and juristic point of view such a problem might very well be discussed delege ferenda?

A: I would not say delege ferenda; but I would express myself more elastically and would say according to whether this possibility should be realized in a one-sided manner is extremely doubtful since those problems are open questions which cannot be immediately solved; and delege ferenda cannot be used in the case of open questions.

Q: Then, Professor, I conclude from your statements that the euthanasia problem was considered by medical men, lawyers, theologians, literary men, for many decades, not to say for many centuries; that this problem turned up repeatedly and can be called an ancient problem?

A: Yes.

Q: Professor, you have mentioned your writing about the human rights of the insane. May I ask you to answer one question in this book which I have before me? You mentioned a statement of a physician in 1943-44 with the heading "The Physician in Germany"?

A: Yes.

Q: In this short essay you have this physician, who is not named, in connection with the visits of doctors to insane asylums--you have this physician speak as follows: "The doctor comes to visit the patients and examines the patient." And then you ask: "Who is the physician, the patient or he?" And then you say; "This antinomy was true; the doctor learned it daily; and when he entered that room, when he was surrounded by this misery, he realized the extent of his guilt." And then you continue: "But what could he do? He could go and protest publicly; he could refuse. But what he achieved was only the removal of himself.

Whom did he help? And so he stayed; stayed with his unbearable protest."

Is it true that this quotation from your article was published in your pamphlet?

A: Yes.

DR. FROESCMANN: Then I have no further questions.

JUDGE SEBRING: The Court would like to direct a suggestion to counsel who has just been interrogating the witness that perhaps for the sake of the record the title and the authorship of the book which has been referred to should be read into the record.

DR. FROESCMANN: Your Honor, I am glad to comply with this wish. The book is published by the witness who has just been examined, Werner Leibbrand, with the collaboration of five other men and women. The title is the Human Rights of the Insane, "Um Die Menschenrechte der Geisteskranken." The book was published by the publishing company, "Die Ecke," in Nurnberg in 1946. Does the President want any more information about this book?

JUDGE SEBRING: That is the information the Tribunal desired. That is sufficient.

THE PRESIDENT: The Tribunal would like to ask Dr. Servatius a question. Dr. Servatius, counsel for defendant Karl Brandt, referred to an article in an American magazine named "Life." It will be advisable to read into the record the date and the number of the magazine from which the doctor road.

DR. SERVATIUS: This is a copy of the magazine of the 4th of June, 1945, Volume 18, Number 23. It is an American magazine, copyright Pan American, copyright convention.

THE PRESIDENT: That information is sufficient to identify the magazine. The Tribunal would ask the counsel whether or not he proposes to offer this magazine in evidence during the case when Karl Brandt is presenting his case.

DR. SERVATIUS: I would offer it now as Karl Brandt Document No. 1 and submit it now.

THE PRESIDENT: The magazine should at this time be marked as defendant Brandt's Identification 1.

DR. SERVATIUS: Certainly.

THE PRESIDENT: Counsel for defendant Brandt understands that this simply identifies this document and that later on if counsel desires to offer the document in evidence it should then be formally offered into evidence?

Does counsel for defendant Brandt understand what I just said? Counsel signified that he did understand what the Tribunal meant.

CROSS EXAMINATION BY DR. FLEMMING: (for defendant Mrugowsky)

Q: Professor, in answer to the last question of Servatius, my colleague Servatius, you asked if such experiments could be conducted on guinea-pigs. Do you remember that? Are you aware that there are quite a number of problems which cannot be solved by animal experiments but only by experiments on human beings?

A: Naturally.

Q: Is the handling of such problems essential for the development of medicine and the good of humanity?

A: That is the purpose of making physiological experiments on human beings.

Q: Professor, do you knew of experiments on human beings carried out in medicine? Have you studied them in enough detail to have a good knowledge of this subject, and are you able to say to what extent such experiments have been conducted so that you can judge them from the point of view of many medical men, not only from your own ethical standpoint?

A: I think that this question is a question for a specialist who works on experiment, some therapeutical matters; and I don't think that I can make any final answer in that respect as a medical historian.

Q: have you studied this subject in enough detail to be informed not only of what has been published on the subject but what has been published so that only an expert could understand it?

A: No.

Q: Professor, do you know that in the case of scarlet fever vaccines from scarlet fever toxin there is no possibility of testing it on animals and that for that reason in many foreign countries it is tested in children's clinics and on human beings?

A: I think it is possible.

Q: Are you aware that such decisions were not decided upon in Germany and that consequently there is uncertainty that ineffective vaccines were used and in the other hand dangerous vaccines were used: the danger of these vaccines was realized only when they were used?

Were not valuable human lives lost and was there not considerable damage to health?

A: I am not quite familiar with these questions in detail. These are questions which belong to experimental therapy and I cannot say anything final about them.

Q: Professor, do you know of the prophylaxis experiments in sleeping sickness? Do you know that negroes were hired as subjects?

A: I don't know anything about the latter; but the first is basically right.

Q: Do you know that in such an important disease as malaria, work on reagent and animal experiments are impossible because the disease cannot be transferred to the animal and the germ cannot be cultivated; and consequently in almost all civilized countries, were not experimental subjects used, experiments conducted on human beings in malaria, primarily on insane persons by therapeutic malaria infections but also on hundreds of experimental subjects?

A: Already this morning I referred to the literature of Dr. Moll and aside from that I know the malaria experiments here mentioned to me and also these examples which you have just mentioned which are quite well known to me.

Q: Professor, are you aware that in the old syphilis and gonorrhea research human experiments were primarily a part of the research, and that the French Government issued an order for experiments on human beings?

A: I know these things partly from the literature of the French Philroye.

Q: Are you aware Professor that Joseph Gruenberger with approval conducted experiments on twelve persons or prisoners, who in the case of survival were promised a pardon, and that he conducted pellagra experiments?

A: Yes.

Q: Are you aware that Adler, a prize winner of the Royal Society for Tropical Disease and Hygiene in 1940 infected five cancer patients with kalagar and that all five died?

A: This case occurred in 1940 and is not known to me, but it is analogous to other cases which came from the literature of Moll.

Q: Are you aware that Heymann, Heilbrunn and Gungnanu, treated three paralytics through inter-cerebral penicillin treatment, that they treated three paralytics and that all three died?

A: I do not know about these cases. Probably I have not all of the foreign literature at my disposal.

Q: Are you aware that Vief and Stocks in the United States had infected two hundred fifty persons with hepatitis epidemica with well water, in these cases to test the role of water as a carrier of the virus?

A: No.

Q: Are you aware that in the sleeping sickness research human experiments are available?

A: I know about experiments on human beings suffering from sleeping sickness.

Q: Is it true that in sleeping sickness it is possible to experiment on animals?

A: That is a special question which I cannot answer.

Q: Are you aware, Professor, that in the case of Papatacci fever experiments can be conducted only on human beings and that there are many reports of such experiments?

A: Yes.

Q: Are you aware that basis yellow fever research up to 1903, in this very dangerous disease, was exclusively based on human experiments, a large number of human experiments?

A: Yes.

Q: Are you aware, Professor, that in typhus research aside from some old Russian experiments human experiments were conducted in Mexico by Otero, in Indo China by Yersin, in Algiers by Sergent, in Turkey by Hamdi and in Poland by Sparrow?

A: I think that is possible even though I do not know the individual disease, but it covers what I have generally told about the subject.

Q: Are you aware, Professor, that Troum infected prisoners with living plague bacilli?

A: No.

Q: Are you aware that dysentery experiments were conducted on human beings?

A: No, I don't know anything about these special cases.

Q: Are you aware or do you remember from the First World War that the official English and American commissions investigating five day fever, worked to a large extent on human beings?

A: No.

Q: Are you acquainted with any reports of infection experiments in leprosy?

A: Yes.

Q: Are you aware that in America internees and recruits were artificially infected with measles?

A: In all countries of the world such infection experiments were carried out in the second half of the 19th century.

Q: If all of these experiments, Professor, were actually conducted, and also as you said this morning, and as Moll's book shows, about six hundred works are published, in which there are thousands of such experiments described, must not one say that the question of experiments on human beings under certain conditions is judged differently by other circles of medical men as you judge it from an ethical point of view.

A: That I cannot say since Moll at the end of his work writes it is apart of the morality of a physician that he holds back his natural research urge in order to maintain his basic medical attitude which is laid down in the oath of Hippocrates and which may result in doing harm to his patient.

Q: But in your opinion, Professor, how should a doctor do work in the interest of suffering humanity in cases where, as you have just said, there is no possibility of experiments on humans?

A: The concept of humanity is a very dangerous concept. It is most dangerous for the physician. Above all humanity for the physician there is the individual, and the individual unfortunately was very low in these last few years.

Q: I believe that you have not quite answered my question. I asked: How do you think the doctor is to work, even in the interest of the individual, how is he to clear up questions which cannot be tested on humans and in a test tube as is the case in malaria, for instance, problems which must be cleared up if he is to help his suffering patients?

A: That is naturally a very difficult question, but it will always be of major importance, but there must be a certain limit to a risk.

Q: Thank you. Now I come to another point. This morning, Professor, you expressed disapproval about a book which the defendant Mrugowsky wrote. May I ask, have you read this book?

A: Yes.

Q: Do you know Mrugowsky personally?

A: No.

Q: Then you do not know his ethical point of view?

A: I said that it was a joke of world history, the quite ironical joke of world history, that the medical ethics of Hufeland were quoted in the form of an excerpt from his writings with a few connecting words and that those quotations were combined in a little volume, and that on the other hand we know in what organization of degradation he was connected with these deeds, which I am questioning here, and I am only speaking about the degradation and not the objective guilt which has not been proven yet.

Q: And is there anything except the facts with which he is charged here?

A: In the final analysis he was still the Chief of the SS Hygienic System, and what the basic medical ethics for the SS were has become historically clear to me in the course of the last few years, and between these two sectors I think there is a large gap, that is the SS medical ethics of Mr. Haupthold. I may perhaps understand that a man like Mr. Haupthold could be lead to a one sided practice of police medicine and could get excited about it, but I could not understand how the SS ethics could be brought into connection with the ethics of William Christian Huefeland.

Q: Professor, you just told us you do not know Mrugowsky at all?

A: No.

Q: Then how can you express a judgment on his personal ethical attitude? You are judging only from the fact that he belongs to the SS. Before you express such a definite opinion as you are doing, as you talked of a joke of world history, must you not first know the personal attitude of the person you are criticizing, and is it not quite possible that a person personally had such an attitude as expressed in this book?

A: I don't believe that one can hold a leading position in the SS and then talk about such ethics if one does not act in ethical cases in what is called double bookkeeping?

Q: But you admit that is a poor opinion based in no form on a personal knowledge of the person whom you criticized?

A: I do not know Mr. Mrugowsky.

Q: Thank you. I have no more questions.

THE PRESIDENT: Are there any further questions to be propounded to this witness by defense counsel on cross examination?

DR. TIEFENBACH: Dr. Tiefenbach, defense counsel for the defendant Dr. Schaefer.

BY DR. TIEFENBACH:

Q: Witness, I have the following questions to put to you in connection with your statements about the persecution of Jews, of Jewish physicians. In 1938, was it dangerous to quote Jewish authors in scientific writings?

A: That varied considerably. One can be fortunate and one could be unfortunate. I personally remember that as a collaborator and co-worker of the "Frankfurter Zeitung" I once made the attempt to quote the name of my Swiss friend Ludwig Binzwanger in a scientific article, who was only half-aryan, and then the editors struck out that name.

Q: Do you believe that aside from the removal of such quotations by the editors, there would have been any further consequences or had to be any further consequences for a person who cited such a Jewish author in a medical scientific writing? Can you give any examples to this?

A: As far as I take it, you are only referring to the time of 1938.

Q: Yes, that is '33, '34, but up to '38 -- I am asking specifically about such an advance period as 1938.

A: With reference to the first years, I would not think that it was so terribly dangerous; in the year of 1938 it was much more dangerous. As for individual examples as the case of Binzwanger, I cannot think of any.

Q: Would you have considered it unusual if at that time in 1938 you had seen Jewish authors quoted in a scientific writing?

A: Yes, it would have been very unusual.

Q: Yes; and would you assume that a physician who, as late as 1938 quoted Jewish authors in his writings, that this physician agreed with the National Socialist system, in particular, that he would approve of experiments on concentration camp inmates?

A: Now, Doctor, how can one answer such a question. One has nothing to do with the other since there is no such connection in the life of a personality. It is completely illogical.

Q: So that it is not absolutely necessary that the physician who quotes a Jew, who at the same time expresses that he does not identify himself with the system?

A: They are the most remarkable things which may run parallel to one another.

DR. TIEFENBACH: I have no more questions.

THE PRESIDENT: Is there any further cross examination of this witness by defense counsel? Do counsel for the prosecution have any matter with which they can occupy a few minutes?

MR. HARDY: I have four or five questions to put to the witness, your Honor, on redirect.

THE PRESIDENT: All right, proceed.

REDIRECT EXAMINATION BY MR. HARDY:

Q: Professor, you have stated that the attendance of young physicians was not mandatory in the Fuehrer School of German Physicians. Now, I ask you, was it not a command performance, so to speak, for a young physician to attend Blome's school so that he might be able to proceed successfully in his profession?

A: The latter is naturally very probable. I remember similarly that the same was the case with the Reich Labor Service. There were a number of a colleagues who thought that this entire affair was very horrible but they made a show for the outside; they went there and they said it was a very nice life and knew very well that it would be advantageous for their career. I should like to see that young physician who at that time did not try to create such an impression in the interest of furthering his career.

Q: Now, Professor, you mentioned the film "I Accuse." Have you seen it?

A: I did not see the film but I know its contents.

Q: What did it show, Doctor?

A: The film showed, as far as I remember, that a human being who is suffering from an incurable multiple sclerosis should, be killed rather than kept alive and the propagandistic technique of that film was very dangerous for the reason that in a suggestive manner the public was, so-called, asked to take part in the decision so that the help of the public was enlisted in the aid of that decision and should spontaneously arrive at a decision but beyond that, I can say from my experience gained by my neurological practices, that ever since the day that film was shown, the word "multiple sclerosis" was no longer mentioned by me as a physician since I could no longer stand to mention this designation of a disease to my patients.

This film had a catastrophic suggestive effect on all laymen and patients.

Q: Do you know by whom this film was distributed?

A: That is not known to me. I do not remember it.

Q: Would you say that this film was medically or scientifically a sound and reasonable document?

A: No. Under multiple sclerosis there are just as many cases which would have been improved and cured, such as tuberculosis cases that can be cured and such as chronic alcoholics who can be cured and it was an intentional maliciousness if such a case was taken out and in such a manner propagated among the public.

Q: Then you would describe it, Doctor, as merely propaganda; is that correct?

A: Yes. As far as I knew, there was a film department with the Ministry of Propaganda where a physician collaborated and I think his name was Tomalla.

Q: Now, Doctor, do you know of any other such films?

A: I know another historical film which also shows a similar trend, the Robert Koch film, where the personality of one of our greatest German pathologists Robert Koch was distorted in an almost unbelievable manner. At that time, in the interest of Rudolf Virchow, I wrote an article in order to protest against this one-sided description. His son was living at the time. Geheimrat Hans Virchow thanked me for it for trying to save the honor of his father.

Q: Now, Professor, do you know anything about the Euthanasia Program as it operated in Germany from the latter part of 1939 on?

A: I only made the experience of the practicing psychiatrist; that is to say, I know the slow development of the transporting away of the insane to extermination camps and I know the suffering of the members of the families of the patients who had to fear being included in that action.

The consequence was that I far years, have made the attempt to knowingly falsifying of the patients which were given to my care and so saved them from such a fate as far as possible. It has not only referred to Euthanasia but it also referred to the sterilization measures for years and I admit that today, I protected my patients by, for instance, designating schizophrenia as another disease and that thereby I designated epileptic cases as merely "Klam" (?) cases and further, a number of so-called, "melancholics" I saved by calling it a different name in order to save my patients from sterilization or a fate even worse; namely, that of the extermination camps.

Q: I have one further question, Doctor. Then, in summing up, I would say or I may assume that the type of Euthanasia practiced by the Nazis in the Euthanasia Program from 1939 on was not that type of Euthanasia of which you have expressed a limited approval here today; is that correct?

A: No.

MR. HARDY: I have no further questions.

JUDGE SEBRING: Mr. Hardy, the Tribunal is interested in knowing whether this film by the accused or similar films which have been referred to here in testimony, had any official governmental genesis or approval or authorization or whether they were merely private ventures?

MR. HARDY: I put that question to the witness, your Honor, and he said that he did not know who the distributor was. I think we can clear that up, however, but the film, I believe, has been requested by the defense counsel in their case.

JUDGE SEBRING: That is the reason I am asking the question.

MR. HARDY: The official government sanction is a matter that at the present time I am not able to answer, whether or not it is an official government film. I asked the witness that question and he doesn't know either. I have no further questions on redirect, your Honor.

THE PRESIDENT: Do my of the defense counsel have any further questions for the witness in regard to the questions recently asked?

DR. FROESCHMANN (Counsel for Viktor Brack): Mr. President, on the basis of the redirect examination, I have two more questions to put to the witness.

RECROSS EXAMINATION BY DR. FROESCHMANN:

Q: Professor, you were the head of a mental institution. In your opinion, are there insane persons with a lack of consciousness, of understanding, or on the very lowest intellectual level whose mental understanding does not go above the animal level?

A: That is a question which goes beyond the medical framework. We can only judge on the basis f reactions with reference to various degrees of animal life. We are not justified, however, to consider this comparison as the only one valid. The possibility that a change occurs is always there and therefore, there is no possibility to answer this question in such a one track manner.

Q: Are there not cases in which after years, if not decades, of observation in the insane asylums where any prospect of improvement is out of the question?

A: Certainly, there are such cases but there is also the contrary; for instance, there are cases of schizophrenia who, even after fifteen or twenty years, one day suddenly for quite unknown reasons come back to health. There are a number of incurable psychopathic case who cannot cope with life and could never live socially outside the walls of an institution and who then suddenly in their last hours after a physical disease show themselves ready to communicate with the outside world, something which they never had during their lives before. All these things do occur in medicine.

Q: And, now, Professor, supposing that one could decide whether a case of insanity was incurable or not, do you consider a unanimous affirmative answer to this question by a number of medical specialists independent of each other, do you consider this adequate to present the factor of human error? Did you understand my question?

A: May I consider it for a moment? Maybe you could repeat the last part of your sentence.

Q: The last part was, whether you consider such a combination of several medical specialists, psychiatrists or some other field, completely independent of each other, who answer this question of incurability in the affirmative, do you consider this an adequate basis for declaring this patient incurable?

A: As a philosopher I would still have my doubts then.

Q: And as a doctor?

A: I would go by the fact but I would not draw and consequences from that which go over the limits of the Oath of Hippocrates.

Q: In his philosophical answer -- I gather that theoretically you answered my question in the affirmative although practically you would not participated in such an undertaking?

A: Yes.

Q: My last question. May I conclude that there are cases of insanity where release from the sufferings is desirable from the human point of view and in which the physician alone is in a position to bring about this release?

A: That is not a medical question; it is a theological question.

Q: I asked you this question because you were just speaking from the philosophical point of view and I assumed that on the basis of your rich experience which you have demonstrated today, you are competent to judge this question in the field of philosophical and theological questions. That is why I asked the question. Would you please answer it?

A: I believe that the concept of release has to be discussed in further detail. Release is not only release from suffering and finally I must point out that I think it is a very questionable symptom of a modern human being when he can do nothing with human suffering but make the attempt to do away with this suffering. Herein, I think, is one of the most dangerous moments of the physicians of this time. The suffering up to the Nineteenth Century in the Western countries and in the entire cultivated world has had another meaning but only the meaning that is to be eliminated.

Q: And what about the therapy of hopeless cases?

A: I don't quite understand your question.

Q: What do you think of hopeless therapy? If you are of the opinion that the therapy is hopeless, then what is to be done with the patients?

A: As long as a human being breaths, I as a physician would still try, even considering the most hopeless therapy when according to my practical experience I have to assume that it would be useless.

DR. FROESCHMANN: I have no further questions. Mr. President, may I answer a question of the Judge concerning the film "I Accuse"?

THE PRESIDENT: You may answer the question.

DR. FROESCHMANN: In Germany no film could be shown to the public without the approval of the Propaganda Ministry. Therefore, if the film "I Accuse', if the witness knows about this film, even by hearsay, then one can assume with certainty that this film had the approval of the Propaganda Ministry.

THE PRESIDENT: Are there any further questions of this witness on recross examination by defense counsel? Very well, the witness will be excused and the Court will recess until nine thirty tomorrow morning.

(The Tribunal adjourned until 28 January 1947, at 0930 hours.)