DR. MARX: Mr. President, I have taken notice of what the Interpreter said, but I have failed to hear the position of the Prosecution with reference to the assertion by the defense to the effect that neither the translation nor the interpreters have taken into consideration the two punctuation marks, which cannot be found in the German original, but which have been inserted into the English translation. That has brought about a translation to the disadvantage of the defendant. If it was stated that these two commas were erroneously inserted, we could then discuss the question as to whether the sentence is ambiguous or not. First of all, however, it would have to be stated that these two commas were wrongly inserted. They do not correspond to the German original.
THE PRESIDENT: It would seem that the matter might best be approached if the interpreters will make a written report and file one with the Secretary General, one with the Prosecution and one with Defense Counsel and one copy - with the Tribunal
MR. HARDY: Your Honors -
THE PRESIDENT: And one copy for each member of the Tribunal. Then the matter in so far as the mechanical translation is concerned could well be approached by written briefs by the prosecution and by defense counsel, and any evidence, which would throw any light on the subject may be offered, but the mere argument upon the meaning could be more appropriately conducted and more conveniently by everybody by written arguments as to the meaning of the words.
MR. HARDY: I might add at this time that the language division of OCC? W.C. has several referats therein, one of which is the translation division or section and one of which is the interpretation section. Mr. Paul Joos ten, who is chief of the translation section, I am informed has already prepared an extensive memorandum concerning this particular passage in the document 185. The Prosecution has no intention of submitting briefs or arguments on this point, but we will however make available for the defense counsel and tribunal the memorandum submitted by the Chief of the Translation division.
THE PRESIDENT: The Report of the interpreters will be submitted to the Tribunal and then any documents which they may add and memos can be added to the report of the Interpreters and the matter submitted to the Tribunal.
DR. MARX: Mr. President, permit me to put in an application in writing and also permit me that a German linguist who also knows English can express his opinion regarding this particular passage.
PRESIDENT: Certainly defense counsel may follow the same plan which is to be followed by the Prosecution.
MR. HARDY: Your Honors, in that regard I have a point to make. We stressed this much importance on this passage, and if any opinions may be given by translators I think the translators should be qualified namely by tests, for instance when a translator is hired by OCC? W.C.-
THE PRESIDENT: The translators may be called as witnesses and submitted to an examination as to their qualifications, and either party, if they desire, may do that. That applies, of course, to both parties, translators on the part of the Prosecution and translators on the part of the defendant.
DR. MARX: Your Honors, I shall then wait to see how this matter is decided upon by the translators and experts and shall continue with this point in my case later.
Q. Witness, please state your point of view briefly regarding the rest of the contents of this letter which is very well known to you. There comes now the passage regarding the severe symptoms of poisoning. Since this matter has already been dealt with, you can touch upon it very briefly now.
A. What is said here about the danger involved in the Berka method refers only clearly to the use of berkatit in practical use during sea emergencies. What is said here about the fact that the method must be useable for twelve days running, the words here speak for themselves, namely the practical demand for a twelve day period of use, and this does not mean that each experimental subject would be treated with this berkatit for twelve days, and then in the next sentence it is stated what I myself knew about the possibility of experiments in the camp Dachau, namely, that there were suitable laboratories there.
Q. You are talking now of the forty healthy experimental subjects who must be made available for four weeks and then it goes on, as it is known from previous experiments that laboratories existed in the Camp Dachau, and therefore this camp would be suitable, is that what you are referring to?
A. Yes.
Q. Now in the last point in that document; and I quote:
"Due to the enormous importance which a solution of this problem has for soldiers of the Luftwaffe and Navy who have become shipwrecked, I would be greatly obliged to you, my dear Reich Minister, if you would decide to comply with my request."
You are writing then of the enormous importance attached to the solving of this problem. In this connection, let me remind you of the following, witness: It could be said that you really couldn't speak at that time of the enormous importance of solving this problem because it is was in the summer of 1944 and it could be said that the situation at that time was not such as to make this solution absolutely necessary. What do you have to say about that?
A. Let me refer to what I have already said that in my opinion such a method is of relatively greater importance for an inferior air arm than for a superior one. An inferior air force will suffer greater casualties and losses and will be more seriously affected by those losses than would a superior air arm.
Q. Witness, we have now reached the end of this document. What happened in this matter after the letter was sent off?
A. First, we waited for the answer from the minister of the Interior and Chief of the German Police and in the meantime Professor Beiglboeck was told to report to the office of the Chief of the Medical Inspectorate.
Q. Did you receive a prompt reply to this letter and did you do anything to expedite matters?
A. We waited a long time for the reply and I believe that finally the answer came only over the telephone four or six weeks after the letter was sent out. I myself had no reason to expedite or hasten the matter.
Q. What had happened in the meantime to Professor Beiglboeck?
A. At the middle or end of June Beiglboeck came to our office and stayed in Berlin for two or three weeks to study the newest literature on the problems of thirst contained in the libraries in the University in Berlin, and then at the beginning or the middle of July, when news came from the Reichs Arzt SS that the experiments could be carried through he went to Dachau.
Q. Now document book 5, page 20, of the English book, document No. 179, and on page 22, document No. 183, Exhibit 136, the first document is a letter from Grawitz to Himmler of the 28th of June 1944, and the second is a letter from Brandt to Grawitz, dated the 8th July 1944. Now tell me, do you know these two letters and the events discussed in them.
A. No, from the letter itself it can be seen clearly who sent it off and to whom it was addressed. This is purely an inter-office matter within the Police and SS office of the fact that Himmler was making available gypsies for these experiments, which I found out through Professor Beiglboeck only after the conclusion of the experiments. So long as Professor Beiglboeck was in Berlin he knew nothing of that decision either.
Q When did you find out then that gypsies were to be used as experimental subjects?
A That they were to be used I never found out. I just said that I found that out only after the experiments were concluded.
Q How did matters develop further with Professor Beiglboeck?
A First of all I discussed this matter with Professor Beiglboeck and informed him briefly of what it concerned. I had assumed that Professor Eppinger had already talked with him since he had proposed as director of the experiments. I assumed that had happened. Professor Beiglboeck didn't know anything about the matter. I went with him to my departmental chief and introduced him to Generaloberstabsarzt Schroeder. From these two superiors he received the order to carry out the experiments and from the departmental chief he received, in my presence, the more precise instructions as to how they were to be carried out. In the preliminary discussion that I had with Professor Beiglboeck, Professor Beiglboeck asked me if it would not be possible to carry out these experiments elsewhere because he wasn't very anxious to carry out experiments in a concentration camp. I then explained to him that we had already attempted in vain to have the experiments carried out elsewhere but that we had been unsuccessful. Professor Beiglboeck said that he would still like to attempt that, attempt to have the experiments carried out in the hospital in which he was director in the department for internal diseases. I told him immediately that probably he would have as little success as we had but I said that, of course, it would be perfectly agreeable with me if he would make that endeavor. After we had seen the departmental chief, Beiglboeck asked me again whether this was a specific military order to him. I answered in the affirmative and then Beiglboeck said that that of course was from then on a binding order for him. The instructions that Beiglboeck received for carrying out the experiments were briefly as follows: Under no circumstances were the experiments to cause serious damage to the health of the subjects, and of course there should be no fatalities.
That was perfectly clear. Secondly, the experiments were to be interrupted on the basis of that instruction if they became dangerous. The experiments should be carried out according to basic scientific practice but, of course, that was clear to both of us anyway. It was also clear to us that the experiments were to be carried out in such a way as to provide perfectly clear results. I also discussed the question of the voluntary consent of the experimental subjects with Professor Beiglboeck, not for legal reasons but for purely medical reasons. Professor Beiglboeck is an internist. I also was a doctor dealing with internal diseases and we both had considerable experience with patients who had to be given a special diet because of purely therapeutic reasons in the clinic. Every doctor has had the experience that human beings depend to a great extent and want to keep on having their customary diet and every clinician has the experience that sick persons to whom certain foods are forbidden for medical reasons, desire that forbidden food in particular and even will procure it for themselves behind the doctor's back. For this reason Professor Beiglboeck asked me about the experimental subjects intended for these experiments. Should precautions be taken to see that they received only the food and amounts of water and sea water that were prescribed for the experiments? I answered that I did not think that particular precautionary measures should be taken because these were volunteers who because of their considerably better food which preceded the experiments were interested in the experiments and if it was explained to these people before the experiments what was here concerned I could not believe that Professor Beiglboeck would have any particular difficulties with the experimental subjects.
Q Witness, what did you see as the guarantee that the experiments really would be carried out according to this policy?
A I saw this guarantee on the one hand in the person of Professor Beiglboeck and secondly, in the person of Professor Eppinger who had proposed his chief physician.
Q Did any other office have the right to interfere in any way with these experiments in Dachau?
A No, either by my departmental chief or by me, Herr Beiglboeck was explicitly told that he had nothing to do with the rest of the camp of Dachau, that he was, so to speak, a little Luftwaffe unit of his own, and was subordinate only to the Chief of the Medical Inspectorate of the Luftwaffe. There was no such thing as any subordination to any authority within the camp of Dachau.
Q Witness, I put another Document to you now. It is in Document Book No. 5, page 23, NO-182, Exhibit 137. It is a letter from the Reichsfuehrer-SS Personal Staff to Dr. Grawitz of 26 July 1944. In this letter is a description of a conference that took place on the 20 July 1944 at Dachau between Dr. Brandt and the signer of this letter, namely Sievers. Did you know anything of this discussion?
A No, I knew nothing of it. It is possible that Beiglboeck told me something about this after he came back but during or before the discussion I knew nothing of it.
Q Was it not your duty to go to Dachau and to inspect or to observe?
A No. Perhaps one of my superiors could have given me that task but first of all it had been agreed with the technical office that Professor Eppinger was to supervise the experiments and that no one else was to concern himself with the experiments. Moreover, Dr. Beiglboeck was carrying out the experiments with Dr. Eppinger's supervision and no one considered it necessary to give these two men any further supervision.
Q Witness, in that case you were not in Dachau? Did you know how things were then going on there?
A I heard how they were going on only after Beiglboeck came back to Berlin or Saalow about the middle of September after the experiments had been concluded. It is surprising that, in the meantime, we had not been in touch with one another, but I must say, that in July and August, 1944, both Berlin and Munich were subject to almost daily air raids and that it took even telegrams four or five weeks to reach their destination in Germany; that enormous difficulties confronted one wishing to make an official trip; and that, therefore, travel was limited to an absolute minimum. Nevertheless, I had agreed to meet Professor Beiglboeck. He wanted to meet in Brandenburg on the Inn River, south of Kufstein, where we had business to attend to. We were both there, but my train was two days late and Beiglboeck had left long before I arrived. In the middle of September, I heard from Dr. Beiglboeck again and, in the presence of the department chief and myself, Professor Beiglboeck reported to Schroeder on how the experiments had been carried out. Before the beginning of the experiments, Beiglboeck had carried out an experiment on himself, using Berkatit, which lasted four and one-half days, I believe. Subsequently, he had begun the experiments with the experimental subjects. No damage was done to the health of the subjects. He showed us photographs of the subjects who looked strong and well fed. Having received 3500 calories per day, most of the experimental subjects weighed more after the experiments than they had before and what interested us most of all was that the results were perfectly clear, at least as far as practical use of them was concerned; namely, that Berkatit could not be introduced into emergency sea equipment for medical reasons. Professor Beiglboeck then worked on the results of the experiments, and about two weeks later, the middle or end of September, 1944, he reported on this at a discussion attended by many people. This discussion took place in the Flak Tower in the Zoo in Berlin as a protection against the air raid danger.
Q Witness, did you learn anything about the selection of the experimental subjects or their behavior during the experiments?
A Of course, I asked Beiglboeck how he had got his subjects and he said, that both an SS officer and the prisoners themselves had confirmed the fact that they were volunteers. He even described one or two cases where inmates in Dachau made several efforts to persuade him to let them into the experiments so that they could make up for some bad behavior previously (Fluchtpunkt). Since this German word "Fluchtpunkt", which the prisoners used, was not known to me before, I asked what it meant and Beiglboeck told me that this referred to a prisoner who had been caught while trying to escape, had been brought back to the camp, and was now in some punitive company or some other such unit and was receiving more severe treatment. This man, of course, wanted to erase that blot against him and I believe he applied to Professor Beiglboeck, through a prisoner nurse, for permission to be used in the experiments.
Q Your Honors, I put in, in this connection, the Document BeckerFreyseng 43, Document Book 3, page 171 to page 174. Please give this Exhibit #30. This is an affidavit by Dr. Theodor Lesse. I quote from this document, page 1. It can be seen that Dr. Lesse had to carry out clinical laboratory tests in these matters and knew them. I read page .....
THE PRESIDENT (Interrupting): Counsel, there is some difficulty with the translation. Just wait a moment.
BY DR. MARX:
Q Page 2, #7.:
"In my chemical tests I observed no kind of disturbance or damage to the health of the experimental subjects, other than the well-known symptoms of thirst. My actual duties kept me in the laboratory, so that I was never in constant contact with the experimental subjects themselves.
"8. I personally was a witness when SS-Hauptsturmfuehrer Dr. Ploettner and several other SS officers, whose names I can not remember, explained to Professor Dr. Beiglboeck, at that time Luftwaffe Oberarzt, that the experimental subjects intended for the sea water experiments***had all volunteered for this purpose."
"11. For 10 days before the experiments started, the experimental subjects received full special airmen's rations. During the experiments they received sea emergency rations, and at the conclusion of the experiments they again received special airmen's rations for 10 days."
"14. Members of the SS were never used as orderlies, nor did they help in any other capacity during these experiments.
"15. Several inmates, however, were employed as doctors and orderlies in these experiments.
Signed: Dr. Theodore Lesse."
Certified by a notary. This is Exhibit #30.
Witness, we must now discuss a few documents put in by the prosecution in this connection. The first one is in Document Book 3, page 6 of the English book. This is Document No. 474, Exhibit 131. This is an affidavit by Dr. Konrad Schaefer. This is in Document Book 5, Your Honors, page 6. In this affidavit, there are a few passages that could lead to misinterpretations. Please say something about them.
A I believe that Dr. Schaefer, when he is in the stand, can best correct these misinterpretations. I should like to point out again, Your Honors....
MR. HARDY (Interrupting): Your Honor, it seems most unusual that this witness should correct an affidavit of the defendant Schaefer. Schaefer will be here in the witness stand and will be able to correct that affidavit if he has any corrections to make.
THE PRESIDENT: I understood that the witness made that suggestion. I don't know what the witness is going to say, but the defendant Schaefer would certainly be in a better position to correct his own statement.
The witness may proceed.
BY DR. MARX:
A I myself had just requested that Dr. Schaefer clarify these misinterpretations. I believe that settles the matter.
Q Let me simply ask you, witness, to say something about #7 in this affidavit. He says here, and I quote:
"It was an open secret in the highest medical circles that the Berka method was used on inmates of concentration camps. It was also known that sea water, processed by the Berka method, was substantially the same as sea water and was, therefore, exceedingly dangerous. I was always of this opinion and personally advised Schroeder, Becker-Freyseng, Anthony, Christensen, Berka and Schickler of this, my opinion."
Please say something about that passage.
A First of all, as to this question of the open secret is concerned. It was neither an open nor a closed secret. It was, as far as we were concerned, a perfectly irreproachable matter. So far as the highest medical circles are concerned - I don't know whether Dr. Schaefer includes me in those circles. I never thought that I belonged to those circles - and so far as the exceedingly dangerousness of the Berka method was concerned, I can refer to what I have already said; namely, that I also held the application of the Berka method in practical emergency sea stations as dangerous, but certainly did not consider it dangerous in experiments. Dr. Schaefer is right in saying that I knew of his opinions about Berkatit.
Q But, witness, you remember that the prosecution spoke of the socalled toxicity of sea water.
A Yes, I heard that. I can say about that the following. Since the famous Theophrastus Bombastus von Hohenheim known as Paracelsus, who lived around 1500, it has been known in medicine that any material can be a poison. It only depends on the dose. I can kill a person with oxygen. I can even kill him with distilled water, but still no one is going to assert that those two substances are poison.
Regarding sea water, I may point out that for centuries sea water has been used for therapeutic purposes, even in large amounts, by doctors. I know, of course, that there is a difference between this doctor's prescription of sea water and our experiments, but I thin, it is impossible to speak of the toxicity of sea water as such.
Q. Your Honors, I put in Becker-Freyseng Document No. 44, pages 175 to 181 of document book 3. This will be exhibit 31. This is a recent description of the history of the use of sea-water as a drinking cure. This is written by Dr. Hermann Bruening. This document proves that sea water has long been used in medicine as a therapeutical means and if using less than 300 cc you do not have to expect diarrhea and also sea-water is used for intestional infections such as typhoid and cholera. From this document, I may quote briefly. It is page 1. The book is entitled: "On the History of the Sea Water Drinking Cures, Methods and Indications," by Dr Hermann Gruening, Director of the Restock University Childrens-Clinic.
MR. HARDY: I object to this Document, it is immaterial, Your Honor.
DR. MARZ: Mr. President, I believe I can dispense with reading the passages from the book, because I have already set forth what the essential points in this document are to which I wish to draw your attention. I ask that this document be accepted in evidence.
THE PRESIDENT: Counsel, on just what points do you offer this document? In other words, what do you think it tends to prove in the case, how will it be helpful?
DR. MARK: This document shall prove first of all that seawater is even used as a drinking cure and this proves that it is not in itself harmful, then it will prove in what amounts sea-water can be administered, that it causes no intestinal disorders and that on the contrary sea-water is used in treating intestional infections such as typhoid and cholera. That can be seen from this document No. 44, Exhibit No. 31.
Mr. HARDY: This is a situation, Your Honor, comparable to Professor Rose with malaria. Some of the work he did with malaria was for the benefit of his patients, however Professor Rose does not maintain that malaria is harmless.
THE PRESIDENT: The Tribunal feels that the probative value of the exhibit offered is very slight. The Tribunal will admit it in evidence and over-rule the objection.
BY DR. MARX:
Q. Mr. President, I should like to point out the bibliography attached to this document, which will show you how extensive the literature on this subject is, all going to prove that seawater is not poisonous or harmful if used in sensible, clinical dosages. Witness, the Prosecution changes you with causing the experimental subject inhumane pains and misery; what do you have to say about that?
A. I believe that first of all it is a question to be put to the expert who will be heard on this particular matter. As for myself, I should like to say that this is a confusion on the part of the Prosecution between the conditions that prevailed in experiments and conditions which prevailed in actual emergency sea situations.
The experiments which Beiglboeck made of the four and one half days in the experiment on himself I have seen. I have also spoken with two or three of Dr. Schaefer's technical assistants, who stayed without food and drink for four full days and still continued their laboratory duties. I know of course that hunger and thirst are unpleasant, in fact that can be very unpleasant, but I do not believe that it can be called inhumane or inhuman to carry out such experiments. Moreover, Professor Beigloeck informed the experimental subjects precisely how the experiments would be conducted and in the experiments themselves, in the planning of the experiments, we did everything possible to avoid any unnecessary unpleasantness. For instance, the thirst group did not receive any solid food, because, as is known, that simply aggravates the sense of thirst and produces unpleasant symptoms.
Q. Witness, is not the resulting loss of weight damaging to these people and impairs danger to their health?
A. This loss of weight, which certainly occurred during the experiments, consists for the most part simply in a loss of water and in part consists in real loss of weight, but in no case did this loss of weight approach the limits of what can be tolerated. I know that for instance conscientious objectors in other countries carried out experiments in which they lost as much as 25% of their total weight.
"Time" magazine of 10 December 1946 published an article on this and in medical literature there are cases of much longer fasts with much greater loss of weight. I believe that it can be seen that such a loss of weight within a limited period of time does not constitute any essential danger to the person's health.
Q. Mr. President, I should like to put in a document here. Document No. 45, Document book 3, page 182 to page 193. This is an excerpt from Dr. Schenk and Dr. Meyer's book, entitled "Fast". I wish to read nothing from this document, but wish to refer briefly to what its main contents are. This book reports on a medical self experiment, the author of the book fasted for 26 days, losing 14.3 kilograms. This loss of 17% of his total body weight can be tolerated with no danger. There is no reduction in the person's ability to resist disease, but quite the contrary. The scientific attitude toward fasting over brief periods of time or limited periods of time is here made clear. I should like to put this in as Exhibit 32 and ask that it be admitted.
MR HARDY: Your Honor, I object to this document. I don't think it has any probative value whatsoever.
THE PRESIDENT: Frankly, the substance of this document is to the effect that the person who fasts will lose weight. The Tribunal is of the opinion that it has no probative value whatsoever and the objection is sustained.
DR. MARX: I shall withdraw this document.
Witness, it will be necessary to deal with one point on which the Prosecution laid great importance, namely, the question whether these experiments had any sense or purpose and you are charged with the fact that a chemist could have come to the same conclusions that the experiments led to by experimenting for one half hour with water with a filter in it.
MR. HARDY: It seems to me this question is out of order. I object to it. This defendant is charged with having participated in experiments on human beings at Dachau concentration camp, not for participation in sea-water research. We do not content that the research as to the potability of sea-water is unnecessary, it was certainly necessary, it was done in America and it was done here in Germany. I don't see any reason for continuing along these lines. It has been going on for five hours and I think the defense counsel can end up his case much sooner than he has.
DR. MARX: Mr. President, I quite understand what the Prosecutor said and I am glad to hear that the Prosecutor said these experiments had a purpose to them. I distinctly remember he said they were senseless and consequently I had to take that into consideration in my defense, but now that he makes this statement to the Tribunal, this is no longer necessary, I will accept that.
MR. HARDY: That last statement, I accept without prejudice, Your Honor.
THE PRESIDENT: Counsel may proceed.
DR. MARX: Mr. President, I shall try to come to the conclusion of this presentation rapidly. I now put in document Becker-Freysengjust a moment
Q Witness, did you talk about these medical experiments with any other doctors?
A I felt no reason not to and did so.
Q In other words, you did not feel that these experiments should be kept secret.
AAt any rate I spoke with colleagues about this matter, who I thought would be interested in it.
Q Now I put in, Mr. President, Document 48, page 206-9 in Document Book 3. This will be Becker-Freyseng Exhibit No. 32. This is a affidavit by Otto Loebert, who had an official reason for talking with the witness about these experiments. The affidavit is of the 15 January, 1947, and I quote from page 2:
"When new problems were discussed - in my presence at least - no dangerous or even cruel experiments on prisoners were ever debated. I also regarded this as quite impossible in view of the extremely high minded and ethically immaculate fundamental attitude of the aviation medical research workers I knew."
And then on page 3, about the middle:
"Becker-Freyseng was very upset that he had especially to set a difficult metabolism experiment in motion for such 'obvious nonsense' but he saw no other possibility of preventing the layman from wasting considerable quantities of raw material and subsequently distributing to the troops a preparation which was not completely harmless. He was all the more annoyed about the experiment, because on account of the strained situation on the various fronts, which, of course, affected the troops at home, it was very difficult to obtain a sufficiently large number of soldiers for days on end to be used exclusively for the metabolism experiment. These difficulties are eliminated if inmates were used as experimental subjects.
I had not the faintest idea that the experiments were carried out until permanent injuries to health occurred, and I did not get the impression that Becker Freyseng intended anything of this kind. By opinion was that only the period up to the first indication of the beginning of metabolic disturbance was to be determined strictly scientifically and under careful medical control. Consequently, an experiment for which a great many voluntary experimental subjects would have been found without further ado - also among the prisoners."
Now, witness, I come to the conclusion. If you critically appraised these experiments today what is your point of view toward them now?
A Dr. Marx in these eight long months I have often asked myself this question and have meditated on it profoundly. I ask myself this question with particular honestness because three of my co-defendants, namely, Schroeder, my former chief, and Schaeffer, and Beiglboeck would not be here in the dock today if I had succeeded in finding some other way of carrying out these experiments. And even today I can see in retrospection no other possibility which could have been undertaken with any likelihood of success.
I know, however, that the subjects for these experiments were only volunteers; that the problem which the experiments were meant to solve was the oldest and the most urgent in the whole history of rescue from sea; that the results of solving it would hot help simply soldiers at war, but beyond that all persons who found themselves ship-wrecked. I know that before the experiments began, the director of the experiments explained to the subjects what unpleasantness they could expect from the experiment. No experimental subject suffered the least damage to his health and consequently I am today still of the opinion that these sea water experiments were perfectly irreproachable; medical experiments that offended in no way against the laws of ethics or morality. In the last two days I have given you the reasons for this conviction of mine as a doctor and as a scientist. As an officer of the former German Wehrmacht I consider it to be my natural claim today even to bear the responsibility that falls to me on the basis of my official position at that time.
