Document NO-818, affidavit of Sprauer, attested by Fred Rodell on 19 November 1946, was admitted as Prosecution's Exhibit No. 373.
Document NO-872, affidavit of the defendant Rose, attested to by Ivan deVries, 3 December 1946, was admitted as Prosecution' Exhibit 408.
That, if the Tribunal please, covers all the affidavits as to which there could have been any question on the grounds of the objections there were not raised on 3 January 1947, and, I would like to have the record now show that these affidavits are finally admitted into evidence.
THE PRESIDENT: Mr McHaney, have these exhibits been made to show the dates on which the statement or affidavit falls were made after the term of appointment of the persons who took the affidavit or statement?
MR MCHANEY: Yes, the dates which I read after each affidavit that it was attested to by so and so on such and such a date have been Clocked against these dates in certificate as to when the named person was first vested with authority to administer oath, and all of these affidavits do fall within that time limitation.
THE PRESIDENT: That is quite correct.
DR. GAWLIK: The counsel for the defendant Hoven. The Tribunal and counsel, I would like to a draw the attention of the Tribunal to the fact that I with reference to the affidavit of the defendant Hoven NO-429, Exhibit 282, objected for the very reason and since this affidavit was compiled in the English language, that the defendant Hoven does not knew the English language sufficiently, and the order to make an explanation on the affidavit in its importance to the Tribunal is at hand, and reciting that so far as I remember the decision in reference to the final admissibility would be postpone until such time that the defendent Hoven will be called to the witness stand, I, therefore, ask you not to decide today as to the final admissibility, but only at the time when the defendant Hoven be on the witness stand.
THE PRESIDENT: Counsel for the defendant Hoven is correct in the statement which he has made. Has counsel for the defendant Hoven been furnished a German translation from the affidavit.
MR MCHANEY: He indicates he has been furnished the German Translation.
THE PRESIDENT The ruling on the admissibility of this affidavit referred to by the counsel for the defendant Hoven will be reserved until either the Prosecution proves that the defendant Hoven does understand the English language, or when he is on the stand and can be cross examined, or examined, concerning this affidavit.
MR. MCHANEY: Would the Tribunal care to make a ruling on the lists of affidavits which I have just read?
THE PRESIDENT: Yes, I was just coming to that, to the disposing of these exhibits raised by counsel. He affidavits provisionally admitted, which have been listed and referred to by counsel for the Prosecution, will be admitted in evidence as exhibits in the case. As to all tie other exhibits which have been offered and to which no objections have been made, they are all considered as admitted in evidence in the case. Hereafter, I shall say, any affidavits that are offered in evidence to which no objection is made on the affidavit referred to as an exhibit will be considered as admitted in evidence without a further specific ruling that it is admitted in evidence.
MR MCHANEY: There are three other affidavits at least which are still in an unsettled state, and the Tribunal will recall that these were affidavits taken in Austria, and they concern the SeaWater experiments at Dachau, and we have been endeavering to introduce the documents which have been objected to on the grounds that no oath had been administered; that they were unsworn statements.
I think they were provisionally admitted subject to the Prosecution obtaining a sworn statement of identical character. Those have not been forthcoming from the Austrian authority as yet, but I am advised that at least two of them are in the mail, and we would like, of course, permission to submit sworn affidavits from these persons when they are received.
Those were Prosecution's Exhibits Nos. 138 and 139 and No. 140.
THE PRESIDENT: The Tribunal's ruling will be considered as holding open the Prosecutions request for the privilege of receiving in evidence in the case in chief these affidavits when they are received.
MR. McHANEY: A similar character of affidavit, or rather of statement taken before the public prosecutor in Frankfurt concerning certain aspect of the Euthanasia program as it applied to half Jewish children, as I recall, and on that occasion I think that the document was not admitted even provisionally, but I would, of course, like the privilege or right to submit into evidence as the Prosecution's exhibit the document as soon as it has been sworn to; it may have been sworn to, but we have not procured the translation as yet, but it should be prepared and offered very shortly.
THE PRESIDENT: The Prosecution may have the right to offer the document when it is received in proper form, subject, of course, to any objection on the part of the defense.
MR. McHANEY: So with that reservation the Prosecution now rests its case in chief.
THE PRESIDENT: Just a moment, counsel. Let the record show that the Prosecution on this date (28 January 1947) has announced that it rests its case in chief, the announcement having been made at 3:37 o'clock in the afternoon of 28 January, 1947, this being the twenty-fifty actual trial day in this case.
I would like to call the attention of the Tribunal to the fact that the Tribunal has not been furnished with a certain document, which was supposed to be furnished, namely, a photostat of the skeleton collection in Strassbourg, and also certain German documents of English translation which have been presented today.
DR. GAWLIK: Dr. Gawlik, counsel for the defendant Hoven. If the Tribunal please, and counsel, the Tribunal yesterday ruled that document NO-1063 be admitted, and we are surely concerned with that report, the Agency for the investigation of War Crimes at Amsterdam. This report con tained a number of protocols of witnesses.
I now make the application that the Prosecution Should submit the following witnesses for purposes of cross examination.
One: Hans Vondching in Apeldoorn, page 13 of the German translation of the report.
Second: Jan Antonie van Loenwarden in Fladigen, page 13 of the German translation, and Third:
Johannes Peter Schalker; page 15 of the German translation.
MR. MC HANEY: The prosecution, of course, grants the right of defense counsel to make his application for the procuring of these witnesses. However, we shall resist on the ground that it constitutes something in the nature of a collateral attack on the report of a duly constituted war crimes commission of one of the allied nations. These reports are specifically admissible under Ordinance No. 7 end 1 feel quite sure that provision was inserted to shorten the proof in such cases as this, and if the defense is to be afforded the full opportunity of going into the complete basis of such reports, why, of course we will be here for a very, very long time. We shall be happy to submit our objections, however, in writing if and when defense counsel submits his request for these witnesses. Of course, there would also be a problem as to whose witness he would be upon his appearance; whether a prosecution witness under cross examination or a defense witness. That also is a question that we will deal with in our written objection.
DR. GAWLlK: I ask to cross-examine that witness and further that I don't want to discuss the report with him but merely am interested in the testimony of the witness. I am going to question him about the points he testified on and I would not have the right to do so if the prosecution would not submit this witness for cross-examination.
THE. PRESIDENT: Counsel for the defendant Hoven may request that the witnesses be summoned and in his request state the purpose for which he desires the witnesses to be summoned. That application would be submitted before the prosecution and the matter will then be submitted for the Tribunal.
DR. GAWLIK: I ask that the prosecution submit this witness to me for the purpose of cross examination.
THE PRESIDENT: That request should be included in the application of the counsel for the summoning of the witness. Should the Tribunal receive from Dr. Seidel, counsel for defendants Gebhardt, Oberhauser and Fischer, a request that he be permitted to present the cases of those three defendants together, I assume that would also include the request that this opening statement on behalf of those defendants be made at the same time as his one statement.
Is there any objection of this procedure being followed by counsel for the defendants named on the part of any other defense counsel? Is there any objection on behalf of the prosecution?
MR. MC HANEY: No objection, Your Honor. We think it's a very sensible suggestion.
THE PRESIDENT: It appears to the Tribunal that the plan outlined by counsel for defendants Gebhardt, Oberhauser and Fischer would be advantageous not only from their standpoint but from the standpoint of the prosecution of the Tribunal and the request is granted. Further, in connection with the opening statement on behalf of the defense, the Tribunal would inquire whether the defendants have made any arrangement to present at one time discussions of certain general charges against many of the defendants.
DR. SERVATIUS: Mr. President, there was no agreement among defense counsels to distribute certain statements; however, our task will be distributed in such a manner as to avoid duplication. Of course, it is up to everyone's own discretion to present his case in such a manner as he wants to.
THE PRESIDENT: The Tribunal will consider not only the evidence but the question of outlining the defense in the opening statements to be made by the defense. The Tribunal has allotted to counsels for the defendants two days in which to make these opening statements and duplications, at least as suggested by counsel for defendant Karl Brandt, will be rather burdensome to counsel and the Tribunal and mere duplication would be of no benefit to anybody.
DR. SERVATIUS: Mr. President, due to the fact that the case of Dr. Brandt and the case of Dr. Handloser are more extensive, there arises the fact that the first two opening statements will be a little longer. As far as I am informed, the majority of the other statements are shorter so that the both days which aye at our disposal will not be exceeded at all. We have been informed by cur colleagues that they will speak less and give us this time to our disposal. There is the defense counsel Pribilla and that applies to counsel for Hoven--no, it isn't Hoven, it is Mrugowsky--who agreed to that, so that we are sure he will not exceed that time.
THE PRESIDENT: It's evident to the Tribunal that there must be some basic theory to the defense, on the part, at least, to acquit a number of defendants. I would ask if defendants' counsel have agreed among thenselves as to the allocation of time. The Tribunal has allowed two days and any direction agreeable to the defendants that will consume no more than that time will be satisfactory to the Tribunal but without being advised as to some allocation of time which has been agreed on by the defendants, the Tribunal will not know whether certain counsel might be using more of the time and it will be infringing upon the time of other defendants. If defendants' counsel this afternoon could prepare some statement of the allocation of time which would be useful to the Tribunal, then the Tribunal would have something with which to follow in listening to counsel tomorrow.
DR. SERVATIUS: Mr. President, I shall see to it that a list is compiled giving the approximate time which is claimed by the individual defense counsels.
TEE PRESIDENT: That is what the Tribunal desires. Any further matters to be called to the attention of the Tribunal this afternoon?
MR. MC HANEY: I would ask if all of the defense counsels have their opening statements translated and whether or not they are now available? I have received a copy of the opening statement of Dr. Seidl for the defendants Gebhardt, Fischer and Oberhauser, but I think that is the only one I have received and I just don't know whether the other defense counsels have secured translations of their opening statements, so I would be interested in obtaining copies.
THE PRESIDENT: Have any of the defense counsels, other than counsels for the defendants named, procured translations of their opening statements in the English language?
DR. SERVATIUS: I have been told that my opening statement has been translated and that the same applied to colleague Nelte. He too has been told that his opening speech has been translated, that it probably will be in the multigraph department.
THE PRESIDENT: The Tribunal would also wish copies of those opening statements in English. Would counsel see that copies are furnished of the translation of these opening statements in English to the Tribunal and to the prosecution?
DR. SAUTER: My two opening statements have been submitted about eight days ago and repeatedly I have made inquiries of the employees in the library--not my employees but employees of OCC--what we ought to do in order to obtain translations. Repeatedly, in fact, that personnel informed me that we, ourselves, would not need to concern ourselves with these translations but that the drafts which we had handed in to have copied would automatically be handed over to the Translating Branch and from the Translating Branch they would then go--the requisite number of the English translations--would go then to both the prosecution and then the Tribunal. In other words, as far as we're concerned, it was not only today or yesterday but about a week ago that we have submitted our material, and naturally after that we didn't concern ourselves with obtaining translations since we had specifically been told that we need not worry about it.
THE PRESIDENT: Counsel is entirely correct. Having furnished the opening statements to the Translating Department, counsel was not obligated to concern himself further with the matter.
DR. SAUTER: I am afraid, Mr. President, I did not understand you. I beg your pardon, I did not under start what you said.
THE PRESIDENT: I stated that counsel for the defense was correct in assuming that after having furnished their opening statements in German to the Translating Department and having been assured that they would be translated, counsel was not under any obligation to concern himself further in the matter.
DR. SAUTER: Thank you very much, Mr. President.
THE PRESIDENT: Would the Secretary General investigate the matter of these translations and see that these have been made and properly distributed. If there is nothing further to he called to our attention this afternoon, the Tribunal will recess until nine-thirty o'clock tomorrow morning and will convene to hear the opening statements of defense counsels.
We understand that these statements will be made by counsel representing the defendants in the order in which they are named in the indictment. The Tribunal will be in recess.
(The Tribunal adjourned until 0930 hours, 29 January 1947.)
Official transcript of the American Military Tribunal in the matter of the United States of America, against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 29 January 1947, 0930, Justice Beals presiding.
THE MARSHAL: Persons in the Court Room will please find their seats.
The Honorable, the 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 Court.
THE PRESIDENT: Mr. Marshal, will you ascertain that the defendants are all present in court.
THE MARSHAL: May it please your Honor, the Defendant Oberheuser is absent today in continuation of the illness of which she was absent yesterday.
THE PRESIDENT: The other defendants are all present?
THE MARSHAL: The other defendants are all present.
THE PRESIDENT: The Secretary-General will note for the record the presence of all the defendants save Defendant Oberheuser who is absent on account of illness.
The Defendant Oberhouser's defense will not be jeopardized in the proceeding this morning. The Tribunal will proceed.
EVIDENCE ON BEHALF OF THE DEFENDANTS
DR. SERVATIUS: Mr. President, you asked me to give you notice about the time the individual defense counsel would need for their introductory statements. By asking around, I had a list compiled which, however, did not include every defense counsel since some want to make particular statements about it. From that list it can be seen that the time which is at the disposal --- this is 18 minutes -- will total 465 minutes by defense counsel listed there. Defense counsel for Blome, Ruff and Romberg did not give the time required. Individual defense counsel have listed more than thirty minute three of them. Others need less time. So that it all equals itself out.
THE PRESIDENT: The schedule prepared by defense counsel appears to be fair and adequate. Counsel may proceed.
DR. SERVATIUS: Mr. President, I have a few technical questions before the proceedings. First, with reference to the start of the submission of the evidence, the time which was at our disposal could not be used fully since we were not able to speak to witnesses freely as we pleased, and we could only speak to them for three hours at the most and which led to the fact that we could only speak to two witnesses during one morning. The preparation of affidavits could, therefore, not be concluded by me. With my client I have not been able to discuss every question with reference to his examination. I would therefore be grateful if the Tribunal could tell me when they expect me to start with the submission of evidence. I would be prepared to do so coming Monday.
THE PRESIDENT: I didn't hear the last statement of counsel.
DR. SERVATIUS: I have not been able to discuss sufficiently with my client all the questions which I want to put to him in examination and I should therefore be grateful if the start of the submission of evidence would be postponed to the coming Monday, which would mean one day of pause, one day of adjournment.
THE PRESIDENT: At the close of the arguments the Tribunal has already determined to recess until Monday.
DR. SERVATIUS: I have yet another request, that is, to excuse the defendant Karl Brandt this afternoon and tomorrow morning so that I can use the time in order to prepare his examination. This is a procedure which was also adopted by the International Military Tribunal.
THE PRESIDENT: The Tribunal will grant counsel the request about the excusing of Karl Brandt for this afternoon and tomorrow.
DR. SERVATIUS: Mr. President, may I then begin with my introductory statement?
THE PRESIDENT: Counsel may proceed.
DR. SERVATIUS: I may say that I have not yet seen the English text of my statement. I think it is now being submitted to the Tribunal.
THE PRESIDENT: The Tribunal now has the English translation of the statement.
DR. SERVATIUS: Mr. President, I should like to point out that the last pages have contained the text of the law to which I referred in the beginning of my statement. It is an excerpt from the Charter of the International Military Tribunal and an excerpt from the Law No. 10. This would make it easier to follow my first introductory statements.
Opening statement on behalf of the Defendant Karl Brandt.
DR. SERVATIUS: The examination of the indictment against the Defendant Karl Brandt reveals that on several counts it is devoid of foundation, since it lacks in part a legal basis, in part the factual conditions.
I therefore make application that the charge against the Defendant Karl Brandt be declared insufficient.
1) for legal reasons in regard to Count 1 of the Indictment, Conspiracy to Commit War Crimes and Crimes against Humanity,
2) For factual reasons in regard to Count 11 of the Indictment. War Crimes.
Count A, high-altitude experiments Count B, freezing experiments Count C, malaria experiments Count G, sea water experiments In explanation of this application I cite the following:
The Indictment of 25 October 1946 under Count I charged all the defendants with the crime of a common design or conspiracy to commit crimes against humanity and war crimes.
This charge has no basis, in law; it is an inadmissible extension of the charge transgressing beyond the limits set for this trial.
The legal limit is constituted by Control Council Law No. 10, to Article II of which the Indictment refers.
"This law, however, does not contain any provision that a conspiracy to commit war crimes or crimes against humanity is punishable in itself as a separate type of crime; the conspiracy which is declared punishable there is only conspiracy to commit a crime against the peace.
"No charge of such a crime has been made, however.
"The wording and the system of the law show that the planning of war crimes and crimes against humanity is only a form of participation and not an independent type of crimes.
"The limitation of the law is also demonstrated by the decision of the International Military Tribunal in Trial. No. I, where punishable conspiracy is also expressly restricted to conspiracy to commit a crime against peace.
"On this subject, the following is to be said in detail:
"Since there is no charge of breach of the peace, the Tribunal is competent to examine only three questions; whether the defendants have committed war crimes, whether they are guilty of a crime against humanity, and whether they are punishable as members of a criminal organization.
"That the law knows only a crime of conspiracy against the peace is shown by Article II 1a, which reads:
"Participation in a common plan or a conspiracy for the purpose of the execution of one of the crimes listed above.
"These crimes listed above are only the crimes of paragraph 1a against the peace.
"No such regulation regarding a conspiracy to commit war crimes and crimes against humanity is included in the law.
"That this limitation of conspiracy to "conspiracy against the peace" is intentional, is shown also by the decision of the International Military Tribunal in Trial No. 1, of 1 October 1946, where charges which went beyond this were expressly rejected.
"At the end of Section 6 of the judgment it says:
'Count 1, however, charges not only the conspiracy to commit aggressive war, but also to commit war crimes and crimes against humanity.
But the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive "wars. Article 6 of the Charter provides:
'Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.'
"In the opinion of the Tribunal these words do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in Count I that the defendants conspired to commit war crimes and crimes against humanity, and will consider only the common plan to prepare, initiate, and wage aggressive war.'
"In the same way, the International Military Tribunal confirms this concept of the law by saying under No. 8 of the judgment:
'As already stated, the Charter does not describe every conspiracy as a separate crime, but only a conspiracy dealing with crimes against the peace and listed in Article 6 (a).'
"This decision of the International Military Tribunal was necessary in the face of the ambiguous formulation of the Charter. The provision mentioned, concerning the responsibility of all leaders, organizers, etc., who participated in a common plan or conspiracy had been included as the last paragraph of the regulation which had previously mentioned war crimes and crimes against humanity.
"Law No. 10, which forms the basis for this trial, contains no such provision which might lead to doubts; the text of the law is clear and intelligible.
"Law No. 10 knows only certain forms of participation, which are summed up in Article II, Paragraph 2. There, under (d), it is stated, concerning the three crimes declared punishable, - crimes against the peace, against war, and against humanity, - that in addition to perpetrators and other participants, anyone who'was connected with plans or enterprises involving its commission' is to be punished.
"Here we are concerned with 'plans' and 'enterprises'; that is not the same as the technical expressions of 'common plan or conspiracy'.
"That the phrase 'connected with plans' does not necessarily involve the concept of conspiracy is shown by Article II 1a, whore 'planning' is mentioned before conspiracy against peace is declared punishable. This would be senseless if it were intended to introduce the concept of conspiracy.
"The prevision of Article II Paragraph 2d, 'whoever was connected with its planning and execution', means merely a form of conspiracy. The bracketing of the words 'planning and execution' shows that planning is a preliminary to execution, that is, attempt. The technical term ' common plan or conspiracy' cannot, however, fall under that heading.
"The system applied by Law No. 10 corresponds to the intent of the law. In Article II a clear distinction is made between the type of crime in paragraph 1 and the form of participation in paragraph 2. Paragraph 1 lists as types of crimes only the followings:
1) the individual crimes of breach of the peace.
2) conspiracy against the peace
3) the individual war crime
4) the individual crime against humanity.
"There is no mention here of a conspiracy to commit war crimes or a conspiracy against humanity. Paragraph 2 of Section II, on the other hand, deals only with the form of participation in the above mentioned crimes of Paragraph 1. In addition to the principal, accomplice, instigator, accessory abettor, the person with guilty participation in certain organizations, and the person with guilty connection with crimes against the peace on the basis of an especially high position in public life, there appears, under d, in a logical interpretation of this provision, the person who participated in the preparations for or the execution of one of the crimes under No. 1 "Law No. 10, which was systematically and carefully worked out, cannot contain such a fundamental error as to introduce an especially important type of crime for the first time in the section devoted to forms of participation in crimes.
"Consequently, we come to the conclusion, that there is no law under which the alleged conspiracy for the commission of war crimes and crimes against humanity, which is here charged, is punishable. Only participation in individual crimes, proved in individual cases, can be punishable. The Prosecution must present such proof in detail.
"Since there is no legal basis for Count I of the Indictment, the charge must be declared insufficient for legal reasons, and the case under this count must be dismissed.
"The second group of charges against Karl Brandt is insufficient for factual reasons.
"There are the following five counts:
1) Count II A high-altitude experiments.
According to the Prosecution the low-pressure experiments in the Dachau camp began in March 1942 and were concluded about the end of August 1942. According to the transcript (German text, page 287), however, the final report was made to Himmler as early as 28 July 1942, that is, on the same day on which the Defendant Karl Brandt received his first official position as Special Agent of the Fuehrer for certain tasks.
Because of this coincidence of time alone, he cannot be brought into any connection with these experiments on the basis of his official position alone. At that time there was not as yet any Chief of the Wehrmacht Medical Service, to whom the Prosecution refers, and at that time the Defendant Karl Brandt could not yet have been in any official relationship to the medical heads of the Wehrmacht branches or the SS.
"The Prosecution has not presented any facts which might show that the Defendant Karl Brandt knew of and approved these experiments.
"On the contrary, the Prosecution itself submits that Himmler order the continuation of the orders; one may conclude therefrom that he also began them.
"The Prosecution further submits that Himmler inspected the experiments himself and that he received the final report.
"Thus it has been established that the Defendant Karl Brandt had no connection with the alleged experiments. The Prosecution case is insufficient on this count.
"2) Count II B, cold experiments "According to the Prosecution, the freezing experiments began, in the Dachau camp following the cooling experiments in August 1942 and lasted until May 1943.
There were two types of experiments: the water cooling experiments were concluded with a report on 16 October 1942, and the dry cooling experiments were concluded with a report on 17 February 1943.
"The Prosecution has not presented any facts which could prove the direct participation of the Defendant Karl Brandt. It has been established that he did not participate either in the Nurnberg conference on freezing experiments on 26 and 27 October 1942.
"Nor has it been proved that the Defendant Karl Brandt, by virtue of his position as special deputy, would have gained knowledge of those xn experiments through the Decrees of 28 July 1942. According to this Decree, the Defendant Karl Brandt had to carry out only certain special tasks on special instructions: the Prosecution has not contended that any such assignment or any such instructions actually existed and were carried out.
"Nor has it been proved that, as a member of the presidial Council of the Reich Research Council, the Defendant Karl Brandt, gained knowledge of the experiments and the nature of their execution and that he approved them, or that he was in a position to prevent them.
"Nor has it been proved that the Defendant Karl Brandt had at that time any contact with the Wehrmacht Medical Mountain School in St. Johann, which allegedly collaborated with Dr. Rascher in experiments.
"On the other hand, the Prosecution has submitted that there was a research assignment from the Luftwaffe, and a witness for the Prosecution has testified that the experiments were carried out by Himmler on the basis of a private agreement with General Milch.
"This shows that the charge against Karl Brandt on this count is insufficient.
I come now to Count IIC, malaria experiments.
According to the prosecution, the malaria experiments took place in Dachau from February 1942 until April 1945, at Himmler's orders. The latter fact is revealed by the official report on the trial of Professor Schilling in Dacheu, page 446 of the German transcript.
The prosecution does not present any facts which might indicate any direct participation of the defendant Karl Brandt in the malaria, experiments.
The circumstance that the defendant Karl Brandt, by decree of 5 September 1943, was appointed Commissar General with more extensive powers and that he became Reich Commissar on 25 August 1944 is not in itself sufficient proof that, by virtue of this position, he gained knowledge of the type of experiments. The prosecution has not presented any especially incriminating facts revealed by the confiscated documents.
The same is true of the knowledge of the defendant Karl Brandt as a member of the Presidial Council of the Reich Research Council. Here, too, no specific proof was presented.
The only evidence against the defendant Karl Brandt is said to be an affidavit by the witness Pohl, who expresses the opinion that Himmler discussed his experiments with the doctors in his circle. Pohl lists there among others the name of the defendant Karl Brandt, Pohl does not give any facts on which he could base his opinion; on the other hand, it may be considered a fact that the defendant Karl Brandt did not belong to Himmler's circle.
The conclusion to be drawn from the above statements is that the participation of the defendant Karl Brandt in the malaria experiments has not been proved. His non-participation is emphasized by the fact that his name does not appear in any of the documents submitted and, in particular, that he was not mentioned in the Dachau trial against Schilling for malaria experiments.
Examination of the charge therefore shows that it is insufficient.
I come now to Count II G, Sea Water Experiments.
According to the prosecution, the sea water experiments took place in Dachau from about June 1944 until September 1944.
Here also the prosecution has not presented any facts which show direct participation of the defendant Karl Brandt in these experiments; not even the name of the defendant Karl Brandt appears in connection with these experiments.
That the defendant Karl Brandt's position alone is no proof of knowledge and approval of unwarranted experiments has already been explained. This fact is confirmed by the prosecution, since it makes no charge against Karl Brandt under Count K, Poison Experiments, and Count, L, Experiments with Incendiary Bombs, although the same official relationships exist here.
The only material which the prosecution has is the affidavit of the codefendant Schaefer, who states that the sea water experiments were an open secret in the "highest medical circles". The only fact which Schaefer can give as a reason is his report on his experiments to his supreme superiors who were collaborating with him. That anyone else gained knowledge of the nature of the experiments and that, in particular, the defendant Karl Brandt knew of it are not proved.
Apart from the contents of this affidavit, the statement of the codefendant Schaefer can not he used against the defendant Karl Brandt since there has as yet been no opportunity for cross-examination.
Finally, I must point out that according to the submission of the prosecution the experiments were the special business of the Luftwaffe and the Navy, in direct collaboration with Himmler. There was therefore no place there for the participation of the defendant Karl Brandt.
These statements show that the charge against Karl Brandt on this count is also insufficient.
Now, Count II I, Sterilization.
According to the prosecution, the sterilization experiments took place from March 1941 until January 1945 in Auschwitz and Ravensbrueck and at other places. The prosecution does not present any facts here, either, which might prove direct participation of the defendant Karl Brandt.
The prosecution bases its charge on the fact that, in addition to general knowledge on the basis of the defendant Karl Brandt's official position, material was actually presented here which allegedly indicates indirectly participation in the experiments.