The prosecution has incontestedly submitted that an X-ray specialist from an office of Bouhler---that is. Dr. Schumann-was transferred for the purpose of conducting sterilization experiments and that other Personnel of this office was sent to the extermination camps in the East, where sterilizations were performed.
It has not been proved that the defendant Karl Brandt had anything to do with these transfers. In particular, it has not been proved that he knew the purpose of the transfers and thus approved and supported the alleged crimes.
The fact alone that the Defendant Karl Brandt was given special powers, together with Bouhler, by the Euthanasia Decree of 1 September 1939, does not prove that Bouhler's office was his agency or that he was competent for personnel matters in the Chancellery of the Fuehrer.
The affidavit of the co-defendant Brack, which has been submitted, contains only his opinion that the defendant Karl Brandt had knowledge of Dr. Schumann's transfer. No facts are given which might support this opinion.
The affidavit of the co-defendant Rudolf Brandt, No. 440, also merely presents an assertion that, among others, the defendant Karl Brandt "surely knew of these sterilization matters". This opinion of the witness is obviously based on the defendant Karl Brandt's official position which he assumed only after the conclusion of the experiments in Auschwitz and Ravensbrueck in 1944 when he became Reich Commissar.
Apart from the fact that that affidavit does pot contain any fact, it cannot be used against the defendant Karl Brandt because there has been no cross-examination.
The prosecution itself, however, presented important points in favor of the defendant Karl Brandt, clearly indicating that he had no knowledge of the experiments.
First, it is shown that the co-defendant Brack in letters to Himmler repeatedly pointed out, with reference to Bouhler's agency, that he had transferred "his" people and emphasized that "he" had promoted the experiments.
I refer to pages 582 and 583 of the German transcript.
Moreover, Bouhler himself, in Document NO 156, states that he alone is responsible for the execution of the measures to be taken in the Euthanasia program. The defendant Karl Brandt could therefore not have had any respon sibility in this agency.
The prosecution's case also shows that the sterilization experiments were conducted exclusively by Himmler as a "state secret of the greatest importance" -- I refer to page 566 of the German transcript -- and that "strictest secrecy and the special obligation of everyone concerned is emphasized" because this was the preparation for a mass sterilization which however, never came about. That the defendant Karl Brandt, in spite of this special secrecy, was informed of the events has not been proved.
These arguments show that the charge against Karl Brandt on this count, also, is insufficiently supported.
Insofar as the charges on one of the above counts may, contrary to this application, be declared sufficient merely on the basis of an affidavit which has not been subjected to cross-examination, application is herewith made to reserve the right after cross-examination to submit a new application concerning the charges.
I now come to the presentation of evidence with reference to the counts of the indictment concerning illegal experiments.
The prosecution bases the general responsibility of the defendant Karl Brandt in regard to the undertaking of illegal experiments on his official position and on the organization of his office. What authority the defendant Karl Brandt had in virtue of the three decrees of 28 July 1942, 5 September 1941 and 25 August 1944, which gave him special powers, is a matter of interpretation and evaluation.
The evidence for the significance and extent of the powers of the defendant Karl Brandt is brought by the prosecution primarily by the presentation of charts.
The prosecution at first on 9 December 1946 presented a report entitled "Basic instructions about the "German Medical Offices" with a chart, which was not submitted as evidence but was handed to the Tribunal. The report and the chart are misleading in so far as it cannot be seen from them that inregard to the person of the defendant Karl Brandt the chart could have had validity at the earliest for the period after the third decree of 25 August 1944, when the position of Reich Commissar was created; at that time the events which form the subject of the indictment had for the most part been concluded.
The correctness of the "Basic Instruction" itself is also being contested, since on page 2 of the expose it says that the defendant Karl Brandt had already in 1942 occupied the position of a superior of Handloser and Conti and had powers regarding all offices in Germany.
For the incorrectness of this statement I shall submit evidence by examination of the defendant himself, and of the co-defendants Handloser, Schroeder, and Mrugowsky.
The prosecution furthermore submitted in evidence six charts about the medical offices, the correctness of which was confirmed by affidavits. Since the witnesses could not be subjected to a cross examination, these charts can be used as evidence only against the person who made them, however as a precaution, I will deal with them.
We are dealing with the following charts:
"The Wehrmacht Medical Service" signed by Handloser of 24 September 1946, Document No. NO-282.
"Plan of Organization of Aero Medical Research" by Professor Schroeder. There are two charts, the first one far the period from November 1941 till December 1943, made out on 2 October 1946, Document No. NO-418; and the second for the period from 1 January 1944, on, made out on 2 October 1946, Document No. NO-419.
There is further "Plan of Organization of the Medical Service of the SS" by Professor Mrugowsky. Here again we have two charts, the first for the period up to 31 August 1943, made out on 11 October 1946, Document No. NO-417; and the second for the period from September 1943 on, made out on 11 October 1946, Document NO-417.
And finally, there is the "Working Plan of the Office of the General Commissar and the Reich Commissar for the Medical and Health Service" of 7 November 1946, Document NO-645. This has merely been signed by the defendant Karl Brandt.
I shall submit evidence that the position of the defendant Karl Brandt as superior as it is expressed in these charts is incorrect by examination of the defendant himself and the co-defendants professors Handloser, Blome, Schroeder, Rostock, Mrugowsky and Genzken, I may introduce affidavits of these witnesses. Furthermore, as proof of the position of the defendant Karl Brandt, I shall introduce the record of an interview on the Germanradio on 18 January 1944, from which it is evident that that defendant Karl Brandt expressly did not consider himself as the top of the German medical apparatus, but as "Differential".
The charges against the defendant Karl Brandt then are based on the general official connections which he had due to his position. The charges of participation in unwarranted experiments is based on the official contact between the Office for Medical Science and Research with the research offices; further, on the official connection which the defendant Karl Brandt had with the research offices as a member of the Presiding Council of the Reich Research Council.
I shall submit evidence that the defendant Karl Brandt did not in this manner gain any general knowledge of all the experiments which were conducted anywhere and that in particular he did not gain knowledge of the kind of experiments and the conditions. I shall hear the following witnesses: For the Office of Science and Research I shall hear Professor Rostock and the defendant himself; for the Presiding Council of the Reich Research Council I shall hear the business manager Mentzel and the co-defendants Sievers and Rudolf Brandt, and finally the defendant himself.
If necessary, I shall also submit evidence that the general statements in the affidavits of the co-defendant Rudolf Brandt can be objected to, to the extent that they assert that the defendant Karl Brandt had knowledge of the experiments.
The prosecution further deduced the general responsibility of the defendant Karl Brandt from the knowledge about the experiments which he was alleged to have gained on the basis of attendance at medical congresses with lectures on the experiments. I shall introduce evidence against this by the examination of the defendant himself.
Furthermore, the prosecution refers to the personal relations of the defendant Karl Brandt to the University of Strasbourg, where individual members of the University allegedly have conducted illegal experiments. It is not necessary to introduce evidence against these relations, since the prosecution has not submitted any facts which show such relationships.
Finally, the prosecution pointed out that the defendant Karl Brandt belonged to the staff of Himmler and gave him medical advice. Evidence against this will be introduced by examination of: the witness Grothmann, Himmler's adjutant; the witness Ehlich, Medical Office of the SD; and the co-defendants Rudolf Brandt, Gebhardt and Silvers; and, finally, the defendant himself.
Now the special responsibility in the individual experiments. The accusation extends be the following five experiments: Count D of the indictment, Lost; Count E of the indictment, Sulfonamide; Count F of the indictment Transplantations and Regenerations; Count H of the indictment, Jaundice; and Count J of the indictment,Typhus.
In regard to Count D of the indictment, Lost:
First, the defendant Karl Brandt is held responsible for the experiments which were allegedly carried out in October 1939 in Sachsenhausen to test the drug F 1001. In this connection, a final report of 5 January 1940 by Grawitz is referred to. In regard to this particular point, a participation of the defendant Karl Brandt is not to be considered, as he did not yet hold any official position at the time and no facts have been produced by the prosecution which could indicate participation.
In regard to the experiments in Buchenwald which were concluded in May 1942 and I refer to the affidavit of Dietsch, Document NO-1314, no facts have been produced wither which incriminate the defendant Karl Brandt.
The defendant Karl Brandt is however held responsible, and the details are given, for the experiments which as the prosecution claims, were carried out by Professor Hirth in Natzweiler since 6 June 1942, and which were allegedly started on order of the Wehrmacht and continued on order of Himmler.
In this connection the prosecution bases its case on the following points:
a. on the chemical warfare agents decree of 1 March 1944, which it does not know;
b. on the notations of 11 April 1944 in the diary of the co-defendant Sievers concerning Sievers informing the defendant Karl Brandt about the experiments of professor Hirth;
Further on the claim that the defendant Karl Brandt had a conference with Hirth about the details of these experiments in Natzweiler;
And, finally, on the visits of the defendant Karl Brandt to factories producing chemical warfare agents and their antidotes.
Against that I shall introduce evidence to the effect that the decree of 1 March 1944 contained only a commission for production, but did not, according to its proper meaning, contain any commission for research; I shall do this by examination or presentation of affidavits of the following witnesses; Speer, Schieber, Kehrl, Quasebarth, and Mielenz, and through the examination of the defendant himself. Further through presentation of a letter of 11 October 1944 by Speer to Keitel concerning attitude toward production of gas.
I shall furthermore introduce evidence that the defendant Karl Brandt, after the conclusion of the experiments of Professor Hirth, received only a report on instructions for the treatment of wounds inflicted by chemical warfare agents which was distributed to him without being informed about the method of the experiments in detail. I shall do so by examination of the co-defendant Sievers and the examination of the defendant Brandt himself.
Thereupon I shall introduce evidence that the defendant Karl Brandt did not gain any knowledge about illegal experiments during the visit with Professor Hirth in Strasbourg. I shall do that by examining the defendant himself. And, further, that Professor Hirth complained to Sievers that the Defendant Karl Brandt was not paying any more attention to him. I shall do that by examining the co-defendant Sievers.
Finally, I stall introduce evidence that even after the promulgation of the chemical warfare agents decree of 1 March 1944 Himmler gave orders for the execution of experiments with N-gas, on his own, by examination of the co-defendant Professor Gebhardt and witness Gonz.
Finally, I shall introduce evidence, by of an expert, that experiments with Lost are, within certain limits, internationally customary and regarded as permissible by examination of the export. I mention Professor Flury, but he is very ill and I shall have to call another expert.
We now come to Count E of the indictment, Sulfonamide. The indictment states that from about July 1942 to about September 1943 experiments to investigate the effectiveness of sulfonamide were conducted illegally at the Ravensbruck Concentration Camp for the benefit of the German Armed Forces and that the defendant Karl Brandt was responsible for that.
The charge is based on the following, in detail:
1. On the allegation that the Defendant Karl Brandt participated in the meeting of the Military Medical Academy in Berlin in May 1943 and that he there gained knowledge through a lecture of the illegal experiments: Against to this I shall introduce evidence to the effect a) that from the report of the Berlin meeting it cannot be seen that the experiments were illegal.I shall do that by examination of the co-defendant Gebhardt. b) that the Defendant Karl Brandt did not visit the Ravensbruck Camp and did not participate in the experiments by examination of the co-defendant Fisher and the defendant himself; and finally, that the defendant Karl Brandt did not have any conferences in the sense of experiments on human beings with the interested parties by examination of the co-defendants Professor Rostock and Professor Handloser.
I now come to Count F of the Indictment, Transplantations and Regenerations. The indictment charges that from about September 1942 to about December 1943 illegal experiments on human beings were conducted at Ravensbruck and that the defendant Karl Brandt was responsible for this.
The charge is based on his presence at the meeting of the Military Medical Academy in Berlin in May 1943, where reports were made about the experiments.
Against this, evidence will be presented that the Defendant Karl Brandt was not present during the decisive lecture about the transplantations and did not gain any knowledge about the manner of their execution by examination of the co-defendants himself.
Now, Count H of the Indictment, Hepatitis. According to the Indictment from June 1943 to January 1945 experiments with Hepatitis were conducted on human beings in the camps Sachsenhausen and Hatzweiler in the interest of the German Armed Forces. To the extent that the experiments in the Dachau concentration camp formed the substance of the evidence, presented by the prosecution, no position will be taken in regard to them, since these experiments are not the subjects of the indictment.
The Defendant Karl Brandt is charged with having carried out the experiments in Sachsenhausen through the physician Dr. Dohmen, whom he commissioned, and is charged with having known about and promoted similar experi ments in Natzweiler in the year 1944.
In answer to this, I shall introduce evidence to show the following:
First, that the Defendant Karl Brandt never engaged in or promoted research on Hepatitis and that Dr. Dohmen never worked on order of the Defendant Karl Brandt. I shall do so by examination or affidavit of the witness Professor Gutzeit, of the co-defendant Professor Rostock and the defendant himself.
Further, that the Defendant Karl Brandt was in no way connected with the experiments with Hepatitis which were planned in Natzweiler and that these were not undertaken, by examination of the Defendant himself.
3. That the Defendant Karl Brandt was in no way connected with the giving of the order for or the direction of the Hepatitis experiments and that he neither spoke to nor corresponded with the business manager of the Reich Research Council about this question: by examination of the witness Mentzel, business manager of the Reich Research Council and the defendant Sievers:
4. That the Defendant Karl Brandt, with the exception of the Document NO-010, that is, letter from Gravitz to Himmler, was never mentioned in connection with Hepatitis research.
Finally, that the opinion of the co-defendant Rudolf Brandt about the knowledge of the Defendant Karl Brandt of these experiments is not based on actual facts, by examination of the co-defendant Rudolf Brandt, who at that time made this assertion.
I shall further produce an expert opinion to the effect that Hepatitis is not a fatal or painful illness and that experiments cannot have a fatal effect, by written expert opinion (possible examination) of the expert Professor Meythaler. I mention here that he is sick in bed. Under the circumstances I shall have to call another expert.
I now come to Count J of the Indictment, Typhus. According to the Indictment, the experiments from about December 1941 to February 1945 in Buchenwald and Natzweiler were carried out for the benefit of the German Armed Forces.
1. The charge against Karl Brandt regarding Buchenwald is based on the contention that he found out about the experiments, which had already been concluded in February 1942, afterwards, at a meeting of the Military Medical Academy in Hohenlychen in 1944 through a lecture by Dr. Ding and the simultaneous protest of Professor Rose.
In answer to this, evidence will be introduced to the effect that the Defendant Karl Brandt was not present during the previously mentioned lecture of the Hygiene division and that he was not informed about the happenings by examination of the co-defendant Rose and of the defendant himself.
2. The charge against Karl Brandt regarding the experiments in Natzweiler is based on the fact that a carbon copy of the research assignment from the office of the co-defendant Professor Schroeder was sent to the Office for medical Science and Research of the Defendant Brandt.
In answer to this I shall introduce evidence to the effect that from the written research assignment one could not determine where and under what kind of conditions the experiments more to be carried out, by examination of the co-defendants Professor Schroeder, Professor Rostock, Professor Rose and by the examination of the defendant himself.
We are now left with the Experiments with Polygal, Phlogmone experiments, experiments for the preparation of biological warfare, experiments with N-gas.
The prosecution touched upon these experiments during its presentation; they are, however, not contained in the indictment; therefore no position has to be taken with reference to them since they are not a subject of the Indictment.
If the Tribunal should admit the addition of now charges, I apply to reserve right to submit applications for evidence in regard to these counts.
I now come to Count 9 of the Indictment, to the question of Euthanasia.
The charge of the Prosecution is to the effect that (1) between November 1939 and April 1945, in the course of a so-called "euthanasia program", hundreds of thousands of human beings, including foreigners, were killed, and that (2) in connection with this "euthanasia program" collaborating physicians were sent to the extermination camps in the occupied Eastern territories in order to support the mass extermination of Jews there.
The charges in detail under the so-called "euthanasia program" are that the following were killed: a) sick ones, such as insane, incurable sick and deformed children; than concentration camp inmates and foreign workers, firstly for political and racial reasons, and then for inability to work.
The charge against Karl Brandt is based on, firstly, the Euthanasia Decree of 1 September 1939; secondly, participation in the organization for the execution of the "euthanasia program."
Against the authorization for euthanasia, evidence will be presented to show (1) that the Defendant Karl Brandt did not participate in the preliminary discussions, which stretched over years, between Hitler and administrative agencies concerning the introduction of the euthanasia law, by examination or affidavit of the witness Lammers, of the co-defendants Blome, Brack, and of the defendant himself; further, that the authorization, in spite of the secrecy observed, was considered by all state agencies concerned to be a legally binding law, by examination or affidavit, of the witness Dr. Lammers, Brack, Schwarz, Schulze, Engel and by the examination of the defendant himself; (3) that the contents of the law referred only to German citizens whose life, after a critical examination of the state of health from the medical and the human point of view, was judged to be nothing but pain, by examination of the defendant himself and of the co-defendant Brack. Further, that war wounded and those injured at work, whose injury was the cause of their ill health, were to be eliminated from consideration for euthanasia, by examination or affidavit of the witnesses Schaub, Engel, of the co-defendant Brack and of the defendant himself. That the Defendant Karl Brandt represented exclusively these points of view, by examination of the witnesses Oeynhauser or Pohlmann or Schwerin-Krosigk and by submission of an affidavit of Woermann (He is the present leader of the Mental Institution at Bethel), and an affidavit by Schmundt.
6. That cases of euthanasia proposed in the fall of 1941 on the basis of the medically established case history and under the Euthanasia Decree were forbidden by direct order of hitler, by examination of the witnesses Heide, Ehlich, Engel and the co-defendant Brack and the defendant himself; finally, that the Defendant Karl Brandt, when, after the prohibition of euthanasia, he heard that it was allegedly performed in 1944 to 1945 in institutions in Saxony and in Pomerania, reported this fact immediately to Beuhler, Hitler and Martin Bormann in order to have it stopped. I shall show that by examination of the witnesses Klepfer and Schaub.
To support the charge of being guilty of euthanasia by virtue of participation in organization, the Prosecution has submitted an affidavit of the co-defendant Brack, which is the Document NO 426. Proof of the incorrectness or this affidavit, which was not subject to cross-examination will be given by examination of the co-defendant Brack himself; further by a presentation of the new charts concerned in the execution of the euthanasia program. I shall show that by the examination of the co-defendant Brak, and the witnesses, or the submission of affidavits of these witnesses. Proof will further be given that the Defendant Karl Brandt had no organizational part at any time in the execution of euthanasia, by examination of the co-defendant Brack and the witnesses Morgen, Erlich, Schwarz; and, further, that the Defendant Karl Brandt had no part in the procedure of having sick persons judged by experts, by examination of the witness Heide and of the co-defendant Brack.
I shall bring proof that the negotiations with Professor Rose concerning transfer of a mental institution to him had no connection with the execution of euthanasia; by examination of the co-defendant Rose and of the defendant himself. Finally, I shall bring proof that the Defendant Karl Brandt did not have to assume the execution or supervision of euthanasia in his official capacity as Hitler's escort physician by examination or affidavits of the witnesses Schaub, Engel.
III. Against the charge of extermination under the guise of euthanasia, evidence will be presented (1) that this measure took place only after euthanasia was forbidden in the fall of 1941, without the participation or knowledge of the Defendant Karl Brandt, by examination of the Defendant Karl Brandt himself.
I shall bring proof that the euthanasia performed in the concentration camps under the code name of 14 F 13 indicates a measure undertaken by the Economic and Administrative Main Office (WVHA), and that the code name 14 F 13as a sign of the filing system of that office. I shall show that by examination and affidavit of the witness Morgen; (2) that the measures of the Labor Offices, ordering a transfer of invalid workers to mental institutions, had no connection with the agency of the Defendant Karl Brandt, by examination of the witness Seldte and of the defendant himself. I shall further bring proof (3) that "Action Brandt", mentioned in the affidavit of the witness Schmidt, which was not submitted, is a classification which represented a certain priority a) in the economic production of medical supplies b) in the repair and construction program for medical buildings. (This included also the special hospital installations of the "Action Brandt", which were built by Karl Brandt from 1941 on in the districts under special danger of air raids.) I shall bring that proof by examination of the witnesses Schieber, Hoerlein, Rostock, Handloser, Grabe, Schroeder; information given by the directors of the hospitals and special installations will be presented. I shall further bring proof that the Defendant Karl Brandt had no connection with an order to starve the sick persons in the mental institutions and never demanded that the rations for these institutions should be reduced, proof; examination of the witness Backe.
As far as the charge is based on the affidavit of the witness Sprauer, NO 818, the defense objects to the use of this affidavit until it is possible to cross examine; I reserve the right to make later applications in this connection.
Evidence will be presented on the judging of the illnesses (and deformities) as well as their course and life expectancy - as far as they were affected by the Euthanasia Authorization of 1 September 1939, by the examination of the expert Professor Geuhlce. Professor Siegmund will probably not be able to appear before March, so I should have to confine myself to Professor Geuhle.
A written opinion on euthanasia will be presented from the point of view of medical history by Professor Diepken; from the point of view of forensic medicine by Professor Meuller-Hoss.
Concerning legal, moral and medical conceptions of the permissibility of euthanasia I shall submit a number of excerpts from international literature, with comments of doctors, theologists, and jurists.
The question of the dispatching of doctors for participation in the extermination of Jews in the camps in the East has been discussed under Count I, sterilization.
I now come to the last Count of the Indictment, Membership in the Organization of the SS. Evidence will be presented, on this count, that (1) the Defendant Karl Brandt was only a pro forma member of the SS. I shall show that by examination or affidavit of the co-defendant Blome, and further, that the Defendant Karl Brandt exercised no activity in the General SS or the Waffen SS, by examination or affidavit of the witnesses Berger, Eppenau, and of the co-defendant Genzken.
I shall bring proof that the Defendant Karl Brandt was not Himmler's medical advisor, and that the SS was forbidden to contact him in medical matters, by examination of the do-defendant Gebhardt and Genzken.
I shall further bring proof that the Defendant Karl Brandt was shunned by the extremists in the Party and that he was opposed, by Himmler, Goebbels, and Bormann, and which opposition finally resulted in his being condemned to death, by examination or affidavit of the witness Speer and the examination of the defendant himself. Further, I shall bring proof that the Defendant Karl Brandt was asked for assistance by important victims of political persecution, who considered him a politically objective and critical man, and that he promoted their interests, by submission of affidavits of Gerstenmeier, Meyer-Boeckhoff, Buerger-Prinz, Schacht, et al. I shall finally bring proof that the Defendant Karl Brandt, in his external conduct, was not an extremist, by submission of statements and persons removed from National Socialism.
And this is the end of my statement.
THE PRESIDENT: The Tribunal will now recess.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: For the purpose of the Record, the Secretary General will file certificate from the physician of Defendant Oberheuser, showing her absence from the court today on account of sickness.
Counsel may proceed.
DR. NELTE (Counsel for the Defendant Handloser): Mr. President, Your Honors, the Defendant Handloser stands before you as the last highest-ranking medical officer of the German Wehrmacht.
The problem of this case is that he, who has not committed any individual offense of those which are the subject of the indictment, who has not issued any general decree or any specific order pertaining to the experiments under indictment here, is considered guilty by the Prosecution because offices which were subordinate to him in organizational or military respect, or medical officers who were members of such subordinate offices, were allegedly in some sort of connection with inadmissible experiments.
The fact that the Prosecution has not submitted a single document bearing the signature of Handloser, neither an order, nor a decree, nor a letter which was written by him or addressed to him, should, in view of the extensive field of duties of this defendant, suggest the supposition that there is no perceivably incriminating material against him.
The defendant will not try to minimize the importance of his high and responsible position; but the indictment obliges us to explain the framework of his position in such detail that the Tribunal can determine whether the crimes which were committed are in the field of that responsibility for which the Defendant Handloser has to answer according to law and justice.
THE PRESIDENT: Pardon me a minute, Counsel, we are short one English translation. Excuse me, Doctor, you may go ahead.
Responsibility corresponds to the field of duties. Therefore, it is first of all necessary to clear up this field of duties, that is, the competence, the functions, and the duties of the defendant in his official positions. It must be examined whether the sphere in which the crimes alleged by the Prosecution were committed belonged to the field of duties of the defendant, whether he had the right to give orders or jurisdiction over the persons or offices primarily accused, and finally, whether in fact there was the possibility of preventing these crimes by virtue of knowledge of them.
Only if this can be answered in the affirmative does responsibility exist. This responsibility exists primarily toward the superior office, that is, that office from which the responsibility is derived. Moreover, a responsibility exists toward the law, the written law as well as the unwritten law of humanity.
The term responsibility, consequently has a dual character: 1), political or military responsibility; and 2), legal responsibility. Political and military responsibility need not be discussed before this Tribunal.
Legal responsibility presumes guilt. Therefore we must examine whether the facts forming the basis of the indictment actually took place because the Defendant Handloser was guilty of not having performed the duties incumbent upon him by virtue of his functions.
The Prosecution charges the Defendant Handloser first, with having planned willfully and knowingly, together with the other defendants, war crimes and crimes against humanity, (fact cf conspiracy); then it accuses him of having committed individual war crimes based on his special responsibility.
B) Count I): CONSPIRACY The Prosecution has stated that the case here on trial is one of the simplest and clearest cases for the facts of "conspiracy". I believe that the case of the Prosecution did not prove a "conspiracy", that is, a willful and knowing planning and collaboration of the persons sitting here in the dock as well as of the offices represented by these persons.
The Prosecution has submitted to the Tribunal a chart showing all offices which dealt with medical matters in Germany. Then it has alleged connections between these agencies, which doubtlessly did exist; but, from the fact that these connections were of a general and organizational nature, as must be the case in every other country between similar agencies under the jurisdiction of one central authority, it has drawn the conclusion that these connections must also have existed in those fields which form the sub ject of the indictment.
To me it seems to be essential to realize that the sphere of medical matters includes numerous fields which have not been mentioned at all by the Prosecution and whose field of activity has not been objected to by a single word. Therefore, the conclusion must be drawn for the present trial; that the activities of the German physicians and of the competent offices in these fields corresponded with the acknowledged rules of medical science.
Indictment and evidence have made quite particular facts the subject of a charge; namely: 1), Euthanasia and sterilization; with participation in which Professor Handloser was not charged, and 2); Experiments and investigations in various fields of research mainly on human beings in concentration camps. The relations between the defendants or the offices represented by them in fields which have nothing to do with the incriminating facts, cannot be considered as proof of conspiracy in those fields which are the subject of the indictment.
On the other hand; the indictment can be considered to be well founded in respect to this point with reference to the legal concept of complicity; only if - a) it is established that one or several defendants are connected causally and guiltily with the proved particular facts of war crimes and crimes against humanity, and b), if this proved committing of crimes can be derived from a willful and knowing plan.
In regard to the question of conspiracy; which the Prosecution has dealt with as an independent count of the indictment, I refer in the legal respect to the statements of my colleague, Dr. Servatius, and to the judgment of the International Military Tribunal, (transcript pages: 1646/6, 16499, 16501, 16502/3, 16533, 16534/5), a copy of which I submit as Exhibit HA 1). In respect to the facts; the Chief Prosecutor (page 115 of the record) and later on, during the session of 2 January 1947, Mr. McHaney, (page 989 of the record) called the meetings of the "Consulting Specialists" a "typical conference of conspirators." In order to prove to the Tribunal the error of this assumption, I have filed an application for evidence: to produce the printed reports on the meetings of the "Consulting Specialists" in the period between 1940 and 1944.
On the basis of yesterday's decision of the Tribunal, I shall, in order to supplement the excerpts from the printed reports of the meetings which have been submitted by the Prosecution, also submit extracts. It is of decisive importance for this count of the indictment, that the Tribunal know the purpose, the significance, and the contents of these meetings as thoroughly as possible. For this purpose I submit as basic Exhibit HA-2 an affidavit of the Defendant Handloser concerning: "Necessity and purpose of the meetings of the 'Consulting Specialists'." I have also, meanwhile, named as witnesses for the legal character of these meetings: a), Professor Dr. Wirth, and b), Professor Dr. Killian.
C. The Official Position of the Defendant Handloser.
In order to explain the competencies, functions, and duties of the Defendant Handloser, the following evidence is offered:
1) Extract from Army Regulation 21, Number 17-Army Physician (Exhibit HA-28).
2) Extract from Army Regulation, 21, Number 5-11-Medical Inspector of the Army. (Exhibit HA-28a).
which show the duties of the defendant as army physician and as Army medical Inspector.
3) Affidavit of the Defendant Handloser concerning: "Sphere of Work and Method of Work of the Administration of the Medical Services of the Army and the Wehrmacht" (Exhibit HA-29) In order to shorten the examination of the defendant on the witness stand, and, on the other hand, to orient the Tribunal thoroughly on the sphere of activities of the Defendant, it seems expedient to submit a detailed statement of his functions.
I shall read the affidavit only in part, in agreement with the Prosecution, and shall submit the affidavit officially for the notice of the Tribunal. In this phase of my case I shall also refer to the documents submitted by the Prosecution, dealing with the Fuehrer Decrees of 28 July 1942 (Document NO-080), 5 September 1943 (Document NO-081), and 7 August 1944 (Document NO-227), as well as to the official instructions for the Chief of the Wehrmacht Medical Service.