1947-07-14, #5: Doctors' Trial (mid afternoon)

Dr. Servatius, counsel for defendant Karl Brandt, presents his closing argument

THE MARSHAL: Persons in the court will be seated.

The Tribunal is again in session.

THE PRESIDENT: The Tribunal will now proceed to hear the arguments of defense counsel. Counsel for Karl Brandt may open the argument.

BY DR. SERVATIUS (Defense Counsel for defendant Karl Brandt):

Mr. President, Your Honors:

I cannot comment on all the questions which the prosecution brought up this morning. I must limit myself to a few things and can refer to my closing brief where I have believed to have gone into considerable detail on all these questions.

This morning I heard the detailed legal arguments advanced by the prosecutor. I have commented particularly on these legal questions in my closing brief, and. I want to make merely a brief comment now.

The prosecution assumes that Law No. 10 is an independent law. This is not correct, for it designates itself explicitly as a law for the execution of the London Charter and declares that Charter to be an integral part of the law.

Now, the sole purpose of the London Charter is to punish the disturbances of international legal relations and not what has happened or is happening somewhere within an individual state. Any other conception would be the end of the idea of sovereignty, and it would give a right of intervention into the affairs of another state.

In the trial before Tribunal III, Case No. 3 against Flick et al, General Taylor referred to an alleged right of intervention, quoting a considerable amount of literature in regard to this right of intervention into the internal affairs of another country.

I ventured to put in evidence the position taken by one of the four signatory Powers of the London Charter, a signatory power which was itself the victim of intervention in the name of civilization: the Soviet Union.

I have drawn the attention of the Tribunal to the position of the Soviet Union in my closing brief in the attachment to Part I.

The Soviet Union drew its clear conclusions from the intervention to which it had been exposed by the Entente at the end of the first World War, and obtained a clarification of the text of the London Charter, under which intervention would have been possible, by insisting that the text, which was ambiguous in consequence of the punctuation, be altered by the insertion of a comma. This comma was so important that the representatives of the four signatory Powers met on purpose to discuss it.

It results therefrom that the affairs in the interior of a country cannot be affected by the London Charter and, consequently, by Law No. 10. Punishment by this Tribunal of acts committed by Germans against Germans is therefore illegal.

The Prosecution further discussed this morning at length another question, that is the question of conspiracy. In respect to this I also have taken the position in my closing brief.

The point of view of the defense that a charge for conspiracy as an independent offense is inadmissible was confirmed by the Tribunal's decision of today. In that way the hole in the dike, so to speak, was stopped, and one cannot let the ocean pour into the land from the other side by declaring the conception of conspiracy admissible under common law. The conception of conspiracy is really only a technical expedient of the jurists. Its purpose is to effect beyond the number of accomplices in the true sense of the word other persons whom one considers to deserve punishment, but who cannot be convicted of complicity.

This may be done where the law against conspiracy is common law, but if this law is to be introduced in Germany after the event and applied to facts which have occurred in the past this would mean that by the detour of the law of procedure new conceptions of offense would be introduced into material law. This is equal to ex post facto law and is therefore an illegal attempt pursuant to the legal principles generally recognized.

The purpose of enlarging the circle of participants cannot be obtained under Law No. 10 by a dissolution of the conception of the conspiracy into its components, and the introduction of forms of complicity unknown till now in Germany.

Now, I shall read my statement proper. In the closing statement against the defendant Karl Brandt the Prosecution discussed very little the counter-evidence brought forward by the defense in the course of the proceedings. They relied to a large extent on evidence already advanced in the indictment.

The affidavits of the defendants themselves play a special role in support of the prosecution. For the defendant Karl Brandt they are important in respect of his position, and the resulting knowledge of the events referred to in the indictment.

As far as these affidavits contain charges they can be used, according to the Tribunal's statement, only against the affiants them-selves. In as far as they charge the defendant Karl Brandt, however, they have been clarified in, respect to the decisive issues. But in spite of this correction the first statements may reduce the credibility unless good reasons justify such correction.

Here the result of interrogations made in the initial proceedings is in contradiction to the evidence given before the Tribunal. On the basis of practical experience, German law considers only the result of an interrogation made by a judge valid evidence. The reason is the lack of impartiality to be found, quite naturally with an interrogating official who is to conduct the Prosecution. The capacity of the interrogator to elicit the truth impartially depends on his character, his training, and his professional experience.

The qualification of the interrogators has been attacked here by the Defense, but the Prosecution has made no effort to substantiate it.

To form a judgment it further is important to know on which general line the prosecution carries out its interrogations. Under German Law the Prosecutor is also to ascertain and put forward exculpating material when investigating a case personally or through assistants. For American Procedure, Justice Jackson clearly rejected this principle during the trial before the International Military Tribunal, and said he could never serve two masters.

This critical view of the affidavits is confirmed by their contents, which frequently show the struggle between the interrogator and the interrogated person. He is no classical witness who says, "I believe," "I presume", "as far as I remember," etc., for he shows thereby that he can give no positive information. And such testimony becomes completely worthless, if conclusions are drawn in the form of, "It would have been impossible for him," "he could have known," "perhaps he was the highest authority", etc.

Not only individual words thus demonstrated, that the testimony is composed of conclusions, but whole parts of the reports show the same character.

Considering all this the defendants' contentions are to be believed that they raised objections, but succumbed to the weight of the prepared record presented to them and signed, trusting that they should have an opportunity later to clarify deficiencies and state their true opinion.

This criticism of the defendants' affidavits is also required in respect of the affidavits given by the witnesses for the Prosecution in which facts are recorded which the witnesses do not know themselves, but of which they only heard and which they presume, after having been made to believe them by persuasion. The individual cases in which objections are to be raised in this line have been dealt with in the closing brief.

The charges advanced against the defendant Karl Brandt include the spheres of medical experiments on human beings and Euthanasia.

In both cases the defendant is charged with having committed crimes against humanity.

The press comments on the proceedings, anticipating the sentence by publishing articles about abject characters and wickedness. Pamphlets with strong headings appear.

On the other hand the Tribunal will make itself acquainted with the literature collected by the Defense as evidence. If one reads this literature one loses one's self-confidence and one cannot finish without confessing that here there are problems which before the defendants, persons not considered criminals have tried to resolve. These are problems of the community. The individual may make suggestions for their solution, but the decision is the task of the community and therefore of the State. It is the question, how great a sacrifice the State may demand in the interest of the community. This decision is up to the State alone.

How the State decides depends on its free discretion, and finds its limit only in the revolution of its citizens.

In obeying the orders of his State, the defendant Karl Brandt did no wrong. If sentence is passed against him, it would be a political sentence against the State, and the ideology it represents.

One can condemn the defendant Karl Brandt only by imposing on him the duty of revolution, and the duty of having a different ideology from his environment.

It is contended that the State finds its limits in the eternal basic elements of Law, which are said to be so clear that anyone could discern their violation as a crime, and that therefore loyalty to the State beyond these limits is a crime. One forgets that eternal law, the Law of nature, is but a guiding principle for the State and the Legislator, but not a counter-code of Law which the subject might stand on against the State. It is emphasized that no other State had made such decisions up till now. This is true only to a certain extent. It is no proof, however, that such decisions were not necessary and admissible new. There is no prohibition against daring to progress.

The progress of medical science took up the problem of the experiments on human beings already in the past century, and eventually made it ripe for decision. It is not the first time that a State takes up a position with regard to euthanasia with a change of ideology.

What is to be done in the interest of the community only the Statesmen decide, and they have never hesitated to issue such a decision whenever they deemed it necessary in the interest of their people. Thereupon their rules and orders were carried through under the authority of the State, which is the basis of society.

Inquisition, witch-trials, and revolutionary tribunals have existed in the name of the State, and eternal justice, and the acting persons did not consider themselves criminals but servants of their community. They would have been killed if they had stood up against what was believed to be the newly discovered eternal justice. What is the subject to do if the orders of the State go beyond the customary limits which the individual himself took for inviolable according to traditions.

What did the airman think who dropped the first atomic bomb on Hiroshima? Did he consider himself a criminal? What did the Statesman think who ordered this atomic bomb to be used?

We know from the history of this event that the motive was patriotism, based on the hard necessity of sacrificing hundreds of thousands to save their own soldiers' lives. This motive was stronger than the prohibition of the Hague Convention, under which belligerents have the unlimited right in the choice of means to inflict damage on the enemy.

"My cause is just and my quarrel honorable," says the king. And Shakespeare's soldier answers him: "That's more than we know." Another soldier adds: "Ay, or more than we should seek after; for we know enough if we know we are the king's subjects; if his cause be wrong, our obedience to the king wipes the crime out of us."

It is the hard necessity of the State on which the defense for Karl Brandt is based, against the charge of having carried out criminal experiments on human beings.

Here also — in addition to the care for the population — the life of soldiers was at stake who must be protected from death and epidemics. In the experiments Prof. Bickenbach's, the issue was the lives of women and children who without 45 million gas masks would have been unprotected against the expected gas attack, as the Japanese were against the atomic bomb. Biological warfare was imminent, even praised abroad, as cheaper and more effective than the atomic bomb.

Is it really against the law and all political morals if the state provides there for such emergency and orders the necessary medical experiments to be performed on its own citizens? As applied to foreigners such procedure is limited on principle; in my closing brief I have discussed the exceptions.

What is to be done is decided not by the physician but by the political leader. Even the expert Dr. Ivy had to grant him the fundamental authority.

The question remains why, with the legal position so clear, a man like Keitel refused to have such experiments carried out in the Wehrmacht and why the defendants themselves in part try to disprove any connection with the experiments. The answer is, a measure may be as unavoidable as war and still be abhorred in the same way.

Unlike Professor Ivy, these men certainly consider these experiments an evil, and their personal desire is not to have to participate in them if possible, and not to engage in them troop units who were not to be burdened with such questions, and had no insight into the necessity of the measures to be taken. In spite of everything Germany was not yet so "communized" that all private footing of the individual had disappeared.

The Prosecution opposes to this necessity the condition of absolute voluntariness.

It was a surprise to hear from the expert Professor Ivy that in penitentiaries many hundreds of volunteers were dying for admission to experiments and that more volunteered than could be used. I do not want to do away with this phenomenon with irony and sarcasm. There may be people who realize that the community has the right to ask them for a sacrifice. Their feeling of justice may tell them that insistence on humanity has its limits. If humanity means the appeal to the strong not to forget the weak in the abundance of might and wealth, the weak should also make their contribution when all are in need.

But what if in the emergency of war the convicts and those declared to be unworthy to serve in the Armed Forces refuse to accept such a sacrifice voluntarily, and only prove an asocial burden to Stale and community and make the community break down; isn't compulsion by the State then allowed as an additional expiation?

The Prosecution says no. Then human rights require the downfall of human beings.

But there is a middle way between voluntariness and compulsory expiations "purchased voluntariness."

Here the experimental subject does not make a sacrifice out of conviction for the good of the community, but for his own good. The subject gives his consent because he is to receive money, cigarettes, a mitigation of punishment, etc. There may be isolated cases of this nature where the person is really a volunteer, but as a rule it will be different.

If one company the actual risk with the advantage granted, one cannot admit the consent of these "voluntary prisoners" as legal, in spite of all protective forms they have to sign, for these can have been obtained only by taking advantage of inexperience, imprudence, or distress.

Looking through medical literature, one cannot escape the growing conviction that the word "volunteer" where it appears at all, is used only as a word of protection and camouflage; it is hardly lacking since the struggle about this problem has become urgent.

I will touch only in brief on what I have explained in detail in my closing brief. No one will contend that human beings really let themselves be infected voluntarily with venereal disease; this has nowhere been stated explicitly in literature. Cholera and plague are also no minor inconveniences one is likely to undergo voluntarily for a trifle in the crest of science; above all, it is not customary to give up children for experimental purposes, and I cannot believe that in the 13 experiments carried out on a total of 223 children in Dock 117, the mothers gave their consent. Wouldn't the mothers have deserved the praise of the scientist for the sacrifice they trustfully brought in the interest of science, a praise which is otherwise liberally granted to real volunteers in reports on experiments.

Is it not likely to have been similar to the experiments carried out by Professor McCance? The German authorities who condemn the defendants in a particularly violent form have no objection to raise against the order to hand over weakling children for experimental purposes to a Research Commission. The questionnaires which the Tribunal approved for me in order to get further information about this matter have not been answered, as superior authorities did not give the permission to make such statements.

This silence says enough; it is proof of what is supposed to be legal today in the line of voluntariness.

It is shown again and again that the experiments for which no consent was given were admitted with the full knowledge of the government authorities. It is shown further that these experiments were published in professional literature without meeting any objection, and that they were even accepted by the public without concern as a normal phenomenon when reports about them appear in popular magazines.

This happens at a time when the same press is stigmatizing as crimes against humanity the German experiments which were necessary in the interests of the State. Voluntariness is a fiction, the emergency of the State hard reality.

In all countries experiments on human beings have been performed by doctors, certainly not because they took pleasure in killing or tormenting, but only at the instigation and under the protection of their state and borne by their own conviction of the necessity in the struggle for the existence of the people.

The German doctor who acted in conformity with the German regulations can be punished no more than the American doctor who complied with the requests of his state in the way which is customary there.

Justice is indivisible.

To what extent is the defendant Karl Brandt implicated in the medical experiments?

The Prosecution says in almost all, and refers to his position and his connections. They state that he was the highest Reich authority in the medical sphere; there, however, they are misled by an error of the translator, for Karl Brandt only had the powers, regulated in a general way, of an "Oberste Reichsbehorde" (Supreme Reich authority), but the execution of these powers was restricted to special cases.

This appears from the three known degrees and from the explanation there of given by the witnesses.

Moreover Karl Brandt was not given these functions until 1944, when these experiments were practically finished, as is shown by the time schedule submitted to the Tribunal for comparison.

It has been proved that the defendant Karl Brandt himself in a broadcast publicly called his position as Reich Commissioner a "Differential." In fact, Karl Brandt task was not to order but to adjust; it was a task designed to fit his character.

We have also learned from the presentation of evidence that the defendant Karl Brandt did not have the machinery at his disposal for issuing orders which was necessary for a highest Reich authority; he lacked the staff and the means. No one who is acquainted with a government administration will think it possible under these circumstances that the defendant Karl Brandt might have been able to enforce his point of view against the resistance of the old agencies; no one will even think it probable that anything would have been done to facilitate such an attempt of the "new master."

Consequently, Karl Brandt's position was not such as to justify the conclusion drawn by the Prosecution about his general knowledge. There was no official channel by which everything had to come to his knowledge, for he was not the superior of other authorities.

It is true that the defendant Karl Brandt was supposed to be informed about fundamental matters, that he had the right to intervene, etc. But those were only possibilities, not in conformity with conditions in practice. We have seen that Conti opposed him and that Himmler prohibited direct contact with Karl Brandt within his sphere.

Therefore, Karl Brandt can be brought into connection only with the events in which he participated directly.

Here it is striking first of all that the defendant Karl Brandt, who is supposed to have been the highest authority, appears only very rarely.

There are three so-called troop experiments, the testing of drinking water, concentrated food, and an ointment for burns.

Further, three medical experiments relate to the defendant Karl Brandt: The Hepatitis experiment, which he is said to have suggested, was not carried out.

While that research was continued during the following years, Karl Brandt who is said to have sponsored it particularly, is mentioned by none of the numerous witnesses and experts, and his name is not mentioned in any document. Is, therefore, the explanation not plausible that Grawitz confused the names?

The second case is the request to hand over 10 prisoners for two days for an experiment which is not named. This cannot refer to a true medical experiment, for such experiment cannot be carried out in such a short time with the necessary tests and observations. The speedy return of the experimental subjects indicates that the experiment was not dangerous.

Finally, the defendant Karl Brandt is connected with the phosgene experiments of Bickenbach, which caused the death of four Germans sentenced to death. But precisely here Bichenbach's affidavit shows that the defendant Karl Brandt was outside of the whole framework of the experiment in Himmler's sphere and that he was merely approached for mediation. The order came from Himmler. The experiments had to seem innocuous to the defendant Karl Brandt since Bickenbach wanted to carry them out on himself.

On the other hand, there was the emergency of the State and the enormous importance of the discovery that the taking of a few Urotropine tablets was to give the ardently desired protection for all against the expected gas attack and, as the result of the experiment shows, actually did so.

Now the prosecution endeavors to establish a connection of Karl Brandt with the other experiments via the Reich Research Council. It is true that one can establish such a connection theoretically on paper, but the links of the chain break when one examines them closely. Only the head of the specialized department (Fachspartenleiter) judged the so-called research assignments and he only investigated whether the aim was necessary for war, not how the experiment was to be carried out.

He could not inform others of matters which he did not get to know himself.

The defendant Karl Brandt is charged further with not having protested in one case when he heard about deaths caused by experiments on persons sentenced to capital punishment in the well-known lecture on sulfanilamide. I must point out that even if this experiment had been inadmissible, silence would not be a crime for assent after the act is without importance in criminal law and one can be connected with plans and enterprises only as long as they have not come to an end.

Now the prosecution has introduced in its closing brief the new charge of holding the defendant Karl Brandt responsible for negligence. In this respect I should like to point out that no indictment for negligence has been brought in and that the concept of crime against humanity committed by negligence cannot exist.

It, therefore, will be sufficient to emphasize that the pretended negligence depends on the existence of an obligation of supervision and the right to give orders through other agencies. In every State the spheres of competence are separated and it is not possible for everyone to interfere in everything because everyone is responsible for everything.

The prosecution says that the defendant Karl Brandt ought to have used his influence and have availed himself of his intimate relations to Hitler to stop the experiments. Even presuming that he was aware of the facts as crimes, his guilt would not be of a legal but only of a political or moral nature.

Till now nobody has been held criminally responsible for the conduct of a superior or a friend; the question of criminal law, however, is the only one the Tribunal has to consider.

But in fact these close relations did not exist; the defendant Karl Brandt was the surgeon who had to be in attendance on Hitler, Dr. Morell, the latter's personal physician, soon tried to undermine the confidence placed in Karl Brandt so that he was charged with commissions which removed him further and further from the sphere of his medical activity.

The alleged intimate relations were eventually crowned by the dictation of a death sentence against Karl Brandt without his having been granted even a consultation on the charges advanced against him.

If one sums up all that relates to the medical experiments and follows to a large extent the charges of the Prosecution, it is an established fact that it is not shown that the defendant Karl Brandt participated in any way in experiments on prisoners of war and foreigners of that he was cognizant of them. Therefore, no war crime or crime against humanity has been committed, and consequently punishment under Law No. 10 is excluded. I offer in this respect to the legal arguments in my closing brief.

The second problem is Euthanasia.

The authorization of 1 September 1939 was issued before the time of the medical experiments at a time when the defendant Karl Brandt was still closely attached to the Fuehrer's headquarters and to Hitler as an accompanying physician.

In my closing brief I have explained in detail that the defendant Karl Brandt did not participate in the Action 14 f 13 with the "special treatment" of prisoners in concentration camps, occurrences which were given the name of Euthanasia only here in the trial.

Neither did the defendant Karl Brandt take any part in the extermination of Jews in Auschwitz, which again has nothing in common with the idea of Euthanasia.

I have shown further that the so-called "wild Euthanasia" which was carried through simultaneously with and immediately after legal Euthanasia is not due to Karl Brandt. The stopping or Euthanasia in August 1941 has been proved and therefore the end of the defendant Karl Brandt's duties; for what would have been the meaning of this cessation if after it an increased activity was to set in.

The contacts of Karl Brandt after the stop have been clarified as the consequence of his activity in evacuation for air protection. Where the name of the defendant Karl Brandt is mentioned otherwise it obviously serves only as means of advertisement with uninformed people, who never saw or heard anything of him themselves.

I shall deal here with Euthanasia only in as far as it is officially provided under the Ordinance of 1 September 1939. In respect to the "Reich committee" I refer to my closing brief.

By the presentation of evidence it has been established that the defendant Karl Brandt actually had no "administrative and medical office," from where the whole organization might have been administered. On the contrary, it is a fact that Bouhler declared himself alone responsible for the procedure; this is testified to by documents which leave no doubt.

Nor has any regulation or instruction become known which was issued by Karl Brandt. Not a single document was signed by him. He made no speeches and conducted no discussions.

But what did he do and what was his duty?

His duty was not to carry out Euthanasia but he was only to be informed in special cases in order to be able to report to Hitler. This was in conformity with the practical conditions, the sojourn and the simultaneous attachment to the Fuehrer's headquarters and to Hitler.

Only once was Karl Brandt seen active, and that is in the negotiations with Pastor von Bodelschwingh, which led to the result, amazing for us, that the defendant Karl Brandt won Bodelschwingh's sympathy and that after the collapse in a radio interview the latter said that he was an idealist but not a criminal.

But the defendant Karl Brandt took note of the interrogatory forms, he inspected a registrar's office, and he co-signed the authority for physicians to execute Euthanasia.

What could the defendant Karl Brandt learn from the forms?

The Prosecution thinks that Jews and foreigners were to be affected in the first instance. By the affidavit of the director of the Jewish lunatic asylum in which all insane Jews of Germany were concentrated, it is proved that this was not done.

The prosecution says that all persons unfit for work were to be killed as useless eaters. But it is ascertained that even workhouses were requested to give information only about cases of really grave insanity.

What did the defendant Karl Brandt know about the procedure?

He knew that the authorization which was issued was not an order given to the doctor, but only conferred on him the right to act under his own responsibility with the most critical consideration of the patient's condition; this was a clause inserted in the ordinance of 1 September 1939 on Karl Brandt's initiative.

The defendant Karl Brandt knew that the specialists whom he did not know were chosen by the Ministry of the Interior and that the experts were eminent men in their specialty.

The defendant Karl Brandt also knew that the authorities concerned saw no reason to object to the execution of the measure and that even the chief jurists of the Reich declared the legal foundations to be irreproachable, after having been informed of the facts.

Within this framework the defendant Karl Brant approved of official Euthanasia and supported it.

But the prosecution calls even the Euthanasia thousand fold murder. In their opinion there is no formal Law, and it is alleged that the expert Dr. Lammers confirmed this.

Yes, but he also stated the even an informal ordinance was valid. Even an order issued by the Fuehrer had the force of law, as the unambiguous effects of such orders make perfectly clear, in particular to a foreigner.

But for the defendant Karl Brandt it is of no importance whether the Ordinance of 1 September 1939 was actually valid; the only important thing was that he had reason to believe it was valid and that he could rely on this opinion.

German Courts have already dealt with cases of execution of Euthanasia; but those cases occurred after the official procedure had been stopped, like Hadamar, or persons had been killed who could never have come under the powers conferred in the ordinance, or other crimes were committed.

It is to be observed that these sentences always emphasize the base motives of the offenders. On the other hand, these courts were concerned with the question in respect of public law only insofar as they state that no formal law was submitted. In one case the court restricted itself to information given by a member of the Prosecution staff in the trial before the International Military Tribunal.

The real objections to Euthanasia are not based on a formal point of view but rather on the same reasons which are advanced against the admissibility of the medical experiments.

Even an insane person of the lowest degree may not be killed, it is said.

No human being may presume to kill another human being.

But the right to kill in war is accepted in international law, and public law allows the suppression of a revolt by violence.

What prevents the State from ordering killing as well in the sphere of Euthanasia?

The answer is that there is no motive which might justify an action of this kind.

The economic motive of eliminating "useless eaters" is certainly not sufficient for such measures. Such a motive was never upheld by the defendant Karl Brandt; it was apparently mentioned by others as an accompanying phenomenon and later taken up by the counter-propaganda.

The move of pity with the patient was considered by the defendant Karl Brandt as decisive. This motive is tacitly accepted for Euthanasia on the deathbed, and doctors in all countries increasingly profess to it.

In former times the courts were concerned repeatedly with homicides committed out of pity, and in sensational trials juries found offenders not guilty who freed their nearest relatives from the torment of life.

Who would not have the desire while in good health to die rather than to be forced by all the resources of medical science to continue life degraded to a beast's existence; Only misunderstood civilization keeps such beings alive; in the normal struggle for existence Nature is more charitable.

But the legislator has hitherto refrained from giving the authority to kill in such cases. But he may resolve the problem if he wants to. The reasons for his restraint are exactly those which led here to disguise those measures and to keep them secret. It is the fear of foul machinations in the sphere of inheritance, the psychic burden laid on the relatives, etc. The individual does not want to bear this burden, nor is he able to do so. It can be taken over only by the State, which is independent of the desires of those concerned.

That such is the will of the respondent majority of those who really get into touch with these problems was shown by the result of the inquiry conducted by Professor Meltzer, which has been offered as evidence. It was carried out by him many years ago to get an argument against Euthanasia and its principal supporters, Binding and Hoche. He got the reverse of what he had expected himself as an expert.

But I see a third motive which unconsciously plays an important part; it is the idea of sacrifice.

A lunatic may cause the psychic and economic decay of a family and also ruin it morally.

When sound human beings bring great sacrifices for the community and immolate their lives by order of the State, the insane, if he had the capacity of a mental resurrection and of decision, would choose a similar sacrifice for himself.

Why should not the State be allowed to enact this sacrifice from him and impose on him what he would want to do himself?

Shall the State be forbidden to carry out Euthanasia until the whole world is a hospital, while the creatures in nature keep stainless thanks to what is believed to be the brutality of Nature?

The decision whether such an order given by the State is admissible depends on the conception of the life of mankind in society and is therefore a political decision.

Neither the defendant Karl Brandt nor anyone else who participated in legalized Euthanasia would ever have killed a human being on their own authority, and in German sentences the blameless former life of the persons stigmatized as mass-murders is always emphasized.

This is a warning to be cautious. Did they really commit brutalities, or were they sentenced only because they were not in a position to swim against the tide of the time and to oppose to it their own judgment?

A Christian believing in dogma will turn away in pity from this way of thinking. But if the order to use Euthanasia to the foreseen limited extent was really in such contradiction to the commandment of God that anyone could see this, it is comprehensible why Hitler, who never withdrew from the Church, was not excommunicated.

This must remove the burden of guilt which one now want's to pile up. Then humanity would have perceived clearly: in this devilish struggle no man can hold his own, for God stands for Justice.

If there are offenders there are many co-offenders, and one understands the saying of Pastor Neimoller: "We are all guilty."

This is a moral or a political guilt, but the burden cannot be conveyed to a single person as criminal.

Herewith I have shown the fundamental lines according to which the actions of the defendant Karl Brandt have to be judged.

For the legal judgment by this Tribunal the primary consideration is that no prisoners of war or foreigners were submitted to Euthanasia with the knowledge or the will of the defendant Karl Brandt.

Thus the defendant Karl Brandt cannot be punished under Law No. 10 on this count either; what happened between Germans is not subject to the decision of this Tribunal.

Finally, the defendant Karl Brandt is also charged with having belonged to the organization of the SS which has been declared criminal.

Evidence that the defendant Karl Brandt knew of a criminal aim of this organization and approved of it must be brought by the Prosecution.

A reference to the general assertions in these proceedings is not sufficient to bring this proof, for precisely here the prosecution cannot prevail with their assertions in regard to Karl Brandt.

As to the details, I refer to the statements made in my closing brief.

The fact that the defendant Karl Brandt was the only member of the SS who at the same time retained his position as a Medical Officers of the Army shows that his honorary rank in the SS was really only formality and that he was no true member of this organization.

When the defendant Karl Brandt gave evidence here as a witness that he wore the uniform of the SS with pride, this only shows that he, like the majority of the SS men, knew nothing about criminal aims.

In judging the organization of the SS the International Military Tribunal was aware only of a small part of the whole, looking, so to speak, through a keyhole into a dark corner.

Nor could the defendant Karl Brandt have any personal knowledge of Himmler's secrets, for Himmler rejected him personally, as is shown by a number of affidavits. Since even in his own sphere, Medicine, the defendant Karl Brandt could not obtain information, how is he to have obtained knowledge of other matters?

I do not want to repeat the affidavits which give information about the basic attitude of the defendant Karl Brandt and show that he took up a position which was irreconcilable with the mentality supposed to be typical of the SS. In this connection I merely refer to the statements made by Pastor Bodelschwingh, Dr. Gerstenmaier, Meyer-Bockhoff, Philipp Prinz of Hesse, and others.

If I as the Defense Counsel consider Karl Brandt's conduct as a whole and see the wounds he has received in the struggles of life, I must acknowledge that he is a man and not a criminal.

For the Tribunal's decision, however, the only conclusive fact is that the defendant Karl Brandt did not disturb the circle of international law, for he committed no war crimes and consequently no crimes against humanity. I therefore ask that defendant Karl Brandt be acquitted.

THE PRESIDENT: Before proceeding to hear the arguments submitted on behalf of defendant Handloser, the Tribunal will take a short recess.

(A recess was taken)