1947-05-20, #1: Doctors' Trial (early morning)

Official Transcript of the American Military Tribunal in the matter of the United States of America, against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 20 May 1947, 0930, Justice Beals presiding.

THE MARSHAL: Persons in the court room will please find their seats.

The Honorable, the Judges of Military Tribunal I.

Military Tribunal I is now in session. God save the United States of America and this honorable Tribunal.

There will be order in the courtroom.

THE PRESIDENT: Mr. Marshal, you ascertain if the defendants are all present in court.

THE MARSHAL: May it please your Honor, all defendants are present in court.

THE PRESIDENT: The Secretary-General will note for the record the presence of all the defendants in court.

Counsel may proceed.

HERMANN BECKER-FREYSENG — Resumed

DIRECT EXAMINATION (Continued)

BY DR. TIPP (Counsel for the Defendant Becker-Freyseng):

Q: Dr. Becker-Freyseng, yesterday, at the end of the session, we were discussing the general ethical fundamentals referring to the experiments on human beings which we concluded. Today, we are going to discuss the individual counts of the indictment as they are raised against you. The prosecution charges you at first to have participated in a conspiracy to commit crimes, together with your co-defendants, crimes against humanity and war crimes. I shall be very brief in connection with this count because in my opinion there is no legal basis for any conspiracy in that respect. However, that is a question which will later be discussed in your final plea. Therefore, witness, I ask you what was your connection before May 1945 with your co-defendants with whom you are alleged to have carried on a conspiracy?

A: I did not know ten of my defendants. These are Dr. Genzken, Professor Mrugowsky, Dr. Rudolf Brandt, Dr. Poppendick, Mr. Sievers, Mr. Brack, Dr. Hoven, Dr. Pokorny, Dr. Fischer and Miss Oberheuser. I knew the names of four of the gentlemen on the basis of their position, but I never exchanged, a word with them. These are Professor Karl Brandt, Professor Handloser, Generaloberstabsarzt [Chief Medical Officer] Professor Gebhardt and Professor Blome. I knew Professor Rostock in his capacity as head of the medical faculty of the University of Berlin. On the occasion of qualifying as a lecturer I was introduced to him and I discussed this question with him. On the basis of mutual activity within the Air Forces, or rather within aviation medical research, I knew Professor Rose, Dr. Ruff, Dr. Romberg and Professor Weltz. In the same way, I naturally also knew Generaloberstabsarzt Professor Schroeder as my highest superior. I knew Herr Doctor Konrad Schaefer and Professor Beiglbock.

Q: Before I start entering upon the subject of the individual experiments, which are the subject of the indictment against you, I may ask you to describe your position during the war. You knew that it is your position in particular which has been taken by the prosecution as the basis of the indictment against you. In my opinion a number of concepts have to be clarified which have been either misunderstood or mistranslated. The first point, the prosecutor in the session of the 12th of December 1946, in the English record, page 309, designated you as Chief of the Department of Aviation Medicine with the Chief of the Medical Service of the Luftwaffe. Accordingly, you are to have occupied a leading position in research work. You had the key position in the air medical research, as Professor Alexander once described it. May I ask you, witness, to clarify this point here?

A: First, I have to say in that connection that with the Chief of the Medical Service of the Luftwaffe there was no department at all for aviation medicine.

Q: Witness, I believe that before clarifying your position in particular it will be necessary to describe to the Tribunal briefly the organization and the structure of the Medical Service. I think it is necessary to do that in order to understand what you really granted to testify. Would you please do that.

A: Yes. Professor Schroeder has described the structure of his office in this witness stand, seen from his own perspective. In other words, he saw the pyramid from its top. Since I was really at the base of this pyramid, may I again describe the structure from my perspective. In the Medical Inspectorate, rather, in the position of the Chief of the Medical Inspectorate of the Luftwaffe, approximately 23 referents were active. Every referent administered, I might say, a definite referent. Any such referent consisted of this one referent, one female clerk, and on some occasions, one soldier who was a clerical assistant. I do not believe that this unit in the German usage of language can be designated as a department. These referents were organized in groups or departments. In the office we had two such departments, the so-called first department, or organizational department, and then the second department, or the medical department.

To each of these departments belonged perhaps eight referats and at the head of each department was the department chief. In addition to these two departments there were two so-called independent groups or units and one independent referat. These two independent groups were the groups for medical air precautionary matters, then the group for the pharmaceutical service. The independent referat was the referat for budget matters concerned with all financial questions. The essence of these independent referats were that the head of these groups, the budget referat, with his sphere of work, held the position of a departmental chief. That is to say he could make independent decisions, which was expressed by his signing the letters himself which emanated from his field of work. All the other referats had no authority to make decisions.

Q: I think it would perhaps be better to go into the details a little later. Now we are talking about the structure of this office and you were just saying that the lowest branches were the referats, which were combined in the departments and at the head of each there was a departmental chief; would you please continue.

A: Yes. Above these two departmental chiefs, or the independent referats, was the chief of staff and over the chief of staff there was the medical inspector, who from the first of April, 1944 was the chief of the medical service of the Luftwaffe.

Q: In order to summarize, witness, this agency had the structure of a pyramid, the bases of which were the individual referats who were each headed by a referat. In the referats were included the department of which there were two. The highest position was the medical chief himself, who was at first Professor Hippke and then Professor Schroeder. Between the departmental chief and the medical chief, there was also a chief of staff.

You yourself were one of twenty five referats and at first you were only an assistant referat.

A: Yes, this description is correct.

Q: Very well. Now, witness, let us continue where we interrupted earlier. Let us talk about the assertion of the prosecution that you were the chief of the department for aviation medicine.

A: It can be seen from my description that no such department existed; for that reason I could not have been the chief of a non-existent department.

Q: What was really your position from what time on did you hold it?

A: In August of 1941 I was assigned to the medical inspectorate as an assistant referat at the Referat Aviation Medicine. I remained in that position until 15 May, 1944; from 15 May 1944 until 8 May 1945 I was the referat for Aviation Medicine.

Q: One further question for clarification. Witness, you know that your co-defendant Dr. Schaefer designated you as the research consultant of Professor Schroeder. This can be found in the document book of the prosecution, document book No. 1, I beg your pardon, document book of the prosecution, document book 5, document No. 474, Exhibit 131, on page 6 of the German and page 6 of the English document book. Would you please once more clarify this point clearly?

A: I do not believe that Mr. Schaefer meant that I was the research consultant in all research matters. Dr. Schaefer had much too little insight into our office in order to know that. In addition he has far too little military or organizational experience in order to be able to deal with these questions at all.

At the most, he could only answer this question from the very narrow prospective of the research in which he acted in collaboration with me. I, therefore, do not believe that he really wanted to express any such general opinion.

Q: One further question, witness, you were saying that in your opinion Professor Schaefer did not mean that you were then research consultant in all medical question; in your position as referat from May, 1944 were you not at least the research consultant in the field of aviation medicine?

A: I was referat and not a research consultant; that becomes evident from the fact that in the agency of the chief of the medical service of the Luftwaffe, there are approximately 20 to 25 so-called consulting physicians and among them there were four consulting physicians for aviation medicine.

Q: Could you tell us who these consulting physicians for aviation medicine were?

A: These four consulting physicians were: first, Professor Strughold; second, Professor Anthony and after he had been transferred then Dr. Benzinger and then either Dr. Kottenhoff or Dr. Koch, I no longer know that exactly.

Q: Witness, it may be advisable now to compare the activities of the consulting physicians with the activities of the referat; when for instance would the medical chief turn toward the referat and when would he turn toward the consulting physician on aviation medicine?

The referat was always approached whenever it was a question of dealing with current work. For instance, whenever some request or some question arrived from a technical agency or an army unit, whenever a suggestion arrived from a research institute by mail at the office, it was a matter of course that the referat in charge was entrusted with the dealing of this matter.

When, on the other hand, we were concerned with a scientific proposal, let us say a proposal for a new research assignment or something like that, and it was a matter which was not absolutely clear, then either the referat on his own initiative suggested to him the attitude of the consulting physicians on that subject, the attitude of either one or more of these consulting physicians or the department chief, or the chief of staff or the medical chief, did it on his own initiative or ordered it. Naturally the referat also uttered his view regarding any such proposal. We were in no way just mail clerks or file messengers, but under circumstances the referat suggested a number of alternatives on that subject, he pointed out the many difficulties and in order to solve these difficulties he asked that another recognized expert be heard on the subject, an expert for instance in the form of the consulting physician. In order to put it explicitly, while a personal view was expected from the consulting physician a material view was expected from the referat — perhaps many of those material views.

Q: If I understand you correctly, witness, the referat so-called delivered to the medical chief, the so-called technical equipment and he dealt with all the technical preparations for any decisions that had to be made, whereas the consulting physician made the actual proposals for any work that was to be carried out; is that a correct presentation; we shall discuss that of course in detail a little later.

A: Well, this distinction between tin technical and material prerequisites — Of course, the suggestions made by the referat were also material, but as consulting physicians we always had top experts in the field whose opinions were in no way binding for the medical chief.

The medical chief just listened to their opinions, in other words, what I want to say is the consulting physician had to adopt a more personal manner toward these matters.

Q: I think, Mr. President, that this point has been now clarified somewhat. I may recall in this connection the testimony of Dr. August Dienock who was heard as a witness for Professor Schroeder, and who also had given some testimony in regard to that point. This was in the session of 26 February 1947. You will find the corresponding testimony in the German record on page 3764 and in the English record on Page 3726.

THE PRESIDENT: Counsel, I note that in document No. 474, the affidavit of defendant Schaefer, to which you referred, the defendant Becker-Freyseng is described as a research adviser and not as a research consultant. I don't know whether that makes any difference in the German language but from what you said yesterday it seems to me that the English word "consultant" conveys to you a somewhat different meaning from that which it frequently conveys to us. Of course, many words are used sometimes in a different sense, but this exhibit to which you referred, the one I gave, uses the word adviser, not consultant.

DR. TIPP: Mr. President, I may say perhaps the following in that connection. This word "consultant" in particular has been used in various meanings during this trial. As a rule as far as I could ascertain this word as used for the so-called consulting physicians. The interpreter translated that word this morning as consulting physicians, whereas the other interpreters perhaps just said "consultants" but I do think that this point has been clarified sufficiently and I need no longer go into it.

MR. HARDY: May it please the Tribunal, this point is one which has taken a considerable length of time in this Tribunal in that Schroeder spent some time on it and Mr. August Dienock spent some time on it, and now we are here again and I must frankly admit from the explanation we have this morning I am confused.

I knew what referent was and I knew what referat was and I don't know now and I am going to ask the Tribunal if they will ask the translation department for an interpretation of it and to study the difference between the translation of the word referent and referat. I understand referat is a department and referent is a sub-department, and therefore the words referat and referent is perfectly clear in the English language and to quibble about whether it is a department, referent for aviation medicine, or a referat for aviation medicine is basically immaterial, and I think we should at this point of the trial establish a definite definition for a referent and a referat and consultant and so forth so that we can proceed in our briefs and set forth just what they are without further arguments; the prosecution maintains a referat is a department and we have nothing to object to, and it is just a minor point and there is no point of arguing about it if we can establish it now tnrough the interpretation department.

DR. TIPP: Mr. President, I must object to Mr. Hardy for the following reasons: He has just stated now for the very first time that the prosecution is now of the opinion that a referat was a subdivision of a department. Up to this point the Prosecution has not expressed that as clearly as that. It may be that this difference could be explained by the various translations and I think that I can agree with Mr. Hardy now by saying that a referat is a sub-organization of a department. In other words, the department is the superior agency of the referat. If I have understood Mr. Hardy correctly so far and if this is now the opinion of the prosecution we are in absolute agreement.

MR. HARDY: If that is the case, Your Honor, then there is no problem any longer and if defense counsel admits referat is a department.

DR. TIPP: No, I beg your pardon, Mr. Hardy unfortunately contradicted himself. He just stated two minutes age that the referat was a sub-department, and now on the other hand he is saying that the referat was a department and I think these two concepts would have to be distinguished once and for all. In order not to speak at length about this point I may suggest Mr. President that the defendant Becker-Freyseng make a sketch which would illustrate the structure of the medical inspectorate in detail and that in this sketch the corresponding German and English names would he inserted. Of course, he couldn't do that today but he would do it within a few days and in this manner it would reach some amount of clarification.

THE PRESIDENT: The defendant, Becker-Freysing, may when he can, prepare this sketch which has been suggested and present it to the Tribunal and I think the Tribunal has quite a good idea of the meaning of these words but the defendant may prepare this sketch.

BY DR. TIPP:

Q: Witness, after this interruption, let us continue with our questioning. You were saying that you were a referent as far as you haven't done that already.

A: Well, the tasks of the referent exhausted themselves in is right to make suggestions. The referent had no possibility to make an independent decision. This meant that he was not allowed to sign anyone's letter personally and that without any exception. The only exception to which I may perhaps refer is that in the case of a copy he was in a position to certify the authenticity of that copy, but that, of course, has nothing to do with the signature as an expression of the decision made.

Q: In this connection, may I recall that Dr. Witt and Dr. August Dienock, the two witnesses who were both referents in the medical inspectorate, have given the same testimony about the rights of a referent. That was done on 28 February, 1947. The two passages can be found on page 3761 and 3768 of the German, as well as on page 3725 and 3749 of the English record.

Witness, what was the collaboration with your superiors within the frame-work of the medical inspectorate? In particular tell us about your collaboration with your superiors and especially with Prof. Anthony, as long as he was the referent and you were the assistant referent?

A: In order to answer your second question first, which refers to my relationship to Professor Anthony, Professor Anthony was lacking the most essential property of a superior, namely, he was in no way to make any decisions which concerned me. I was attached to Prof. Anthony in order to assist and support him. My relationship to him may be illustrated best by saying that Anthony was about fifteen years older than I and that for many years he hod been a University Professor and an independent head of a large clinic for internal medicine and that from a military point of view he had been a stabsarzt [Staff Surgeon], for a long time, whereas I was only an assistant physician, an oberarzt [Physician], and I might say that my relationship to him perhaps corresponded to this relation of a clinical assistant or a scientific assistant to his medical and scientific chief. I always addressed Anthony with the words "Herr Professor" and it was quite natural that Anthony was working on a large field within the referat independently and only entrusted me with various tasks within that sphere or rather had orders given to me by my departmental chief.

My personal relationship towards him was good. I think this is all I can say about that.

Q: Now, witness, would you please illustrate your relationship to your next superiors which are, first your departmental chief, and Chief of Staff, and Medical Inspector?

A: My relationship to my Military superiors can be seen when considering the structure of the agency. In other words, I had to deal with all suggestions, drafts, proposals for reply, etc., which I had to submit at first to my departmental chief who signed a part of these letters himself as far as they were not concerned with decisions on principles. The letter he either submitted personally or in my company to the Chief of Staff who again signed a great part of these letters and then, in turn, decided which letters were to be submitted to the Medical Chief of the Medical Inspector for his signature.

Q: The lowest man holding the lowest position who could make decisions and sign letters, if I understood you correctly, was the departmental chief.

A: Yes, this was the lowest position which could make independent decisions.

Q: Now, witness was it really true that the referent bore no responsibility for what he suggested and for what he prepared. If that is not so what was his task, what was his responsibility, in your opinion?

A: I never saw any job directive on job regulation, for the referent but I always considered my position as a referent as a very responsible one and I always considered very carefully whatever I was suggesting. I may say that for that reason I had to work day and night. Perhaps I may point of the following: Not only did it occur very frequently that I as a referent submitted a number of possibilities to my departmental chief for his decision from which he could then select the one which seemed most proper to him. It also occurred very frequently that altogether he rejected any proposal which I made. For instance, approximately the end of April or the beginning of May 1944, when taking over the referat from Anthony I had suggested to attach a training company to the lecture department at Jueterbog. I did that in order to get a personnel reserve in that training company from which we could obtain sufficient soldier volunteers as experimental subjects about whom an agency within the medical service would be able to dispose. Had this suggestion been adopted at that time Dr. Schaefer and Dr. Beiglboock at least would not be sitting in this dock. This suggestion of mine was rejected by my departmental chief.

Q: Mr. President, in connection with latter point I shall be in a position to submit an affidavit by Professor Dr. Knode the chief of the then Training department Jueterbog. This affidavit has been requested but was unfortunately not yet received. Witness, generally you described what the responsibility of a referent was. Could you perhaps illustrate the details of your activity by giving us a concrete example? I think the sea water experiment would be the best example in which you yourself participated in the capacity of a referent. What did you do briefly in that connection?

A: At first I informed myself exactly about the nature of the two procedures of which we knew. I informed myself about the necessity and the nature of any now experiments. I informed myself about Professor Beiglboock and his qualifications as an experimental leader and finally I informed myself about the various possibilities which existed in the summer of 1944 to carry out the experiment. This material was presented to my departmental chief, then in his presence it was submitted to the Chief of Staff and after this information had been examined and approved of my superiors it was submitted to the Medical Chief who on the basis of it then made his decision.

Q: Accordingly your responsibility as a referent was really an inner office responsibility whereas the actual decision which went to other agencies was made by your superiors?

A: Yes, this is how you could perhaps express it.

Q: Now, the Prosecution here on the 10 December 1946 has asserted that you had issued orders. They said that you had issued orders to Professor Haagen who plays a considerable part in this trial. According to what you are saying now this opinion of the Prosecution is erroneous but would you please repeat it here?

A: I neither had the right to issue orders nor did I at any time issue such orders.

Q: Finally in connection with point may I again refer to the testimony by the witness Witt, on 28 February 1947, page 3789 of the German transcript and 3751 of the English transcript. He made a similar statement to what the defendant has just said and I also point to the testimony by Professor Schroeder who was the highest technical superior of the defendant of 26 February, 1947, on page 3559 in the German transcript and on page 3536 of the English transcript. Now, witness, may I ask you to discuss the details of your activity. You were already saying before that you had been an assistant referent from August 1941 until 1944. and that you were a referent from May 1944 until the collapse of the German Wehrmacht. Would you now tell us what your tasks were as an assistant referent?

A: As an assistant referent I was entrusted with a number of detail tasks which came up within the referat for which I bore the same inner-office responsibility as when later on I became a referent. The difference in effect was that as an assistant referent I didn't have the possibility nor the task to include myself into all questions concerning the referat and concern myself with them.

Q: And who, witness, gave you these individual tasks?

A: It was my departmental chief, at that time Generalarzt [General Physician] Dr. Marius who was my direct military superior.

Q: Witness, in your position as an assistant referent were you the permanent representative of the referent. For instance, whenever Professor Anthony was on vacation or on an official trip, did you represent him?

A: No, I was not his permanent representative buy only from case to case when it was specifically ordered. May I point out that only two or three of all the referents had any assistant referents attached to them. It occurred very frequently that when a referent went on some official trip although he had no assistant referent, therefore it wasn't necessary for every referent to have an assistant.

The departmental chief always knew what was happening.

Q: Witness, I think that we can clarify this point by the document which was submitted by the prosecution. It is in Document Book 12 of the prosecution on page 77 of the German and 74 of the English Document Book. It is a letter written by Professor Rose dated the 9th of June, 1944, addressed to Professor Haagen at Strasbourg. It was submitted under Document No. NO-306 and bears the exhibit number of the prosecution 296. I may ask you to give your opinion about that letter and I shall quote the second paragraph:

Did you hear anything from Department I relative to its position with Mitte? It will take some time until "2-F" produces its new research order as Anthony is on a duty trip for several weeks.

These code letters "2-F" were, at that time, the designation for the referat Aviation Medicine, weren't they?

A: Yes.

Q: Would you tell us at first how this letter originated? It is, no doubt, from Professor Rose, but perhaps you can remember the incident which led to this information.

A: I can only say that on the basis of Professor Rose's testimony on the witness stand. I have no personal recollection of the incident, but since Professor Rose has stated here that he asked either the departmental chief or the referat how the Haagen research order was proceeding and since he received the reply that one would have to wait until Anthony returned, it is, of course, absolutely possible that I gave them that information at that time. Of course, after four years have elapsed, I can no longer remember all that.

Q: In that case you are saying that nothing could be decided about the new research order for Haagen until Anthony came back from his trip. Is it correct if I conclude therefrom that you were not Anthony's deputy in these questions?

A: Yes, this becomes clearly evident from this letter for had I been Anthony's deputy in this special field or even quite generally then one could not really understand why one should have waited many years with the issue of that research order until Anthony returned.

But I may mention in that connection that it naturally occurred that certain part assignments which I received also meant research orders for me. I assume that if, in the question of this research order to Haagen, we had been concerned with the mere prolongation of an order which had existed for many years then I may have perhaps received the order to work on the subject, but this document proves clearly that in this field even in the year of 1943 my authority was very limited or rather hardly existed at all.

Q: Witness, one more clarification in that connection. The Department 1 which is mentioned, here is probably the organizational department, isn't it?

A: Yes, that is the first or organizational department which I mentioned before.

Q: The position with Mitte which is mentioned here is probably the position of the consulting hygienists with the Air Fleet Physician which Haagen later occupied, isn't it?

A: According to what I learned here during the trial this can only mean that. Of course, at that time I had nothing to do with it.

Q: Now, witness, let us continue with the referat. What subjects actually belonged to the referat of aviation medicine?

A: The layman, when dealing with the words "aviation medicine", if he imagines anything at all, thinks of the two classical fields involved. This is, at first, the effect of acceleration and, secondly, the effect of high altitudes or, in other words, the effect of any lack of oxygen. These two fields, naturally, have their priority and retained that priority even during the last years. But by using the Air Force for war purposes an enormous amount of new problems was added. I can, in passing, name only a few of these problems perhaps. There were general physiological questions about respiration and circulation. There were questions concerning general and special pathology which resulted from air accidents and, in particular, in the case of high altitude accidents.

Questions arose in connection with the so-called physiology of the senses; for instance, night-sight, space-sight, or the special demands made on the person's hearing or the inference of the noise of the motor to any one person's hearing. In that connection we have to deal with pharmacological questions, e.g. the improvement of resistance in high altitudes by the introduction of drugs which would increase efficiency. There were certain psychological questions which concerned the selecting of fliers and the training of fliers. Medical research under particularly difficult emergency situations; for instance, sea emergency, desert emergency, mountain emergency situations. To this subject belong the medical special measures which have to be taken in connection with the flying personnel. For instance, we have the fliers' examination stations, the examination stations where we tested the effects of high altitudes and, in part, there were hospital departments where the fliers rested after extensive flying. Special institutions, like special equipment, special clothing and special nourishment for the flier. Then there is the development of the apparatus for the piloting of airplanes from the point of view of the psychological and physiological considerations, and, finally, I should like to point to the numerous problems which arose during the air war. The carbon monoxide effect, the effects of heat, etc., in which aviation medicine worked. In addition, the referat had to deal with the construction and modernizing of the low pressure chambers; education of the flying physicians; current orientation about special literature. In that connection, interest in patent questions which arose from research in aviation medicine. In conclusion I may say that the aviation medicine is, in no way, a medical special field which, in the case of all other medical special fields, concentrates on a certain organic system or concerns itself with a certain manner of therapy or examination as, for instance, eyes, eye diseases, throat, ear, nose, etc., but aviation medicine comprises all spheres of medicine in its connection to the flier.

Q: The witnesses which were heard here — Professor Dr. Weltz and Dr. Ruff and Dr. Romberg — have already conveyed their impression to the Tribunal concerning the practical work in the sphere of aviation medicine. They were telling us what fields were worked upon within the referat and, in that connection, I may ask you what, in effect, was the practical work of the referat in respect to all those spheres which you just mentioned?

A: If I may answer this question briefly, the referat had, in some way, the position of a mediator, between aviation medicine on one side and the flying units on the other. From both sides we received suggestions, reports about experiences, requests, etc., which were dealt with at the referat. These suggestions were either passed on or were realized in the form of directives, directed to troops, army physicians, research institutes, or hospitals. In addition, of course, there were connections with the civilian research units to whom, of course, we could issue no orders and who were in connection with us by the issue of the so-called research assignments. They received financial support and other support for their scientific help.

Q: Witness, at a later date we shall discuss the research assignments in detail.

THE PRESIDENT: Counsel, the Tribunal will be in recess for a few minutes.

(A recess was taken)