1947-07-02, #4: Doctors' Trial (late afternoon)

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

The Tribunal is again in session.

DR. STEINBAUER (Counsel for defendant Prof. Dr. Beiglboeck): Mr. President, according to my application, the witness Josef Tschofenig had been brought to Nurnberg for the purposes of cross-examination.

Then making his testimony about his activities as an X-ray Kapo at Dachau he raised a serious accusation against my client to the effect that a man, in his opinion, became a victim of the seawater experiments. In order to refute the credibility of that witness, especially with reference to his activity and knowledge as an X-ray expert, I have called upon an expert, an X-ray technologist, Dr. Gerhard Hammer, the head of the X-ray Institute of the Hospital of Nurnberg, and asked him to give us his expert opinion. The said man is an elderly man, a very busy physician, and only this morning in the hospital have I been able to get his opinion. In view of the importance of this matter and in order to refute the credibility of the witness I should like to get the permission to submit the opinion to the High Tribunal. Since it was not translated I shall only read the beginning and the end of that statement.

MR. HARDY: Your Honor, in this connection, might I ask defense counsel what association Dr. Gerhard Hammer had with the witness Tschofenig?

DR. STEINBAUER: Dr. Hammer has no personal connection at all with the witness Tschofenig. He does not know him personally. I have submitted to him the court record in its original, and I asked him to check Tschofenig's testimony on what happened in this record, especially with reference to his statements which he made as an alleged X-ray specialist.

MR. HARDY: If the expert witness has no knowledge of the work of Tschofenig in Dachau, where Tschofenig was working in the X-ray institute and was not a Kapo, as stated by Defense Counsel, I do not see how this witness would be qualified to testify as to the witness Tschofenig. He never saw the witness take an x-ray. He never saw the witness analyze an x-ray. The witness did not testify to the condition of the inmate whom he claimed died as a result of the seawater plates. He testified from observation. I think the document is completely inadmissible inasmuch as the expert has no knowledge of the work of Tschofenig to refer to and has never seen Tschofenig operating x-ray equipment and has never seen Tschofenig analyzing an x-ray. I do not see how he can qualify to give expert testimony as to whether or not Tschofenig is qualified to testify in the manner that he did before the Tribunal.

THE PRESIDENT: Dr. Steinbauer, I do not see how this affidavit can be admissible in the absence of any knowledge on the part of your witness of Tschofenig's personality, work, ability as an x-ray man. This application will have to be denied.

DR. STEINBAUER: Tschofenig in appearing as a witness has stated that he carried out 300 x-ray treatments daily, which would represent about 10,000 x-ray treatments per year. This expert proves that this is impossible.

Furthermore, he exactly described, the state of the x-ray picture of the alleged victim of the seawater experiments. The expert states his opinion on that matter too. On the basis of this statement, it can be clearly established that Tschofenig's testimony is incorrect, and in order to refute Tschofenig's credibility I have brought this opinion to the court room.

THE PRESIDENT: The Tribunal is of the opinion, Doctor, that this is not proper rebuttal at this time. Your application is denied.

I understand that Counsel for Defendant Sievers is ready with some documents. Counsel may proceed.

DR. WEISSGERBER (Counsel for defendant Sievers): Mr. President, I am going to submit all supplemental documents. The first document in my supplemental document volume is a letter sent by Rudolf Brandt to Sievers with reference to Professor Hirt's research with intravital microscopy. This is Document NO-059 of the Prosecution. I shall prove with this document that Himmler attached particular importance to Hirt's activity and for that reason it says in the last sentence of this document:

Please contact Hirt as soon as possible on this question and try to think out the best way of getting Hirt into a still closer connection with us.

This document will receive Exhibit Number 49.

The next document will be Siever's Document 54. This will receive Exhibit Number 50. I shall remind you that Sievers, in connection with the conference which he had with Himmler at Easter of 1942, tried to separate the departments dealing with medical questions from the administration of the "Ahnenerbe [Ancestral Heritage]". Himmler opposed that suggestion and referred to the so-called Commissar Order with reference to Hirt's assignment. The Commissar Order itself was not submitted during the proceedings before the IMT. I have not been in a position to get a copy of this original Commissar Order. However, in order to enable the Tribunal to gain a picture of the contents of this Commissar Order, I have extracted the directives for the units of the chiefs of the Security Police and the SD, which are to be attached to the Stalags. I have submitted that in this document, and this document was also submitted before the IMT as USA Exhibit 486.

I am merely submitting this document in order to illustrate what Himmler meant when he referred to the Commissar Order during this conference at Easter 1942.

The next document, your Honor, will be Sievers Document 55, which will receive Siever's Exhibit No. 51. This is an affidavit signed by Dr. Gisela Schmitz, dated 21 April 1947. It also deals with the special protection which Himmler afforded Hirt and which caused Sievers to sponsor Hirt's research work in the manner he did on the basis of his position as Reich Manager of the Research Council. I think that I can forego the reading of this affidavit.

The next document, your Honor, will be Siever's document number 56, which will receive Sievers Exhibit No. 52. This is another affidavit signed by Dr. Gisela Schmitz, who, since she was a secretary of the Ahnenerbe from 1937-45, is in a position to illustrate the events of that time. I remind you that Sievers during his direct examination has stated, among other things, how he protected the geologist Dr. Lais, who was a professor at the University of Freiburg, when he was removed from his office because his wife was Jewish.

Furthermore, this affidavit tells how Sievers protected Freiherr [Barron] von Rokitansky because he, not being of pure Aryan descent, feared difficulties in the continuance of his duties.

The next document, your Honor, will be Siever's No. 57, which will receive Exhibit No. 53. This is an affidavit signed by Professor Dr. Joseph Wittig. Wittig is a well known Catholic clergyman who is well known beyond the boundaries of Germany. This Professor Wittig certifies that he made Siever's acquaintance through Friedrich Hielscher in the year 1932. Wittig had known Hielscher well and had been on friendly terms with him since 1932. He discussed with Hielscher his fight against National Socialism, and on which occasion Hielscher repeatedly told him about the task which he had given Sievers. I quote the fourth sentence of this affidavit:

As a Christian theologian I can testify that I am deeply convinced of the moral aims and the profound seriousness in which they commenced the task of fighting the Third Reich by applying similar tactics to those of the Trojan Horse.

The next document, your Honors, will be Sievers No. 58 which will receive Exhibit Number Sievers 54. This is an affidavit signed by the Dutch university professor Bohmers who received support from Sievers. Sievers had supported him in undermining Saxo-Frisia and Fryska Rio, two political and semi-cultural societies in Holland.

The next document is an affidavit and an opinion by Professor Villinger regarding Sievers. This is Document 59, Exhibit 55. Already before Sievers' direct examination I have endeavored to obtain a psychological opinion regarding Sievers's personality. Professor Villinger, professor of psychiatry and neurology and the director of the University Neurological Clinic at Marburg, has agreed to carry out this task. It is only due to the amount of work this professor has to do that I was not able to submit this opinion during the direct examination of Sievers. I shall forego reading this extensive opinion into the record and I should merely like to draw the attention of the Tribunal to the last page of that document where the Tribunal will find a summary of Dr. Villinger's opinion. This opinion, as in the case of all the other documents, is certified in the proper manner.

The next document will be Sievers No. 60 which will receive Exhibit number 56. This is an affidavit signed by Count Anton zu Innhausen and Knyphausen is dated 27 May 1942. It was certified by a public notary. Knyphausen, although joining the NSDAP in 1930, was an opponent of the Nazi regime. For that reason he was sentenced to death by a German Peoples Court in the year of 1942. He was sentenced thus in absentia. Now this witness describes how Sievers supported him in his illegal work which he carried out against the National Socialist regime from Sweden.

I shall only quote one sentence from this affidavit:

Without Sievers' support my activity lasting for five years as a courier would not have been possible.

The one but last sentence is very important and throws considerable light on Sievers — and I quote:

Sievers never accepted any remuneration. He always acted entirely unselfishly. Occupying a position which offered almost limitless possibilities for profiteering, he was just as poor as before when I saw him for the last time in November 1943, on the evening before my escape (to which he advised me and which he covered up, even though he was bound to be held responsible as a guarantor).

The next document will be Sievers Document 61 which will receive the exhibit number 57. This is a short Excerpt from the book of the present Bishop of Munich and Freising, Johann Neuhaeusler. This Bishop Neuhaeusler, from the year 1941 to the year of 1945, had been an inmate at Dachau. This is a result of the activities which he carried out against the National Socialist regime as vicar of Munich. Neuhaeusler, in an extensive book, defined his attitude towards a number of questions which are very interesting in connection with Sievers' defense. On page 15 of his book Neuhaeusler states that again and again after the war he had been asked:

Where was the resistance against National Socialism?

This classical witness for the movement against the regime says with great emphasis:

The resistance was right here.

It describe in detail the difficulties which every resistance entailed. He said, for instance, that the spreading of leaflets was impossible. He quotes utterances of Cardinal Mundelein from Chicago in order to prove that the verbal enlightenment and the opposition against the National Socialist regime was extremely difficult.

Heading another chapter he speaks about the zones of the Third Reich, the Chinese Walls in the Third Reich; then he gives us very interesting experiences of his in the concentration camp of Dachau. This is particularly interesting in view of Sievers' testimony.

This classical witness on page 25 of his book says:

We respect the soldiers who risked their lives during severe battles, but I think we also must respect the silent fighters in the country who, throughout the years—lasting 12 years—against a bitter and cruel enemy within the country, have risked their lives for truth and justice for freedom of the people and freedom of the church, for the overcoming of tyranny and Godlessness.

The next document will be Sievers No. 62 which will receive exhibit number 58. This is an affidavit signed by the attorney, Dr. Pelckmann, the defense counsel of defendant Dr. Schaefer.

I remind you that my client was charged during the trial here while he offered himself as a witness before the I.M.T. Sievers then explained that he had been brought here as a witness by force and that he was heard against his will as a witness for the defense before a commission.

Dr. Pelckmann points out that he had written him a letter where he pointed out to him that he was a member of the resistance movement. These statements are confirmed by Dr. Pelckmann, who at that time was representing the SS in the proceedings against the International Military Tribunal.

The next document, your Honors, will be a letter written by Robert Feix dated 10 February 1946 and addressed to Dr. Schmitz-Kahlmann. I shall point out at the outset that this letter has no certification and I shall try to tell the Tribunal for what reasons that was impossible for me.

The witness, Robert Feix, who worked with Rascher developing the polygal drug, I had searched for for a long time before finally finding out his address. The witness Feix came to Nurnberg and I had an opportunity to talk to him briefly one evening. I intended to meet him next morning in this building and get an affidavit from him. I intended this meeting for the end of the morning session of that day.

When I returned to my office in the Defense Information Center Feix was no longer there and I was told that he had been picked up by a representative of the Prosecution and it was no longer possible for me to establish further connection with him.

After this incident I immediately made the application to the Tribunal that this witness Feix be put immediately at my disposal for the purpose of making an affidavit.

Neither the prosecution nor the General Secretary were able, however, to tell me the residence of Robert Feix.

Mr. Hardy, on 20 March of this year, upon the request of this Tribunal stated that Feix had been arrested here and had transferred to Dachau.

I finally went to Dachau on 22 March and I was told there that Feix could not be placed at my disposal. I tried twice again to speak to Feix in Dachau but I did not succeed. Because of these efforts I was not in a position to obtain a proper affidavit signed by Robert Feix.

On the other hand, however, I am very anxious to show the Tribunal through Robert Feix how Sievers helped him in the concentration camp at Dachau. The letter dated 10 February 1946 was written at a time when Sievers could not at all expect that he would at any time be placed under indictment; therefore no one can say that this letter was written in view of the currently running trial. Therefore, this letter no doubt has a certain probative value, and I would like to ask the Tribunal to admit this letter in evidence in particular view of the circumstances, as I have described them before. The prosecution at that time had made it impossible for me to obtain a proper affidavit from him.

MR. HARDY: Your Honor, this document has no jurat as to whether it be written in 1946 or 1947. It is clearly inadmissible. The document was obviously written to assist defendant Sievers at such time when he was incarcerated, and being interrogated extensively, I presume. I don't know the circumstances but it seems to me that the defendant must adhere to the regulations of this Tribunal.

THE PRESIDENT: The document offered for defendant Sievers is merely a letter purporting to be signed by one Robert Feix and bears no jurat. It is not sworn to, and it is also purely cumulative evidence, but due to its form if previously presented it would not have been admissible at any time. Objection sustained.

DR. WEISGERBER: As the last document, Your Honor, I am submitting an affidavit written by my client dated June 30. When the prosecutor last Friday submitted his supplementary document book, I asked the Tribunal's permission that I obtain an affidavit from my client in regard to one document offered by the prosecution. This was approved by the Tribunal and I should therefore ask you to accept this affidavit as Sievers affidavit No. 60. The affidavit has not yet been translated.

MR. HARDY: I don't recall any approval on the part of the Tribunal to admit this evidence. I don't recall that at all, Your Honor.

THE PRESIDENT: The only thing stated in connection with these matters was these documents could be offered, if offered in time, and that they would be considered. There is no approval of the documents to agree to their submission. It simply applies to the permission to offer the documents.

MR. HARDY: I don't see what was brought out in the way of new evidence in the rebuttal document book in connection with the defendant Sievers and would give reason for a sur-rebuttal document of this nature. It seems to be nothing to me except what Sievers did as chief of the Ahnenerbe, and inasmuch as he tried to limit his responsibility in this in his cross examination—

THE PRESIDENT: The Tribunal has no copy of the affidavit and is therefore not advised as to the statements.

MR. HARDY: There is a German copy here, Your Honor. There are no English copies. It might be helpful if defense counsel stated what he purports this document to prove.

THE PRESIDENT: Defense counsel may state the substance of this affidavit.

DR. WEISGERBER: The prosecution last Friday submitted Document NO 3629. This was a letter written by Sievers to Hirt dated 3 January 1942, which refers to Hirt's research work. I remind you that during Sievers' direct examination Hirt's research work was already discussed. During the cross examination at that time the prosecutor did not make use of the contents of this letter. For that reason I was not in a position at that time to answer this letter. Since the prosecutor has done that now, using his supplemental document volume, I ask to be permitted to define my attitude towards that letter.

MR. HARDY: The prosecution doesn't see the materiality of this in this connection, Your Honor. They have had ample opportunity to testify to these facts. This is a rebuttal document, rebutting the testimony of the defendant.

Furthermore, I cannot further ascertain what my objection might be to it without seeing the translation, and I insist on seeing the translation in this connection.

I don't see cause for further affidavits of this nature, particularly when this is in the true nature of rebuttal evidence.

DR. WEISGERBER: Mr. President, if I am not to be allowed to define my attitude towards a letter which has only lately been presented by the prosecution, the contents of which have not been mentioned during the direct nor the cross examination, I must consider that the rights of defense of my clients are being limited. For that reason I must ask you to permit this affidavit to enter the record, since it is not too long and since its translation will not make too much difficulty. However, a written translation is not available at the moment.

MR. HARDY: Your Honor, the prosecution wishes to point out, for the sake of future trials, the theory of rebuttal evidence. This document, which the prosecution introduced in rebuttal, is NO-3629. Defendant Sievers testified on direct and on cross examination, in theory, that he was only more or less a rubber stamp in the job as the chief of administration of the Ahnenerbe Society, that he did not instigate medical experiments, that he in no way tried to bring medical experiments or scientific research in the concentration camps under the yoke of the Ahnenerbe Society. This document states clearly and shows the efforts made on the part of Sievers to so do what he denied. I don't see the purpose of allowing him to come back and give another answer or explanation of this, when this completely refutes and rebuts his testimony.

DR. WEISGERBER: Mr. President, if such a letter completely torn from its context is suddenly presented, it may under circumstances be misinterpreted. I think that it is therefore necessary to clarify the circumstances under which this letter was written, and show its connections, and I had opportunity to do this neither during the direct nor the cross examination.

MR. HARDY: Your Honor, I will pass the document up for Your Honor's perusal.

I want to call your attention to paragraphs two and three, which are things which will be very familiar to you.

DR. WEISGERBER: That does not alter the fact that this letter is being presented here completely torn from its context and for that reason can well be misinterpreted, and therefore I want to submit this affidavit.

THE PRESIDENT: If counsel believes that a letter like this, which is an exhibit in evidence, could be misinterpreted, that is a matter he could explain in his brief and argue as to the true interpretation of the letter, according to his viewpoint. The letter in question, counsel, is clearly proper rebuttal evidence, to be introduced on behalf of the prosecution, as it tends to destroy the testimony of the witness Sievers, which he gave from the witness stand. Now, the defendant Sievers had all the time he desires on the witness stand to explain his position in these matters. Now, if he could be allowed to present further documents to attack such evidence, after this time the prosecution could offer further documents to attack this affidavit, and the chain would never end. The Tribunal is of the opinion that this affidavit is too late when offered at this time, and the objection is sustained.

When I told defense counsel that from time to time they were permitted to offer a document, it simply gave them the right to call these documents to the attention of the Tribunal. My statement had nothing to do with the question of the admissibility of the documents in the case of an objection's being urged to them. It is simply that the Tribunal would hear any offer on the part of the defense counsel and then determine the matter.

Objection sustained.

DR. WEISGERBER: This concludes my defense of Sievers.

THE PRESIDENT: We will hear from Dr. Froschmann, who has a document I told him he could offer.

DR. FROSCHMANN: Mr. President, I have handed the Document Brack No. 64 during the recess to the Prosecutor and explained its contents to him by the use of an interpreter. It is dated 30 June 1947. It will be marked Exhibit No. 65 and I am handing it to the Tribunal.

THE PRESIDENT: This document will be received in evidence by the Tribunal.

DR. FROSCHMANN: Thank you, Your Honor.

THE PRESIDENT: Are there any further documents ready to be offered? I understand that the document books of the defendant Mrugowsky and defendant Schroeder will be ready by tomorrow morning when they can be offered. I don't know if they are ready now.

MR. HARDY: Other than the documents for Mrugowsky and Schroeder, do any other defense counsel have documents to offer? Are those the last documents? The Weltz documents have been completed, Your Honor, Dr. Willie completed that the other day. Rose has been completed.

I think then, Your Honor, the only documentary evidence we have to receive now is the documentary evidence of Mrugowsky and Schroeder and the one other rebuttal document book of the Prosecution.

THE PRESIDENT: That is my understanding. This supplemental document book No. 3 for Rose has been offered, has it not?

MR. HARDY: That has been offered, yes.

THE PRESIDENT: I thought so. The offering of your document book will not consume more than one half day?

MR. HARDY: Much less than that, Your Honor, I think I can put it in in fifteen or twenty minutes if Dr. Gawlik does not have too many objections.

THE PRESIDENT: The Tribunal will be in recess until 9:30 o'clock tomorrow morning.

(The Tribunal adjourned until 3 July 1947 at 0930 hours.)