1947-05-28, #2: Doctors' Trial (late morning)
THE MARSHAL: Persons in the court room will please find their seats.
The Tribunal is again in session.
HERMANN BECKER-FREYSENG — Resumed
CROSS EXAMINATION (Continued)
BY MR. HARDY:
Q: Dr. Becker-Freyseng, will you kindly turn to Document No. 177, which is Prosecution Exhibit 133, found on page 11 of Document Book # 5.
A: I have it.
Q: I gather from your testimony here in direct examination that you think that this document is a fraud. Just who do you think perpetrated this fraud?
A: I believe you have completely misunderstood my whole defense if you assume I said this document was a fraud. I never said such a thing. I don't know how you could have come to that conclusion. I simply explained that the Technical Office had drawn up a medical report and that, unfortunately, in so doing a large number of errors were committed and, in 1944, I drew the Technical Office's attention to this fact but, since I couldn't know that this document was going to become involved in a murder trial, I didn't send in any written correction at that time nor did I ask the Technical Office to do so. However, there was no talk of a fraud at any time.
Q: Well, let us look at this document, Doctor. On the first page of the document we find the minutes of the conference regarding the methods for making sea water drinkable on 20 May 1944, and it lists the number of people present. Therein we notice that there were fourteen people present at the meeting. Now, might I ask you this. It seems that you have testified that you were unable to secure volunteers for the experiments from the civilian populace, from members of the Luftwaffe, and that was why it was necessary for you to resort to Himmler's source. Why didn't these fourteen men volunteer for the experiment? You had fourteen men right here, interested in the problem; you could have used those fourteen men rather than jeopardize the lives of concentration camp inmates, couldn't you?
A: So far as I am concerned personally, I should have had no misgivings regarding subjecting myself to such banal experiments, and, if you would like, I shall subject myself to a period of eight days without food or water if, thereafter, I receive three thousand calories a day and I know also that Herr Schickler and others did make themselves available for brief experiments. All of these people listed here, in the fifth year of the war, had a more or less important position in the war machinery and simply couldn't leave their offices for a month at a time to subject themselves to experiments. It was for the same reason that we could not find a total of forty — because it was forty we needed, not fourteen — in other segments of the population.
Q: You could have broadcast it on the radio and received some volunteers out of the millions of people living in Berlin, for a harmless experiment for the benefit of the German Wehrmacht. A call on the radio that "it is your patriotic duty to volunteer for this experiment." Something of that nature. You couldn't have received forty people in the whole of Berlin?
A: In my direct examination I also testified at great length regarding this, that I was convinced that for this experiment we undoubtedly could have found forty persons in Berlin, but not the forty people whom we needed for the experiment. It would have been easy enough for the prosecution to find witnesses to prove that, in the summer of 1944, there were certainly not forty healthy young men between twenty and thirty years old whose time was so available to them in such a way that they could take part in an experiment for four weeks. That was, in the summer of 1944 in Berlin, absolutely out of the question.
Q: You mean that the inmates of a concentration camp were healthier than the civilian populace in Germany?
A: The forty experimental subjects used for these experiments were assuredly more healthy than many of the inhabitants at that time. In the course of other presentation of evidence in the sea water experiments it will become perfectly clear that these forty persons were particularly healthy, and when this proof is brought forth you will be able to convince yourself of that fact.
Q: When did you physically examine these forty experimental subjects?
A: The examination of them was carried out by Professor Beiglboeck very carefully, and after the conclusions of the experiments I heard from Professor Beiglboeck a detailed report about this health examination that the experimental subjects received.
Q: When did you physically examine the forty experimental subjects?
A: Please, may I refer to my direct examination here in which I said that I was never in Dachau and myself never saw the experimental subjects. That was completely unnecessary since Professor Beiglboeck was commissioned to carry out the experiments.
Q: These experiments were conducted in 1944, weren't they?
A: End of July and August, 1944.
Q: You didn't see the subjects?
A: No, I was not in Dachau.
Q: The subjects were concentration camp inmates?
A: At least during the time the experiments were carried out, they were in the concentration camp Dachau. Just what their fate was before then and after then I don't know.
Q: Now, let's refer to page 12, Document Book # 5. This states in the first paragraph and this will be the second sentence after the list of these present at the meeting on 19 May 1944. It reads as follows:
The Chief of the Medical Service (Chef des Sanitaetswesens) is convinced that, if the Berka method is used, damage to health has to be expected not later than 6 days after taking Berkatit, which damage will result in permanent injuries to health and — according to the opinion of Unterarzt [Sergeant] Dr. Schaefer — will finally result in death after not later than 12 days.
Now this report, that was written by a layman and not being a medical man, contained that information. Was that information incorrect?
A: Not only were they erroneous then, but they still are.
Q: Let's turn to Document No. 474, the affidavit of Dr. Konrad Schaefer, a defendant here, Prosecution Exhibit 131, on page 60, Document Book # 5, paragraph 3. Turn to the third sentence therein:
It was decided at this meeting to conduct experiments on concentration camp inmates with the Berka process, although it was generally admitted that Berkatit sea water process seriously impairs the health after six days and causes death after twelve days at the latest. It was further decided that the human experimental subjects were to be fed only sea water, processed by the Berka method, for a period of twelve days.
Taking into consideration this affidavit of Schaefer, it appears that the entry in the minutes of the 19 May meeting are correct, does it not?
A: First, let me draw your attention to the fact that you yourself prevented me from speaking about Schaefer's affidavit in my direct examination when my counsel wished to ask me questions about it. Now, I don't know whether it is very fair to ask me about a document during during the cross examination —
Q: (Interrupting) Bear in mind that I did not prevent you from doing that. The Tribunal did. The Tribunal ruled on that. Not I. Now, let's continue.
A: Then I can say now what I intended to say during my direct examination, on which matter the Tribunal, on your suggestion, passed a ruling.
I happened to know that Dr. Schaefer was shown this Christensen report before he signed his affidavit and that Dr. Schaefer believed that he would have to supplement his recollection on the basis of this peculiar report and, consequently, has set down in his affidavit what you just read to me, and I believe that Dr. Schaefer will discuss this affidavit at great length.
Q: You mean that you are testifying now on behalf of Dr. Schaefer that he perjured himself, under oath, in this affidavit?
A: No, no, no perjury. I think perhaps this question should better be discussed during the hearing of Dr. Schaefer.
Q: Well, it was evident to you, however, that death would result after not later than twelve days with the use of Berka sea water, wouldn't it? Didn't you say that you floated that as propaganda so that you could have the experiments conducted to prove that Berkatit was a fake and so that it wouldn't jeopardize the lives of aviators in the German Luftwaffe?
A: I am convinced that under certain circumstances death will occur much sooner than twelve days if the Berka method is used, and I have pointed out at great length that a sentence such as it stands here; namely, that after using the Berka method, serious damage is to be expected after six days — that sentence is something that a medical layman could write but not a medical specialist. First of all, after you take Berkatit nothing can happen to you. What the layman wants to say is "after taking sea water which is treated with Berkatit". Thus, from this false formulation you can see that the person who wrote this sentence didn't really recognize the true medical and scientific implications.
Q: I am not a medical man, but I can recognize the implication you are trying to convey at the present time, I am sure that the Tribunal can see and I am sure that Christensen, the author of this report, whose signature is on the original, and it is to be assumed that it was written by Christensen, can certainly recognize it was stated at this meeting if the Berka method was used, it would result in death. It simply says that in this sentence and I think you have shown that same fact in the course of your examination here when you now say that it would result in perhaps less than twelve days. How long do you think it would take after drinking the sea-water treated by the Berka method; six days, seven days?
A: According to the available literature on shipwreck catastrophes death can follow even after a few hours after the person drinks sea water, that depends first of all on the person's condition who drinks the sea-water and secondly how much sea-water he drinks. What is to be ascertained here was really and in effect a specific experimental subject was taken from Sirany's experimental series and it was explained to the technician that if this specific person drank in the next six or twelve days as much sea water as he drank in the first two or three days, then this specific person under these very specific pre-conditions would probably die after twelve days. This was taken by the technicians and generalized by them and that is the basis of this unfactual report.
Q: We will let the Tribunal decide as to whether it is unfactual or not. Tell me, when are the symptoms apparent when a person drinks sea water for any period of time; What happens to them?
A: Here again it depends on what condition the person is in and how much he drinks.
Q: They might suffer from diarrhea; is that right?
A: That entirely depends on how much sea-water he drinks.
Q: It is possible, of course, that a person could have diarrhea as a result of drinking sea-water.
A: You cannot answer that question in such general terms.
Q: It it possible they could have convulsions, that is the symptoms of the effect of drinking sea-water; isn't it? In a hundred oases might it appear in one?
A: I never heard that.
DR. TIPP: Mr. President, again the objection that I unfortunately had to make yesterday I have to make again. Mr. Hardy is not letting Dr. Becker-Freyseng finish his sentences. I believe it would contribute to the general clarity of the interrogation if the witness could conclude his sentences.
THE PRESIDENT: The witness may be allowed to finish any sentences he desires to answer as put to him by the Prosecution.
BY MR. HARDY:
Q: Is diarrhea a symptom after a person drinks seawater even one percent of the time; in one hundred cases might it happen once?
A: That has nothing to do with a percentage, it depends wholly on the quantity contained in the individual dose of sea-water. If you drink more than 300 cc of sea-water in one single dose then you have diarrhea, if the dose is smaller, then you do not.
Q: Can you suffer from convulsions as a result of drinking a certain amount of sea-water?
A: I cannot answer that question. From the literature that I read, I know of no single case of convulsions and since I did not see the sea-water experiments myself, it is impossible for me to answer that question in the affirmative.
I do know that in the case of the disease that I referred the technicians to as a horrible example, namely cholera, you do have convulsions, but these convulsions are not solely the result of drinking sea-water, but are a symptom of sickness itself. I cannot designate between those two possible sources of the reaction at the moment, what is the result of thirst or of the sickness itself, perhaps Professor Beiglboecke can answer that question.
Q: After drinking sea-water for some period of time, is it possible that the person may suffer from hallucinations; will they have hallucinations?
A: The literature I have read on cases of ship-wrecked persons and this is about all detailed descriptions of English sea-wrecks, they speak of "Fata Morgana" and other matters. Now whether in a strictly psychological sense these are genuine hallucinations or not I do not know, the literature is very limited in this matter. I am not a Psychiatrist and I cannot answer this question, but since I know that you are referring to this document, this Christensen document, let me say that in my direct examination I quoted a passage from Bergmann's text books regarding thirst symptoms of cholera and there was nothing there about hallucinations.
Q: And you have testified already death can result from drinking sea-water?
A: Yes.
Q: Well now this sentence here in this report written by a lay-man, Christensen, states:
External symptoms are to be expected, such as drainage, diarrhea, convulsions, hallucinations and finally death.
That is a pretty good accurate statement, isn't it?
A: Let me say first of all in general it frequently occurs that lay-men do more talking about difficult subjects and are more dangerous and unpleasant than specialists, and secondly, I have already told you what the basis of this lay-man's statement is, which is mainly the quotation from that text book. I mentioned that sentence in the text book and certainly it must have made a great impression on Mr. Christensen or perhaps on Schickler, if he drew up the report, that is why you find it reproduced here in this report. Moreover in Sirany's case experimental subjects actually did have diarrhea but Sirany's experiments were much more unpleasant and dangerous than the experiments that my associates planned and which Bieglboeck carried out and in those cases of ours we did not have any diarrhea.
Q: Well, now, Christensen says here in this report that as a result of the preliminary discussions it was agreed to arrange a new series of experiments of short duration; that fact is true isn't it?
A: That is undoubtedly true. There isn't much in saving that, because everything revolved around that question.
Q: It was also agreed that in the series of experiments persons would be given sea-water processed with the Berkatit method; wasn't it? Let us just set aside the report for a moment. It was also agreed that persons would be used in the experiments and said persons would receive sea-water processed by the Berka method; isn't that right?
A: That did not have to be agreed upon, because that was the question we were trying to decide.
Q: It was also stated that persons selected would be control persons and they would drink merely plain water; didn't they?
A: That again is one of those control groups, which has frequently been mentioned in this trial, namely the control cases. They were much better off than the actual experimental groups who drank the Berkatit and sea-water. I possibly said that at that time because these were scientific objections which I made to Dr. Von Sirani's plan for the experiment as he did not have such a control group in his series of experiments.
Q: Now, you have stated here in direct examination that persons would be given 500 cc of Berkatit, another group would be given 1,000 cc of Berkatit, the third group would be a normal group given ordinary drinking water, the fourth group would be given sea-water without anything and a fifth group would get nothing; is that right what you said here in direct examination?
A: That was a part of what I said in my direct examination, but not all and what you have left out I consider very important, namely the conditions under which the experiments were to be carried out, which were decided on in the presence of Professor Eppinger and Heubner, which was fundamentally difference from a medical experimental series.
Q: Well now you said in your direct examination that you intended to make the cheese more binding, Doctor, when you stated there was a fifth group and a fourth group. The fifth will get nothing at all, the fourth will get plain sea-water; you wouldn't even give them the courtesy of giving them sea-water treated with the Berkatit method; is that right? That is not prevalent here in this report either that you intended to use people and give them merely sea-water and nothing else.
A: I am very glad that the Prosecution has finally stated that what actually was decided on and what statements are in this report is in contradiction to each other. I never thought that Berkatit was a particular act of philanthropy or that drinking sea-water is not such a horrible matter as you seem to believe.
Q: People die with it, don't they?
A: You can die with anything.
Q: Certainly. Let's go on, arabic No. 2 on page 13, Christensen states here under the section:
Persons nourished with sea water and berkatit, and as diet also the emergency sea rations. Duration of experiments: 12 days. Since in the opinion of the Chief of the Medical Service (Chef des Sanitaetswesens) permanent injuries to health, that is the death of the experimental subjects has to be expected, as experimental subjects such persons should be used as will be put at the disposal by the Reichsfuehrer SS.
Dr. Christensen made that remark and he obviously based that remark on what he heard at the conference, did he not. He didn't just conjure up that idea by himself, did he?
A: He certainly heard that but what is written down here is not what he heard from me or Dr. Schaeffer verbatim but is the result of what Christensen understood.
Q: Tell me.
A: That is right and it appears that a layman who attended a conference will think he is not a specialist and does not understand what really was meant. Let me point out two matters to you. The first is that if I really had proposed an experiment in sea water with berkatit that lasted twelve days, let us assume for the moment, then I cannot understand why I should have also suggested the same experiment for six days because in the 12 day experiment I must perforce just carry out the first six days and consequently can see in the twelve day experiment everything that I could see in the six day experiment.
Q: You have elaborately explained the experiment. I haven't asked you that question at all. I have asked you concerning what Christensen wrote in this report right here in this paragraph:
Since in the opinion of the Chief of the Medical Services permanent injuries to health, that is, the death of the experimental subjects has to be expected
— now he heard that at that meeting, didn't he, or he wouldn't have written it here?
A: He most certainly did not hear it at that time because I never said any such nonsense.
Q: He says he heard it at the meeting, doesn't he?
A: He says so, yes.
Q: And furthermore he says in this paragraph that due to the fact that death is to be expected, we will have to get our experimental subjects from the Reichsfuehrer SS, that is what that says in this paragraph, does it not?
A: Please let me tell you my second reason why this cannot be true, and then I can answer your question.
Q: Just a moment, does that say that in this paragraph from reading this paragraph on it's face, does it not say that the death of the experimental subjects has to be expected, and as experimental subjects such persons should be used as will be put at the disposal by the Reichsfuehrer SS, does it say that or doesn't it?
A: There is no doubt it is here. Nobody denies it is written here, and I never denied that the document is genuine.
Q: How could Christensen know the Reichsfuehrer SS would supply concentration camp inmates?
A: Let me tell you first of all that between Christensen's office and the Reichfuehrer SS, there, without the Chief of the Medical Inspectorate or myself knowing about it, there were close connections. Moreover at our meeting of the 20th I spoke of the possibility in case we found no other experimental subjects of making an effort to use inmates, and not because the experiments were dangerous or could cause death, but purely for organizational reasons. Now I ask you for the third time, please let me finish my second reason. After the meeting of the 25th of May we tried to carry out the experiments such as those actually to be carried out in Dachau on cadets from the military academy and then when we were not successful in that, then to carry them out on persons in the Luftwaffe Hospital in Brunswick, That proves without doubt that the conclusion which Christensen seems to have drawn in this report is certainly not a correct conclusion.
Q: Where is that evidence?
A: It seems very simple to me — Mr. Christensen says —
Q: Where is the evidence that you had experiments after that time, after the 25th of May, on cadets? Where is that evidence?
A: Refer to the affidavit of the Commander of the Medical Academy of the Luftwaffe. I don't believe you will accuse him of committing perjury. Otherwise, you would have to make him stand trial and that has not yet taken place, and the Chief of the Luftwaffe Hospital in Brunswick who has also given an affidavit on this subject, says that either Schroeder nor someone authorized by him, was to carry out experiments in the Luftwaffe Hospital in Brunswick.
Q: Did they carry out the experiments?
A: I have said several times that because of conditions in 1944 unfortunately the experiments could he carried out neither at the one nor at other place and this was the reason why the letter was sent to Himmler asking that these experiments be carried out on inmates, and that is the reason
Q: Of course, Christensen implies here the only reason why you are going to Himmler is because you expected deaths and you can very well kill concentration camp inmates where you couldn't very well kill cadets, you might well perform experiments on cadets that wouldn't result in death, but here Christensen points out that you people agreed in this conference that death would be the result and hence it is necessary to resort to to the Reichsfuehrer SS for subjects to be used because you didn't want to kill any of these valuable cadets, isn't that more likely the situation?
A: That is perhaps a picture of what actually went on in Christensen's mind, that I do not know.
At any rate is it not a reproduction of the thoughts that went on in my mind and also let me point out to you the following: Never, never, not even in this conference that took place almost three years ago, never did I say that deaths were to be counted on in these experiments. I said that in practical cases of ship wreck there would be serious damage to health if the berkatit method was used and that is something altogether different and every medical specialist will agree with me when I say that any method that took place out in the ocean hundreds of miles from shore, is dangerous, when I say that these same circumstances can be reproduced in a laboratory on an experimental subject with no danger to the experimental subject's life, and this was proved later in effect as to how experiments were actually carried out and how they resulted and this is unambiguously a misunderstanding on Christensen's part, who confused experimental danger with the experimental situation, who never in his life had carried out any medical experiment.
Q: What did Professor Eppinger think about using concentration camp inmates?
A: I can't tell you because I never discussed the matter with Professor Eppinger;
Q: Did he exhibit any misgivings about it?
A: Not to me because in the meeting of the 25th which I attended with Professor Eppinger the question of experimental subjects was not even brought up. The experimental conditions were established according to purely medical and scientific principles, independently, whether they were to be carried out on volunteer Cadets or hospital inmates or concentration camp inmates, that was not decided at all on the 25th and it was not discussed. Also I do not know when Dr. Eppinger first found out the experiments were carried out in Dachau nor do I know what he thought about that, consequently I cannot answer your question.
Q: Professor Eppinger was a very famous physician, was he not?
A: Yes.
Q: He was associated with the University of Vienna?
A: He was an ordinarius [full professor] for internal medicine on the medical faculty of the University of Vienna.
Q: Wasn't his name on a high plane in medical circles in Europe?
A: In the field of internal medicine he was certainly one of the leading authorities of Europe. I assume that because I have heard that statesmen and members of the royal and noble families from outside Germany have frequently called on him for treatment.
Q: Do you know what happened to Professor Eppinger?
A: In the course of this trial I have heard that Professor Eppinger committed suicide?
Q: Did you know that Professor Eppinger saw the actual experiments Beiglboeck was conducting at Dachau?
A: I heard from Professor Bieglbock that Professor Eppinger was at Dachau one time I believe during the course of the experiments and in the one or the other testimony here I heard that corroborated.
Q: Did you hear from defense counsel or other sources that Professor Eppinger committed suicide in a matter of hours after being visited by a representative of my office?
A: No, this is the first time that I have heard that.
Q: You don't know whether or not Professor Eppinger ever had misgivings about being implicated in the experiments with sea water at the Dachau concentration camp?
A: If he ever had any such misgivings just shortly before his death.
Q: Let's turn to document NO-185, page 18, Document Book V, which is Prosecution Exhibit 134. You wrote this letter, doctor?
A: I drew up the first draft of this letter and dictated it. Showed this draft to my department chief and he, as I clearly remember, made a few changes that I do not remember exactly today. Perhaps you may have his files and there are in my original draft the changes that he made. Then the letter was submitted to the Chief of Staff and finally was submitted to the chief himself to be signed.
Q: According to the translation of this document by defense counsel, Dr. Marx — the important sentence that we have been discussing here is the second statement in that letter. Dr. Marx's translation reads as follows:
Today again I am standing before a decision, which, after numerous experiments on animals and also on human beings demands a final solution on voluntary experimental subjects.
Now, using that translation can you tell me who the human beings were, that is, the non-volunteers that you used prior to this. You are asking for volunteers. From that sentence it indicates to me that you had experimented with animals, then non-volunteers, and now are stressing the fact you want volunteers. Who were the non-volunteers you used before you asked Himmler for volunteer subjects?
A: First of all in this whole letter there is nothing about volunteers. Life does not consist solely of contradictions so that because there is the word volunteers in one sentence you cannot conclude that all the other persons that were used were non-volunteers. That is not necessary antithesis. There were two groups of experimental persons. First of all, in the two series of experiments there, were the associates of Dr. Schaefer and on the other hand experimental subjects used by Sirany in Vienna. Both of these groups of subjects were volunteers, no doubt.
Q: Well, you have already experimented on animals, according to the translation by defense counsel, and you have already experimented on human beings, but now it demands further experiments. What is the reason you couldn't use the same human beings, for instance, that you used for the others. Is it because the final solution is death?
A: No. Schaefer's experimental subjects were in toto four technical assistants and I think nothing throws a sharper light on the sore plight in which Germany found itself in at the time, than the fact that Schaefer, during the course of his experiments had to use four technicians as experimental subjects at the same time carrying on their regular work. If anything could have been done to avoid that these technical assistants certainly would have given up regular work during the experiments. Now, the second group of subjects were inmates of hospitals. These are people in part, as Dr. Schaefer will be later able to state, who had wounds who, however, could not be used at the front because of the wounds. And, these consequently were persons whom we considered not to be appropriate for the testing of the Berka method because what we needed for experimental subjects were healthy persons from the age of 18 to 30. No person among the specialists concerned ever mentioned or thought of death in connection with these experiments and in this letter too there is no mention of death. It does not even say in this letter persons condemned to death should be used for the experiments which should certainly be in the letter if death was considered at all a possibility of the experiments.
Q: Well here in the letter in the second paragraph you state:
As the experiments on human beings could thus far only be carried out for a period of four days, and as practical demands require a remedy for those who are in distress at sea up to 12 days, appropriate experiments are necessary.
And the other document signed by Christensen says death would result in 12 days. You have it in here that you thought of death when you wrote this document. These two documents fit together like a jigsaw puzzle.
A: I beg your pardon. You said that death is again mentioned here. According to the true copy that I have before me I see no mention of the word death.
Q: You said here necessary to experiment with them for 12 days, and any experiment lasting 12 days according to your own testimony and according to the document will result in death using the Berka method.
Of course, I admit that you need the other document. You must realize that it is apparent here, isn't it?
A: It is not at all apparent. I have made efforts but I see they have been in vain to say in my direct examination why the number 12 comes up here in reference to the number of days. If you stress it I will repeat that testimony now, otherwise I can wait until later on when counsel re-direct examines me.
Q: Go right ahead.
A: Thank you. This sentence simply says that the method that would subsequently be used in practice was to be tested for 12 days experimentally. Now let us assume that I had 12 different methods and wanted to choose the best one. Then the first method would fail on the very first day, and the persons who were used for this first method would be eliminated from the experimental series on the very first day; this would keep on until, on the 12th day of the experiments, only those persons would be left who had been treated by the best method and that would be the method proved to be usable in practice, which would then be introduced. There is no mention in this letter of any experiment to be carried out for 12 days with the dangerous and unsatisfactory Berkatit. And I believe I can leave the rest to the proof of the actual results of this experiments, which shows that they were carried out as I have just described.
Q: Doctor, at the top of this letter we see the registry number 2F. How does it happen that you used the registry number 2F at such a late date as 7 June 1944, or was that just one of those instances where 2F and 211A overlapped?
A: I have only a typed copy here, not a photostat, but I assume what you say is correct. Either that was one of the cases where the two overlapped, or I made a mistake in the date. Perhaps the new number was not introduced until May. At any rate there is no doubt that this letter was handled by my Referat.
Q: How many times had you requested inmates from Himmler prior to this time?
A: I myself, never.
Q: How did you know that you could get inmates from Himmler?
A: I believe that was explained at great length during the examination of Prof. Schroeder. Prof. Schroeder was previously employed with the Reichsarzt [Reich Physician] SS and Police and found out from him what procedure was to be pursued in this case, and then I received an order, from the Chief of the Medical Inspectorate via my department chief to draw up such a letter. That's how I knew about it.
Q: Well, you of course knew in 1942 from listening to the conference between Rascher and Hippke that you could get experimental subjects from Himmler. You knew that at an early date, didn't you? Had you gone to Himmler at any other time? Or had Schroeder gone to Himmler? Or had Hippke gone to Himmler? From this letter it appears you are quite familiar with the procedure necessary to get the proper number of subjects from Himmler. You say here:
Earlier already you made it possible for the Luftwaffe to settle urgent medical matters through experiments on human beings.
Now, when, other than in the high-altitude and freezing experiments, did Himmler make it possible for the Luftwaffe to settle urgent medical matters? You apparently at this time knew about all other experiments conducted on concentration camp inmates for the benefit of the Luftwaffe. You wrote this letter.
A: From the conference between General Oberstabsarzt [Chief Medical Officer] Hippke and Mr. Rascher I found out nothing about the way Rascher got his experimental subjects. I clearly remember that Rascher named not only Himmler at that time but also Hitler. So, if I had had to do it alone I might have filed my application with Hitler or with Reich Ministry of Justice, or I don't know whom I might have sent it to. And, moreover in my direct examination I said at great length that this first sentence refers to the fact that I informed Professor Schroeder at that time that Professor Holzloehner had carried out experiments in Dachau and that Rascher had stated in Nurnberg that these experiments were under Himmler's responsibility. That was the total extent of my knowledge in these matters, and I cannot ready any more into this first sentence.
This gave the Luftwaffe the opportunity to clarify urgent medical problems — quick rewarming — through experiment — not experiments — on human beings. I don't know how you can draw the conclusion from that that I knew about all the experiments.
Q: Were you aware of the fact that Haagen got inmates from the SS?
A: No. Of that I knew nothing. I believe this question will be thoroughly clarified here.
Q: Well, now this second sentence, the one which the interpreters say is rather ambiguous. However, they do state that the Prosecution's translation is more likely. This sentence as it stand in the copy presented by the prosecution, or the translation presented by the prosecution, on page 18 of Document Book #5, states as follows:
A: Document #5, not 15.
Q: I believe I said 5.
Today I again stand before a decision, which after numerous experiments on animals and also on voluntary human subjects, demands final resolution.
Now, as that stands here now, isn't it apparent that you had worked as far as possible on voluntary human subjects and that you were looking for inmates other than volunteers?
DR. TIPP: Mr. President, perhaps this would be the appropriate moment for a brief remark, namely the following: Mr. Hardy has just stated that the interpreters said that the prosecution's version was more likely. I ask permission to put two questions to the interpreters to clear up this difficulty once and for all, then I believe we shall see this matter perfectly clear. The first question —
MR. HARDY: Just a moment, Your Honor, I have already filed with the Tribunal a memorandum. Defense counsel has that opportunity to do the same. The Prosecution has filed their memorandum, a copy has been sent to defense counsel, a matter of three months ago, with the opinion of the Chief of the translation Section, and the Chief of the translation Section, who is more an authority on this matter academically than the interpreters in this court room, has stated in that memorandum both to the Tribunal and to Defense Counsel, that the translation as presented by Defense Counsel is absolutely incorrect. Therefore I think I can continue my examination, presuming that the Prosecution's contention is right, without interruption.
THE PRESIDENT: As far as I know, no member of the Tribunal has seen the certificates which were filed concerning these different translations.
I understood that the interpreters, who reported to the Tribunal in open Court, would file a written statement of what they had reported. If Counsel desires to cross-examine the witness upon the assumption that the Prosecution's translation is correct, the Prosecution may do so.
MR. HARDY: Pardon me, Your Honor, may I cross-examine the witness following the contention that the translation is correct and not assuming it to be correct?
DR. TIPP: May I reply briefly, Mr. President? Mr. Hardy stated that a memorandum from the Chief of the translation Department was put in three months ago, stating that the Defense Counsel translation is incorrect. Let me mention two points in this connection. First neither I nor my two colleagues concerned in the sea water matter, Dr. Pelckmann and Dr. Steinbauer, ever saw such a memorandum from the Chief of the language Division. Secondly, the sentence which Mr. Hardy says the Defense is translating incorrectly is apparently the one which was put to Becker-Freyseng four days ago, by Mr. Marx, in direct examination. Now what Mr. Hardy says cannot be entirely correct. I do not believe Mr. President, that it is permissible, before it has been cleared up without any doubt which of the two interpretations of this sentence does justice to the spirit and the letter of the German that cross-examination be carried out on the basis of the translation submitted by the Prosecution and contested by the Defense. If this cross-examination is to have any point, it can be carried on only on the basis of a new translation which is accepted as correct by both the Defense and the Prosecution, and such a translation we do not have.
THE PRESIDENT: Does Defense Counsel desire to have his own experts make another translation of this, with their reasons for the translation which they contend is correct?
DR. TIPP: Yes, Mr. President, This memorandum is in a state of preparation but is not yet finished. I believe we can dispense with a written memorandum however if the interpreters would not answer two questions — which I should like to put to them if Mr. Hardy will let me.
The first one is —
MR. HARDY: (interrupting), I submit, Your Honor, —
THE PRESIDENT: (interrupting), Allow counsel to finish his statement.
MR. HARDY: He was about to ask questions of the interpreters.
THE PRESIDENT: I did not understand that. Counsel will not ask the questions without the permission of the Tribunal, but counsel was making some further statement.
DR. TIPP: Mr. President, I should like to put to the interpreters only two questions, the first of which is —
THE PRESIDENT: (Interrupting) Just a moment before propounding those questions. What have you to say concerning that procedure, Mr. Hardy?
MR. HARDY: I say concerning that procedure, Your Honor, that it isn't proper to ask the court interpreters this questions. This is a academic one. The Office for Chief of Counsel for War Crimes has four Abteilungs [departments] in the language Division, one of which is the translation Section. In the translation Section are people that have different qualifications in many respects from the interpreters here, and in such a matter as this they confer with one another and sit in a round-table conference. Just that has been done. To ask these interpreters here to simultaneously answer questions concerning these points which are so ambiguous, and to do it in a period of a half hour, is unfair, and I submit that if Defense Counsel requests to put questions concerning translations, that they should be directed to the Chief of the Translation Branch of the Office of Chief of Counsel for Bar Crimes, and the Chief of that Branch will answer his questions.
DR. TIPP: I regret that Mr. Hardy is accusing me of unfairness. I believe that I have not deserved such an accusation in the course of my presentation so far. However, if I have so been reproached, Mr. President, I feel that it is just as fair that the Translation Department, according to Mr. Hardy, turned a memorandum three months ago about this decisive document in the seawater case, which defense counsel had never ever heard, until now, much less seen a copy of.
THE PRESIDENT: The Tribunal finds no occasion for any reproach to Defense Counsel. During the noon recess, which is about to take place Counsel for Defense may procure — the Secretary General may deliver to Counsel for Defense a copy of translation which the Prosecution says was filed with the Defense Counsel some time ago. Defense Counsel may then prepare the questions which they desire to propound to translators and submit those questions to the Tribunal when it reconvenes at 1:30 o'clock. Copies of all these papers should be prepared so that each member of the Tribunal may have a copy.
MR. HARDY: Your Honor, in connection with this topic, I understand that this situation arose some months ago — was brought up by Defense Counsel. At that time, Mr. McHaney — of course, I am busy with many other problems. I didn't handle this problem. Mr. McHaney handled it. Mr. McHaney at that time requested the Translation Division to exhaustively study the documents, and he filed a memorandum, written by Translation Division, with the Secretary General for distribution. It may well be that it has not been distributed to date, but that was, as I understood it, and it was in answer to an objection previously raised, by Dr. Marx, not Dr. Tipp.
JUDGE SEBRING: Well, Mr. Hardy, if that has been done, shouldn't it be a very easy thing for you to procure copies and deliver them to such Counsel the Defense as are interested and perhaps deliver them to this Court. This Court have never seen them.
MR. HARDY: All copies were delivered. No copies were saved, Your Honor. I have been unable to find the other copies and I am preparing a new one to submit during rebuttal.
THE PRESIDENT: You say the Secretary General has now no original copy on file?
MR. HARDY: Well I didn't check with the Secretary General.
THE PRESIDENT: That would be the Office — that would be the place where certainly an original should be. Counsel for the Prosecution and Defense will ascertain, during the noon recess, whether the Secretary General still has an original copy of that translation as it was reported and filed with the Secretary General and delivered to Counsel as stated now by Counsel for the Prosecution, although he was not personally connected with the preparation of that translation. A copy of that translation should be ready to present to the Tribunal at 1:30 o'clock. By that time Defense Counsel may prepare the questions concerning this disputed translation which they desire to submit to adequate interpreters, whether our own in court or others or a combination of both The Tribunal will then determine how the matter will be handled and a final report will be made to the Tribunal. The ultimate decision will, of course, rest the Tribunal.
MR. HARDY: Your Honor, I'm afraid I won't be able to secure those copies of the translation. I would have to explore around to find these copies, and I could not make them available at 1:30.
THE PRESIDENT: It occurred to me that the original would be on file with the Secretary General, it hadn't occurred that the disputed translation would be very long. I suppose it would take five minutes to make copies on typewriter. I may be wrong.
MR. HARDY: Then, could I request the clerk here to procedure that from the Secretary Generals Office?
THE PRESIDENT: The Court is about to go into recess. I would suggest that Counsel for the Defense and the Prosecution and the Clerk of this Court proceed together to the Office of the Secretary General and ascertain if that record is available there and can be found. If it cannot, and no other copies are available that would be an impasse as far as this translation is concerned, and we would have to start over again. Is there anything further the Tribunal can state prior to taking a recess?
DR. TIPP: Perhaps, Mr. President, I could ask that the noon recess be until 2:00 o'clock.
In the period of one hour I doubt whether I or Mr. Hardy will be able to make these necessary ascertainments.
MR. HARDY: Your Honor, I think the best solution to this problem is, I think the objection has been raised to a question put by me in the course of cross-examination. The problem is that defense counsel has submitted a translation which creates a doubt as to the authenticity of a translation submitted by the prosecution. That is argument I think that if we can put this off to a future date — perhaps during the time of rebuttal and closing when both sides can ably prepare a brief on the subject and submit them on that date, then the people involved can be called before this Tribunal as witnesses and testify, if necessary. I think the problem is far too acute to try to settle it today and will continue my cross-examination by merely referring that my copy is true, as an assumption, as I did in the case of the defense counsel's copy. I have done that in one instance and I should like to do it in another instance.
THE PRESIDENT: If counsel will base his questions upon the assumption that the translation submitted by the prosecution is correct then the examination may proceed. It would be impossible otherwise because the witness does not admit that that translation is correct. I think the week-end, is approaching and the Tribunal will recess tomorrow afternoon — until Monday morning which will allow a little bit longer time. During that time, some progress might be made in settling this translation, but if Counsel for Defense desires to prepare the questions which they wish to submit to a group of interpreters they may present those questions to the prosecution and to the Tribunal as soon as they are prepared.
Is there anything further that can be added?
DR. TIPP: On this occasion, Mr. President, unfortunately, I have another question to bring up that concerns the translations. Many days ago I gave a document to the Translation Division which is of decisive importance in clarifying this sea water problem. It was an affidavit by the same Mr. Christensen who drew up this report we have recently discussed here.
Despite my efforts every day, I have not succeeded in receiving this translation within a period of ten days although this is a document of only four or five pages, and, in my opinion, should take a maximum of two hours to translate. I wish to make no charges here. I do not know what the reason for this is. I do not know why this decisive document has not yet been given back to me and perhaps the Tribunal can help me in obtaining this translation in time to use it in the case of Becker-Freyseng.
THE PRESIDENT: The Tribunal has been advised that the Translation Department is very heavily loaded with work and has been unable to produce the translations as rapidly as possible. If Counsel for Defense will call at my office, I will endeavor to call the Office of the Secretary and see if this Translation can be expedited. That is just immediately upon the recess now. Counsel will come to my office and I will telephone and see if I can ascertain the reasons for the delay in the translation. At this time will be in recess until 1:30 o'clock.
(A recess was taken until 1330 hours, 28 May, 1947.)