1947-02-10, #3: Doctors' Trial (early afternoon)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 10 February 1947)
THE MARSHALL: The persons in the court room will please find their seats. The Tribunal is again in session.
DR. SEIDL (Counsel for Defendant Oberhauser): May it please the Tribunal, the defendant Oberhauser asks to be permitted to leave the courtroom at three o’clock in view of her physical condition.
THE PRESIDENT: The request of the Defendant Oberhauser, extended through her counsel, will be granted. The defendant may be excused from attendance in the court room at three o’clock.
PROF. GUTZEIT — Resumed CROSS EXAMINATION (Continued) BY MR. HARDY:
Q: Witness, I am still uncertain about your answer to my question concerning the incubation period. I repeat that the incubation period is known as the period preceding the actual manifestation of the disease. Now, you have told me that not in connection with hepatitis, but in connection with typhus, that you can determine on the second day of the incubation period what treatment would be necessary. I want to ask you to answer very briefly, how could you tell that a person has the disease unless you infected them yourself during this incubation period?
A: In the case of typhus the infection is transmitted by means of an infected louse. If, therefore, in the case of a patient who was previously free from lice, and if I find a louse in a typhus epidemic, then I can safely assume that this louse, on the day on which I have discovered it, that is, if I exercise a daily control ever the infections on the patient, and if the louse has transmitted the infection to the person on the day I have discovered it only, I say that I can assume that.
Q: First of all, doctor, how big is a louse?
A: A louse is about 1 1/2 millimeters long and approximately 3/4 of a millimeter wide.
Q: It is rather difficult to find a creature of that size on a person, isn't it?
A: Our soldiers and also the nursing personnel have managed to do that hundreds of thousands of times during the war.
Q: Then, doctor, after you find the louse, then you have to assume that the louse is carrying the disease, don't you?
A: I say that in a period where cases of typhus occur, that is, within a limited epidemic where also other patients are suffering from typhus, and in that case it can be assumed that the louse which is discovered is infected. Of course, this may be a mistake. Mistakes can occur. But on the whole, the suspicion exists that these lice are infected. That has a definite reason because the louse must have been transmitted to the patient by another person, when I have determined that on the day before I have discovered the louse, no lice at all were present.
Q: You also have to assume that the louse has infected the person or the patient?
A: That is what I have assumed.
Q: Actually, based on all these assumptions, isn't it far fetched for you to state that you can decide what treatment to administer to a person during this incubation period? You would not know whether that person had contracted that disease at that early stage, would you?
A: That is correct. It is correct that I cannot know that with certainty but I can harbor the suspicion that the louse has infected the patient. And when I have such a suspicion, then if I have any remedy for it, if I believe that the medicine can be already effective against typhus during the incubation period, then I can apply this medicine from the first or the second day of the incubation. Of course in this case it is not certain if the person in question really gets typhus or that he is infected by typhus. I can only see that when the disease, that is to say, the fever, begins in the case of typhus. That is approximately eight to ten days later.
Q: Now the question of hepatitis. As I understand it, then it would be impossible for one to administer treatment for hepatitis on the second day of an incubation period; is that correct?
A: In the case of hepatitis?
Q: Yes.
A: In the case of hepatitis I cannot determine.
Q: Now, before the afternoon recess, witness, we were discussing the collaboration of Dohmen and Hagen in which you participated, making your suggestion to Gen. Schreiber, and so forth. Did you report to the defendant Handloser on this collaboration between Dohmen and Hagen?
A: I have not made any suggestion at all. I have not made any suggestion. I have not suggested that Dohmen and Haagen should work together. This collaboration between Dohmen and Haagen was discussed at the General Hepatitis Conference which I have already mentioned. It was suggested by the President of this Conference while formulating working methods.
Q: I do not wish to quibble with you about whether or not you suggested the collaboration of Dohmen and Haagen. I have previously referred to the second sentence of your letter from Haagen where you stated you requested a general to assign Dohmen to you as of 15 July for a limited period of time to begin with.
Now I ask you, did you ever report to Handloser in regard to the collaboration of Dohmen and Haagen? Answer yes or no.
A: I did not have to report about this collaboration at all because during the Conference, this collaboration had already been determined. Professor Handloser was also present.
Q: Thank you. Were you in attendance at these various Military Medical Meetings for Consulting Physicians? In fact, you spoke at one such meeting did you not? Is it true that reports were made at these meetings on results of experiments in various fields of medical research?
A: In the course of the conferences of consulting physicians, lectures were given about the experiences and also about the examinations which had accumulated. In this connection, I have also reported at some of these meetings about what had been discovered with regard to Hepatitis up until that time by various work.
Q: Then it is true that the experimental conditions were explained by the reporting physicians, is it not?
A: During the conferences, as far as I knew, the experiments were only discussed insofar as the cultivation of bacteria in the experiments on animals were described in the form of a lecture and address.
Q: Witness, during the war, did you ever hear anything concerning experiments on concentration camp inmates, that is, from your own knowledge, from reports or meetings, or conversations with other people, or from rumors or any other source whatsoever?
A: I cannot remember that I have heard anything concrete about the execution and also about the results of such experiments.
Q: Since you are familiar with jaundice research in Germany, you probably know of the work of professor Doctor Dresel, Director of the Hygiene Institute of the University of Leipzig, do you not?
A: May I ask to hear the name once more?
Q: Dr. Dresel, D-r-e-s-e-l.
A: I have seen this name in literature. As far as I can recall, experiments on animals were involved in this case. I believe that canaries were used as animals.
Q: Did he not cultivate a jaundice virus from persons suffering from Hepatitis, and succeed in transplanting it to animals?
A: So far as I know, and as it was always done in other jaundice experiments, he took the infectious material from infected persons, and injected it into animals. He then continued to transmit this disease from one animal to another.
Q: Doctor, do you not know that he carried out experiments on concentration camp inmates?
A: I have never heard that.
Q: In connection with Dohmen's work on Hepatitis at Sachsenhausen you have told this Tribunal that those were more or less experiments of appeasement. Why should Dohmen care two pfennigs about the feelings of Grawitz in this connection?
A: Grawitz wanted the cultures which Dohmen had cultivated in the animal experiments. He wanted to obtain them from Dohmen. He wanted Dohmen to given them to him. As far as I know, he personally wanted to have hepatitis experiments carried out. Dohmen had refused to leave these cultures with Grawitz. Grawitz was unable to obtain these cultures. Dohmen did not want to let these cultures out of his hands because he did not want to lose control over them. He ordered Dohmen to do these things himself. I have already described that this morning. 273
Q: You state that Dohmen did not want to turn his cultures over to other people so he would not lose control of them. Why would Dohmen waste his time examining eight Polish Jews condemned to death in Sachsenhausen to see if they, perchance, had jaundice?
A: I did not completely understand the last part of your question.
Q: I say, why would Dohmen waste his time examining eight Polish Jews condemned to death in Sachsenhausen to see if they, perchance, had jaundice? Pas this act to appease Dr. Grawitz?
A: Yes. Things were such that Dohmen carried out the work in order to avoid having to turn his vaccines over to Grawitz. I have already said that Dohmen had sabotaged Grawitz' order to carry out such experiments. That is the reason he worked at Sachsenhausen.
Q: At Sachsenhausen in connection with Dohmen's work, you cannot swear that Dohmen did not infect those inmates, can you?
A: Dohmen has always told me repeatedly about this work. He told me he was only deceiving Grawitz in carrying out his work there.
Q: Do you not think, Doctor, that Dohmen might be a little reluctant to publicize his activities in Sachsenhausen?
A: Otherwise, he used to tell me all about the results of his work. After all, the collaboration consisted of the fact that he handled the bacteriological part of the Hepatitis Research, and I handled the clinical part. Whenever I discovered something important, or remarkable, within this field of work, then I would inform Dohmen of this fact. Whenever Dohmen reached some results, then he would inform me of them. Both of us were members of the Army. This jaundice work could not be separated into two parts. One of us had to report the result to the other, and vice versa. I believe that if Dohmen had infected people at Sachsenhausen, then on the basis of these infections, causes of the disease would have to have been discovered at Sachsenhausen. That would have been a result which would not have been without importance for the higher research field, and I believe I would have found out about it.
Q: Doctor, were you ever in Sachsenhausen with Dohmen?
A: I have never been in Sachsenhausen.
Q: Could we assume, for the moment, that Dohmen had unclean hands in this matter? You think if that were the condition Dohmen would tell you about the work he was doing at Sachsenhausen?
A: I do not think so.
Q: You do not think he would tell you about it?
A: I believe he would have told me something about that.
Q: Doctor, can you swear here that Karl Brandt did not have any connect with Dohmen's work in Sachsenhausen?
A: I have stated that I have not heard from Dohmen, nor from any other sources, that Karl Brandt was named at all in connection with Hepatitis Research, and experiments on human beings. I can not recall that I cannot recall that this has ever been the case.
Q: Witness, what was the last rank that you held? s
A: I was General Physician of the Reserve.
Q: You were a member of the SS, were you not?
A: I beg your pardon?
Q: You were a member of the SS, were you not?
A: I was in the General-SS in the Allgemaine SS up until the beginning of the war.
Q: What was the last rank you held in the SS?
A: My rank was assimilated to a rank in the Wehrmacht. It corresponded to the rank which I held at the beginning of the war, or a short time before the war. At that time I was a Stabsarzt. I was not Oberstabsarzt.
MR. HARDY: I have no further questions, Your Honor.
THE PRESIDENT: If there are no further questions, the witness may be excused.
DR. SERVATIUS: I wish to ask now a question on re-examination.
THE PRESIDENT: You may proceed.
REDIRECT EXAMINATION BY DR. SERVATIUS:
Q: Witness, a short time ago, you spoke of the order of a General Physician Schreiber with regard to the collaboration in the field of Hepatitis and also on the formation of groups. Can you tell us in what capacity Doctor Schreiber ordered this collaboration and this formation of groups? On the basis of what position did he order this? Or who ordered that he do this? Did he issue this order as Commissioner of Reich Research Council?
A: I do not knew that exactly. Schreiber was the Chairman of the hepatitis Conference at Breslau. He was there as General Physician. After the individual results of the various scientists had been presented, he then was called upon to speak about authorization of groups. This was not only for members of the Wehrmacht but also for civilian Hepatitis scientists. It is possible that he as a member or Commissioner of the Reich Research Council ordered this general collaboration, or that he suggested it. However, it was not stated if he did this in his capacity as a member of the Army as a general physician, or if he did it as Commissioner of the Reich Research Council.
Q: Well, Witness, could this not be seen from the way in which he made his address?
A: I cannot exactly recall his words, but he said he thought it would be a good idea if Group A collaborated with Group B; and if Group C collaborated with Group D in order to compare their result of experiments on animals. That is approximately the way in which the suggestion was made by Schreiber.
DR. SERVATIUS: I thank you. There are no further questions.
DR. PRIBILLS (Attorney for Defendant Rostock):, I have a question.
THE PRESIDENT: You may proceed.
BY DR. PRIBILLS:
Q: Professor, in connection with the question of the Prosecutor, can you tell me if he handled orders or questions for the Reich Research Council? Was Professor Rostock in any way connected with the Reich Research Council? Do you know what position Professor Rostock occupied in the Reich Research Council?
A: No.
Q: May I know tell you, Professor, that Rostock, himself, was not a member of the Reich Research Council, but that he only was deputy to Karl Brandt? He, himself, has never had any correspondence on the part of the Reich Research Council, nor has he given any orders or assignments. I am further telling you that Professor Rostock occupied the office for science and research; that Professor Rostock has put some questions to you, is not disputed. With this state of affairs, do you consider it possible that the questions by Professor Rostock came in his capacity as Director of the Office for Science and Research or Professor, do you want to claim that Professor Rostock has turned to you in his capacity as holder of any position within the Reich Research Council?
A: I, personally, am not oriented in detail as to the composition and also the assignments individually of the Reich Research Council, nor am I familiar with the organization of tie Office for Science and Research. If I have stated before that these questions came from Rostock and the Reich Research Council, then I cannot say that with absolute certainty. I cannot say that this was the Reich Research Council. However, I do know that these questions originated from Professor Rostock. It was clear that they came within the frame of work of the Office for Science and Research. I have already stated that I have never received any research assignments from Professor Rostock.
Q: With this, I consider my question clarified. Professor, I have a second question to ask you. Did the questions from Professor Rostock which asked you to state your point of view have anything in their contents which related them to experiments on human beings.
A: I cannot remember that. However, I have not seen, nor have I read anything in these questions about experiments on human beings.
Q: Is it correct or possible that just those questions which were addressed to you concerned the selection of certain drugs and also particularly the conservation of drugs, medicine?
A: Part of the questions certainly dealt with that subject. I was frequently informed as to the appropriateness and the necessity of following some methods of treatment suggested by other scientists. I was asked about these things and I was to express the experience I had collected on the subject.
Q: Professor, do you remember if those questions dealt particularly or dealt at all with hepatitis and typhus?
A: I know that they dealt with typhus and I know that I was asked at one time about this method of treatment with increasingly hot baths; but about the treatment of hepatitis or the diagnosis, I cannot remember anything personally. I cannot remember ever having received such a specialized question. After all, we did not have any medicine with regard to hepatitis which had any specific effect.
Q: Thank you. I do not have any further questions.
DR. SERVATIUS: I do not have any further questions to the witness.
MR. HARDY: The prosecution has nothing further, Your Honor.
THE PRESIDENT: If there is no further examination of this witness, the witness may be excused.
DR. SERVATIUS: Mr. President, for the time being, I do not want to call any other witness, and at this time I want to present a number of affidavits to the Tribunal. I believe that the Tribunal has received Document Books I and VIII, and I shall now read from them.
THE PRESIDENT: Have these documents been furnished to the Secretary General's desk?
DR. SERVATIUS: I believe that Document Book No. I has now been presented to the Tribunal. As my first document, KB-1, contains an excerpt from the weekly Life, which has already been discussed and I want to submit this document as Exhibit 1. I do not want to read it any more because it has already been read in the course of the sessions.
MR. McHANEY: If the Tribunal please, I would like to have a statement from defense counsel as to the purpose of the offer of the Karl Brandt Document No. 1, which is an extract from Life Magazine concerning certain malaria experiments carried out in the United States.
I think, under certain circumstances, I might have no objection to its admissibility, but I think we will have some very strong objections depending upon the purpose for which the document is offered.
DR. SERVATIUS: May it please the Tribunal, this document has been handed to the witness in the examination. It has been offered as evidence and I think that it has already been admitted. It is of further importance for the question which has to be decided hero of the admissibility of experiments on human beings and in excess of this in order to judge the question—the humanitarian question—all together. The prosecution charges the defendants with crimes against humanity. In order to clarify this concept, we will have to see what is being considered as humane in order to be able to make comparisons. I want to submit an additional number of documents from literature which likewise deals with experiments and which for the same reasons will be of the utmost importance. I, therefore, request that Document No. 1 be admitted as Exhibit 1.
THE PRESIDENT: If my recollection is correct, this exhibit was marked for identification: Karl Brandt, Exhibit 1 for identification, but has not been admitted in evidence.
MR. McHANEY: If the Tribunal please, we offered no objection when this Document was put to Professor Leibbrand because the witness was called upon to give his opinion as to the ethical value of the experiments here carried out, and he testified that he had some objection to the experiments related here in Life magazine. For the purpose of eliciting an expression of opinion from the witness, we had no objection to that procedure. We have very strenuous objections, to the other purpose, as stated by defense counsel for Karl Brandt. This document obviously can have no probative value in proving that any of the experiments charged in this indictment are lawful or non-criminal experiments. If the Tribunal permits documents of this kind to go into evidence, it will very probably mean that the prosecution will be forced to assume the burden of justifying every experiment which has ever been carried out or at least all of them that the defense counsel can find information on, were carried on in a lawful manner, that is to say, upon volunteers.
I think there is no issue in this case concerning the fact that an experiment carried out on non-volunteers is not of the nature of unlawful or criminal experiments. The defendant so testified on the stand. I understand he admitted it. It was necessary that the experimental subjects be volunteers. The Prosecution in this case has undertaken to prove that the experimental subjects used in the experiments at issue were not volunteers, therefore, adds nothing to the proof, or the clarification of any issued in this case for the defense counsel to bring in great hosts of documents in writing concerning experiments carried out in other countries. There is the very strongest objections to have admitted that type of material into evidence in any event. I think in substantially all cases these writings will not reveal the circumstances surrounding the experiments, and, I am quite sure they will attempt to draw inferences from those writings that doctors in the United States, or elsewhere, have done the same thing as done in this case, namely, carried out experiments on people who were not volunteers under circumstances justified to the belief on the part of the experimenters, which would probably result in death. That would mean the Prosecution under the circumstances on its own initiative could investigate each one of these instances, and bring in proof we think we can bring in that the experiments were unethical from any one point of view.
JUDGE SEBRING: Mr. Servatius, did not your witness, Karl Brandt, make the statement that in his opinion any one who is under physical restraint, such as a prisoner would be in a penitentiary, could not actually give voluntary consent to the subjection of medical experiments upon him, even though he gave lip service, even though he had exteriorly stated that he would volunteer for such experiments. I think the doctorwitness said that even then according to his sense of medical ethics that could not be said to be a voluntarily human service.
Now then, proceeding upon the premise that you have established by your own witness, would it not be worth something as a matter of probative value that Dr. Servatius who started with these premises that those people no matter how much they consented could not in fact willingly consent, and, then to show under those circumstances experiments were conducted upon human subjects?
I understand that is the purpose far which Dr. Servatius has introduced this article from "Life". Of course, in the last analysis it will be up to this Tribunal to say what probative value they will give the natter. Of course, the article as it appeared upon its face, and in accepting the promise laid down by your witness Karl Brandt, would tend to prove only that in other parts of the world experiments were conducted upon human subjects.
MR. McHANEY: If the Tribunal please, the Prosecution is prepared to admit that. I just don't see that the matter is at issue and proves anything. Even if it be assumed that experiments were carried out in some other country of the world, and in certain cases upon non-volunteers, I don't think it justifies any of the alleged crimes in this case. They can commit crimes in the United States, or elsewhere, just as they can in Germany, and proof of any given instance that such a crime has been committed in the United States I think does not behoove the defense anything in this case.
JUDGE SEBRING: I had understood that as the purpose of this offer. I don't suppose that these defendants are willing to admit to the case of the Prosecution at this time, and I had supposed that the purpose of this proffer was to show that these defendants had comported with what they had considered to be accepted standards in the field of medical experiments. Isn't that the purpose?
DR. SERVATIUS: Yes.
MR. McHANEY: I don't want to make an extended argument, but as I see it, there is no dispute either on the basis of this article or on the part of the Defense with the Prosecution that it is necessary that experimental subjects be volunteers, and I do not see that loading down this record with extracts taken from Life and medical journals, and all other possible sources is going to aid the Tribunal or do anything except result in a lot of smoke being thrown up around the character of the experiments carried out elsewhere.
For example, the defendant Karl Brandt on the stand, under questioning by his own Counsel, made an allusion to certain freezing experiments allegedly carried out on six insane persons in the United States. I think he said that they died. I did not examine Karl Brandt about that statement because I did not want to consume the time that it would have taken, but I think Karl Brandt will admit that he did not know a thing about what he was speaking about. We looked into the matter. The experiments were carried out, in fact, at the McLane Sanitarium, which I understand, is one of the most expensive private insane asylums in all the world; that these so-called freezing experiments which he described were a method of therapy applied to certain insane persons in the asylum, and I night say that it probably cost them a very largo sum of money, and that certainly no one was killed.
It is a little bit ridiculous to be making these allusions, comparing a method of treatment carried out under such circumstances to one carried out in the Dachau concentration camp.
Now, that will come up each time proof is put in about an experiment made in the United States, or in Franco, or elsewhere. The Prosecution will be put to the burden of investigating through its sources as to precisely what went on, or the Defense Counsel will be raising doubts in the mind of the Tribunal that the same thing happened in the instance which they cite as happened in the Dachau Concentration camp. We will have to come in and prove that it did not happen that way, that the experimental subjects were given a certain form to complete, that they voluntarily underwent the experiment, that it was fully explained to them beforehand, that the whole purpose of the experiment was laid out to them — all those matters.
As a practical matter, I think that would be the burden that would be heaped upon the Prosecution, or we would find this record spread full of little short extracts from this or that medical journal, making reference to a freezing experiment here, a malaria experiment there, or a yellow fever experiment in the Panama Canal Zone. We would then have to come forward and explain those experiments because I think Defense Counsel is undoubtedly not in a position to show that in any one of those instances was the experiment carried out on involuntary subjects or in any way tainted with criminality.
The Prosecution here is willing to accept the burden of proving that the experiments here charged were carried out on non-volunteers in every sense of the word, and I mean by that going greatly beyond any concept of duress which may be drawn from mere incarceration in a prison, so I think that it is a matter of some consideration for the Court as to how these matters are to be treated, because there is every reason to believe that Defense Counsel will fill this record full of such matters as that, and the Prosecution either can take the position of ignoring them or trying to find out exactly what went on in each experiment.
For my own part I can not see their materiality, and certainly I can not see their probitive value; unless they are willing to assume the burden that experiments are systematically carried out in other parts of the world in the manner here alleged by the Prosecution, then I can not see that they have any materiality. If they can prove that and if that is the purpose for which they are offered, and they can show that everybody all over the world was doing what we charge these people with doing, why, then, it certainly would have some materiality and probitive value. Otherwise, I for one object to the offer of this document for any purpose other than eliciting an opinion from the witness who was on the stand, and I don't think it need be admitted for that purpose since he has already been shown the document and has given his opinion.
DR. SERVATIUS: Mr. President, may I state my point of view with regard to the speech by the Prosecutor?
The probitive value of this document, in my opinion, is very apparent. Just what the defendant is being charged with here is shown by the document with the case it sets forth. It shows that, by order of the government, experiments are being carried out on persons of whom the expert of the Prosecution himself says that they could not be considered as voluntary.
In addition to this, the general importance of this document is apparent. One speaks about crimes which the defendants are alleged to have committed, but we wan to determine if they are crimes. Precisely the ethical and legal bases are very doubtful in this case. The Prosecution refers to the criminal law code of all countries, which is to be basis in judging these defendants, and the Prosecution has placed an expert on the stand here who has voiced an opinion in the ethical sense. The purpose was to establish a basis for the accusation. I now must be given the possibility present the material that counters these motives. I do not need to go into the facts if all the experiments are described in articles and books in accordance with the truth.
For me it is an important point of view that these things are being accepted by the public all over the world without any objection. For example, here in Document 1, no voice was raised in America to object to this. This is not a single case. The same thing is happening in all countries for many years. In Document Book 3 I have composed a number of articles from literature which would astonish everybody, but it is still more astonishing that nobody in the world has been excited about it.
Now we have an accusation made in the same sense, and the law of humanity is referred to—that it must be of importance to be able to prove that humanity and humaneness have not been considered to that extent up to now.
It is correct that the document has been presented only for identification thus far, but I now request that it be admitted in evidence.
DR. SEIDL (Defense Counsel for defendants Gebhardt, Oberhouser and Fischer): May it please the Tribunal, in consideration of the fact that this is a basic question, I request permission to express myself briefly in connection with this question.
May it please the Tribunal, a number of defendants, and particularly the defendants whom I represent, are being accused of having carried out medical experiments, and that these acts represent crimes. In order to support these claims, the Prosecution has referred to the general regulations of the criminal code, as set forth in Control Council Law Number 10. This law does not set forth that an experiment under certain conditions is a crime, but this law contains every other law and deeds like murder, injury, and so on.
The law is not something that is hovering in the air, but, in order to reach a just verdict, it is necessary to show actual conditions in the field in question and to examine them. Therefore, if the defense presents evidence of this kind, it is not in order to claim that in other countries — in the United States and in France -crimes of this kind are also being committed, but the one to fulfill the abstract contents of the criminal code. It is a fact that many laws do contain these characteristics of the actual deeds. -Indications which have a certain evaluation as a prerequisite. In order to judge the question, if a medical experiment, it's a crime. The question has to be examined if this experiment violates a law. Furthermore, the question has to be examined if such experiment is a deed with which a person can be charged. Examining those questions, it cannot be indifferent if physicians in other countries act in such a given situation. For the defense, therefore, it is decisive, if also in other countries and under application of the generally valid, ethical and medical professional standards, physicians, in the interests of a higher goal, of a view to a special necessity, can carry out such experiments. Insofar as evidence so far presented by the defense is important because it places the Tribunal in a position to examine, to obstract the laws in their application and reality and to properly evaluate the presentation, just like international law, can these things be equally represented, just as little as possible in judging the question, if a certain medical experiment represents a crime, without considering the practice of physicians in other countries. That is all I have to say.
PROFESSOR SAUTER: (Counsel for the defendant Blome): May it please the Tribunal, first of all I would request you to tell me if a very principal question is not involved here. In my opinion, we have reached a decisive phase in the trial. For us defense counsels it is not a case of raising a lot of smoke, as the representative of the prosecution has stated.
A defense which realizes its responsibility and fulfills this duty properly rejects that. For us, we on our part want to contribute to the glorification of the legal situation, and so, to give the necessary basis to the Tribunal in order to reach a verdict which will actually, from all sides, be considered as fair, correct and wise. The defendants have been accused of inflicting injuries, physical injuries and murder. As the law is written, in your law code as well as ours, "Thou shalt not kill. Thou shalt not inflict physical damage. Thou shalt not injure anybody." But what the human being has to do individually in order to fulfill this law, and in what cases he can diverge from this law, we are not directly told by the law.
In a case, like the case on hand, the medical professional ethics will have a decisive weight. A professional concept of the physician who properly fulfills his duty, will show to the Judge, in order to enable him to judge what is necessary for medical science, and what is superfluous; what can be considered as legal, and what is without any doubt illegal. The professional concept of the medical profession gives this information on the subject. That is the professional concept not only of the German physicians, but also of the foreign medical profession, just like certain basic principles exist which always return in the same way in all criminal codes, so for the medical profession, in all civilized states there are certain procedures and directives which are being followed by all countries and which must be considered correct. If now the defense is able, by means of a large number of literary evidence from the press and also from special medical journals-if the defense is able to give a basis for the Tribunal in order to clarify this difficult question, under what conditions and with what precautionary measures such experiments are permissible, then the Tribunal will certainly welcome, if it can also consider this material in reaching a verdict. The defense cannot be satisfied that any individual export, for example like Professor Leibbrand, is a certain way is the only assistant of the Tribunal in deciding these difficult questions. Your Honors, already the fact that Professor Leibbrand maintains the point of view that a prisoner was not at all able to give his consent to an experiment requires a certain amount of coercion towards accepting this opinion.
Furthermore, we have heard that a large number and series of experiments was mentioned by this export which the medical literature deals with. For the most part, he did not know it at all. And the, he only stated: "Yes, I know them", but he did not with a single word state his opinion to them, and he did not mention any word, if he likewise considers the experiments carried out in foreign countries as criminal, or if he considers those experiments abroad justified and legal.
Your Honors, if it has been stated, crimes are being committed everywhere, not only in Germany, but also in foreign countries. Then this prase does not serve the decision of our case at all. If serious scientists report in medical journals about experiments which they have carried out and if, furthermore, no public prosecutor and no court in the world objects to those experiments, or has taken these scientists to give an account of themselves, then this expresses the fact that, in the case of the research concerned, no crimes were committed, but that there were serious scientific attempts. And, when I read through these document books, when amongst the scientists from whom the reports originate I see directors of international repute, directors who have received the highest distinctions for their work, for these experiments, then this may lead to a certain caution with regard to the question that it is stated then, these people who are living abroad, also are just simply criminals, and their research must be considered as criminal.
But the prosecution does not bear this consequence into account. And, in the interests of justice, in ay opinion, it must be examined if, and to what extent, and in what connections one or the other experiment, which one or the other of the defendants may have carried out must be placed on the same level with experiments which have been not described as crimes by the international press, but as medical achievements, which in many cases received the highest recognition. As a result of this, Your Honors, I am of the opinion that it is not only in the interests of the verdict in this trial, but also in the interests of medical science itself, that those trials should contribute to tell the medical scientists in Germany and all over the world, when they can carry out experiments, and under what prerequisites they have to start, and hat precautionary measures they have to follow, and things of that kind.
Your Honors, if this question is clarified as a result of your verdict, then this will contribute just as much to the needs of the medical profession as the first Nuremberg trial contributed to the further development of international law. I therefore request that it is necessary that you should obtain knowledge of this literature, and that perhaps you shall occupy yourself with it in your verdict. That is all I have to say, Mr. President.
MR. McHANEY: I have listened with great interest to the impassioned pleas of Dr. Sauter and other defense counsel, but I have not yet heard a clear delineation of the purpose for which this proof is offered, and the materiality to this case. I would suggest that the Court reserve its ruling, that the defense get together and make up their collective minds as to precisely what they expect to prove with this, and just exactly how it relates itself to the matter at issue in this case; that, on the basis of such a statement, the prosecution will submit a brief to the Tribunal. The prosecution has always assumed, the burden, and has added in the indictment, that these experiments or these murders and tortures and other inhumane treatments resulted from medical experiments carried out on involuntary human subjects.
I do not think they can find one word or one statement, anywhere the world over, that says such medical experiments are lawful anywhere. The thing at issue in this case is the voluntary character of the experiments here carried out, and it behooves this Court nothing, adds nothing to the proof, to have them load down this record with hundreds of examples of human experimentation. This trial is not condemning human experimentation generally at all, and not one word has been uttered by the prosecution to indicate such a thing. The ordinary law of assault and battery and manslaughter certainly gives to the United States, and I take it they exist in Germany, and if these defendants committed experiments upon persons who didn't consent to undertaking those experiments, then I see no difficult legal question presented at all. And now we can talk in very impassioned terms about the necessity of this Tribunal orienting itself upon the precise conditions under which every human experiment has ever been carried out.
I submit that it is both unnecessary, immaterial and constitutes and intolerable burden, and will prolong this trial beyond any measure of reason. The very experiment they're talking about in Life Magazine, reads on its face that it is voluntary; then how can it be material to justify the experiments carried out by Schilling in Dachau, when the prosecution has undertaken the burden of proving those experiments were carried out on non-volunteers, persons who were forced to undergo the experiment. Then whence comes the materiality of an experiment carried out in a prison in the State of Illinois, with malaria.
Now, it so happens that we know a little bit about that experiment. We have the forms which were submitted to the prisoners, which advised them what would be done to them, and which required that they sign their name to it on the bottom if they wished to undergo it. We have a radio speech made by one of the persons who did undergo it; we have quite a mass of facts concerning this particular experiment, and the same thing will be true of other experiments, to which they will make some sort of an allusion during the course of this case. But I submit they prove nothing they don't clarify anything at issue in this trial, and would put, in fact, the burden on the prosecution of clarifying the little scrap of evidence — if you call it evidence — which they will try to throw into the record of this case.
Then we will have to come forward and really tell the Tribunal what it's all about, or the Tribunal will have the uneasy feeling that maybe there was something going on here, something like something that has been charged here. I think it's a rather important issue, and one which bears very materially on the length of this trial, and I think it would clarify the situation if defense counsel would clearly and concisely state what they expect to prove by this type of evidence and how it bears on any issue which we have in this case, and then we will undertake to answer it.
THE PRESIDENT: The Tribunal will be in recess now.
(A recess was taken.)