Q Could you tell us as a practical matter what powers Handloser received from this language you have just read to us?
A He represents the Wehrmacht as chief. He negotiated with Mr. Conti on the civilian side and also with Mr. Brandt as far as Brandt had any special assignments.
Q Did he have any powers over the other sectors, such as the medical services, the Army, the Luf***waffe, the Navy and the Waffen SS?
A The powers of the chief of the Wehrmacht medical service I don't know in detail. They are set down in other administrative regulations, not only here. They are all the powers which the head of the Wehrmacht medical service had. They were not repealed by this. They were only mentioned here in a certain direction for the purpose of this decree to coordinate military and civilian health services.
Q Now, witness, as I understand it you were chief of the Reich Chancellery. Now, in that position you were considered to be a so-called link between the Fuehrer and all the Reich ministers, is that correct?
A Yes, unless there were express exceptions.
Q Now, isn't it true that your duties dealt mostly with the legislation of now laws?
A No, only with formally directing this legislation. I did. not oven formulate new laws. I only directed the course of the legislation; that is, bills which came from ministers or other officers I turned over to the proper authorities. I received objections and negotiated, and finally some law or some regulation was agreed upon and then I edited that. I was not the legal authority for all questions by any means. I was only in charge of formal things, of the procedure of legislation.
Q Well, now, in that connection for the benefit of the Tribunal will you kindly outline what requirements had to be met in order to promulgate a valid law; that is, did it require a vote of a governing body? Did it need to be duly published on tine official law journal, the Reichgesctzblatt, and all other details necessary to validate any such law?
A If a laws was to be issued, the draft had to be given to all members of the government, to all the Reich ministers, with a certain time limit.
A stamp was put on it which said if until such and such a date -it was cried of two or three weeks, sometimes longer, sometimes less -if there has been no objection by this thee this will be considered approval. As sessions of the Reich Cabinet took place only until 1937 then such things were still discussed, orally. After 1937 there was only a written procedure, and this ended with elimination of certain objections and then approval of agreement on the law.
If one could assume that there was no objection by the ministers then I got the signatures of the ministers concerned, not all of them, and then I gave it to the Fuehrer for his signature. If there were still objections these objections were decided by the Fuehrer, or it was said we had to work on it some more until the objections had been eliminated. And if it was a law it had to be done on this way and then published in the Reichgesetzblatt.
Q Now, Doctor, you have stated that you participated in the drafting of the proposed euthanasia law. Will you tell us what this draft contained, what requirements must be met before the execution of the program would have taken place?
A I can tell you approximately the contents of my draft. First, it was said that under certain conditions the life unworthy to live of German insane persons can be removed. The, as I had intended it---these were only my ideas--then there was to be a provision that the severe diseases were listed from the medical point of view. A paragraph was to be added establishing general exceptions. As I already said this morning insane persons who had became insane through injuries in war were to be excepted; also these who had contracted the disease in public service, also senility; also a number were left open because that was primarily a medical question.
Then careful observation was provided with consideration of the purpose. I had set this observation for one year. It was variable. Then the interests of the person concerned were to be preserved, a special nurse was to be appointed; the relatives were to be questioned, the community was to be consulted and so forth.
And after the period of observation, a group of doctors and specialists, with a legal official presiding, was to decide. Since tie composition of this group varied, one could make various suggestions.
Then the type of election, of voting, was to be determined, and them an executing physician was to be chosen. In my opinion this doctor was to have the opportunity to observe the patient for three months, and if he believed that the decision of the board was not right he should have the case reviewed. There should be an appeal authority. Then there were a number of other questions of execution which I do not remember now, which were to have had to be settled if such a law was passed, so that actually only the most severe cases would be affected, and so that a decision in favor of death would be reached only if it was such a severe case that it seemed advisable to bring about death, if one in general holds the point of view that a mercy death is advisable.
Q Now, Doctor, it is true that your draft of this euthanasia law was never enacted or accepted. You had the intentions, of course, of having this law meet the requirements of all other proposed laws; that is go through the regular procedure and eventually resulting in publication in the Reichgesetzblatt. Is that a correct assumption?
A When I thought about this question, of course, I considered a problem which was not in the field of law and medicine but a problem which was more in the field of legal philosophy and ethics. The question -what are the limits of the power of the legislator -- that, in my opinion, was the basic question in whether or not to pass such a law. But I did not reach any decision on this basic question. I did not want to, I could not; and I did not have to. I was convinced that if this draft is submitted and distributed to all the Ministers -- this took fifty to sixty copies -- then the objection to this measure will be so strong that this measure will die of its own accord, at least will not be settled during war time and can be taken up only when a time comes that these problems can be investigated thoroughly. I was convinced that the objections to a draft would be so strong that the law would never have been passed.
MR. HARDY: Thank you, Doctor. I have no further questions, your Honors.
REDIRECT EXAMINATION BY DR. SERVATIUS:
Q. Witness, you were asked whether this was a formally valid law. You said that the customary requirements were not fulfilled. Are there other possibilities in addition to a law?
A. What the prosecutor asked me was only what in German jurisprudence we call a formal law, a law which has been passed by way of legislation, and one of these ways was a law passed by the Reich Government. Other ways were by passing a decree or a decree of the Fuehrer. The Fuehrer decree had been taken ever from the period of von Hindenburg. It was nothing new that had been established by the Fuehrer, and this Fuehrer decree was not passed in this formal way. No one had anything to with it except the ministers what were participating and they were only consulted.
Their approval was not necessary. The Fuehrer alone determined. And if the Fuehrer wanted a Fuehrer decree or if a minister wanted a Fuehrer decree, then I sent a draft of such a decree to the ministers concerned and asked for their opinion. It was sufficient if the ministers were consulted. whether they had objected, whether they had approved made no difference actually because the Fuehrer alone decided.
Q. Then the external form of a decree does not indicate that it was invalid?
A. That is, in my opinion, a doubtful question.
Q. You mentioned two cases before when these requirements were not necessary.
A. I produced them.
Q. The Minister of Justice considered it a legal decree?
A. The Minister of Justice considered it a legal Fuehrer order and a law. Otherwise he would not have stopped the proceedings.
DR. SERVATIUS: I have no further questions.
DR. NELTE: (Counsel for Handloser): Mr. President, through the questions asked by Mr. Hardy the question of number 1 of the decree of 1942 was brought up for the first time. Therefore, I ask that I may be allowed to ask a question on this number 1 which affects the Wehrmacht Medical Service.
THE PRESIDENT: Counsel may propound the question.
EXAMINATION BY DR. NELTE:
Q. Mr. Lammers, in the creation of the OKW on the 4th of February 1938; that is,when the powers of this OKW were formulate, you were present as chief of the Reich Chancellery?
A. Yes.
Q. Through the decree which has been shown to you of the 28th of July 1942 the organization of the OKW was supplemented by the creation of the office, chief of the Wehrmacht medical service; is that true?
A. When the chief of the Wehrmacht Medical Service -- when this office was created I do not know.
Q. If you still have the decree before you, you will see it.
A. Here it says: "For the Wehrmacht I commission the medical inspector of the Army as chief of the Wehrmacht Medical Service", and so forth.
Q. Then, through this decree he is empowered and thus the office is created?
A. Yes, it is possible. I did not draw up this decree. The chief of the OKW and others had this and examined it. I do not know whether the chief of the Wehrmacht Medical Service existed before this or not. I cannot say. I don't know.
Q. Do you know the powers of the chief of the High Command of the Wehrmacht Keitel?
A. YES.
Q. You testified about that here in he big trial. Will you please tell the Tribunal whether the chief of the High Command of the Wehrmacht, Keitel, was the superior of the commanders-in-chief of the branches of the Wehrmacht?
A. The chief of the High Command of the Wehrmacht, Keitel, was not commander-in-chief of the branches of the Wehrmacht.
Q. Then Keitel could not give orders to Goering or Raeder or Doenitz?
A. They could issue orders in their own fields.
Q. I said Keitel could not give orders to the commanders-in-chief?
A. Keitel could not give any orders to the commanders-in-chief. He could only transmit orders from the Fuehrer to them, but that is true only of the military field for the pure command matters. As far as the chief of the OKW exercised the functions of a minister of war, then things were different.
Q. Handloser was within the OKW the subordinate of Keitel?
A. How -- what Handloser's military position was, I don't know. I don't know to whom he was subordinate.
Q. Then the internal conditions of the Wehrmacht Medical Service are completely unknown to you? You cannot express any opinion?
A. The organizational plans of the OKW -
Q. I was asking you whether you could express any opinion about the powers which Handloser had, from your own knowledge?
A. No.
DR. NELTE: Thank you. I have no further questions.
DR. FROESCHMANN: Mr. President, Dr. Froeschmann for Viktor Brack. I have one question arising from the examination by the Prosecution. May I ask it?
THE PRESIDENT: Counsel may propound the question.
EXAMINATION BY DR. FROESCHMANN:
Q Witness, do you remember that at the end of 1940 or the beginning of '41 the Defendant Brack called on you at your office and that you told him about the draft of the law which you have just been discussing and that finally Brack asked you to give him this law?
A I cannot remember it, but I consider it possible that Brack called on me and that we discussed the draft of the law.
Q Witness, can you remember that this draft which was worked out by you was given to Reichsleiter Bouhler or the Fuehrer Chancellory?
A I do not know, but I consider it possible that I gave Brack or Bouhler a draft of this law, but it was a rough draft; I must state that expressly. It left quite a number of questions open.
DR. FROESCHMANN: Mr. President, I have no further questions.
RECROSS EXAMINATION BY MR. HARDY:
Q Dr. Lammers, will you kindly tell us what are the limits of validity of a Fuehrer Decree?
A From the legal point of view which had prevailed since 1933, the Fuehrer Decree had the same force as a law passed by the Reichsregierung or by the Reichstag.
Q Then, as I understand, your special decrees of the Fuehrer usually contained your name and the name of the particular minister and then duly published in the Reichgesetzblatt, is that right, such as these decrees conferring the authority as General Commission for Health and Sanitation on Karl Brandt?
A The Fuehrer Decrees were published in the Reichgesetzblatt on principle if they were to have full force as law, but there were Fuehrer Decrees which were not published in the Reichgesetzblatt because that did not seem necessary.
For example, all the organizational decrees about the occupied territories, none of them were published in the Reichgesetzblatt.
Q Well, those were usually decrees of an administrative nature, were they not?
A Yes, they were administrative organizational decrees.
Q Well, then, Dr. Lammers, if I have understood you correctly, it is your opinion that the Fuehrer letter of 1 September 1939 pertaining to the Euthanasia program was not a valid Fuehrer Decree, is that a correct presumption?
A I have already said that I would have considered a law necessary.
DR. SERVATIUS: Mr. President, the witness is now being asked a legal question which it is the task of the Tribunal to decide. I do not believe that this question is admissable, and I ask that the answer be stricken from the record.
MR. HARDY: I submit, Your Honor, that the witness here is an expert on German law and I put the question to him was it his opinion.
THE PRESIDENT: The objection is overruled. The witness may state his opinion on the question propounded to him.
MR. HARDY: The witness has answered the question, your Honor. I have no further questions to put to this witness.
REDIRECT EXAMINATION BY DR. SERVATIUS:
Q Witness, you said that there were decrees which were not published. Was the reason for this secrecy?
A That was partially the reason.
Q These were decrees concerning the administration of the occupied territories, is that correct?
A They did not all have to be kept secret.
Q But it was the reason to keep the secret as far as possible.
A Yes, and also the fact that it did not affect the Reich territory.
Q Are there not also other decrees which were kept secret concerning the conduct of the war?
A It may be that there were such decrees.
Q I am thinking of the Reich defense laws.
A The Reich defense law was not published, and when I was examined here by the big Tribunal last year, I always called it an administrative order which was quite valid and permissible because the measures in the field of Reich defense did not require publication.
Q Then the usual form was deviated from?
A The law was not published.
Q And who ordered this violation of the form?
A The Fuehrer did not want this law published and it was not published.
Q Then I conclude that the Fuehrer had the right to determine deviations from the usual form?
A Yes. In the case of every law he could say, "I do not want it published," and then it was not published. It was only a question of whether it came into existence, as a law. It was certainly not a law if it was not published, a formal law, I understand, only a published law.
Q Witness, I am not speaking of formal laws. I am speaking of a decree You said that the form could be modified or changed at the discretion of the Fuehrer.
A No, not always. Normally the Fuehrer Decrees were published.
Q Normally, yes, but you yourself mentioned two cases where this form was changed.
A Well, then, the Fuehrer ordered that they should not be published.
Q And he had the power to do that?
A I assume that he did.
DR. SERVATIUS: I have no further questions.
DR. FROESCHMANN: MR. President, I ask that the ruling just made by the Tribunal be reviewed. I asked the witness whether the Fuehrer Decree of the 1st of September, 1939, could be understood as a decree by persons who were not legal experts, that is, the population in general. The Prosecutor objected to this question, and the objection was upheld by the Tribunal. Now the Prosecution for the same reason has asked the witness about the significance of these decrees.
The Prosecution in view of the legal knowledge of the witness considered this question justified. I believe that the Tribunal will have to change its previous ruling, since what has been granted to the Prosecution may also be granted to the Defense. I therefore, make application that the ruling of the Tribunal be changed and that the question and answer which was stricken from the record be restored.
THE PRESIDENT: The question propounded by Counsel for the Defense to the witness sought to elicit an answer as to what some other people thought or might have thought of the law. The question propounded to the witness by the Prosecution was as to the opinion of the witness upon the law which is quite a different matter.
MR. HARDY: I have no further questions to put to this witness.
DR. SERVATIUS: With the permission of the Tribunal, I shall now call the witness, Gutzeit.
THE PRESIDENT: There being no further examination of this witness, the witness, Dr. Lammers, will be excused.
The Marshal will summon the witness, Gutzeit.
KURT GUTZEIT, a witness, took the stand end testified as follows:
JUDGE SEBRING: You will please face the Tribunal, hold up your right hand and be sworn, repeating after me the oath: I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE SEBRING: You may be seated.
DIRECT EXAMINATION BY DR. SERVATIUS:
Q Witness, when and where were you born? What is your name?
A Kurt Gutzeit, born on the second of June, 1893.
Q You are a professor medicine?
A Yes.
Q Do you have specialized knowledge in any field of medicine?
A In my medical activity I dealt primarily with stomach and intestinal diseases, liver diseases and infectious diseases.
Q Witness, will you please tell the Tribunal any information that may indicate your specialized knowledge; especially since I am going to examine you on the subject of hepatitis?
A In 1920 I took the medical State examination. Then I was an assistant at the City Hospital in Neu Koeln in Berlin. Then I became assistant at the medical university clinic in Jana. There in 1923 I qualified as a lecturer and received permission to hold lectures. In 1926 I became assistant at the university clinic in Breslau. In Breslau I also obtained permission to hold lectures and was instructor for internal medicine. Internal medicine is my special field. In 1929 I became Professor of Internal Medicine at the University of Breslau. In 1930 I became Chief Physician of the Breslau University Clinic. In 1933 I was entrusted with the direction of the Hospital in Berlin. In 1934 I became a regular Professor for Internal Medicine at the University of Breslau and became director there of the medical university clinic where I had formerly worked as assistant. I held this position until Breslau was evacuated in January, 1945.
Q Witness, during the war you were consulting physician of the Wehrmacht and worked in the Military Medical Academy, is that right?
A Yes.
Q To whom were you subordinate there?
A In the Military Medical Academy I was under the commanding officer of Instruction Group C of the Military Medical Academy. That was Generalarzt Dr. Schrieber. As Consulting Internist; which I was appointed at the beginning of the war when I was drafted into the Wehrmacht, I was under the Army Medical Inspector; Professor Dr. Waldmann.
Q. That information will be sufficient. Witness, did you concern yourself with Hepatitis research?
A. Yes.
Q. Do you know the specialist, the other specialists who worked in the field of Hepatitis research?
A. I know a number of them by name, perhaps all of them.
Q. Will you please mention tho more important ones?
A. In the Military Medical Academy was Stabsarzt Doctor Domen, who was also subordinate to the Commanding Officer of the Military Medical Academy. He dealth with Bacteriology; that is, with research into the cause of Hepatitis Epidemica. Also, I know of two assistants from the Leipzig University Clinic, and a third name I do not remember at the moment, were concerned with research into the cause of Jaundice. The two assistants of Professor Burger were Sieder and Gurtner, who had, at an earlier period, worked on the question of Hepatitis.
Q. Witness, that will be enough, thank you. You spoke of Doctor Demon. Did Doctor Domen have a research assignment?
A. As far as I recall, and I do not believe that I an mistaken, in the course of his work on Hepatitis, Demon received a research assignment.
Q. do you know from whom tie assignment came?
A. The assignment came from the Commission for Epidemica Research of the Reich Research Counsel, that was Generalarzt Doctor Schreiber.
Q. Did you work with Doctor Domen?
A. In the field of Jaundice it was one field. We worked together in different sectors; and I was interested in the cause of the disease, and the conditions which caused the disease with the statistics of the disease, the question of how dangerous it was and the consequences. While Doctor Domen was in charge of the bacteriological research, I tried to determine what was the cause of this disease.
That this disease was contagious had already been shown to be very probable by the clinical research which I had conducted.
Q. Witness, what kind of work did Doctor Domen do? Do you know that?
A. Doctor Domen worked from scratch. He tried by means of animal experiments, from certain secretions of the patient, to cultivate the germ in the animal. It was necessary first of all to find the right animals in which these germs could be cultivated and finally it was possible to transfer the germs to the animal, to inject the animal, that is to produce an animal disease; and row by transferring the germ from one animal to another, to pass on disease from one animal to another. --- that is called animal culture, animal passage. And, these investigations were carried on later by the cultivation of the germs in the clinic. It was shown that this was not a bacterium as had been assumed in previous years; that the cause of the disease was a sub-microscopic organism which had to be grouped with the virus.
Q. Witness, what did Doctor Demon actually do? How far did his work go?
A. He believed that he had found the cause of Epidemica Jaundice. This was indicated by a number of factors.
Q. Witness, this information is sufficient. Now, did Doctor Grawitz have anything to do with this experiment?
A. When Doctor Domen bad cultivated his cultures in the animal and when in the meetings of medical Societies, this research word of Doctor Domen had been discussed frequently, the wish was expressed by various people that these cultures should be taken over from Domen. Grawitz was interested in Jaundice research because everywhere in Germany, particularly among the troops and in the camps, in refugee camps, concentration camps, in children evacuat ion camps, Jaundice was playing an enormous role in Germany.
He also wanted to have cultures from Domen so that he, himself, could have further experiments made. This request of Grawitz, as well as a similar request from Haagen, another research worker, also concerned with the bacteriology of Jaundice -- Domen refused this request.
Q What was the reason for this?
AAnd, he did this for the following reasons: He did not want to give his cultures away, let them out of his hands, because it was a certain scientific property. The other people who approached him in order to get the cultures had not, or had hardly dealt with the whole question of Jaundice at that time. He wanted to retain control of the use of these cultures, and that is why he refused. Grawitz approached me to induce Doctor Domen to give up some of his cultures. I also took Doctor Domen's point of view.
Q Witness, did Professor Brandt have anything to do with this Hepatitis research?
A I did not hear that Brandt carried on this research. He was interested in it as many people, as many doctors were at that time. In view of the urgency of the problem Hepatitis was an important problem because we had no way of preventing it, to reduce the incidents of the disease, and we had no way of combating the disease with any specific drugs.
Q Now, did Professor Brandt do anything in the way of research; did he appear in the field of research?
A Not to my knowledge.
Q *** Domen a subordinate of Professor brandt?
A No, I have already said Domen was under the Military Medical Academy, and Professor Brandt had nothing to do with the Academy directly.
Q Did he not receive an assignment from Brandt directly outside of this?
A I know nothing about that.
Q Would you have learned of it?
A I think so, yes.
Q Witness, now for the disease itself, is Hepatitis a dangerous disease, dangerous to life?
A Hepatitis has a mortality figure according to the experience gained in the second world war of less than 0.1. The deaths which occurred were generally not due to Jaundice itself, but other diseases caused death, and Jaundice was only an additional factor.
Q Witness, is the therapy of this disease dangerous?
A No.
Q How is the disease treated?
A I have already said we had no specific therapy. The therapy consisted of rest in bed, warmth, especially the stomach and intestine and liver region, treatment with vitamins, and so forth. Convalescent serums could also be used, that is, serum from people who had recovered from the disease. That serum would be administered. A certain diet was also important in order to protect the liver as much as possible.
Q That is enough. Thank you.
THE PRESIDENT: The Tribunal will now be in recess.
(A recess was taken).
THE MARSHAL: The Tribunal is again in session. May it please your Honors, defendant Oberheuser has availed herself of the permission granted by this Tribunal to be absent and is absent for the latter part of this afternoon.
THE PRESIDENT: I ask the Secretary General to make a note for the record the absence of the defendant Oberheuser because of her physical condition, with permission of the Tribunal. Counsel may proceed.
Q Witness, is there any prophylactic measure possible against hepatitis? If such a prophylaxis is given by means of vaccinations, then are vaccinations necessary which can be fatal to the experimental subject?
A Vaccines against hepatitis as far as I know have not been found and have not been introduced yet. These experiments were under way at that time. In my capacity as a clinical man, as far as I can judge this, the development of the vaccines and the experiments in winning these vaccines are not dangerous. The fact that they are not dangerous shows that the spontaneous disease of jaundice in itself is not dangerous. Like all other vaccines, a vaccine which might be developed against hepatitis could have some slight unimportant reactions at the spot where the vaccination is performed.
Q Therefore you consider it impossible that fatalities could occur?
A No, I cannot imagine that.
DR. SERVATIUS: Then I do not have any further questions of the witness.
BY DR. NELTE (for the defendant Handloser):
Q Witness, you are Consultant Internee with the Medical Inspectorate of the Army?
A Yes.
Q First with Professor Waldmann and then afterwards, from the 1st of January 1941 on, with Professor Handloser?
A That is correct.
Q During your activities as Consultant Internee with the Army Medical Inspectorate did you maintain your position as professor and director at Breslau?
A I have maintained my civilian activity at Breslau as far as military duties which had been given to me permitted it. Part of the time I was at the Military Medical Academy in Berlin, at my place of work, and sometimes I was also at the Breslau University Clinic and I have treated the patients which were located there and I have also given lectures.
Q Was this also the case with other consulting physicians?
A That was common practice in the case of almost all consulting physician who worked within the zone of the Interior.
Q That is with all those who here worked with the Medical Army Inspectorate. That was common practice?
A No. That cannot be said. I was a reserve medical officer and I also had a civilian activity. However, there were also consulting physicians who were active military physicians and they, of course, worked at all times in the military sector.
Q Well, of course, I only referred to the reserve physicians. All those consulting physicians who were only civilian physicians, did they not also exist?
A There were several consulting physicians who were not in uniform at all. I can remember Professor von Eichen in Berlin, the director of the Ear University Clinic, and Professor Lohlein, the director of the Eye Clinic of the University of Berlin.
Q Is it, therefore, correct to say that the consulting physicians who otherwise had a civilian medical activity also during their conscription as consulting physician carried out a double function?
A Yes, certainly - in a way.
Q And that also in their civilian sector they were not subordinated that the Army Medical Inspectorate.
A In civilian medical activities they were not subordinated to the Medical Inspectorate.
Q Will you please tell the Tribunal about the official positions of the consulting physicians which played an important organizational role in the case of Handloser?
A There were consulting physicians in the field Army, within the home Army, and furthermore with the Army Medical Inspectorate and were everywhere where so-called medical officers in charge were located. Furthermore, consulting physicians were used for the support of the physician in charge.
Q Did these consulting physicians have a certain military rank?
A That was not the case. A certain grade had been provided for the consulting physicians in question. However, he was only able to reach this grade when they had grown into that position on account of their age. For example, there were consulting physicians with the relatively low military grade of the assistant physician and there were other consulting physicians who in accordance with their age or their special skills occupied higher military grades. Actually there were all officer grades represented by consulting physicians.
Q Is it not militarily un-normal to a certain extent?
A The whole status of consulting physicians from a military point of view was unusual and it was unnormal. The consulting physicians on the basis of their position actually did not fit in within the small military framework. Already for the reason because they were in part also taking ca of the civilian work. The consulting physicians for example in contrast to other medical officers did not have any authority and they did not have any disciplinary authority either. Their activity consisted, as is shown by their name, of consulting others.