1947-01-29, #4: Doctors' Trial (late afternoon)

THE MARSHAL: The Tribunal is again in session.

THE PRESIDENT: Counsel for Defendants Gebhardt, Oberheuser and Fischer may proceed.

Opening statement on behalf of the Defendants Karl Gebhardt, Herta Oberheuser and Fritz Fischer

DR. SEIDL: For the Defendants Dr. Karl Gebhardt, Dr. Herta Oberheuser and Dr. Fritz Fischer.

Mr. President, Your Honors: The experiments carried out on behalf of the German Wehrmacht represent in the indictment a separate group which has nothing to do with the other actions forming the grounds of the indictment. Although it may be true that the individual experiments differ considerably in method, and scientific result, and consequences, one point is common to all of them: they were brought about by the necessities of the war, and their results were to help the hard-fighting armies and the nation, which was involved in a life and death struggle.

The defendants represented by me are accused of special responsibility for all or some of these experiments. In view of that, I shall deal only with that part of the indictment and testimony, and shall pay no attention to the other points of the indictment.

Nevertheless it seems necessary to begin with a few fundamental remarks with respect to the statement of the Chief Prosecutor.

The prosecution emphasized that the Tribunal has a twofold responsibility in this case. On the one hand the defendants must have a fair trial and a just sentence, which responsibility, however, is borne by every regular court. But also, it was stated — and this is much more important — the incredible facts and ideas and motives must be established which moved these defendants. The insane and vicious doctrines of National Socialism have to be brought to light; otherwise there is the danger of a repetition of such misdeeds, which could not be survived by the civilized world.

There can be no doubt that this intention is a source of considerable danger for an objective and just verdict. The purpose of all criminal proceedings is the discovery of the material truth. The first prerequisite for the discovery of the truth in a court trial is the impartial establishment of the objective facts.

This includes all the circumstances, which are in direct connection with the deed itself. It is necessary to establish these objective facts to solve the problem of the illegality of the action and the guilt of the defendants, and to apply the law.

It goes without saying that the motives that led to the actions of the defendants must also be thoroughly examined. The defense too is particularly interested in clearing up these facts.

It seems, however, superfluous, and imperils the finding of a just verdict, to include as one of the points of the trial the general political and philosophical principles, which allegedly had the actions of the defendants as their consequence. In this trial we cannot place the political and philosophical principles independently beside or above the accused persons.

The object of the trial is specific actions and not the examination of the question whether a political or philosophical conviction might generally be apt to result in criminal actions or in a certain type of crime.

There is all the more reason to point to this peril since in another trial, which dealt with similar problems, the tribunal apparently did not limit itself to the ascertaining of the facts which formed the basis for the indictment and the legal guilt of the accused, but in addition passed judgment also as basis for the verdict. I refer to the review of proceedings of the General Military Court at Dachau vs. Schilling et.al. (Document NO856), which the prosecution submitted as Exhibit No.125 in the course of the testimony on the malaria experiments and where it says literally in Paragraph XIV:

In many respects the accused Schilling was the most reprehensible. He voluntarily came to Dachau fully cognizant of the nature of the work he intended to perform. Being the educated and learned person that he was, Schilling undoubtedly must have realized the manner in which his work suited the needs of the Nazis. Although his personal motives may have stemmed from the desire to aid humanity, he permitted himself to utilize Nazi methods in contrast to other eminent German artists and scientists who either fled or refused to make themselves a part of the Nazi system.

I believe it is generally accepted that the value or truth of a philosophic system or a specific "Weltanschauung" cannot be ruled on by a court of law. Whatever our opinion may be of the value of the National Socialistic theories, there can be no doubt that legal proceeding can no more pass judgment on the value of this philosophic and political program than it can on the value and truth of historical materialism or any similar doctrine. A legal proceeding can only concern itself with the investigation of concrete acts and with the application of the law to these acts. No vital importance can be attached to National Socialist ideology in the solution of the problem whether or not a specific act or failure to act on the part of these defendants is illegal and punishable and hence of the nature of a crime.

The introduction of philosophic and political principles in a criminal proceeding is always a threat to the finding of factual truth and to the passing of a just verdict — a threat to which no tribunal should expose itself without compelling cause.

There is likewise just as little reason to examine in this trial fundamental problems of medical ethics. Opinion will actually differ only very little here. The pledge of Hippocrates, "primum non nocere", is a fundamental part of any medical activity, and no arguments on the principle are necessary. The problem of this trial is not whether the physician, according to the viewpoint of his profession, is justified in carrying out experiments on living people, and if so, to what extent. The problem is rather: does the law, with regard to specific emergencies caused by the war mention special extenuating circumstances which, as an exception, exempt an other wise forbidden operation from punishment. This, however is not a problem of medical ethics but solely a legal problem. This Question will have to be discussed more thoroughly after all the evidence has been presented.

It would be well also to call attention now to a third peril which could, under certain circumstances, jeopardize the finding of the factual truth with respect to the defendants, and that is the only problem with which the present proceeding is concerned — and the ascertaining of the guilt of the defendants. I am referring to the conditions in the concentration camps.

It is true that the experiments were carried out almost exclusively in concentration camps. Evidence regarding these camps has already been submitted in the proceedings before the International Military Tribunal. In this connection I refer mainly to the testimony of the witness Dr. Morgen (page 14846 of the German transcript). Documents were also submitted to this court which among other things describe the general conditions in these camps. Witnesses were also heard on this subject. The indictment does not assert that the defendants are responsible for the conditions in these camps. Nevertheless the danger cannot be denied that the impression of the conditions in these camps could only too easily affect the ascertaining and evaluation of the guilt of these defendants.

This is another reason for limiting the subject of this court examination to the facts for which the defendants are made accountable in the indictment. The general conditions in the concentration camps were entirely outside their sphere of authority. They were the responsibility of agencies which had no organizational connection with the Wehrmacht or the Medical Service of the Waffen SS.

At the end of the war the defendant Gebhardt had the rank of Major General of the Waffen SS in the Medical Service of the Waffen SS. After 1 September 1943 he was chief clinician of the Waffen SS. The indictment accuses him of special responsibility in the carrying out of the medical experiments alleged by the prosecution.

In several of these experiments the prosecution was not able to present documents or witnesses that could prove a special responsibility of the defendant Gebhardt with regard to these experiments. I shall discuss the resulting legal problems, particularly with respect to Point I of the indictment, in my summing up after the hearing of the testimony.

In other experiments the prosecution could submit several documents which show at least that the defendant had an organizational or other connection with the experiments. In part the documents themselves show that the defendant Gebhardt learned of these experiments only after their completion. From other documents it is obvious that the intended experiments were not carried out at all that the planned experiments came to a standstill at an innocent preparatory stage. All the resulting legal problems I shall also discuss in my summing up.

The essential point of the accusations against the defendants Gebhardt and Fischer are the experiments which were made to test the effectiveness of the sulfa drugs. The defendants do not deny having carried out these experiments themselves. In doing so the defendant Fischer acted on orders of his superior Gebhardt. I shall discuss later the part which the defendant Oberhauser had in these experiments.

It can of course not be my task to show in detail at the present stage of the proceedings; the reasons which made these experiments necessary. Nevertheless a few indications seem to be pertinent at this time.

The sulfa drugs are a German discovery and were introduced into therapeutics; along with Protosil, in 1932. This was preceded by nine years of evolutionary research by the German scientist Domagh. The success of the therapy was demonstrated by bacteriological considerations and proofs. The diseases were classified according to their type of virus; end the therapeutic possibilities were judged from this viewpoint. It appeared that diseases caused by an infection through streptococcus; staphylococcus, meningococcus, pneumococcus, and gonococcus offered the best prospects for cure. This was the opinion of the German military physicians at the beginning of the war in 1939.

Although a final clarification of the value of the sulfa drugs had not yet been established, especially with regard to wound infections caused by streptococcus and staphylococcus or by the virus of gas gangrene — it was nevertheless clear that these drugs were a very considerable help in the battle against wound infection. The experiences during the first war years seemed to confirm absolutely the correctness of this opinion. These favorable results led to the publication of many treatises in medical literature, and the publications of professor Schreus and his disciples found special attention, they asserted the absolute effectiveness of the sulfa drugs against the above mentioned viruses as wound infectors and against gas gangrene.

Others, however, warned against overrating the sulfa drugs in the treatment of wound infection. Until 1941, nine years of clinical experience and bacteriological research in vitro had thus not sufficed to arrive at a uniform opinion on the value of a group of drugs with which the entire medical profession occupied itself intensively in research and practice.

Though during the first two years of the war the surgical installations of the field army and the chemo-therapy that was coming into use had been sufficient to meet all demands, the experiences of the 1941/42 winter period in Russia, which saw the German armies at the gates of Moscow, were to bring up again the discussion of the efficacy of the sulfa drugs as a remedy for wound infections. It had appeared that even three years of war medical experience had not been able to clarify this question fully. But it had also appeared that the fate of hundreds of thousands of injured soldiers might depend on the right and timely solution of this question. The situation was becoming all the more difficult as there was no hope of solving this question in a short time through clinical observation in army hospitals. For, under the war conditions at the front, the number of unknown factors became many times higher than in peacetime. And the fact that in the meantime a new sulfa preparation, Ultraseptyl, whose efficacy some people estimated very highly, had been developed, complicated the problem still more.

The final clarification of the efficacy of the sulfa drugs for wound infections had thus become a military-surgical and chemo-therapeutic question of vital importance. It was a matter of course that the state had no press for the fastest possible solution of the problem because of the great losses to be expected during the coming winter. Indeed, the decision whether it would be necessary to reinforce the front-line surgical installations or whether, in view of the favorable results of an intensive sulfa treatment, the wounded soldiers could be expected to make the long trip back to the rear-area army hospitals, depended on it.

The Reich SS physician Grawitz had been commissioned to carry out the experiments concerned. The hearing of the evidence will show in detail under what circumstances the defendant Dr. Gebhardt became connected with these experiments.

Let us point out right now, however, that it was due exclusively to the defendant Gebhardt that the experiments were not conducted under the condition which had originally been ordered by the Reich SS physician Grawitz. The orders for these experiments provided that the test persons were to be shot at. The purpose was to cause wounds under warlike conditions and to work on them with sulfa drugs. There is no doubt that in view of infection through clothes particles and earth the experiments would have been far more dangerous than under the conditions under which they were actually conducted. Instead of earth sterilized pulverized glass was used. Uniform and clothes particles were replaced by sterilized cellulose.

As the evidence has shown, female members of the Polish resistance were used as test persons. All the test persons had been sentenced to death by courts-martial because of their activity in the resistance movement. We shall submit evidence with reference to the legal principles of these proceedings, which were instituted in accordance with a decree of the Governor General for the Polish occupied territories. We shall submit further evidence showing that the records of the people sentenced to death by courts-martial had been referred to a special pardon, board in the Government General, which decided on the final execution of the sentence. In the legal evaluation of these fact I shall examine the status of these prisoners with regard to international law and also raise the question what hearing the fact that these test persons had or had not volunteered has on the illegality of the experiments.

Furthermore, it is the purpose of the submission of evidence to give the court a clear idea of the manner by which the experiments themselves were carried out, as well as of the individual series of experiments and of their results. Lastly, the scientific knowledge gained from them and their practical effects will be shown, particularly in connection with the two reports of the defendants Gebhardt and Fischer, presented at a conference at the Army Medical Academy in May 1943.

The directives issued on the basis of these experiments for the treatment of wound infections will be submitted in the course of the arguments.

But now we should like to point out an error that the chief prosecutor made in his description of the sulfa drug experiments in his opening statements. He asserts that during the many sulfa drug experiments some test persons were wounded, but were not treated with sulfa drugs. These experiment were conducted for the purpose of comparing the course of the infections treated with sulfa drugs with infections which had not been chemo-therapeutically treated. This statement is not correct if it is intended to mean that these persons were not treated at all. Rather, the facts are that all the test persons were treated and, if necessary, surgically. It was also observed in a great man cases of women treated with sulfa drugs that this was not sufficient to stop a general sepsis and that surgical treatment was necessary.

In this connection we may point to the statement of the expert witness, Dr. Alexander, who conceded that the large scars observed on test persons were caused by surgical operations to combat inflammations threatening the test persons' lives.

Evidence will further show that, while it is true that the defendants Gebhardt and Fischer carried out the experiments, they did everything they could, to save the lives of the test persons and to minimize the anticipated harmful effects after the introduction of the bacteria culture. If deaths occurred nevertheless they occurred owing to circumstances that could not be fully foreseen. Fewer deaths were to be expected since the defendants Gebhardt and Fischer or other surgeons of the Hohenlychen hospital stood ready at all times in order to perform operations at once, should occasion arise. Evidence will show as well that experiments were discontinued at once if deaths occurred. The defendants were the more ready to make this decision as the experiments carried out up to that time were sufficient to provide a clear solution to the problems raised and to suggest guiding principles that would serve as a sufficiently firm basis for military surgery and for the treatment with sulfa drugs.

I shall now deal briefly with the activity of the defendant Oberheuser in these experiments. Statements made in this connection by 4 witnesses examined in court were on the whole in agreement. According to them, the activity of this defendant was essentially confined to carrying out the preliminary examinations of these test persons, changing their dressings in accordance with directives of her superiors and taking the suitable chemo-therapeutic measures. Evidence will further show that the defendant Oberheuser came accidentally into contact with these experiments because her ward in the hospital of the camp was directly adjacent to the operating room, and because, in connection with the experiments, she had to vacate several rooms, in which the test persons were lodged. Since it was also her duty to treat test persons, and to care for them, she had to be personally present during the operations in order to be familiar with the course of the surgical incision, as, otherwise, it would have been impossible for her to eliminate any congestion, for instance, which might be caused by the bandages.

Judicial scrutiny of the entire evidence must answer the question whether the conclusion can be drawn from these facts that the defendant Oberheuser wanted these experiments personally; whether, that is, in the sense of the law, she acted deliberately with regard to these experiments.

In the indictment the defendant Oberhouser is also accused of special responsibility for performing sterilization experiments. The prosecution was not in a position to present any evidence in support of this charge. Therefore, it will not be necessary to deal further with this point of the indictment in the case of the defendant Oberhouser.

Your Honors, I believe that what I have said will suffice to show you the aim of our defense. It cannot be up to me at the present stage of the proceedings to draw the legal conclusions that result from the application of the commonly recognized doctrines of international law and the general principles that derive from the criminal law of all civilized nations to the entire body of these facts.

This will be possible only in my summation, after the presentation of all the evidence. In doing so we shall have to take our point of departure from facts that do not first have to be proven, because they can be accepted as already known to the Tribunal. This is particularly true of special conditions brought about through the war.

But we must state at this time that the defense cannot shun its duty to examine in detail whether certain criminal laws mentioned in the indictment can be applied to the facts of this trial. This holds true for Decree No. 7 of the Military Government for Germany, as well as for Law No. 10 of the Control Council. In this connection I point out Article I of Decree No. 7. According to this provision the military courts established on the basis of this decree are not only competent to try and punish persons who are accused of having committed a punishable act designated as a crime in Article II of Law No. 10 of the Control Council, Rather, their competence is to extend also "conspiracy to commit such a crime," that is to say, to the fact of the conspiracy, as set forth in detail in Point I of the Indictment under the heading, "the Common Conspiracy."

Further, may I point out at this time the fact that Article II of Law No. 10 of the Control Council constitutes a considerable amplification of the concept of conspiracy as it is to be found in German criminal law. It is my opinion-which I shall substantiate later in detail — that as a basic principle the conduct of the defendants is to be judged according to German criminal laws. They were living under this law at the time in question and it is this law that was valid for them. In other words: it must be inquired.

whether the above-mentioned regulations do not violate a principle which is the essence of every modern system of penal law and which is expressed in the proposition, "nulla poona sine lege." A crime can be punished only when the criminality and punishment were loyally valid down before the act was committed. This principle is valid not only for the individual legal facts but also for the circumscription of the legal liability and for the regulation that determine the defendant's responsibility for a crime committed by another.

Furthermore, of special importance will be the examination of the question to what extent the fact that the defendants acted upon orders and in a special military capacity, exonerates then or at least serves as a mitigating circumstance. In this connection the relation between Article 47 of the German Military Criminal Code and the relevant provisions of Law No. 10 of the Control Council will have to be investigated.

The crux of the legal evaluation of the facts that the evidence has established will, however, be the scrutiny of the question whether the special war conditions under which the crimes were committed will also justify the assumption of special extenuating circumstances.

Opening statement on behalf of the Defendant Kurt Blome

DR. SAUTEL (Counsel for Defendant Dr. Kurt Blome): Your Honors, it is my duty to explain to you in what way the defense of Dr. Blome will be conducted.

I. The Subject of the Indictment against Dr. Blome is his alleged participation in the following complexes:

1) The Malaria Experiments, cf. Section 6C of the Indictment (Doc. Book 4)

2) The Lost Experiments, cf. Section 6D of the Indictment (Doc. Book 13)

3) The Sulfonamide Experiments, cf. Section 6E of the Indictment 2193 (Doc. Book 10)

4) The Action against the tubercular Poles, cf. Section 8 & 13 of the Indictment (Doc. Book 9)

5) The Euthanasia Program, cf. Section 9 & 14 of the Indictment (Doc. Book 14/1,14/11,14/111, 15,16,17 ) In regard to these five points the Prosecution has charged Dr. Blome with special responsibility; in addition, it has raise the general charge of conspiracy.

II. The purpose of the defense of Dr. Blome will be as follows:

1): Dr. Blome participated in no way in the malaria, experiment. He had no knowledge of Dr. Schilling's malaria experiments in Dachau, he never set foot in the latter's insituation, he never spoke award with Dr. Schilling about the latter's malaria experiments, and he never met him in his life.

2): Dr. Blome had equally no knowledge of the Lost experiment it was only here that he heard of them. Particularly, Blome never gave a research assignment to Professor Dr. Hirth concerning Lost gas experiments on living organisms; that assignment from the Reich Research Council, to Professor Hirth was given by Geheimrat Sauerbruch. Nor was the giving of such an assignment among the competencies of Dr. Blome; the giving of this assignment to Professor Hirth was in accordance will the usual procedure, registered with the Reich Research Council under the name of Dr. Sauerbruch; the simultaneous registration of that assignment under the name "Blome" Apparently was a writing error. The evidence will prove this.

5) With the Sulfonamide experiments Dr. Blome had nothing to do, either; he learned of them only here in Nuernberg. On principle, Dr. Blome was not present and never represented by an associate at conferences of physicians where reports on this subject were allegedly given; thus he never heard of these conferences, especially since they were congresses of SS physicians or Wehrmacht physicians, who were not subordinate to the Reich Leader of Physicians.

4): It is true that Dr. Blome was connected with the plan to liquidate thousands of Poles suffering from incurable open tuberculosis, but not in a criminal manner, just the contrary: he opposed the project and finally managed to prevent its execution. This was the exclusive accomplishment of Dr. BLOME; this is clearly proved by the documents already submitted by the prosecution in Document Book 9. Furthermore, BLOME fought most vehemently and successfully against the further plan to exterminate the intellectual upper class of Poland by means of sterilization; this will also be proved by the evidence.

Furthermore, BLOME fought most vehemently and successfully against the further plan to exterminate the intellectual upper class of Poland by means of sterilization; this will also be proved by the evidence.

5): BLOME had no share in the euthanasia program. The documents and other evidence which the prosecution has submitted on the program and execution of euthanasia never one mentioned the name of Dr. BLOME. Nevertheless the Prosecution has alleged a special responsibility of Dr. BLOME in regard to euthanasia, apparently basing this claim on two facts. One, Dr. BLOME'S position as deputy of Dr. CONTI and, second the chart shown here, which was prepared on the basis of statements by the co-defendant BRACK, which beside the square for Dr. CONTI has a little square with the name "BLOME". However, it has already been established that Dr. CONTI was concerned with the euthanasia program exclusively in his capacity as State Secretary in the Reich Ministry of the Interior, but never in his capacity as Reich Leader of Physicians. But Dr. BLOME acted, at no time as deputy for Dr. CONTI as State Secretary in capacity as Reich Leader of Physicians and, in a merely nominal way, also as head of the Main Office of the Party of the Interior the exclusive deputy of Dr. CONTI in regard to euthanasia was Ministerialrat LINDEN, whose name correctly appeared in the chart below CONTI's name. The Office of the Reich Leader of Physicians of Dr. BLOME, as a matter of principle had nothing whatsoever to do with the euthanasia program, but completely excluded from it; for the official physicians and the mental institutions which carried out the euthanasia program were in no way subordinate to the Reich Leader of Physicians. At no time did Dr. BLOME receive or give any reports, orders, or instructions concerning the euthanasia program. He did not even know of the planning of the euthanasia program all of this will also be proved by witness to be examined. Therefore, it is an obvious and incontestable error that the name "BLOME" appealed in the chart it all. This will also be affirmed by the co-defendant Brack when he takes the witness stand.

It has already been proved that Dr. Blome was in no way responsible for the euthanasia program and that he had no competencies of any kind for that program.

Now, the Prosecution has submitted for the euthanasia program particularly extensive material in several volumes of documents, and many witnesses and affidavits. Nowhere can the name of Dr. Blome be found therein. This shows that the charges against Dr. Blome on this point cannot be upheld.

The evidence of the Prosecution against Dr. Blome on this point was absolutely insufficient mark. I therefore make application that the charges against Dr. Blome in regard to euthanasia be rejected immediately by order of the Court.

It is merely a demand of justice that the Prosecution should not maintain any charge if it is already apparent that it cannot be proved in any way.

The same must be true of the charge against Dr. Blome in regard to the malaria experiments, the Lost experiments, and the sulfanilamide experiments. In regard to these points I also apply for the immediate rejection of the charges, because the Prosecution has not given sufficient evidence for its charge.

III. As evidence Dr. Blome plans to use the following:

He has named nine witnesses, all of whom have been approved by the Tribunal. The subject of their individual testimony has been stated in detail in my respective applications, so that the Prosecution is informed on this count.

Dr. Blome plans to submit affidavits of six of those witnesses; these will be submitted for translation and inclusion the document book Dr. Kurt Blome; they will be submitted to the Tribunal and the Prosecution in time.

The affidavits of the two witnesses Dr. Klare and Dr. Boohm have already arrived. I have not yet heard from the four witnesses Porwitschy, Wittmann, Dr. Kroening, and Dr. Kliewe. Therefore I am not yet in a position to inform the Tribunal definitely whether the affidavits of these four witnesses will be sufficient for my purposes or whether I shall ask them to take the witness stand here, or whether I may possibly be able to get along without one or the other of the so four witnesses.

The remaining three of the nine witnesses I mentioned, the witnesses Dr. Gundermann, Dr. Dingeldey, and Dr. Kosmehl, seem so important that I should like to examine then as witnesses in this courtroom.

During the War, Dr. Gundermann was the responsible supreme medical officer with the Reich Governor in the Warte Gau Posen. He is, therefore, in a position to give reliable information concerning the fight against tuberculosis in that Gau and particularly to the effect that it was Dr. Blome who prevented the liquidation of tens of thousands of tuberculosis-infected Poles which Gauleiter Greiser (Posen) had suggested.

On the other hand, the witnesses Dr. Dingeldey and Dr. Kosmehl were for many years associates of Dr. Blome and can therefore give definite information about the personality, character, principles and conduct in office, of the defendant Dr. Blome. Finally, I shall include in the document book Blome, some quotations particulary from his own books, and they will be translated. Thus, the Prosecution will also be informed in time of this further evidence.

It is the intention of Dr. Blome to take the stand in his own defense, and be will do so after the witnesses who he has called are heard.

IV. Against the defendant Dr. Blome, the Prosecution submitted in the session of 10 January a number of documents which are not collected in any document book, and which refer to biological warfare.

It has not yet been made clear whether this is to constitute a separate charge aga inst Dr. Blome. This complex had not been included in the indictment and no formal charges have been raised on this matter since. By way of prosecution, Dr. Blome will express himself on the question of biological warfare when he takes the stand in his own defense, and he will present the following facts:

1) As far as Dr. BLOME is concerned; all these measures were merely German defense measures; contemplated only in the eventuality that the enemy should initiate biological warfare against Germany. These were never plans of an aggressive nature on the part of Germany. At least the defendant Dr. BLOME knows nothing to that effect.

2) Dr. BLOME and his so-called "Lightning Rod Committee were repeatedly officially informed by an officer of the German counterintelligence service that the enemy had developed the methods of biological warfare to a considerable degree, and that Germany, therefore, had to expect that the enemy some day would apply these methods.

3) Whenever an opportunity offered itself; Dr. BLOME counseled against biological warfare and warned that the German people would become the primary victims of such warfare.

4) No means of biological warfare were actually ever used by the Germans; even the preparations for the defense against enemy biological warfare were intentionally carried out in such a way that Germany would in effect never have been able to employ such means offensively. Finally,

5) not a single experiment on human beings was undertaken in this work. All of this concerned the biological warfare and will be proved by Dr. Blome. In Document Book 11, (on blood coagulation) the Prosecution has further charged the defendant Dr. BLOME with having been informed about illegal experiments with the blood coagulation drug "polygal" and also with having, in October 1943; given Dr. RASCHER a research assignment on the treatment of freezing; which was known under the code name "Human Rewarming". In the course of his defense Dr. BLOME will also disprove That charge, which, incidentally, is not yet included in the indictment.

As a matter of fact, he had no knowledge of the illegal experiments of Dr. RASCHER, and did not give Dr. RASCHER any illegal research assignment.

V. Finally, the Prosecution has charged the defendant Dr. BLOME from the point of view of conspiracy. This charge to, will be refuted by Dr. BLOME by his own evidence.

A larger number of the defendant with whom he became acquainted, either as Deputy Reich Leader of Physicians or as the man charged with cancer research within the Reich Research Council, be it ******* official or private. He never engaged in any conversations concerned with the proposal or planning of illegal experiments or the commission of crimes. Particularly, however participated in any congresses where reports in such matters were given or where anything was planned in that direction. The presumptuous suggestion by HIMMLER to carry out experiments with humans to obtain an effective vaccine against plague, Dr. BLOME did not carry out. At no time was he a member of the SS, at no time he was never a medical officer; during this war he was not even a member of the Wehrmacht.

DR. SAUTER: At this time I have completed my specific statement on Dr. Blome's case. In that statement I have not completed on the general problems which arise in the factual an legal aspects, and in the terroristic and medical aspects in the course of this case. I could not make such a general statement for the simple reason that only today did I learn whether and to what extent the defense counsel who proceeded me commented on these general problems, and it is possible that I maybe forced in my closing speech to deal with one or the other general points of view.

In furthermore of that, Mr. President, I ask you now that, I be credited with the balance of the hour which would have been allotted time for my two clients today which I did not use, and at this time I ask that it maybe added to the time which was allotted to me for the closing speech.

I have finished my statement on Dr. Blome's case.

THE PRESIDENT: Counsels for the defense may be assured that in their closing arguments, time will be afforded them to adequately present any proper legal or factual questions that should be then presented to the Tribunal.

DR. SAUNTER: Mr. President, before you go on to the next case, I ask that I may make a suggestion. Tomorrow I have an opening statement for the defendant Dr. Ruff. The case of the defendant Dr. Ruff is very closely connected with the case of the defendant Romberg and with the case of the defendant Dr. Weltz. These three cases for one whole. Between these three defendants, there is the defendant Brack and the defendant Becker-Freyseng. The defense counsel of all these defendants, together with the defendants themselves, have agreed in the following: after the case of the defendant Ruff, the case of the defendant Romberg is to be presented immediately, and after that, the case of the defendant Weltz. The case of the defendant Brack and that of the defendant Becker-Freyseng are to be presented only after the case of the defendant Weltz.

This procedure seems experiment to us. We have agreed on this procedure and I should like to suggest to the president that he approve this procedure.

THE PRESIDENT: The Tribunal approves the procedure outlined by counsel. It appears expedient also to the Tribunal.

DR. SAUTER: Thank you.

Opening statement on behalf of the Defendant Rudolf Brandt

DR. KAUFFMANN: Attorney Kauffmann for the defendant Rudolf Brandt.

Mr. President, First, in the dock, besides 20 physicians, there are three administrative officials who are indicted as accomplices in and accessories to crimes against humanity. My client, Dr. Rudolf BRANDT, took part objectively, i. e. by outwardly apparent actions, in various crimes against humanity, by, for example, writing letters on HIMMLER'S instructions acknowledging the receipt of letters written by physicians to HIMMLER, or passing on such letters to other offices for their information.

Furthermore, the Prosecution considers Dr. Rudolf BRANDT guilty as participant in a conspiracy to commit crimes against humanity. The socalled conspiracy, in the sense of a general plan, constitutes the most comprehensive legal concept imaginable; its application, however, as is apparent from the Explanation of the Sentences of the International Military Tribunal, page 16881 following in the English text, must in practice be limited to such legal concept of "participation", as is also recognized by German Law. This punishable participation presupposes, in the person of the participant, objectively speaking, the existence of a condition for committing the main crime, and subjectively speaking, knowledge of these circumstances.

Second, in Dr. Rudolf BRANDT, the Prosecution visualizes the personal consultant of HIMMLER, and thus an influential adviser of that pernicious man; from this, the Prosecution deduces that Dr. BRANDT possessed full knowledge of the criminal actions — experiments, sterilization, etc., — and also agreed to, approved of, promoted, and thereby was responsible for innumerable crimes.

The purpose of my brief statement today cannot be to go into details as yet and to enter into a discussion with the prosecution.

In some of the cases in which Dr. Rudolf BRANDT is accused of participating, it will be found that he participated to a greater extent, in others to a lesser extent. Dr. BRANDT took no part whatsoever in the crime of euthanasia and several others.

Even a stenographer "participates" establishing the proviso for a crime, if he takes dictation from a criminal or, if, on the instructions of the criminal he writes a letter himself, this promoting the major crime to a greater or lesser degree. Although he acted under order, although he was threatened with very serious consequences if he were to refuse to carry out his order, he may be guilty; the degree of his guilt, however, depends on a great variety of circumstances attending each individual case, and the judge's most difficult task is to establish this degree of guilt according to law and justice.

Dr. Rudolf BRANDT himself does not assert that he was merely HIMMLER's stenographer until the end of the war, although in actual fact he began his career with HIMMLER as a stenographer in the true sense of the word, and for years was nothing but a stenographer.

His later position his slow rise to an official withe the rank of Ministerial Counsellor did not, however, mean any fundamental, any essential change in his relations with HIMMLER. Rudolf BRANDT remained the industrious little employee; later on, too, he was merely the technical Chief Clerk of one of the many departments which existed within HIMMLER's so-call Personal Staff. Never did Rudolf BRANDT occupy the position of, say, HIMMLER's adviser, as the Prosecution appears to imagine; never was he present at one of HIMMLER'S discussions or conferences with physicians.

The official duties and activities of the department of which Rudolf BRANDT was in charge concerned the affairs of the General SS ( not the Waffen SS), the handling of applications from the population and similar matters; they were not, however, concerned with any matters of the Gestapo or Police, i.e. the Executive The matters which passed through BRANDT's hands and which are to be judged here were here wore outside the scope of things mentioned above. Numerically speaking, these cases are infinitesimal, compared with the average monthly postal dispatches of about 3,000 to 4,000.

The fact that for years Rudolf BRANDT was over-worked and was no longer able to supervise matters as a whole was known to his department and to outsiders as well.

Nor did Rudolf BRANDT know the almost unique mixture in one human soul of civic virtues and mad crimes against the fundamental rights of man and against the dignity of the human being, as it existed in HIMMLER, a disregard for which, by sophistical arguments of mere expedience and by violating the inalienable principles of natural and Christian moral law, must always lead to the collapse of human and moral order.

Without disputing Rudolf BRANCH's participation and guilt in essence. I will try, as his defense counsel, in the course of this case to explain that the degree of this guilt is far smaller than would appear from the objective external evidence.

To prove this striking discrepancy between external deed and inner guilt, I shall, with the permission of the Court, call upon the defendant to give evidence; further, I shall examine the witness August MEINE, Rudolf BRANCH's closest associate, and present a number of affidavits.

THE PRESIDENT: I would like to inquire of the defense counsels who have not yet presented their arguments whether they have any reason to suppose that in their arguments tomorrow they will desire to consume any more time than has appeared upon the schedule which has been handed to the Tribunal this morning. Are there no further groups of defense counsels who desire to present their cases consecutively or together other than those that have already been called to our attention?

The Tribunal will now be in recess until nine-thirty o'clock tomorrow morning.