That was the procedure so far as I know. If the prosecution brought a witness here then the defense counsel can talk to this witness with the approval of the prosecution, and only in the presence of a member of the prosecution. Now, we are told that defense and prosecution have the same rights. If that is true, then it would have to be exactly the same in the opposite case. In my opinion it should not matter whether it was the prosecution who brought the witness to Nurnberg, or whether it was the defense which brought the witness to Nurnberg. I, as defense counsel, have to bring my witness to Nurnberg voluntarily. If he does not want to come I cannot send a jeep after him, put him in it and bring him to Nurnberg by force. The prosecution can and must. Therefore, it makes no difference who brings the witness to Nurnberg.
We defense counsel were told the witness, Hippke, could not be found. Then we sent one of our associates to Hambeug. He found out the address of the witness, and Dr. Bergold and. I told the General Secretary's Office the address. Whether the prosecution was trying to find out the address of the witness and whether they found out this a dress by themselves, I do not know.
THE PRESIDENT: It will accomplish as a matter of convenience in expediting the preparation for trial, if the witness is going to be brought here personally to be personally present as a witness by the Court rather than to take his affidavit, then as I understand you are merely confronted here with the procedural inconvenience, because the prosecution has interrogated him first. I suppose that is the point, because theoretically I think that the Court must assume that any witness having been placed under oath will be assumed to speak the truth under oath, no matter by whom he is first interrogated or by whom he is questioned. Is that not true, sir?
DR. SAUTER: Theoretically, that is true, but in practice the prosecution has a different view.
If that were true that you have just said then it would make no difference whatever to the prosecution who examined the witness first. If the prosecution is interested in questioning the witness first and demands that when the defense counsel question the witness a member of the prosecution should be present, then the defense should have the same right, or one should say in the beginning that the prosecution and defense do not have the same rights and we would have to adjust ourselves for that.
THE PRESIDENT: The Tribunal will take the matter under advisement and announce a ruling as soon as possible.
DR. SAUTER: I thank you.
Q Herr Brandt, if an order were issued to a medical officer instructing him in general terms to carry out a freezing experiment without stating the manner in which the experiment was to be performed, would you say that this medical officer was responsible for the manner in which this experiment was carried out?
A My point of view would be according to a phrase I used yesterday, that the officer would have to keep the experiment on as small a scale as possible and the possibility of a positive result should be assured; but he is responsible for the manner of execution of such experiments, since an experiment may be extended unnecessarily and may show accompanying symptoms which have no connection with the question at issue. For all these things the person carrying out the experiment would be responsible, that is to say for the manner of execution of the experiment.
Q Herr Brandt, is it not true that you held positions cf great power and responsibility in the medical services of Germany after July 1942?
A With reference to the tasks which were assigned to me, yes.
Q Couldn't you even direct German doctors to disregard the Oath of Hipocrates?
A I think the Oath of Hipocrates is not an oath which is to be changed as a law. The Oath of Hipocrates is a formulation concerning moral and ethical obligations.
I do not believe that anyone is ordered not to observe the moral obligations of a doctor. If I said anything about this it was that the medical and moral attitude must be the decisive thing as far as the doctor is concerned. I do not know whether that is an answer to your question. That is how I understood it.
Q Didn't you on at least one occasion, and I now have reference to a matter other than euthanasia, direct that doctors should not be bound by a certain provision of the Oath of Hipocrates, and a certain provision of the morally accepted cede of ethics for physicians?
Q I do not believe that I issued any instructions, the word instruction would mean something general, to observe anything but the medical point of view.
Q. To refresh your recollection, witness, I want to put Document NO-119to you.
(Document handed to witness.)
Q. (cont'd) Witness, have you had an opportunity to look at the document?
A. I just see it now. May I read through it?
Q. Will you look at page 3 of the document? Is this not an order from Hitler giving you authority to instruct all German doctors that they are relieved from their pledge of secrecy concerning their patients and further giving you authority to direct them to report confidential information received concerning the condition of their patients?
A. These were not my patients. It was an order signed by Hitler saying the following:
"I not only relieve Physicians, medical practitioners, and dentists of their Pledge to secrecy towards my Commissioner-General Professor Dr. Karl Brandt, but I place upon them the binding obligation to advise him - for my own information - immediately after a final diagnosis has established a serious disease, or a disease of ill-boding character, with a personality holding a leading position or a position of responsibility in the State, the Party, the Wehrmacht, in industry, and so forth. (signed) Adolf Hitler"
Q. You passed this order down to all physicians, doctors, and dentists in Germany through the agency of Dr. Conti, didn't you!
A. I myself did hot pass on the order, but as far as I recall, Martin Bormann passed on this order from Hitler and Martin Bormann probably added the necessary words so that it was proclaimed as necessary.
Q. Well, look at the second page. That's a letter from Dr. Conti to the heads of the medical chambers, dated 9 January 1943, "Subject: Fuehrer Decree on Suspension of Pledge to Secrecy in special cases. Gentlemen: I am sending to you enclosed a Fuehrer Decree which I received from Professor Dr. Brandt." Wouldn't that indicate that you passed the order down?
A. It is possible that I passed it on.
Q. And that does relieve German physicians from one of the normally accepted principles of medical practice, doesn't it?
A. In special cases.
Q. Did you ever relieve doctors from their code of ethics in any other instances?
A. I did not free them in this case either. It was a clear order from the Fuehrer.
Q. And in other cases?
A. In other cases? I don't recall any other cases. This is a quite clear order from the Fuehrer for specific reasons giving rise to this decree.
Q. Herr Brandt, didn't the decree of 28 July 1942 appointing you General Commissioner require that you be kept informed about the fundamental events in the medical service of the Wehrmacht and civilian health service?
A. Yes.
Q. Weren't medical experiments on concentration camp inmates without their consent fundamental events?
A. I was not informed about them. Consequently the offices which had to deal with them apparently did not consider them fundamental.
Q. Wasn't the very purpose of requiring you to be informed so that you could advise Hitler?
A. Since I was subordinate to him personally, the purpose was that I could inform him.
Q. Didn't this Fuehrer decree of 28 July 1942 empower you to intervene in a responsible manner?
A. Within the framework of the assignments given me it would have been possible.
Q. If Handloser had come to you on 1 August 1942 and told you the details about the typhus experiments in Buchenwald, what would you have done?
A. It is not clear to me in what form Handloser would have described these experiments to me. That comes back to the point which I mentioned once before this morning, discussing the basic attitude toward experiments, that the person who conducted the experiments, the causes and so forth, were not discussed yet.
I assume that Handloser's description of the experiments, if he had known it, would have been different from the one which has been given here.
Q. Well now, Herr Brandt, for purposes of answering this question, I want you to assume that Handloser told you all the details of these typhus experiments; that the subjects were concentration camp inmates who did not volunteer; that they tested various typhus vaccines by artificially infecting the experimental subjects, most of whom had not been previously protected by vaccine; that he further told you that each month they picked out six concentration camp inmates and infected them with typhus for the sole purpose of having typhus-infected blood available for the experiments; and that he further told you that a large number of people were dying as a result of these experiments, What would you have done after receiving that information from Handloser?
A. That is such a theoretical question in a form in which I cannot answer it. I consider it impossible.
DR. NELTE (Counsel for Handloser): Mr. President, a hypothetical question is being asked by the prosecutor. This hypothetical question, of course not intentionally, but in fact, contains accusations against a defendant who has not yet been examined and concerning whom no facts have been proved which would justify such a hypothetical assumption. The same question could be asked if the prosecutor said, "What would you do if someone, anyone, reported such and such fact to you." The mentioning of this one defendant defamates his character without any possibility of his defending himself.
MR. MC HANEY: If the Tribunal please, I think the record very clearly shows that this is a hypothetical question and is put to the witness with certain assumptions made. I used the defendant Handloser because Handloser is mentioned in the decree of 28 July 1942 and according to the prosecution he was subordinated to some degree to the witness on the stand, and I wanted to try to establish what power, what authority, what influence, this witness would have brought to bear if he had knowledge of a criminal experiment. He denies such knowledge. We will attempt to prove, and I think we have already proved, that he did have knowledge, but he denies it and I now want him to assume that knowledge is brought home to him by someone who is subordinated to him in some degree and try to get an answer from him which will give us some indication of the steps he would then have taken.
THE PRESIDENT: The use by counsel for prosecution of the name of the defendant Handloser has no effect upon the Tribunal. The Tribunal understands that this is simply a hypothetical question. The name of any particular defendant might well have been submitted but the Tribunal understands exactly what the prosecution intends by his question and the use of the name of the defendant Handloser is entirely without prejudice to him.
BY MR. McHANEY:
Q Now, witness, tell us what you would have done if you had received this information?
A If I had received this information, I would have reacted to it in a certain form, but this would have had nothing to do with the position which I held at that time. My position in respect to Mr. Handloser at that time was not in anyway that of subordination of Handloser to me. That is a decisive factor in this question. If I disregard my position at the time, if I assume that the year was 1941, I would first have tried to get more information and find out exactly what had happened and what the reasons were, and in some form possible to me I would probably have tried to clear up the situation if it was described to me as critical.
With regard to my position as Commissioner-General and Handloser's position, my position in respect to Handloser, my position in 1942 was clear that it was a question of coordination of general needs with respect to the Civilian Health Service, and within the framework of this work, I could have taken action if it was a special task which had been assigned to me.
Q Would you have gone to Hitler?
A I would probably have gone to him after I had discovered what was going on lay myself.
Q Do you think your influence with Hitler was such that you could have had this experiment stopped?
A That is also a hypothetical question which I shall however, try to answer. It would be very important what the experiments were and what the purpose of the experiments was. It would be important whether he himself had given the instructions which I might have learned only at that moment. I could have referred to various points. He would probably in the case of typhus cite casualty figures, and it was said that in such and such an army group there were so many deaths from this disease and that he wanted to have the information discovered about the theraphy, and it would have been possible for me to have said it is inhumane. In that case he would have given me ten or twenty photographs from his desk of the last air raids, and at the end he would say openly:
"I don't have how I win the war; the important thing is that I do win it." I want to show that the possibility of such a theoretical attempt to prevent experiments would have been limited in its effect. As far as I am concerned, it is an open question whether in such an actual case I could have prevented an experiment or not.
Q Didn't you concern yourself at all with medical experimentation on human beings during the time you were General Commissioner?
A You may be referring to the letter of 1943 concerning hepatitis epidemica concerning which I said yesterday or the day before that it is not clear to me to what extent this letter was written by Grawitz dated the first of June. Up to that time I had promoted research in the field of hepatitis epidemica, at first, and that to clear up the virus question I had suggested to Grawitz that experiments should be carried out. Thus I was formally brought into connection with these experiments after my time in 1942.
Q Well, witness, I seem to get a different picture now about this letter than the one I received from your direct examination.
Do I understand that you now admit that you spoke to Grawitz and suggested to him that experiments be carried out on concentration camp inmates in connection with jaundice virus?
A. No. You did not understand me correctly. I said when I began this sentence that this assumption may have originated with this letter. Two or three days ago I said that it is my opinion since I had not done any work in connection with hepatitis epidemica beforehand that there was probably confusion here, but at the moment I cannot Prove it, of course. I pointed out that one year later op the same question of hepatitis epidemica Mr. Schreiber, who was in charge of epidemic control, wanted to carry out such experiments.
Q. But witness, you now state that you yourself wore not concerned with jaundice research and that you did not ask Grawitz to make prisoners available to Dohmen as stated in the letter.
A. I cannot remember that I asked Grawitz to do this.
Q. Well, were you interested in jaundice research at about that time?
A. The question of jaundice as such was not a specific question which affected me personally at that time. It was a question which was encountered by everyone in the East. The problem of hepatitis epidemica as a disease, as an epidemic, from the year '41-'42 on was a general problem.
Q. Did you concern yourself with experimentation on human beings in connection with any matter other than this jaundice problem?
A. I am not aware that I occupied myself with experiments on human beings dealing with other diseases in any way.
Q. Was it not one of the main reasons for the issuance of the Second Fuehrer Decree on 5 September 1943 that Conti was refusing to subordinate himself to you?
A. Conti was not subordinate to me and could not subordinate himself to me after the first Fuehrer decree. The first decree had not said that he was subordinate to me or that I had any authority over him with the exception of certain tasks of coordination. The Second Decree, as I said, was issued primarily because of the material differences.
As far as Conti played any role here personally, they were differences concerning x-ray machinery, x-ray apparatus. I gave an x-ray company the assignment to establish our supply of x-ray apparatus. Conti told this company and the head of the company not to carry out this assignment. This was the conflict with Dr. Conti in connection with the Second Decree aside from the general medical program tasks which were the most urgent things.
Q. Didn't this Second Decree expressly state that your authority covered the field of medical science and research?
A. As far as it is to be understood in the sense of Decree No. 2, I established an office for that reason called Office for Science and Research.
THE PRESIDENT: The Tribunal will be in recess until 1:30 o'clock.
(A recess was taken until 1330 hours.)
THE MARSHAL: The Tribunal is again in session.
DR. SEIDL: Mr. President, the defendant Doctor Oberheuser, wishes to be excused because of her health today after 3 O'clock.
THE PRESIDENT: On request of Counsel for the defendant Oberheuser, the defendant Oberheuser may be excused from attendance in the court room after 3 o'clock this afternoon.
The Tribunal has considered the question raised this morning by Doctor Sauter for the defendant Ruff, and under tho peculiar circumstances of this case, tho Tribunal orders that Doctor Sauter be permitted to talk to the witness Hippke from this time on, and the order previously issued by tho Tribunal is modified to that extent.
The Prosecution may proceed.
MR MC HANEY: If the Tribunal pleases, with respect to the ruling just made, is the Prosecution required to apply or obtain the clearance from any and all the Defense Counsel prior to the interrogation of Hippke on the part of the Prosecution.
THE PRESIDENT: It is not the intention of the Tribunal to include any such provision in the rule just made.
BY MR. MC HANEY:
Q Herr Brandt, I would appreciate it if, in answering the question which I will put to you, if you would make your answers brief and concise as possible in order not to prolong the interrogation to too great an extent. We were speaking of the second Fuehrer's decree of 5 September 1943. This decree empowers you with centrally coordinating and directing the problems and activities of the entire Medical and Health Service. Was it part of your functions pursuant to this decree to coordinate and direct medical research.
A The sense of the wording in that decree was to avoid having research assignments going entirely to one or the other, and in order to insure that if three or four agencies were working on the same subject, that they be coordinated to start on a common task; that is to say, the results of one group should or accessible to another. This fact accelerated the completion of the tasks with which we ware commissioned.
Q Well, then, if I understood you correctly, it was the purpose and function of your office to coordinate all medical research work in Germany?
A The word "all" goes a little to far perhaps. In order to do that I would have had to have an extensively large office, a larger agency that I had.
Q Did you receive copies of research orders at the time by the medical service of the Wehrmacht and the civilian sector?
A I assume that cert in information came from the civilian and the military sectors.
Q Didn't that decree then give you the power to stop experimentation on human beings, if you had received knowledge of such experimentations and regarded it is improper?
A In such a case, the question would have arisen about whose arm was longer For instance, if the Reichmarshal, through one of his delegates, maybe within the framework of the Reich Research Counsel, and perhaps in connection with Himmler, had order tasks, such an influence on my part would probably have not been possible.
Q I can agree and understand, Herr Brandt, that in a given situation it may be that your objections would have been overridden, but my question was whether you did not receive authority to intervene with respect to medical experimentations, to the best of your ability and power?
A The question of human experiments was not touched upon at all when this decree originated. It was neither assumed nor rejected with that order. What we understand by this order was an order to our scientific academies. It was a completely different line of thought than those which have arisen here. That is why this question with reference to the decree is a question put retrospectively, and not a question which was considered when the decree originated.
Q When did you appoint Rostock as chief of your Office for Scientific Research? And I ask you to distinguish between the use of the word "appoint" and the time as of which he may have became active.
A It is not possible for me to give you the date when this appointment took place. It certainly occurred sometime before the office was opened. It may perhaps not have been declared formally; but Rostock knew that he was going to assume such an office. As to any written appointment, no such appointment was made.
Q As I recall you have previously testified that Rostock became active in the Office for Science and Research in February, 1944. Is that correct?
A Since we had our office in Belitz we exercised our practical work there. It was possible that before this he wrote some letters from his clinic; but I could only refer to an office in Belitz; and that approximately took place in February of 1944.
Q But you don't exclude the possibility that Rostock may have been active in the Office for Science and Research before that time in the office at the university clinic or elsewhere?
A It may perhaps be better to explain it in the following way, that if Rostock had asked anything with reference to science and research before the assumption of his duties, I would have been the chief myself, and Rostock would have written as my deputy or representing me.
Q Didn't Rostock as a matter of fact perform duties for you as general commissioner before 5 September 1943?
A I had no functions for him, and Rostock certainly did not hold the office of a general secretary or anything like that. Maybe he asked for information on my orders, for instance, some questions that he put with reference to various medical equipment; and he also discussed the question of consulting various professional experts. But I can't recall exactly what period of time that took place. If he did that, it had to be understood that I was doing it and he was merely taking some of the burden of my work.
that form. Neither did it happen that Rostock or my department, Science and Research, were concerning ourselves with these questions alone. There were also certain departments in the ministry of Speer which started functioning in the year of 1944.
Q Didn't you and Rostock have the power to decide on the necessity and priority of all medical research work?
A The question of urgency of these research assignments was not directed by Rostock nor by me. The degree of urgency was dictated by certain urgency priority designations which were given by the various research groups. I don't think that I could answer that question with "yes."
Q Didn't you and Rostock then have the power to decide on the necessity of certain research work?
A It has to be considered in the light that one could aid institutes to carry out work.
AAnd you also saw to it if two or three independent groups were working on the same medical problem that their efforts were coordinated, did you not?
A It could well occur. I think two questions arose. Two or three groups could work on the same field; for instance, at various places work was done on penicillin. But that has to be separated from the fact that scientific research itself had certain organizational frames. For instance, there was the Reich Research Council; and then there was a department, Science and Research, the Ministry of the Interior with Dr. Conti. Then, of course, there was the Ministry of Education itself, which dealt with such tasks within its institute.
Q Herr Brandt, how could you and Rostock perform this coordinating function of medical research without knowing what was being done in respect to medical research by the various groups working on a given problem?
A This task could really not be fulfilled in this manner. In order to fulfill it completely, it would have become necessary that I held a much larger position and a larger office than Rostock had at that time.
Q I understand, Herr Brandt, that you accept responsibility for Rostock's actions; but I now want to find out the extent of his cooperation and activity with you prior to 5 September 1943. Now can you give me any period of time prior to that date that he was active with you?
A It is hardly possible to give you any date. Maybe he knows it himself; but I really could not fix a date.
Q You had offices in the university clinic in Berlin, the same building in which Rostock had an office, did you not?
A Rostock was my chief there, yes, clinical chief.
Q What was Rostock's connection with the Reichsforschungsrat, the Reich Research Council?
AAfter I became a member of the Reich Research Council, that is, after November 1942, then at a later date--I don't know whether it was 1943 or 1944--the question arose that a representative had to be appointed for the Research Council. When this question arose, Rostock took over his duties as my representative as a member of the Research Council.
Q Do you remember more exactly when that took place?
A No, it is not possible for me to say that.
Q Was it before or after the decree of 5 September 1943?
A I can't say that.
Q As chief of your Office for Science and Research, did Rostock investigate what medical assignments the Reich Research Council had made?
A He approached certain organizations in order to find out what research assignments were given out; and I assume that he received material from the Reich Research Council for that purpose and then received current reports on the work which was done. But whether he actually turned to the Reich Research Council for special information, I cannot say at the moment. I am sure that he will be able to testify about that very clearly.
Q Did he not investigate these research assignments and see what was being done and then decide on their essentiality?
A I think the question was first as to the subject; he was informed about the subject. The manner of the execution of these research assignments and the extent of these assignments was certainly not reported in Rostock, in addition to his other work, has managed that work.
The question was that certain matters of science and research had to be aided and academies also belonged to that question. The question which you put on the basis of the wording of the decree was not in accordance with the factual events as they took place.
Q Wouldn't Rostock as Chief of the Office for Science and Research go to the Reichforschungsrat and investigate what medical research was being carried on there and direct that priority be given to one medical research task as against another?
A It would perhaps take such a proposal, but the profession medicine within the Reich Research Council was not headed by him. For that there was a special expert designated; and he in turn was subordinated to Goering personally. It is the same relationship as was discussed with reference to Generalarzt Schreiber. In this capacity as plenopotentiary of the Reich Research Council he was also only subordinated to Goering. Therefore, it was only possible over Goering's head, that is only with his consent to give a directive to the professional expert in the Reich Research Council. It would have been different if Rostock had made a proposal to this professional expert, and he had approved it and then started to work on it, or executed such work. This, however; s till means that this professional expert was independent.
Q Herr Brandt; Wilhelm Goering was interrogated about the Medical activity of the Reichforschungsrat from the same chair in which you are sitting, and I am sure it will come as no surprise to you that he was no more anxious to accept responsibility for what went on within the framework of that organization than you are, and as you say you were too busy with other matters, the Reich Marshal protests the same and I am now trying to investigate to find out just who can be responsible for these medical activities at the Reichforschungsrat, and I ask you whether Rostock to your knowledge ever proposed or ordered anybody in the Reich Research Council to give priority to certain medical research work being sponsored by the Reich Research Council?
A The Reich Research Council was an institution which was subordinated to Goering by special decree. Before that it had been an institution of the Ministry of Education. On the strength of that decree Goering became as a president of the Reich Research Council that man who had to assume Rostock could make any proposals as to degrees of urgency of the work that was done in the Reich Research Council, I cannot say, and I should like to say again that he probably could talk about that.
If in this case the expert in the Council, and here we are only concerned with medicine, if he in turn recognizes that proposal of Rostock this does not mean to say that Rostock was the superior of the Reich Research Council. According to the charter of the Reich Research Council and according to the material that I know about that matter, the expert was very clearly subordinated only to the President.
Q Your answer is then that you yourself do not know of any specific instance when Rostock proposed or ordered that a certain research task should give priority by the Reich Research Council, is that correct?
AAt the moment I cannot remember that anything like that has happened. I think it possible that he proposed it. He would probably know more about it than I do. I really appointed him for the purpose of being active in the Office for Science and Research.
Q But you assume the responsibility for his acts pursuant to the operation of the Office for Science and Research, don't you?
A Certainly, I assume it.
Q Now, the decree of 25 August 1944 gave you the title of Reich Commissioner, did it not?
A Yes.
Q And that gave you an office equivalent in rank to a Reich Minister, didn't it?
A My position was considered as a position of a State Secretary.
Q And since you were subordinated directly to Hitler your office was in a position similar to that of the Reich Youth Leader Von Schirak in the organization Todt?
A I made no comparison before. That may be an administrative political question.
Q Well, Wilhelm Frick has drawn a chart on which he shows your office, you holding an office similar to Von Schirak in the organization Todt?
A I should like to say in reference to the position of my office, Minister Lammers could make some statements, since he at that time played some part in the framing of the decree in the year 1944.
Frick maybe had some kind of imagination about it, but when I became Reich Commissioner Frick had not been Reich Minister of the Interior for a year and a half, so he spoke as a Reich protector for Bavaria and Moravia, so I don't know if he could overlook a situation like that.
Q Did the decree of August 1944 give you any power in addition to that which you had as a practical matter on the 5th of September 1943?
A He said that the authorities at that time were not opposed and he therefore gave me the responsibility to carry out the tasks which were assigned and the basis for the assignment was the decree of July 1942.
Q Well, precisely what additional powers did you receive in the decree of 25th August 1944?
A The decree stated that in order to carry out my task I had the right of directive to those agencies which were dealing with questions of medical services, that is State, Party and Armed Forces.
Q Conti really knew he was your subordinate after this decree, didn't he?
A Neither Conti became my subordinate on the basis of this decree or Generalstabsoberst Handloser. If it had been one it would have been the other.
Q Didn't Conti, as a matter of fact, subordinate himself to you after this decree of 25 August 1944?
A No subordination was mentioned in this decree. This decree was not a decree which created any Ministry of Health where I became its chief, but on the strength of this decree my possibilities of functioning were extended, -and the word "extended" probably wouldn't be quite right - "strengthened" would be better. I have stated that the decisive thing for the creation of this decree was the attitude of Conti, who prohibited his associates to aid me in my tasks which were assigned me by the Reich.