1947-07-18, #2: Doctors' Trial (mid morning)
Dr. Froeschmann, counsel for defendant Viktor Brack, delivers his closing argument
THE MARSHAL: Persons in the court room will be seated.
The Tribunal is again in session.
THE PRESIDENT: The Tribunal will now hear the argument on behalf of the defendant Brack by his counsel.
DR. FROESCHMANN: For the defendant Brack. Mr. President, your Honors:
The Prosecution has charged Victor Brack before the Military Tribunal for participation in crimes listed under article II of Control Council Law No. 10 as a major war criminal of the European axis powers in the sense of the London Agreement of 8 August 1945 according to the Moscow declaration of 30 October 1945.
The defendants of this trial, as far as they were doctors, were accused in General Taylor's opening speech of having committed atrocities under the guise of medical science. The defendant Brack does not belong to these doctors. Brack would probably not even have appeared before you bench as a war criminal, had his superior Bouhler been still alive. Brack worked as an expert in the Fuehrer Chancellery and in his field of work had nothing to do with medical problems. Also Brack is not accused by the Prosecution of having participated in medical experiments.
However, Brack is accused of participation in the genocide policy of the Third Reich, in so far as he participated in the euthanasia program and the sterilization experiments was conscious of their destructive purposes.
I.
In the judgment of the IMT the word "euthanasia" or "euthanasia program" is not used at all. It only mentions measures that were taken for the purpose of killing all the old, mentally ill, and all those, who had incurable diseases, in special institutions, which included German nationals and foreign workers who were unable to work. Also in the separate judgment against the defendant Frick only these measures are mentioned.
Any connection, or even the possibility of such a connection between these measures and persecution of the Jews, dealt with in a separate chapter, in particular with the plans drawn up in the summer of 1941 for a "final solution" of the Jewish question in Europe was never established by the IMT nor even hinted at.
1. The word "euthanasia" was until 1939 unknown to Brack as well as to large circles of the German population. That this word originally meant the "art" of dying, or to meet death with serene calm had remained the secret of those scientists, who were interested in the Greek language.
During the course of the centuries the meaning of this word changed. It first became the expression for the endeavor of the physician — originating in humane compassion, developed by the medical art — to alleviate the end of a dying person by soothing his pains. But then the moaning of the word and with it the concept of euthanasia was expanded, and towards the end of the 19th century it meant the assistance in dying through an abbreviation of life, if the life of the suffering person had lost its value in view of an immediate and painful death or as a result of an incurable disease.
It is a fact that this kind of euthanasia has been applied in the whole world since time and can be traced back to the Twelve Tables of the ancient Rome and to the epoch of state socialism of the antiquity.
The assertion of the Prosecution that euthanasia was the product of national socialism and its racial theories can be indisputably refuted through history.
Even if the Prosecution is of a different opinion, the Tribunal cannot overlook the fact that according the testimony of Karl Brandt, Brack, Pfannmueller, Hederich, Schultze, Grube, Gertrud Kallmeyer and Walter Eugen Schmidt, all independently stated that the measures started according to Hitler's will in the autumn of 1939, only applied to incurably mentally ill and were suspended in 1941. For these measures the participants used the word and the concept of "euthanasia" in the meaning of the final medical assistance, whether justly or unjustly will be discussed later.
2. It is not uninteresting to note that the word "euthanasia program" appears for the first time in the Brack affidavit (NO 426 Exhibit 160), which has been drawn up by the prosecution after several interrogations Brack at that time was in a state of physical and psychic exhaustion, and therefore not in a position to realize clearly what he said.
The defense in agreement with the prosecution refrained from presenting a medical expert opinion, but did not, as the prosecution now asserts, refuse to present it.
I regret very deeply that the prosecution, when using the word "euthanasia program" coined by them, characterizes without sufficient proof the euthanasia applied in 1939/1941 for the incurably sick as the conscious and deliberate precursor of the different actions of annihilation which mark the mill stones of the psychic and moral ruins left to the German people by men who had become crazy.
3. If the prosecution had been sure of their assumption, they wouldn't have had to submit those extremely doubtful documents with which they tried to prove in cross examination that the defendant Brack participated in planning the mass extermination of the Jews.
I continue on page 10 of my plea as follows:
How in the face of such an insufficient evidence which moreover is opposed when numerous cases of intervention for Jews in that period of time — I only recall the cases Warburg and Georgii — and in the face of Brack's sworn statements about his attitude towards Jewry, the prosecution can assort that Brack had participated in planning the extermination of the Jews and with that closed the circle, which they drew round the euthanasia of incurable mental patients, the Action 14 F 13 and the final measures to exterminate the Jews.
4. Again I wish to stress that everything that happened after the stop in August 1941 under misuse of the institutions of euthanasia, had nothing to do with the euthanasia of the incurably insane which was supported by Brack.
An opposing view would only be suitable to make an historical record which is not supported by the weight of the judgment of the International Military Tribunal, but merely corresponds to a view which just in the decisive points is void of every substantiated basis.
II.
On the same line of collaboration in the extermination of the Jews lies the assertion of the Prosecution that Brack had sterilization experiments carried out which brought death or permanent harm to numerous helpless victims.
The Defendant Brack does not deny that he submitted suggestions to Himmler which dealt with the mass sterilization of Jews. The Prosecution considers the suggestions as seriously meant. I agree with the Defendant Brack, when he admits in his direct examination that it is possible for a reader without detailed knowledge of the circumstances of the origin and the intentions to get such an impression. The question now arises:
How should a man who never was himself an opponent of the Jews suddenly make suggestions implying toward the Jews?
1. In this connection I may be permitted to devote a few words to the personality of the defendant Brack, since only with full understanding of his inner thoughts can his actions in connection with the charges made against him, of sterilization experiments and collaboration in euthanasia, be given due consideration.
Russia's most profound poet of the 19th century, Dostoevsky, in his novel "The Idiot" puts in the mouth of Prince Myshkin as proclaimer of his faith in the unending power of the human soul, which overcomes all evil and darkness of life, the words:
Pity is the most important and perhaps the only law of existence of humanity.
Although he did not know it, this quotation became for the Defendant Viktor Brack the yardstick of morality in his acts in life. Not only when knowledge of the intentions of Himmler's entourage showed him the terrible auspices which threatened the Jews from the year 1940 on. Not at the time when Hitler's decree of the summer of 1939 brought him in contact with the problem which had moved the heroes of antiquity. No, in the youthful heart of the defendant and into a mature age the pillar of his character — almost a passion — had always been "to want to help in all things which brought the misery and the suffering of his fellow men to his attention, and a corresponding absolute readiness to help which put his will into action. Thus "sympathy" — literally "suffering with" his fellow man — became for Viktor Brack the spiritual motor force of his acts.
Sympathy with the poorest creatures of humanity induced Brack to cooperate in the execution of the idea of euthanasia. Sympathy with the concentration camp inmates, who had been robbed of their freedom for years, occasioned Brack to suggest several "amnesties", through which tens of thousands of concentration camp inmates were granted the good fortune of returning to a life of freedom.
Sympathy with the prisoners, tortured to the point of spiritual collapse moved Brack, in the early summer of 1941, to pass on Bouhler's order for medical examination of the mental wrecks in the concentration camps.
2. Another outstanding characteristic appears to us in the picture of the personality of the Defendant Brack:
His sense of justice led him in hundreds of cases to intervene for the just interests of Jews and part-Jews when they confidently came to him in their distress. I need only mention the cases of Warburg, Ollendorff, and Georgii. His feeling of justice, paired with strong personal sympathy, led him in dealing with all sorts of matters in the of the Fuehrer, especially in the question of the release of concentration camp inmates, to adopt the so-called "weak line".
Brack did this without consideration of the fact that such a policy of tolerance would necessarily draw down upon himself the antagonism of Bormann and Heydrich or the displeasure of Himmler and might expose him to the danger of being sent to a concentration camp himself.
These statements are not based on vain arrogance of the defendant or an attempt to surround the defense of Brack with the glory of a person ostensibly motivated by humane feelings. From numerous affidavits and testimony of witnesses these qualities of Brack's shine crystal-clear.
But it would minimize the significance of these observations if I did not also sketch the shadows which fall on these bright colors in the picture of Brack's personality.
Sympathy is doubtless one of the feelings which seize the core of a human being's personality. To reject sympathy as in inconsiderable sentiment of the heart as stoic virtue demands, would conflict with natural feelings, deny the pride of modern man, humanity, in whose name the victorious powers have called the defendants to judgment; for sympathy means, as the Defendant Brack so well said, participation of the heart in the sufferings of others.
3. But, as humanly good as sympathy is, as a moral commandment it is only relative. Before sympathy can exert its influence on the will, it needs to be examined for the purity of its composition, or in other words, it needs purification and discipline by reason.
In this respect we see a weakness in Brack's character insofar as, for lack of restriction to a concrete field of work, he repeatedly failed to show the necessary sensible consideration. He gave way to impulsiveness in things, the import of which it was outside his capacity to judge.
Thus, in his character, reason was more or less overshadowed by the urgings of his exaggerated altruism. Let me remind you of the testimony of the witness Hederich, the affidavit of Tuessling, that Brack was not without justification called a "political Parsifal"; or of his own admission that out of stupidity he let himself be involved; in the case of his sterilization suggestions, in a thing which he did not understand.
Whether such conduct was from his childhood on a component part of his psychic background; or whether it was the effect of his own distress, which came about as a result of the Treaty of Versailles, through the loss of his home and the destruction of his plans for the future:
This involvement in constitutionally determined thinking constitutes in Brack's life the fateful tragedy which, in the judgment of all the witnesses; allows a man who is helpful, decent, and modest in his thinking be suspected of crimes against humanity.
4. Thus; his urge to rebel against inhumane actions drove him, who was entirely unconcerned to submit to Himmler in the spring of 1941 useless sterilization suggestions with the aim of preventing the danger of general sterilization which was threatening the Jews.
In the course of his examination as a witness Brack described his relation to Himmler from the very beginning of his acquaintance; his original impressions of belief in the personality of Himmler and his humanity; the arising of misgivings and doubts; their pacification; and then the horrible disappointment until his inner break in 1942, occasioned by Himmler's announcement of his sterilization intentions and still more of his later extermination intentions toward the Jews. Brack also described in an extremely realistic way the reasons for his last appeal to Himmler's instincts in June 1942 (NO 205, Exh. 163) and revealed the attempt to exploit Himmler's realistic thinking in regard to the procurement of labor, which in his spiritual distress seemed to him the last possibility for rescue and decided him to send such a letter to Himmler.
5. Brack's attitude toward the Jews has been proved by numerous affidavits.
From childhood on he had various friendships and acquaintances with Jews; he continued to mix with Jews at a time when personal dangers were threatening him on account of the fact he was a Party official. When he was active in the Fuehrer's Chancellery he intervened in numerous cases on behalf of the interests of Jews and half Jews. At the same time as he wrote his first letter he energetically and successfully intervened on behalf of Professor Warburg and preserved him and his institute for Humanity. Various Jewish circles expressed their thanks and their gratitude to Brack on account of his personal courage. After the intention of the leading people to deport the Jews to Poland in a disgraceful way became known for the first time, Brach drafted plans for the establishment of a Jewish State in Madagascar.
All these facts, which not even the Prosecution can deny, make it appear quite impossible that with his suggestions Brack had intended to participate in Himmler's destructive intentions or wanted to support them, all these facts prove that in his urge to help he wanted, from then on, to do nothing but looking after the interests of the Jews. Brack believed he had to serve them by showing them a certain, though childish looking, method which for a layman like Himmler didn't permit the discovery with certainty the desired effect with its many 'Ifs and Buts'. That way, in the first place, Brack hoped to lead Himmler astray from his sterilization plans. Should, however, Himmler regard the method as suitable for an experiment, then, Brack hoped, the long period which was necessary for the preparation of such experiments, could win such a lot of time that the end of the war which he expected with certainty would call a halt to all these plans.
It is indisputable that the method suggested by Brack was entirely impracticable, from the point of view of the x-ray technician as well as from the point of view of the x-ray specialist, as can be seen from Brack Exhibits 48 and 49. These scientifically reasoned expert testimonies of Professors Rump and Stumpf, who are recognized authorities, together with the affidavit of the witness Grube (Brack Exhibit 27) permit to attach probability to Brack's further statement about the changes made in expert opinion of an x-ray expert which was given particularly for this purpose; therefore this statement of Brack's is, to say the least, to be regarded as not refuted, even if I did not succeed in spite of the help given to me by the Tribunal, to obtain a confirmation of these facts by the expert himself from the Russian Zone.
While, in the first letter, a certain place in occupied by the intention that the sterilization should be unnoticed this point of view could not only be abandoned in the second letter, because in the meantime larger numbers of people learned of the intention to exterminate the Jews, but it had even to be left out of the letter, to make Himmler fall with greater certainty for the chance to use the Jews for work. In June 1942 this was the only way to make Himmler give up his intention to exterminate the Jews.
If Himmler had accepted this proposal, then, of course, it would not only have saved the 2 to 3 Million, of whom Brack wrote, but it would have saved all the Jews from extermination; because it would run counter to all reason to exterminate 6 — 7 millions of Jews from the very start, if perhaps many more than 2 — 3 millions of men and women fit for work could be found among their number.
With that Brack thought he had once again won the necessary time, until the fight with Russia, which he thought at that time still promised success would have been brought to an end. Think of these ideas of Brack's whatever you like: Considering his mentality and his somewhat primitive reasoning his statement appears at least as probable that he wanted to make a last attempt, even if it was not thought over up to its last consequences, still to turn the fate of the Jews as a completely disinterested person: thereby Brack was always convinced of the ineffectiveness and harmlessness of his method.
To quote a Greek philosopher, "nobody is able to fathom the ground of the soul, and though you travel every road, so deep is the bottom." Brack had no need to commit an intellectual theft in order to copy Pokorny's motives. Brack had told me his reasons already at a time when he couldn't even speak with Pokorny. Forces stronger than every reason slumbered in his soul: To help and to help again, even if hundreds of thousands should be subjected to an experiment which, in his opinion, was entirely innocent, if only the many millions could be saved that way. The last thought prompts the lawyer to enquire whether or not in this case there was a so-called emergency surpassing law, in the sense of the so-called theory of weighing goods, which placed Brack before the alternative of either violating a high legally protected value or violating a low legally protected value, and whether or not Brack was therefore entitled to violate the lesser value, because there was no other way out to save the higher value. Therefore you will have to decide the question whether or not after the weighing of the two evils in Brack's activities the intention to commit a Crime against Humanity can be recognized at all, if he decided to sacrifice a legal right of small value belonging to an insignificant number of people before sacrificing the legal rights of high value belonging to a great mass of men.
Now I turn to euthanasia, page 24:
1.) The dreadful fate of the incurable insane, whoso tragic and somber sufferings have again and again confronted humanity with insoluble problems, has for a long time been of particular importance for the concept and application of euthanasia.
The concept of treating insane persons as sick has become accepted only slowly. To be sure, it can already be found in Plato's "Republic" and in later ages also it never entirely vanished. But again and again the concept was visited by assertions that an insane person was evil or was even possessed by the devil that allegedly were fermenting him. In the age of the deplorable witch trials this delusion reached terrible proportions. Thus, in the cultural history of man the development of the care of the insane is one of the darkest chapters.
It was only in the middle of the eighteenth century that mental disorders were recognized as disease and it was soon that institutional care was expedient. Thus, in the course of time insane asylums came into being in which in addition to a largo number of cures after longer or shorter commitment in an asylum, hundreds of thousands of spiritually dead persons were housed, often for many years and decades, completely cut off from the outside world.
Professor Leibrand, Dr. Pfannmueller and Brack have described types of such spiritually dead. Their emotional responses do not extend past the most elementary processes, verging on the animalistic.
Out of all rapport with their environment and the human community, utterly incapable of moral thinking, they stand at an intellectual level that animals often achieve. Dependent on outside help, even in the most primitive everyday matters, they are divorced from the human community by the nature and consequences of their affliction, with no prospects of improvement, to say nothing of cure.
The concept of redeeming these empty human shells from their misery is not a modern one.
As early as 1516 the English Lord Chancellor, the Renaissance philosopher, Thomas More, imbued with the spirit of Humanism, made in his book "Utopia" proposals for Christian reform of State and society which, although limited by his ago, were nevertheless meant very seriously. Among them were also proposals for a gentle mercy death which the church and State could grant the insane person for humane reasons.
Philosophers, legal scholars, doctors, and theologians have since then concerned themselves with this problem which is known today under the name "euthanasia". The have thrown light on the question of the justification in destroying so-called "life unworthy of being lived" from the most diverse points of view, have affirmed that justification and denied it.
Not only in Germany but also in Franco, Norway, Denmark, Switzerland, England and America, liberal socialists and free masonry circles the concept has found further and further dissemination.
Long before the advent of National Socialism, German literature produced a number of books with a positive orientation toward applying euthanasia to the incurably insane.
Let me draw your attention to the writings on monistic ethics in the period before the First World War and to Exhibit 496, which the prosecution itself termed the standard work, the book of one of the most renowned German scholars on criminal law of the last century, Binding, and of the highly esteemed Professor of Psychiatry at Freiburg University, Hoche: The title is "The Admissibility of Destroying Life Unworthy of Being Lived."
2) From these few references it can be seen that the question of euthanasia for the incurably insane has been discussed and propagated for quite awhile by men whose human and liberal attitude and whose juridical and Christian orientation cannot in any way be doubted. It cannot be wondered at that the Catholic Church has opposed euthanasia. It holds unswervingly to the principle that the State cannot permit itself such an action without offending the precepts of religion. But for it characteristically enough it is not the question of humanity but the viewpoint of the sanctity of life that is decisive. It is a fact that needs no proof that the church and the State have frequently come into conflict over such problems and that the church, although still struggling against the laws of the State, has finally yielded, and this not only in Germany.
The history of this problem has also sufficiently proved that the question of euthanasia has been passionately affirmed by its adherents for ethical reasons, and has been denied fanatically by its opponents, likewise for ethical reasons. Both, adherents and opponents, cite in their behalf the precepts of humanity.
The antithetical reasons adduced by the two sides are the perfectly understandable consequence of the various attitudes on the part of men, States, and peoples to the question of Humanity as has been demonstrated to us not only in wartime, but equally, in the post-war period.
"Humanity" does not arise in us as Heraclitus portrays it in his philosophy, from the "koinos kai theies loges" of which everyone has a part in his soul a priori, through his contact with the absolute world. Even today the concept has not yet been clearly defined in positive law as the final deposit of an absolute legal idea — this is particularly true in international law— and such a definition would probably also be lacking in the future.
3) The prosecution discussed most exhaustively all the individual directives and measures within the framework of euthenasia.
In the course of presentation of evidence — I refer to the testimony of the witness Schmidt — it was ascertained that Brack had nothing to do with the working of the Reich Committee for Children with Heredity and Constitutional Afflictions. I can therefore dispense with discussing this point, the more so since the same points of view are here valid, perhaps to an even greater extent, as in the question of euthanasia for the incurably insane.
On page 30 I go on about this point.
As regards the latter, Brack has not denied his participation.
4) The treatment of this matter during the presentation of evidence was only necessary in order to refute the prosecution's charge that Brack was the leading man in the euthanasia program. The defense has brought proof to the contrary.
Reichsleiter [Reich Leader] Bouhler, according to Hitler's decree, was responsible for carrying out euthanasia. There is documentary proof of this responsibility in Karl Brandt Exhibit 4a and 4b. Everything that Brack did he did only as Bouhler's deputy, whose orders he carried out.
His position in the euthanasia program did not even correspond to that of an assistant and was loss important than that of a general secretary who is the administrative official in a government office. Brack's position was altogether subordinate. He had no right to make any independent decisions. He was not the liaison man for the T 4, as the prosecution claimed. Brack's position, which was described by the prosecution as so important, must not be over-estimated, even though outsiders have sometimes judged it incorrectly; Rather it must be placed in its proper proportion on the basis of the true facts as determined during the presentation of evidence.
5) Euthanasia, your Honor, is a question of conscience Every official activity achieves its inner moaning only through the philosophic idea that informs it. The essential ethical attitude of a person can only be recognized and adjudged on a metaphysical basis. Brack's motives that induced him to participate in the euthanasia program for the incurably insane was deepest pity for these most wretched human creatures, whose delivery from suffering is a desirable thing from a humane point of view, as the witness Leibrand could not deny.
So, and only in this way, can and must Brack's activity in euthanasia and his acceptance of it to be evaluated. He did not accept it lightheartedly but only after the most thorough study of literature on the question and after personally seeing mental institutions and their unfortunate inmates.
Brack's actions were not determined by social theories or considerations of expediency such as were ascribed to him with the purely fictitious phrase about "doing away with useless eaters." He was guided by purely ethical considerations which provided his conscience, after careful security, with objectively valid norms. Brack has stated them comprehensively in his final remarks on the euthanasia problem, and submitted his theories to the verdict of public opinion in the film "I Accuse".
6) However many as the grounds may be de lege ferenda for the justification of euthanasia for the incurably insane, reference to such grounds would still, for lack of legal basis, be of no importance de lege late. The premeditated and deliberate killing of a human being remains murder if it is done for ethical reasons.
Brack can therefore not be denied his general criminal responsibility for his participation in euthanasia unless he has some grounds which exonerate him.
In justification of his acts Brack cited Hitler's declaration of 1 September 1939, of the contents of which, as well as the oral explanations given at the time, Bouhler informed the defendant Brack when giving him the assignment to participate in the preparatory measures for euthanasia for the incurably insane. Brack did not make it clear that he construed Hitler's declaration as a Fuehrer decree which obligated him to carry out Bouhler's assignment. The question with which the I.M.T. concerned itself so deeply, regarding the importance to be attached to this defense, can therefore be left out of consideration in this defense of Brack.
But the defendant Brack did claims that he, like associate and all other persons involved, regarded Hitler's assignment as a completely valid legal basis for carrying out euthanasia, and also considered Hitler justified in issuing such a decree with force of law.
7) Therefore Brack's defense culminates in the fundamental question of whether Hitler's declaration of intentions of 1 September 1939 can be considered such a legally unobjectionable state act which eliminated the injustice of killing a human being inherent de lege lata in euthanasia of the insane.
The treatment of the question in this room encounters great difficulties insofar as there is not only considerable ignorance of certain peculiarities of the German position in constitutional matters but above all a great difference between continental European and transatlantic jurists in constitutional and legal thinking. Law and morals have for centuries been sharply differentiated on the European continent in juristic and above all in legislative thinking, in contrast to the states across the ocean. This historical fact must be taken into consideration, for only then can the realization be reached that in a question of German constitutional law only that development can be decisive which legal training has had in Germany in deviations from the constitutional law of the Weimar republic since the Enabling Act of 24 March 1933 and the Head of the State law of 1 August 1939.
With these laws Hitler was given all authority as head of the state and chief of the government, in full knowledge of the Fuehrer principle which had been in operation for over a year, with approval by the plebiscite of 19 August 1934.
From this time on Hitler incorporated the will of the people and the resulting functions. He had thus become the Supreme Legislator of the Reich.
A concluding resolution of the Reichstag [Parliament] was only the confirmation of his primary declaration of his will.
Among the independent promulgations of laws, which were represented as direct emanations of his authority, the declarations of Hitler's will were at first called "decree" and later uniformly "Fuehrer decree" assumed the most important role. In them the distinction, still customary under the Weimar constitution, between legislative and executive is overcome, as Hitler proclaimed in his Reichstag speech of 30 January 1937 in the words:
There is only one legislative power and one executive.
Therefore the decrees united material law with organizational measures and administrative directives, especially insofar as they were addressed only to a group of person gathered together in a certain community. Proclamation in the Reich Law Gazette (Reichsgesetzblatt [Reich Law Gazette]), countersigning by the competent departmental minister of later the competent chancery chief no longer played a decisive role in 1937. The Fuehrer principle was already in full operation at this time. It no longer tolerated the dependence of the authority to promulgate original laws which was granted to the Fuehrer by the plebiscite of 1934 on the observance of formal regulations. The only decisive thing that remained was the fact of proclamation of the will of the Fuehrer, not its form. Hitler's decree of 1 September 1939 addressed to Brandt and Bouhler, was therefore in form a legally quite acceptable state act of the head of the state.
My result in the examination of the development in legal history of the Fuehrer principle in the Third Reich agrees with the testimony of the witnesses Lammers, Engert and Best. This testimony is underlined by the standpoint of the Reich Minister of Justice Guertner and Schlegelberger as representatives of supreme Reich authorities, as transmitted to us by Lammers and Engert. Finally, it is affirmed by University Professor Dr. Hermann Jahrreiss, who a few days ago dealt with the questions arising in this connection in great detail and exhaustively in the jurist's trial before Military Tribunal III.
I may ask the high Tribunal in judging this legal question to consider these statements.
8) Brack was convinced of the legality of this decree, on the basis not only of juridical but also other effective indications of much more significant independent steps taken by Hitler in domestic and foreign policy.
Brack's conviction, that of a non-jurist, of the legality of the Fuehrer decree, based on the explanations and information of his juristic associates and the concurrent or at least now dissenting statements of the highest representatives of the Reich Justice authorities at the meeting of General Public Prosecutors on 23 April 1941 (Brack Exh. 36) can therefore not be doubted. Even if you deny the legal validity to the Hitler Decree, though I regard it as valid, Brack committed a legal error at least as far the particular legal position of Hitler within the State is concerned, according to which Decree is otherwise illegal activities are to be excused. This legal error is suitable to abolish his guilt or at least the grave guilt of intention. According to German law valid at the time of commission this question is to be answered absolutely in the affirmative. According to that, a so-called error outside of criminal law — which is indeed the error about the legal validity of the Decree of 1 September 1939 — excludes the unlawful character which is an essential of the term intention.
9) Of course, the law giver set limits to the exercise of the powers of the Fuehrer. The limits were, where his acts were no longer in accordance with general human feeling. Human feeling, however, does not root in logos, as said afore.
Its limits are found generally, and within the framework of Euthanasia in particular, not to be absolute, but to use a word of Herakleitos, "panta rhei", vague — after all what has been said during this trial about the history of Euthanasia and the arguments of the religious, ethical and legal opinions.
The contents of the Decree didn't mean anything basically new and alien. A definitely limited number of experts were in a conscientious way entrusted with the judgment of that, which in the course of the years has repeatedly been discussed and demanded by competent people, as doctors, lawyers and philanthropes.
The State as well as the Church have recognized exceptions to the divine prohibition to kill for the cases of death sentences and killings in battle. A general decision on the problem of Euthanasia, which never rested during the course of thousands of years, was evidently not the intention of the Decree.
Moreover he created only the personal mitigating circumstances of the not existing conscience of illegality, as far as the men mentioned therein, and the persons, whom they used for the execution of their order acted in conformity with the individual instructions of the decree. The decree therefore neither transgress against the limits that universal moral law has set.
10) Brack according to his entire ethical attitude towards the problem of euthanasia was of the opinion that he acted in accordance with the laws of humaneness. He know that the concept of humaneness can be construed variously from various points of view. He pointed out during the presentation of his evidence that the Christian concept of humanity is different from that of the modern champion of the euthanasia idea and that humanity is cited not only by theologians but also by atheist members of a compassionate humanity. Brack believed in good faith that in his acts he was not only carrying out a legal decree of Hitler but was behaving in accordance with the presents of humanity.
For the opponents of euthanasia to grant this good faith to the ever ready and honest man Brack does not mean that the opponent is relinquishing his own point of view, but is an expression of a most lofty sense of justice.
11) The duty to maintain secrecy which Brack and all the other participants in the in the euthanasia measures were under does nothing to change this. The prosecution's assumption that this betrayed Hitler's innermost consciousness of the illegality of his decree has not been confirmed. Secret decrees were by no means appearances under Hitler's rule, From the, very beginning on Brack repeatedly made efforts with Bouhler to have the secrecy lifted because it was with out purpose and led to difficulties. Shortly after the inception of euthanasia the fact of it was known to large segments of the population and had become an open secret in the fertile ground of which rumors sprouted like weeds. Consequently even at the beginning of 1940 Brack emphatically demanded the issuing of a formal Reich law, on the grounds that euthanasia for the incurably insane was, in its effects and extent, a matter concerning the nation and the public. He personally worked on the draft of this law.
The rejection of the signing of a formal Reichstag law by Hitler is perhaps the most striking evidence that ground for secrecy assumed in the indictment cannot be correct, but that other reasons must have been the motivating factors. Whether these considerations of war policy or other processes of thought were decisive for Hitler did not come to Brack's knowledge. Not the least important reason for Brack's creating the film "I accuse" was to induce Hitler to repeal the secrecy regulation. The legal arguments which I could give at much greater length on the question of the Fuehrer decree of 1 September 1939 and Brack's criminal responsibility would overstep the time at my disposal. I have consequently attached the legal opinion of University Professor Dr. Karl Engisch of Heidelberg once more to my written plea for the information of the Tribunal.
This document was not admitted in evidence as an exhibit for Brack during the presentation of my case. I expressly refer to this explanation and ask that you make it the subjects of your deliberations in arriving at your judgment.
In his opening speech General Taylor pointed out that the application of Euthanasia to non-Germans would not have been permissible even if there had been a law in force in Germany.
The evidence proved that, according to the various statements of witnesses, Euthanasia was confined to German mental patients. Foreigners, foreign nationals, as well as Jews, were expressly excluded. It could not be proved by the evidence that such persons were subjected to Euthanasia before it was stopped in August 1941. Consequently, the contrary has to be regarded as proved. The decree and its execution, therefore were strictly confined to the limits imposed on Germany by the generally valid principles of the law of nations or by international agreement.
General Taylor in his opening speech admitted the enactment of legally valid principles about Euthanasia in countries outside of Germany; condition that would merely be the maintenance of certain safeguards. Such safeguards were provided for sufficiently by the detailed filling out of questionnaires and by expertising the questionnaires according to medical points of view; issue of directives to the experts on the basis of expert-medical consultations; appointment of experts and top experts; personal observation of the insane in the institutions and asylums like the Euthanasia institutions; consultation of the Administrative health agencies of the Reich Ministry of the Interior; and by the right of appeal of every physician participating in the procedure, right down to the last Euthanasia doctor.
With these criteria of Euthanasia, closely bound with the critical judgment of the individual case, all prerequisites seemed to be given according to Brack's point of view, — to guarantee a safe and orderly procedure of Euthanasia. Brack was assiduously anxious to make sure they were obeyed according to the Bouhler directive.
Brack felt it as deeply regrettable when, in spite of all that, abuses became apparent here and there. It was beyond his powers and capacity to prevent them.
Decisive for him was the thought, born out of compassion, to release the poor creatures from their sufferings painlessly and unnoticed by themselves, provided medical expertising has made sure that he was incurable and therefore, though he did, didn't lack not every sense of life, but had lost every will to live because his mind and soul were buried. To Brack it seemed to run counter the dignity of man to live a life unworthy to live only for the sake of the will to exist.
In my Closing Brief I have assembled all the arguments with regard to the charge of SS membership, which are appropriate to refute also this point of the Indictment. I herewith refer to it.
I am at the end of the critical evaluation of my argument. The case of Brack is a very problematic case. The defense fully recognizes the weight and the importance of pro and contra. After a collaboration of several months I was in a position to acquire a complete picture of Brack's personality. I believe in his humaneness and in his sincerity, and I consider him unable to have ever pursued destructive aims. It is the principle recognized in the American concept of freedom that every person accused of a. crime has to be considered innocent, until the proof of his guilt has been established through the evidence that is beyond every reasonable doubt. Taking everything into consideration, I can think of no more appropriate words to define the considerations that should form the basis for the verdict in this case than those uttered by Judge Phillips, when, at the conclusion he voiced his opinion in the verdict against the defendant Erhardt Milch in the proceedings before Military Tribunal II, as follows:
When a preeminent American jurist was applying this God-given principle of freedom he spoke as follows:
If after considering and weighing the entire evidence you find that your thoughts are confused, your convictions shaken as in a storm, and that your judgment, like the dove in the Flood, finds no resting place, then, the law states, you must acquit.