1947-04-03, #2: Doctors' Trial (late morning)
THE MARSHAL: Persons in the Courtroom will please find their seats. The Tribunal is again in session.
Defendant Mrugowsky — Resumed
THE PRESIDENT: Has Defendant's counsel any re-direct examination of this witness?
RE-DIRECT EXAMINATION
BY DR. FLEMING:
Q: The Prosecution showed you Document No. NO-1198, Prosecution Exhibit 466. This is a letter from the Reichs Physician SS and Police to you, regarding specific therapy in the case of typhus and secondly the tolerance —
THE PRESIDENT: Counsel, before you interrogate the witness about this document I desire to ask him a few questions.
BY THE PRESIDENT:
Q: Witness, you have the document before you, have you?
A: No, I do not.
(Document is handed to the witness.)
Q: In the 4th line of the document I note with reference to your letter of 15 August 1944, diary numbers 324 and 326. What does that mean — what does the word "diary" mean?
A: Grawitz is here referring to a letter which he received from me in this matter, written on 15 August 1944, and carries the number 342 of my diary, that is to say, of the letter file of my institute, and another number, 236, "Secret." Apparently these are two letters that were written on the same day, one of them not secret, No. 342, and the second was put in the secret file as No. 236. That would mean that the first matter, — namely the specific therapy in typhus to which there is reference, and the matter of treating typhus by intravenous injections was not to be considered a protective vaccine and a method of treatment, — was not a secret matter.
Q: Witness, I was interested in the use of the word "diary". You say that means letter file, is that correct?
A: Yes, All letters that we sent out or that we received, in other words, all our correspondence, was filed away in specific letter files. That is the meaning of the word "diary".
THE PRESIDENT: I understand. That is sufficient. Counsel may proceed.
BY DR. FLEMMING:
Q: In the document book under discussion, there is mention of specific therapy in the case of typhus and of the compatibility of phenol in serum; now the Prosecution in the question of testing the compatibility of phenol serum has brought this into connection with Dr. Ding's affidavit, Document No. 257, dated 20 July 1945, which is in Document book 12, page 9 of the German text; in your answer did you take into consideration the fact that Ding's affidavit begins with the words:
As ordered I answer two questions literally:
Witness at an Euthanasia with Phenol at Buchenwald.
At the end of 1942 I took part at a conference in the Military Doctors Academy in Berlin.
Now, this meeting of which he here speaks took place in 1942, whereas the letter which was shown to you here is dated 24 August, 1944; would you please make a statement on that fact?
A: These two matters of course are not in any way connected. I said during my cross examination that these are two entirely separate things, in the first place it was a serum for gas gangrene and in view of the time in which it is occurring the document of Professor Killian in my document book proves it. Here it is not serum for gas gangrene but a purely technical discussion of serum in general. That the serum should not have any addition of phenol was a developing work on the part of industries and like all such work this particular question was labelled "secret." That is the reference here and in my recollection these were serums against diphtheria, because these dyphteria serums constituted the great majority of all serum production in Germany.
Q: Thank you, that suffices; I simply wished to clear up the fact that this Ding matter of 1942 had nothing to do with the other matter.
The prosecution further introduced the intermediary report by Schilling, which Grawitz showed you and on which you expressed your opinion; the prosecution said you were chief of office 3 under Grawitz; could you in this capacity make any difficulties for Schilling; I should like to ask you were you in a position to make any difficulties for Schilling in his experiments or to interrupt the experiment
A: I would only have been in that position if I had some authority over Schilling's experiments or Schilling himself. This was not the case as these experiments had been going on since the year 1942 and had been approved by the highest authority, namely by Himmler himself. These matters were never handled by me and let me say that the position of the Chief Hygienist in the staff of the Reich Physician SS was that of an expert, a referant, without his having any power to issue orders, with the exception of those scientific arrangements which were immediately subordinated. For example, in my case, my own institute. In other words, I had no opportunity of exercising any sound influence on Schilling.
Q: When the experiments at Ravensbruck were under discussion, the prosecution said that you were chief of the Hygienic Institute from which the cultures for the sulfonamide experiments in Ravensbruck came therefore you must have known of the delivery of those cultures; would you make a statement on this?
A: Both from the interrogation of Gebhardt and from my own direct testimony, it can be seen that Grawitz himself orders the delivery of cultures. I, myself, was not in Berlin at all at that time and consequently could neither interfere or find out anything about this matter.
It was not so that the delivery of cultures, so far as these cultures were to be placed in regular German biological institutes and as they were not germs of a dangerous disease, such as cholera or cancer. As I said, the delivery of these cultures was not such an exciting event that the member of the competent department first needed the approval of the chief of the institute; that was neither prescribed nor was it customary in the other large institutes.
Q: Later on, I shall submit an official certificate from the Robert Koch Institute, which certifies to this. The prosecution showed you a letter of yours to the Reichs Physician SS and Police of 29 January 1945, in which there is a question of hepatitis experiments. You know Ding's diary very well. After the date of this letter, in other words after 29 January 1945, are there in this diary any references to experiments with hepatitis?
A: Ding does not mention any such experiments in his diary, nor have any of the other numerous witnesses you have heard here been heard to mention it, nor do any documents mention it, consequently I am persuaded that no such experiments took place.
Q: The prosecution further mentioned the use of Zyklon B for the mass extermination of human beings; I should like to draw to your attention Gerstein's affidavit which the prosecution earlier showed you during the presentation of this evidence; I should like to ask you: did you have anything to do with the matters which Gerstein mentioned in this affidavit?
A: I had nothing to do with these matters. That can clearly be seen from the Gerstein document itself.
Q: The Gerstein document is Prosecution Exhibit 428.
The Prosecution further showed you document NO 1305, Exhibit No. 469. This concerns yellow fever vaccines, and here it is particularly emphasized that yellow fever vaccines contain living virus. Would you please make a statement on this, as to whether this living virus in the yellow fever vaccine is in any way dangerous to the human being's health
A: The situation is as follows. There is no virus disease against which you can conduct protective vaccines with dead virus. When such things are done at all—and they have been done since the middle of the 18th century—living germs have always been used which, however, have been attenuated in their toxicity for the human body in such a way that they cannot cause disease in the human being. In this specific case of yellow fever, it was a question of a virus strain which is extracted from mice. There are two main sorts of this vaccine. In this case they are referring to the virus which is passed on from mouse to mouse in the mouse's brain.
With such a virus it is impossible to infect a human being with a disease. There is simply a reaction in body temperature which, however, has no connection with any of the symptoms of yellow fever. Consequently, this is not yellow fever and it is not possible to induce serious symptoms from this virus extracted from mice. It is a matter entirely without danger. It is much less dangerous than the smallpox vaccination which every child receives.
Q: I made an objection to document NO-1189, Exhibit 471. In connection with that, the Tribunal said that you had already identified the contents of this document to the extent that there could be no objection raised against the document.
I should like to ask you this. In your statements that you made from memory, when you said "I remember the matter", were you taking an attitude towards this Nebe brief; or were you adopting an attitude, when you said that, on what you remembered from that conversation with Nebe?
A: I no longer recalled this conversation with Nebe. However, this document reminded me of it immediately. This was a very brief conversation—
Q: (Interposing) I don't want to know about the conversation with Nebe, but I want to know whether you remember having received this letter. We do not know how it got into the hands of the prosecution.
In other words, do you remember this letter, or is it true that what your testimony meant was that you did not remember the letter itself, but simply remembered the contents of the letter?
A: I do not remember the letter itself, not even now, now that I have seen it. I remember only the short conversation with Nebe on it.
DR. FLEMMING: I have no further questions.
THE PRESIDENT: I have a further question for the witness.
BY THE PRESIDENT:
Q: Referring again to document No. NO-1198—have you that document before you?
A: No, Mr. President. Is that 1189 or 98?
Q: That is 1198. That is the letter from Gawitz to you.
A: Now I have it.
Q: Will you read the line following Arabic number two?
A: (Reading)
Compatibility of sera containing phenol.
Q: In the English document before the Court the word which is now translated "compatibility" is translated "tolerance". Just what do you mean? What is the meaning of the German word which is so translated?
A: "Tolerance" can be said, yes. What is meant is this: For a man who is sick with diphtheria, to what extent can he tolerate a serum containing phenol? The matter of phenol is very carefully regulated in Germany by the State. Secondly, whether another serum, which does not have phenol in it, can better be tolerated.
THE PRESIDENT: I understand. That is sufficient.
Counsel may proceed.
DR. FROESCHNANN (For Dr. Nelte, counsel for the Defendant Handloser):
MR. HARDY: That did not come through my headphones.
DR. FROESCHMANN: I will repeat.
Since Dr. Flemming submitted to the witness document No. 1305, Exhibit 489, in connection with the questions of yellow fever vaccine put to the witness by the prosecution, representing Dr. Nelte for the defendant Handloser I should like to ask three questions of the witness in this connection.
BY DR. FROESCHMANN:
Q: First question — Do you have the document before you?
A: No, but I am familiar with it.
Q: In this document it says, in paragraph 2:
We assume that President Gildemeister also has tested this on human beings to discover the tolerance for it.
Does not this mean that this was simply a testing to find out whether the vaccine is harmful?
A: I said, in my direct examination, that this entire question was a purely technical one. It was not a question its to whether or not this vaccine had any protective value, because that question had already been answered by millions of vaccinations in many nations, and we had the same virus in our protective vaccinations as the other nations had in theirs. This is a purely technical question. Of the tolerance for the vaccine, the witness Bernhard Schuetz said that it was pretty difficult to maintain a normal temperature and that consequently the application of this serum was somewhat difficult. The question, therefore, was whether the doctors using it, first of all, were in command of this technique; and secondly, whether the vaccine was still effective or not, in other words, whether there was any additional effect that should be feared, for instance, if the temperature rose.
In my opinion it was a matter of conscientiousness to test this, but it was not a matter of basic importance, because I do not know, or I had never heard that any such vaccine had caused damage to the human being if, for instance, the virus in the vaccine died.
Q: Witness, I wanted to know something else than what you just said. I wanted to know whether, from paragraph 2, it can clearly be seen that these tests were simply carried on to see whether the vaccine was dangerous or not.
A: Yes, that can be seen from that paragraph.
Q: Then please tell me what you understand under the sign "OP number".
A: That is a sign for the Behring Works and many other laboratories that produce vaccines, and it means operation number. This designation is only used as long as the production of vaccine is still in the research stage. For instance, so far as it is a question of vaccines being manufactured in the plant, you do not use the designation "OP", but you speak of work numbers, the abbreviation for which is "WN".
Q: How many importations are included under such an OP number?
A: That depends on the vaccine, of course. I believe that a capsule alone has 50 such portions of vaccine. Generally the number includes not simply the ampule then being worked with, but it is simply being used as a model for the whole manufacturing series.
Q: Now the last question I have to put to you:
In view of this document 1305, you, witness, have already stated that this was a special case, namely, a special military operation in Africa, in which, roughly, forty thousand men participated. Can you, from this special case, conclude that there was a basic agreement between the Waffen SS and the Army according to which all vaccines went through the Hygiene Institute of the Waffen SS and were tested, namely, at Buchenwald?
A: There can be no question of that whatsoever. There was a testing station in Germany, namely, one designated by a special order on the part of the Reich Minister of the Interior. This was the Institute for Experimental Therapy, which carried out the State's testing of vaccinations.
DR. FROESCHMANN: No further questions.
DR. GAWLIK: Dr. Gawlik for the defendant Hoven. I should like to ask Dr. Mrugowsky a few questions regarding Document Number 5.
EXAMINATION
BY DR. GAWLIK:
Q: Witness, you still have that document before you?
A: Yes.
Q: What did you know about who was to carry out these injections?
A: Dr. Ding was.
Q: What can you say about why this vaccine was sent to Dr. Hoven?
A: If I recollect correctly, Dr. Ding did not have any postal address of his own. His research station and his experimental station were in Lolling's sector; and I therefore assumed that in the case of this letter, the letterhead for such matters went to the camp physician of Buchenwald.
Q: Did you ever discuss the carrying out of these vaccinations with Dr. Hoven or have any negotiations on this matter at all with him?
A: You mean in January 1943? At that time I didn't know that Dr. Hoven existed. I only met him in September.
DR. GAWLIK: No further questions.
THE PRESIDENT: Are there any other questions of the witness on the part of any defense counsel?
MR. HARDY: If defense counsel have no further questions, I have no further questions, your Honor.
DR. FLEMMING: Mr. President, I ask permission to submit a few documents; but first let me remark that the witness Dietsch I interrogated yesterday evening regarding the points upon which I wanted to interrogate him specifically. About the channel of command for Block 46 he knows nothing. Consequently I don't think it is right, since this Mrugowsky case has already lasted so long, to put him in the box as a witness; but I shall simply submit an affidavit from him.
MR. HARDY: May it please your Honor, first of all I assume now that the defendant Mrugowsky's examination is finished and, secondly, in connection with the witness Otto Dietsch, he has been brought to Nurnberg as a defense witness; and they have no intention of calling him here to the witness stand. I request permission to interrogate Dietsch on behalf of the prosecution if the Tribunal will allow that. He is a prisoner here in the Nurnberg jail.
THE PRESIDENT: Do you mean to make the witness Dietsch the prosecution witness, or do you desire to cross examine him in connection with the affidavit which Dr. Flemming has mentioned?
MR. HARDY: No, I merely desire to interrogate him for investigation purposes in the same manner that Dr. Flemming has.
THE PRESIDENT: Interrogate him in the prison?
MR. HARDY: In the prison, yes.
THE PRESIDENT: Yes, that may be done.
MR. HARDY: Thank you, sir.
THE PRESIDENT: I understand, counsel, that there will be no more questions to the defendant Mrugowsky?
DR. FLEMMING: No, that's true. I simply want to put in documents.
THE PRESIDENT: The defendant is excused from his stand and may resume his place.
DR. FLEMMING: Mr. President, regarding the question of the witness Dietsch the prosecution has concluded the presentation of its evidence. Therefore, in my opinion, it cannot call any further prosecution witnesses but could simply cross examine him regarding the affidavit I shall put in.
THE PRESIDENT: Counsel for the prosecution did not suggest at this time that he intended to call the witness Dietsch; he desired to interrogate him in the prison.
DR. FLEMMING: I understood him to mean that he wanted to interrogate him here in court. Then let me submit Document Mrugowsky 42 on Page 216 of the Document Book, as Document Mrugowsky No. 58. I simply draw all these documents to your attention.
THE PRESIDENT: What is the number of this document to which you are referring, counsel?
DR. FLEMMING: Document 42, on Page 216, which I submitted as Exhibit 58. Then as next document, Document Mrugowsky 54 on Page 218.
THE PRESIDENT: Just a moment, counsel, until we can enter this.
DR. FLEMMING: Mrugowsky Document 54, Page 218, Mrugowsky Exhibit 59. Mrugowsky Document 84 on Page 220 becomes Mrugowsky Exhibit 60. Mrugowsky Document 86 on Page 225 I shall not put in.
May I ask whether the Tribunal has Document Book Number 2? I have a document book, Number 2, in which there are extracts from literature.
THE PRESIDENT: No, we have not that document book, Dr. Flemming. In that connection I don't have any notation concerning the offer of Mrugowsky Number 11, Pages 90 and 91. Are we to understand that will not be offered?
DR. FLEMMING: I am not putting that in. The reason for which I intended to was removed.
MR. HARDY: Your Honor, in connection with this Document Book Number 2, we have here some sixty-eight pages of extracts from the books that are on the prosecution table now which have just been turned over to us for examination by defense counsel. Now, these doctors and scientists here in this dock are not accused of experimentation on human beings as such; but, as we the prosecution agree that experimentation is necessary and there are accepted methods of medical investigation, we are charging these defendants with crimes. These crimes are mostly in connection with the use of non-volunteers in their experiments, the lack of care and skill in the course of their experimentation, and many other such things which we might consider as being guilty of malpractice. In addition, there is a considerable difference between the extracts and information as outlined by these doctors and what is at issue in this case.
Now, this literature here is different from the literature of the accused that we have examined in this Tribunal in that the legitimate authors here openly state that they have made experiments on human beings and that they committed no crime as they had nothing to hide.
They were volunteers. But Mrugowsky on the stand admitted that when they submitted a report of their experiments they falsified the reports because they had something to hide.
Now we are going to try to clutter up the record with sixty-eight pages of scientific literature to prove that other experimentation has been carried out; but this experimentation, your Honor, has no connection whatsoever with what we have charged here. The prosecution deems it immaterial. Hence I do not wish to object to each and every document as it is put in; but I wish the Tribunal to consider this as a blanket objection to all the documents contained in Document Book 2.
DR. FLEMMING: Mr. President, the prosecution has charged the doctors here of having carried out experiments on human beings who had not volunteered for this experiment. Consequently, in Document Book Number 2 I have not included one single experiment in which there is any mention in literature of the fact that the experimental subjects were volunteers, not even in those cases where the total description of the experiment proves that the voluntary aspect of their participation was probably only assumed. The experiments here described were carried out in part on children, in part in prisons, in part in mental institutions. I consider it necessary to show the Tribunal to what extent throughout the world such experiments are carried out on human beings who do not volunteer for them, in order to prove that the civilized attitude is not contrary to such experimentation and that nowhere in the world are such experiments considered criminal, because otherwise the Court would have to know of many objections in literature or in newspapers where such experiments are repudiated.
If these documents prove that in almost all nations of the world such experiments on non-volunteers are carried out without any objections on the part of the public, then in my opinion it has been sufficiently proved that such an undertaking of experiments of such a nature as was carried out here in Germany, are even in normal times not to be regarded as criminal, and then in a period in which a total war is being waged, it being such a period during which such experiments were carried out in Germany, and that is on orders of the highest officials in this case, they were all less to be regarded as criminal.
Another question will be which the Tribunal must examine is whether in the execution of these experiments any one can be charged with anything. However, in my opinion we must discriminate sharply between the question arising on medical experiments to clarify a question — - a medical question, or during wartime to present a military problem that non-voluntary persons, are they basically to be proved, or basically to be repudiated and characterized as criminals.
There is quite a different question on the other hand, namely, how these experiments were carried out, and the question, can a physician who carries out such experiments on State orders on persons whom the State make available to him for those experiments be punished for the experiments.
THE PRESIDENT: Do any of these exhibits, particularly in Mrugowsky's Book No. 2, bear on the latter phase of the situation to which you just referred?
DR. FLEMMING: You mean the question of fact that subjects were made available by the State?
THE PRESIDENT: Yes, whether they were made available by the State, and the experiments were tried pursuant to an order of the State?
DR. FLEMMING: Here are included experiments on prisoners on which the physician could not have carried out if it was these prisoner criminals had not been made available by the State.
I would like to remind the Tribunal of the document submitted by Professor Leibrandt regarding the malaria experiment on 800 prisoners. However, I have not included this document in this Document Book No. 2. The experiments in part were carried out in mental institutions, that is, in closed institutions in which the physician had access to the patient only if the governmental official in charge of the institution permitted it.
MR. HARDY: Your Honor, I can see that Dr. Flemming and I agree one-hundred percent. We are not charging here that experiments as such are illegal or criminal. These extracts are not evidence of criminal experiments. If they were extracts of criminal experiments, they would not hide the fact —
— Then they would have hidden the fact that they experimented on human beings. In addition he states to you of using persons in insane asylum. We don't charge Professor Rose of experimenting on people in mental institutes, and typhus groups, it is perfectly legitimate. We are charging him with criminal experimentation on non-volunteers, and this material has absolutely no bearing whatsoever on what is before this Tribunal.
DR. FLEMMING: Mr. President, the Prosecutor said that the charges are only with the carrying on of criminal experiments. Let me point out that experiments can be criminal only either because they are carried out on persons who do not volunteer, or because they are carried out in such a way as to be stated to be criminal, as an experiment on a human being per se is not criminal, and is what we want to prove by referring to experiments that took place throughout the world. Then only the question will remain, were they experiments carried out in such a way or nature and the way in which they were carried out, to make them criminal, and that is why I want to put in these documents.
JUDGE SEBRING: Dr. Flemming, I understood the position of the Prosecution was that they would agree with you that ordinarily speaking experiments upon human beings per se were not criminal, that was my understanding of what Mr. Hardy said.
Provided, of course, as Karl Brandt had stated from the witness box, the witnesses were volunteers, and the results to be expected were results which would be beneficial, and the expected results or anticipated results would be known to the physician by virtue of the fact that the field had been explored so far as possible as to experimentations upon animals, and that the contemplated experimental subjects would be given full information concerning the nature of the experiments, and the hazard expected, or normally expected to be encountered. It may be I am in error in my recollection, but it seems to me that is in essence to what Dr. Karl Brandt said from the witness stand. Now do these extracts of scientific data, I suppose taken from books, periodicals and scientific or medical treatises I disclose the state or the condition of the human being upon whom the experiments were being conducted. That is to say, does it disclose that they were or were not voluntary subjects? Does it disclose that they were inmates of the institution, and were made available by order of a governmental authority without having any choice in the matter of whether they would or would not be selected as experimental subjects?
DR. FLEMMING: In few of the experiments they are experiments on persons condemned to death, as is the case here in this court. In other cases they are experiments on children.
JUDGE SEBRING: Is that made to appear by the extracts offered?
DR. FLEMMING: They were children, yes.
MR. HARDY: Dr. Alexander has been reading this, and he can not find such a notation as it is stated by the defense counsel. It may be we might proof read this document more carefully.
JUDGE SEBRING: I have been scanning them, and the documents I have scanned so far do not disclose the status of the experimental subjects.
DR. FLEMMING: I am afraid that the translation was not correct. The translation said "The condition." I said, you can mean whether or not they were volunteers, didn't you?
JUDGE SEBRING: Precisely, yes.
DR. FLEMMING: It is my opinion that persons in a mental institution, in prison, and children can not be volunteers, and for this reason I am of the opinion that these experiments so far as they are carried out on such persons are all exactly of the same sort as experiments here under discussion at the moment.
JUDGE SEBRING: Are you agreed to that statement on behalf of your client that it is impossible for a person incarcerated in an insane asylum, or children hospital, or other public institution to give a valid consent to experimentation upon a person?
DR. FLEMMING: A person in a mental institution in my opinion could never give his permission for an experiment to be carried out on him, because he is not in a position to be rational about the whole question.
JUDGE SEBRING: I understand that perfectly, but do you confine your statement to that particular individual who because of mental deficiency is incapable legally of giving consent?
DR. FLEMMING: No, but I am submitting these documents and I want to show that everywhere in the world no objection is raised by the public against experiments of this sort. The experiments have been public, no one objected to them, and it shows that attitude in the whole world is that experiments can be carried out on such persons if scientific interest makes it necessary. The public then sees it also as ethically necessary, necessary from the ethical point of view and has no objection.
MR. HARDY: Your Honor, the Prosecution will stipulate that experimentations throughout the world is permissible on voluntary subject, and will stipulate that fact, but will not stipulate that experimentation is admissible or permissible on non-volunteers in any section of the world. In view of the fact that most of these documents that will be introduced are of that nature, then I don't see any reason for them to be put into evidence here.
DR. FLEMMING: To the extent that experiments are carried out on prisoners, it is everywhere in the world the fact that these experiments are carried out on persons who exercise this will, but this will is so limited by the fact they are in prison they cannot give any voluntary consent, and I say again I have not in any manner in my document book given a single experiment where the subject was voluntary. In most places where any literature, there is mentioned that experiments were carried out on so and so many volunteers. Now I don't include these cases in my book. Where ever that statement was not made, I assume they were not volunteers, and I have not included those experiments in my document book.
THE PRESIDENT: The Tribunal will be recess at 1:30 o'clock and will examine the different documents in the mean time.
(Recess of the Tribunal until 1330 hours, 3 April 1947)