Generaloberstabsarzt Handloser at that time was the chief of the medical services of the armed forces and was according to this name the exponent. He was just the representative, but he was not a representative according to the function.
MR. McHANEY: I guess the Tribunal wishes to adjourn now and I would like to state again that, of course, since the witness is now under cross examination he shall not be in contact with his defense counsel.
THE PRESIDENT: The rule announced at adjournment yesterday will be carried out again this evening. The witness will be secluded.
The Tribunal will recess until 0930 o'clock tomorrow morning.
(The Tribunal adjourned until 6 February 1947, at 0930 hours).
Official transcript of tho America Military Tribunal in the matter of the United States of America, against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 6 February 1947, 0930, Justice Beals presiding.
THE MARSHAL: Persons in the Court Room will please find their seats.
The Honorable, tho Judges of Military Tribunal 1.
Military Tribunal 1 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the courtroom.
THE PRESIDENT: Mr. Marshal, will you ascertain that the defendants are all present in court.
THE MARSHAL: May it please your Honors, all defendants are present in the Court Room.
THE PRESIDENT: The Secretary-General will note for the record the presence of all the defendants in court.
Counsel may proceed with cross-examination.
KARL BRANDT -- Resumed.
CROSS EXAMINATION ( Continued ).
BY MR MC HANEY:
Q Herr Brandt, at the end of the session yesterday we were investigating the power and authority of General Handloser and I had put to you certain words which you had spoken in May 1944 at Hohenlychen. I want to ask you on which occasion you were right, whether when you stated as May 1944 that Handloser was responsible for the use and performance of the medical office, or whether, as you testified here, he was not so responsible?
A You must not consider the question of responsibility in the same sense, you must differentiate between the responsibility of the entire commitment of the medical officer within the army and within the troops, in reference to reserves, etcetera, and the things which are connected with research as we spoke about yesterday. In addition, it has to be added that when I spoke in Hohenlychen in the year 1944 I was speaking about a formal use, and it certainly wasn't some kind of an affidavit that I was making at the time. During such a meeting, where medical officers of the various armed forces branches have gathered, it is quite customary that the chief of one such Wehrmacht branch is mentioned.
It is a gesture, an appreciative gesture, rather than a fixing of his functions in various capacities.
Q Herr Brandt, let me put a hypothetical case to you. Suppose Handloser in August of 1942 made an inspection of the medical service of the Luftwaffe, if he at that time was under Hippke, and suppose Handloser found conditions which were not to his liking, could Handloser issue an order to Hippke instructing him to correct the conditions of which Handloser did not approve?
A He probably wouldn't have been in a position to give directives of that manner to Hippke since Hippke received his directives for the Chief of the Air Forces himself and was subordinated to him in a military way. Here we would concerned with a purely military order. He probably could have pointed out that something was wrong, but according to my opinion he would not have been in a position to give any orders to a different branch of the Wehrmacht as far as it was not concerned with material or personnel matters. Even in the case of material and personnel matters it would have been necessary even before such an inspection took place to inform the Chief of the respective Wehrmacht branch about his measures.
Q I take it that you excluded medical research from what you describe as the field of material and personnel?
A I already made that difference yesterday, in that decree the word research in not mentioned at all.
Q Let me put another hypothetical case to you. Handloser made the same inspection of the medical service of the Luftwaffe under Hippke and found conditions of which he did not approve. Handloser then went to Keitel and told Keitel that intolerable conditions prevailed in the medical service of the Luftwaffe. Would Keitel or would Keitel have not, sent an order down to Hippke to straighten out the affairs which were complained of by Handloser?
A I don't believe that Keitel would have done so, and for the following reason, the medical service of the Air Forces was an independent institution and the supreme commander of the Air Forces has a direct channel to the Fuehrer. I have already pointed out that the position of Keitel was more or less a mock position since Keitel was circumvented by the various chiefs of the Wehrmacht branches and, therefore, it would not have been possible for Keitel to give Goering any such directives in any such event.
I think that it is out of the question. Keitel may have mentioned this matter to the Fuehrer so that he, over Goering, could give orders to Hippke and deal with the matter, but I don't believe that Keitel on his own initiative could have given any directives Hippke.
Q Wasn't it precisely the duty and the responsibility of Handloser to make such inspection trips? I think you yourself stated that you went on such inspection trips with him. Now, having made such an inspection trip just exactly what did Handloser do concerning the conditions which he Found? If I understand your testimony you are telling this Tribunal he could do nothing, is that right?
A If he undertook such a tour of inspection to the Crimea, for instance, or Poland, he informed the respective medical officers that he was on his way and it is quite probable that afterwards he made an according report to the medical officers. But here we are concerned with the questions as laid down in the decree, where it expressly said that it deals with the personnel and material commitment.
Q Herr Brandt, let's assume that the matter of which Handloser disapproves falls within the scope of the decree -- I am trying to find out precisely what Handloser's powers and responsibilities were in such a case and exactly what orders he could issue, exactly what man he could go to have such orders issued, and you have excluded the possibility of Keitel. You have excluded the possibility of Handloser himself issuing such orders and I am left with the picture that Dr. Handloser had no powers whatsoever.
A The fact that the power that he had at the time was not sufficient is confirmed by the fact that in the year 1944 a second decree was necessary where he received more extensive functions. If in 1942 on the strength of this decree he actually had become the medical chief of the entire Armed Forces, that is to say if he would have taken over the entire leadership and assumed a clear position of superiority over all Armed Forces branches, this second decree of August 1944 would not have become necessary. In this second decree the wasn't only the separation of his position as the Army Inspectorate and the Medical Chief of the Armed Forces, but it was very clearly established there that he received certain functions.
The functions which he received there certainly were not given to him before because otherwise this second directive would have become superfluous.
Q. Under the second directive could Handloser issue orders directly to the Chief of the Medical Service of the Army, of the Luftwaffe, and of the Navy?
A. May I ask you to give me this second decree together with the official directive?
Q. Herr Brandt, I would like for you to testify from your own knowledge of the medical service in Germany. After all, I think, you were in a position to know. The Tribunal has the decree of August 1944. And, if it is simply a question of interpreting the written words, I think perhaps we are competent to do that. I would like to ask you now to testify from your own knowledge. I asked you if Handloser could issue orders after the decree of August 1944 to the Chief of the Medical Service of the Army, Luftwaffe, Navy, and Waffen SS, as attached to the Wehrmacht?
A. According to my opinion, he could only do so within the framework of his entire tasks; that is, within the framework of his mutual tasks. I do not believe that it is clearly stated in the decree that he could have done so in such tasks that were not mutual. But, I still should like to see the decree once more together with the official directive. In any case, this second decree of 1944 compared to the decree of 1942, gave Handloser very clear powers and authority which previously were not existent.
Q. Is medical research a mutual task?
A. Apart from the special field, yes; and, I should like to designate aviation medicine as a special field.
Q. Well, could not Handloser issue a general order that there would be no medical experimentation on concentration camp inmates?
A. The prerequisite would have been that he had the knowledge that such experiments were being carried out to a certain extent or at all. If he did not know that it is very improbable that he would have issued such a decree. I do not believe that he would have had the influence to bring such a decree to its final effect, since he then would interfere in a field which was not medical and which was subordinated to Himmler. The only channel would have been to report to the Fuehrer, and have him deal with the matter. I am quite sure he could not have issued any order to Himmler.
Q Herr Brandt, you did not answer the question. We are not concerned with the likelihood a Handloser having issued an order. We are simply concerned with the power to do so. And, I have put the question to you: When in September 1944 Handloser, as Chief of the Medical Service of the Wehrmacht, could have issue an order to the Chief of the Medical Service of the Army, Navy, Airforce, and the Waffen-SS, as attached to the Wehrmacht, that no medical experimentation would be carried out by officers of these services upon concentration camp inmates?
A If such an order had been issued, the success or non-success and, an order would have occurred whether or not it was in contrast to an order which any chief of the Wehrmacht received from his own superior. That is to say, if a directive had been given by Goering that such and such experiments were to be carried out, and if the order of Handloser was in contrast to this order, the order of Handloser's certainly would have no effect. It would have been merely illusionary.
Q Herr Brandt, I insist that you answer the question with a yes or a no. We are not concerned with any conflict between an order of Handloser's or an order of Goering's or an order Himmler's. We are simply concerned with the powers and the right of Handloser to have issued such an order to the Chief of the Medical Service of the Army, Navy, Luftwaffe, and the Waffen-SS, as attached to the Wehrmacht. I think you can answer that question with a yes or a no. Did he have such powers or did he not?
A Without seeing the decree once more, I cannot answer this question with either a yes or a no.
Q Alright, Herr Brandt, we will pass on. You do not care to answer that question without seeing the decree; is that right?
A I cannot answer the question in its precise form with yes or no, wi thout having once more the opportunity of seeing the decree together with the official directive.
Q You mentioned the mane Blome in connection with a position he held in the Interior.
A. In connection with the fact that he had no position in the Ministry of the Interior.
Q. I understood you to describe Blome as having two positions, one with the Party and one with the State?
A. That is an error. I do not think that I have stated that. Doctor Conti had a double position, but Blome was merely the representative of Conti in his capacity as leader of physicians. He was the deputy leader of physicians, while Conti was the leader of physicians. And, he was Reich Health Leader as a party/function and at the same time he was UnderSecretary of State in the Ministry of the Interior. Blome had nothing at all to do with Doctor Conti's position as Under-Secretary of State in the Ministry of the Interior.
Q. And, you testified that the only job that Blome had was that as Deputy Reich Health Leader.
A. In his relationship to Doctor Conti, he was only his Deputy Physician Leader.
Q. Herr Brandt, I did not ask you what his job was in relationship to Conti. I asked you what jobs he hold. Now, will you please answer?
A. Doctor Blome was the Deputy Leader of Physicians, and I think he had in addition a function in the Party with the main office for Public Health. He was active within the Reich Research Counsel as plenipotentiary for cancer research. And, I do not know how far his official position in the Party had something to do with the educational matter or whether he had some official name for it, I cannot say, but I did not hear about any other functions of Blome.
Q Herr Brandt, your attorney asked you, during the course of the direct examination, for your judgment on the importance of the experiments with which this case is concerned. Do you remember that?
A Yes.
Q I recall that you testified, in effect, that all of the experiments charged in the Indictment were important experiments with the exception of sterilization?
A When answering the question about the importance of experiments, I answered in the affirmative, but with that, I did not want to express that at the same time the manner of execution, and the experiments in this form, were important. I can only speak about that if I had heard them speak who participated in these experiments. The fact that such questions of sulfanilamide played an important part with us, and that its clarification was important, and that the effect that high altitude experiments could be of importance because of special demands of the Air-force. It was in this sense that I wanted to establish the importance of the experiments and I, in that connection, pointed to the skeleton collection and sterilization, and these are two groups which have to be excluded from consideration.
Q. Before continuing with this line of questioning, Herr, Brandt, I would like to clear up your relationship to the army. Is it true that you held a rank in the army?
A. Yes.
Q. What was your relationship to the army and what rank did you hold?
A. The last time I was Generalarzt of the Reserve.
Q. Did you have any function from the army?
A. I had no further connection with the army. After participating in the first exercises in the year of 1935 I continued the exercises up until the beginning of the war; and during the war I was commissioned to exercise functions at the Fuehrer's headquarters.
Q. Herr Brandt, do you regard as criminal experimentation on human beings without their consent?
A. That depends upon what experiments you are speaking about. The question of approval according to my opinion plays an essential role in the entire judgment of the experiments, that is, in judging if you want to use the word criminal.
Q. Well, Herr Brandt, why do you draw a distinction between the type of experiments? What difference does it make what type of experiment it is if the experimental subject has not consented to undergo the experiment?
A. You can speak about experiments when you start using a new drug. One is then of the opinion that it is of use without knowing it in its final details. Even such a thing can be considered as an experiment; and that is why I wanted to differentiate between the problem; and in addition the question of voluntary or involuntary nature with reference to an inmate plays a psychological part, and if one considered inmates therefore one would have to be clear if answering such a question from the start as criminal what experiment one is concerned with. The difficult points regarding two crimes are seen in three points. One is involuntary nature; then mainly the lack of necessity of such an experiment; and, third, the dangerousness of an experiment.
Q. In other words, you find situations where it is possible, although the experimental subject does not volunteer, that none the less the experiment is permissible, both by way of law and morals? Is that right?
A. Both can be possible, yes.
Q. You are a doctor. I should think that you are probably rather familiar with malpractice cases and statutes in Germany. Suppose, Herr Brandt, you tried out a new drug on one of your patients in pre-war Germany without telling the subject about it or asking his consent in any way, and as a result the person were injured by this drug. Would you or would you not be subject to a charge of malpractice?
A. I certainly would be subject to such a charge.
Q. Well, then I don't quite understand the situations in which you say it is permissible to do something to a person without his consent.
A. For that reason I made the differentiation before, and I said that we are at the same time concerned with the question of dangerousness; and what you just said possesses dangerousness in addition to being of an involuntary nature. This makes it doubly hard; and of course if it is not essential then that would be the crux of the problem.
Q. Herr Brandt, would the experiments charged in the indictment be criminal if the experimental subjects did not consent to undergoing these experiments? Will you answer the question?
DR. SERVATIUS: Mr. President, we are here concerned with the legal question which cannot be put to the witness.
THE PRESIDENT: I would ask counsel if by his question he intends to ask the witness whether the experiments -- I don't know to which experiments counsel refers -- would be objectionable or illegal if carried on by a physician upon persons in civil life disconnected with the military service.
MR. McHANEY: That is correct, your Honor. I am simply trying to search the moral values which the witness places upon an experimental situation of this type.
JUDGE SEBRING: Now then, Mr. McHaney, in posing your question, are you attempting to elicit from this witness his views as to whether each of these experiments is illegal or criminal per se or are you concerned primarily with whether, assuming the prosecution theory of the case to be true, these experiments were illegal or criminal because of the manner in which they were executed?
MR. McHANEY: Well, I think it is the latter, your Honor.
JUDGE SEBRING: I think perhaps that is not too clear.
MR. McHANEY: I am trying to determine the importance which the witness attaches to consent by the experimental subject in the context of the experiments here charged.
JUDGE SEBRING: It would seem to me that there might be a certain type of so-called medical experiment which in and of itself might not be anticipated to produce painful or dire consequences. On the other hand I apprehend that any type of experiment, if continued to excess, might be a criminal experiment; and I would suggest, if I may, that if that differentiation is made to the witness, perhaps we can get at what we are trying to here more quickly.
MR. McHANEY: If the Tribunal please, I think I will proceed to putting questions to him with respect to each experiment in the indictment rather than in the general manner I have stated it.
Q. Herr Brandt, you have heard the testimony and evidence in this case with respect to the freezing experiments carried on at the Dachau concentration camp. I will ask you to assume that the proof as adduced by the prosecution, for purposes of this question only, is correct and true; and you will recall that there was substantial testimony and proof that the experimental subjects in that experiment did not consent to undergoing the experiments. Will you tell the Tribunal your view on the criminal character of that experiment on that assumption?
JUDGE SEBRING: Mr. McHaney, are you concerned now with the experiment or the manner of its execution?
MR. McHANEY: The experiment as it was carried out.
JUDGE SEBRING: As it was supposed to have been executed in accordance with the prosecution proof?
MR. McHANEY: That is right.
Q. Assuming the experiments were carried out in the manner that the prosecution's proof has tended to show, in your opinion was that a criminal experiment?
A. In this form I cannot answer that question. The complexity of criminality is being presented to me and I am asked to judicially evaluate this concept. Basically I can only speak about freezing experiments and the necessity for freezing experiments and I can only say something about that is all the prerequisites which led to the experiment are clear. Therefore, I can only say something about the ethical point of view and this ethical point of view is influenced by the manner of the tasks which have led to such an experiment. The most decisive thing in the assignment of an experiment is the following question: Is the experiment important or is it not important? If you refer that question to the freezing experiments, then the importance of such experiments can play a part under the circumstances of the war. The then circumstances of war can add the interest of the state to the interest of medicine and then lead to the conclusion that such freezing experiments have to be carried out. Then, from a certain point on, we are concerned with the manner of execution. The execution of such experiments must again be subdivided into voluntary nature or involuntary nature. If, in addition - I spoke about the dangerousness and harmfulness of the experiment then the experiment, if it is harmful, can't possibly be carried out by physicians when considering all human considerations. If any danger comes up, then the physician has to assume the responsibility for the danger in connection with that experiment. Any state order can be a safeguard, and a state order can be interpreted in various ways during a war. But I cannot define my position with reference to the freezing experiments and I cannot establish whether such an experiment, from a juristical point of view, was criminal or not criminal.
Q. Do you think the freezing experiments were dangerous?
A. Since fatalities occurred, they were no doubt dangerous experiments.
JUDGE SEBRING: Mr. McHaney, I would like to address a question to the witness.
Witness, for the sake of clarification, let us assume that it would have been highly important to the Wehrmacht to ascertain, as a matter of fact, how long a human being could withstand exposure to cold before succumbing to the affects of it.
Do you understand that? Let's assume secondly that human subjects were selected for such freezing experiments without their consent. Let's assume thirdly that such involuntary human subjects were subjected to the experiments and died as a direct or indirect result thereof. Now, would you be good enough to inform the Tribunal what your view of such an experiment is - either from the legal or from the ethical point of view?
THE WITNESS: I must repeat once more, in order to make sure that I understood you correctly. When assigning the experiment the following things are assumed: highest military necessity, involuntary nature of the experiment, and the dangerousness of the experiment with the eventual fatality. In this case I am of the opinion that, when considering the circumstances of the situation of the war, this state institution which has laid down the importance in the interest of the state at the same time takes the responsibility away from the physician if such an experiment ends fatally and such a responsibility has to be taken by the state.
JUDGE SEBRING: Now, does it take away that responsibility from the physician, in your view, or does it share that responsibility jointly with the physician, in your view?
THE WITNESS: According to my opinion, this responsibility is taken away from the physician because, from that moment on, the physician is merely an instrument maybe in the same sense as it would be in the case of an officer who receives an order at the front and leads a group of three or four soldiers into a position where they have to meet death. That relation, if I apply it to German conditions during the war, is in principle the same. I don't believe that the physician as such, from his ethical and moral feelings, would carry out such an experiment without this assurance of the authoritarian state which gives him a formal and legal assurance on one side and, on the other side, gives him the order for the execution.
Naturally, in this case, it is a theoretical question since I cannot survey the position in the case of the freezing experiment. I don't know how this assurance was given and how the order was given. Basically, I want to differentiate between the order for an experiment which arises from medical needs as such and where, under the circumstances, the state only has a secondary interest on the basis of medical initiatives, and I would differentiate between the reverse state of affairs where the state uses medical activities.
JUDGE SEBRING: The Tribunal has one further question of interest.
In your view, would an order which authorized or directed a subordinate medical officer or subordinate medical group to carry on a certain medical experiment - let us assume for the moment this freezing experiment - we have then a general order, let us assume, directing a certain institute to carry on freezing experiments without delineating or specifying in detail the exact course of those experiments. Would you conceive that such an order would authorize the medical officer to whom the order was addressed to select subjects involuntarily and subject them to experiments, the execution of which that officer absolutely knew or should have known would likely result in death to the subject?
THE WITNESS: May I have your last sentence repeated, please? This question is extremely difficult to answer. The order has to be taken into consideration which is given in such a case. May I, perhaps, answer with an example of such an order. If Himmler gives an order to a Dr. "X" and tells him to carry out a certain experiment, then it would have been possible that such a Dr. "X" did not wish to adhere to this order. In such a case, however, this Dr. "X" will not have overlooked the importance of the experiment itself, the same way as the Lieutenant who received a certain military order -- and we are here concerned with a military order -- does not overlook that he would have to hold out with a group of eight men at a bridgehead and which would end in his death. In spite of that, this officer with his eight men to whom he passed this order on would meet his death at that position. So this physician "X" who received this order from Himmler would under the circumstances have to carry out an experiment without overlooking the importance of the experiment which prompted a central agency.
If a physician had not carried out that experiment, he would have come into a position where he would be taken into account if he had not carried out that experiment. In this case, and there we have to consider the authoritarian nature of our State, the personal feeling and the feeling of a special professional, ethical obligation has to step behind the totalitarian nature of the war.
I must say once more these are theoretical assumptions which I am expressing here. At the same time I want to express how difficult such decisions are if I would point to an example which recently was quoted here, and I mean the eight hundred inmates in a prison in America who were infected with malaria. I don't want to point to this example in order to justify the experiments which are under indictment here, but I want to express that the question of the importance of an experiment is basically and remains basically of a decisive importance. Even in that case a certain amount of fatalities had to be taken into account from the start when infecting eight hundred people with malaria.
The voluntary nature which an inmate adopts and with which an inmate puts himself at this disposal is a relatively voluntary nature.
I don't think it is the same if one would receive such voluntary natures from people who are present here. One has to consider the manner of the voluntary nature. In my opinion, this round figure of eight hundred speaks against the entire voluntary nature. I would assume that if it was seven hundred thirty-five or seven hundred forty, it would be different, but the round figure of eight hundred seems to lead to the result that there was a certain order for the experiment before the beginning of the experiment, and these experiments, too, were directed from the point of view of a superior State interest, and this superior State interest, at the same time, takes over the responsibility for the result of the experiment with reference to the experimental subject, for responsibility in a medical sense cannot be assumed at all since even a negative series of experiments speaks against the urgency and necessity of these experiments; and particularly when answering the question about voluntary or involuntary, dangerous or nondangerous natures, it is very difficult and almost not possible to say basically with reference to experiments that experiments on human beings, taking all these things into consideration is a crime or is not a crime. The question can only be judged when over and above the expected result experiments are still continued. If a result was already established and then further experiments on human beings are carried out, they are not important, and with reference to the experiment which is not important which is only a dilettantical experiment, in that case I would from the start assume the word "criminal", but when dealing with important experiments, it must be necessary to take into consideration the entire circumstances which played a part at that time; that is to say, the important experiments from the moment a result is achieved becomes not important. From that moment on, according to my opinion, the experiment is criminal. Therefore, it will be necessary that when speaking about human experiments at all, one should put these results at the disposal of the State so -- not only to one State but internationally -- so that experiments which are carried out in Russia and proved, results would not be continued in other countries.
With reference to freezing experiments, I can only say in this connection that in a certain form without saying "criminal" or "not criminal" they showed their value. The indication for that is that the results in the American Air Force were considered as something particular and helped the American Air Force to gain years, and I think that these experiments would also be of use within mining works where a number of fatalities occur because of freezing. If you consider the freezing experiments in that light the victims in effect are tragic, and it is to be regretted, but with reference to subsequent periods this victim is a real sacrifice for words or maybe thousands of people would keep their lives and prolong their lives because of it.
JUDGE SEBRING: Witness, this question of the necessity for an experiment, is it your view that it is for the State to determine the extreme necessity for such an experiment and thereafter those who serve the State are to be bound by that procedure? I think you can answer that "yes" or "no".
THE WITNESS: This trial snows that it will be the task of the State under all circumstances to basically clarify this question in the future.
JUDGE SEBRING: Witness, as I understood your statements a moment ago, Dr. Brandt, they were that the physician having once become the soldier thereafter must subordinate such medical-ethical views as he may have that may arise in conflict with a military order from higher authority, is that true?
THE WITNESS: I didn't want to express it in that form. I did not mean to say that the physician the moment he becomes medical officer should change his basic attitude as a physician. Such an order in the very same way can go to a physician who is not a soldier. I meant it referring to the entire situation as it prevailed with us in Germany during the time of an authoritarian leadership. This authoritarian leadership interfered with the personality and the personal feelings of the human being. At the moment as a personality is dissolved in the concept of a collective body, every demand which is put to that personality has to be dissolved in the concept of a collective system.
Therefore, the demands of society are put above -every individual human being as an entire complex, and this individual complex, the human being, is completely used in the interest of that society.
The difficult thing and something which is hard to understand basically is that during our entire period, and Dr. Leibrand referred to that, that at that moment everything was done in the interest of humanity and so that the individual person had no meaning whatsoever, and the farther the war progressed, the stronger did this principle thought appear that was designated at the end as total war fare, and in accordance with that the leadership of the State quite generally ordered and demanded that orders be carried out. It is a very tragic for a number of persons not only within the framework of these experiments but also in other situations that they had to work under such orders. Without considering the entire situation as it prevailed in Germany, one cannot understand the question of these particular experiments at all.