Your Honors, I only have to add one thing to this document. I want to emphasize that not one word of this affidavit was put into the mouth of the witness or was suggested by me. He sent it to me from Hamburg in the very form in which it is now. This concludes my submission of document Mr. President.
THE PRESIDENT: Then, I understand, Counsel, you are not offering Brack Document No. 47?
DR. FROESCHMANN: Mr. President, I just overlooked that. The decision regarding the submission of documents, Brack No. 47, and document No. 3, in document book No. 1, I should like to reserve in case the cross-examination by the Prosecution give me an occasion to offer these documents I shall probably not come back to them.
THE PRESIDENT: Very well, Counsel, I just wanted to be sure that you had not inadvertently overlooked it.
DR. FROESCHMANN: I dispense with the submission of document No. 33 in document book No. 2, page 21.
THE PRESIDENT: The Prosecution may cross-examine the witness.
CROSS-EXAMINATION BY DR. HOCHWALD:
Q. May it please the Tribunal, Herr Brack, you are not a doctor, are you?
A. No, I am not a physician.
Q. And Bouhler wasn't a doctor either?
A. No Bouhler was not a physician, either.
Q. Did you receive psychiatric training?
A. No, never.
Q. You were, however, very much interested in the question of euthanasia from the theoretical point of view; were you not?
A. No, I never was interested in the question of euthanasia.
Q. But after 39, when you got the information from Bouhler that you were going to work with him in this program, you started to be interested in this question, and you read some books didn't you?
A. Yes, at that time I started to get interested in that question. I considered it my duty to inform myself about this as much as possible.
Q. Did I understand you correctly in saying the work of Binding and Hoche was the standard work on euthanasia?
A. I was told the work of Binding and Hoche was the standard work about euthanasia; in addition, however, I read some other books.
Q. Do you know this work of Binding and Hoche very well?
A. No.
Q. Do you remember whether it is a thick volume, or a small book, or what form it has, and what is in there?
A. Yes, I do remember that. It was a relatively small volume. It consisted of two carts; one part contains the chapters of interest to lawyers, Binding, and the other constituted the chapters for the psychiatrist, Hoche.
Q. You just said there was a part made up of legal matters, in German, by Professor Binding is the legal man, isn't he? So, I take it many legal questions came up in the euthanasia program; for example, whether certain persons should be informed about the true cause of death of the victims, further, attitude of the different judicial authorities, and so on. Who handled these questions in the office of Bouhler, if they were handled in the office of Bouhler at all?
A. I beg your pardon, do you mean the decisions which Bouhler made with regard to the notification of relatives?
Q. There were some people, a certain circle of people who were, in spite of the secrecy, so I understand from your testimony, who were, in spict of the secrecy of the Euthanasia program, informed about the program itself -certain doctors and possibly also certain legal people; the Ministry of Justice, and so on; who handled these questions and the correspondence which resulted from these questions?
A. These questions of a legal nature were generally dealt with by Dr. Bohne. He was assisted, as far as I know, by a certain Regierungsrat Zervalsky or some such person.
Q. Not by you or by one of your collaborators in the Chancellery of the Fuehrer?
A. No, not by me.
Q. But, I have seen from the evidence here that you were the person who was approached in questions of an administrative nature, whether the questions came up from the legal authorities or from the SS. Do you remember they introduced some evidence, correspondence with Freissler? And you yourself, mentioned yesterday quite extensively the correspondence with Himmler and that you were twice for a conference with Himmler, and there you spoke to him about euthanasia and he spoke to you about it; is that correct?
A. No, I went to Himmler once with a question regarding euthanasia.
Q. But, he wrote to you when he got these complaints from Such about euthanasia; he wrote you a letter, didn't he?
A. Yes.
Q. So, you were the person who was approached in such questions, were you not?
A. No, I was the person to whom Himmler turned in cases like that.
Q. And what about Freissler? Freissler also turned to you, didn't he?
A. No; as it can be seem from the documents, I gave certain instructions to Freissler by order of Bounder, but Freissler did not turn to me.
Q. You contacted him by order of Bouhler; was that regularly that you handled these things for Bouhler?
A. That differed. A number of matters were dealt with by the Reichsleiter directly, and sometimes he told me: You deal with this in this or that form -- and that is what I did.
Q. Was it often that he gave you such tasks to preform?
A. That varied.
Q. Was it once a week or once a month?
A. Almost daily I had to report to Bouhler; or I was called into his office to receive instructions, because I had to report to him about my entire work.
Q. You reported daily to him in connection with the question of euthanasia?
A. No, about the work of my office.
Q. I am coming back to the question which I asked you just now. Was it often that you got tasks of this kind? Tasks dealing in the euthanasia question, of a legal or administrative nature, from Bouhler?
A. Yes, I certainly did receive such assignments from Bouhler, but I cannot tell you how often.
Q. All right, I want to ask you now -- I have before me document 630 PS, Prosecution's exhibit 330, document book 14, part I, page 3, your Honor. This is the letter from Hitler to Brandt and Bouhler. You have been speaking quite a while about this document, and I only want to ask you -- on the bottom here -- do you have the document before you?
Q. On the bottom there is a hand written note "Given to me by Bouhler on 27 August 1940, signed Guertner". Dr. Guertner was the Minister of Justice, was he not?
A. Yes.
Q. Guertner, according to this note, received the document nearly a year after its issuance. Why was he not informed earlier? He was the highest legal authority. This was a very important matter. It was the legal basis to the whole euthanasia program. How was it possible that such a far-reaching and important authorization over the life and death of 550 to 600 thousand people was not handed to Guertner earlier than that?
A. Because of secrecy Bouhler didn't want to s end this letter or decree to any other agencies. Guertner, of course, was informed much earlier, but at this period of time Bouhler upon his request sent him a photostatic copy of that decree in order to keep it in his own files.
Q. I am at a loss to understand that. You toll me that Bouhler certainly informed Guertner long before that time, so the authorization was not secret any more to Guertner. Why didn't he give him the document, such an important document?
A. I didn't get your question.
Q. You told me that Bouhler did not want to hand the document to Guertner because the document was top secret, did you not? By this same reply you told me that he certainly informed Guertner much earlier than 27 August 1940 about the contents of the document, I would like to know why then, after the information Guertner got from Bouhler, the thing was not secret for him any more, why he did not get the document right away from Bouhler. Can you explain that?
A. Well, perhaps I didn't express myself properly before. Bouhler didn't want to give the original or a copy out of his hand. As far as I know he informed Guertner orally much earlier in the same way as he also informed others.
In this connection I remind you of the affidavit of Schultze, who confirmes how Bouhler informed the Minister of the Interior of Bavaria, Wagner, to wnom he only showed the document. He didn't give it to him. I know this characteristic of Bouhler's.
Q. Isn't it a fact that Bouhler informed Guertner only after too many complaints wore made to the public prosecutors all over Germany and these complaints came to Guertner, their chief, isn't that a fact?
A. I really don't know when Bouhler informed Guertner.
Q. Did you ever, or your office, receive those complaints of the public prosecutors?
A. No. We never received any complaints from the public prosecutors. We had some from the Ministry of Justice.
Q. Who handled these affairs in your office?
A. Bouhler at first dealt with these questions, and I then received orders from him to investigate the complaints that seemed to be justified. I made excerpts from these complaints or perhaps sent the original to T-4 in order to investigate whether any mistakes had been made, and I wanted to see that all mistakes which were caused by the secrecy -- be avoided in the future.
Q. Did you also investigate the so-called unjustified complaints?
A. Actually every complaint was investigated which created the impression that a mistake had been made. If, however, a complaint read as follows: "I state that within the area X ten or fifteen people had died at one institution within three months," I certainly couldn't investigate any such complaint, because it merely showed facts.
Q. I want to hand you now Document NO-1328 which wall be Prosecution Exhibit 495 for identification. This is a letter from you to Schlegelberger -- who was the acting Minister of Justice, was he not?-of 22 April 1941; there you have some of these complaints. Do you remember this letter, Herr Brack?
A. I don't remember this letter, I would have to read it first.
Q. Is that your signature?
A. Yes, that is my signature.
Q. You write here: "Very honored Party Member Dr. Schlegelberger, Corresponding to our agreement, I beg to refer to some details of the proofs, which were put at my disposal. I would appreciate their clarification and /or regulation.
Part 1 of the enclosure contains a report by the president of the regional court at Klagenfurt, dated 7 November 1940, on the interrogation of a counsellor at the lower court, Dr. Spusta, who made almost monstrous utterances regarding tho 'Aktion' in a civil verdict. Dr. Spusta's attempts to justify himself in this interrogation protocol appear completely insufficient."
Does that refer to tho euthanasia program, the word "Aktion" here?
A. Yes.
Q. I go on: "In Part 11 of tho enclosure, the prosecutor general at Linz reports to the Reich Minister of Justice on 28 November 1940 on an investigation procedure against assistant physician of our Hartheim institution in connection with the case Guenther Rottmann. The Prosecutor General prevented the quashing of this proceeding. Since it can be assumed that the Prosecutor General at Linz belongs to the persons who were informed by Secretary of State Freisler about the "Aktion" in August 1940, his behavior is inconceivable in every respect.
"In Part IV of the proofs at my disposal, the president of the higher court at Bamberg reports on 14 January 1941 about a petition of the judge at the court at Kitzingen concerning its law officer Ramling. When his mother-in-law brought her daughter, Frau Ramling, into a mental institution because of mental sickness, she had to sign a document stating her consent teethe imminent death of her daughter. I would appreciate it very much if the law officer Ramling would be officially requested, to indicate tho institution as well as tho name of the director of the institution and/or the name of the admitting physician concerned, so that the matter can be investigated.
It stands to reason that within the frame of our 'aktion' relatives were never requested anything corresponding to Ramling's statement.
"I request also to ask the judge at the court at Kitzingen as to give the name of the professor in a large town who is in charge of a hospital there, so that this fact can also be clarified. "Many thanks in advance for the trouble you are taking.
Heil Hitler, Your very devoted Brack" So you handled this matter in the office of Bouhler, didn't you?
A. I can remember this connection rather well because Bouhler had already told, me that the Ministry of Justice was compiling such complaints made by the Public Prosecutors. I received these complaints, as they are mentioned here, in about three or four books. I worked through these complaints in detail and took the necessary steps as far as any mistakes could be ascertained which were made at T-4. I transferred these complaints to that agency in order to prevent such mistakes in the future. As can be seen from this letter, I sent reports to the Ministry of Justice in three or four cases where mistakes had apparently been on their part, so that they could investigate these mistakes.
Q. It is a matter of fact, then, that these legal questions, so far as they came up in Bouhler's office, were handled by you, is that correct?
A. No, that is not correct. That does not constitute any dealing with legal questions.
Q. Did you concern yourself once, during the years you worked with Bouhler on this problem, as to what the opinion of the official legal authorities was as to the question of euthanasia?
A. I informed myself about the opinion of the jurists, not the opinion of the legal authorities, and I found out that opinions differed. Some were for it and others were against it. I never heard personally of any objection raised in the ministry of Justice. I heard, however, that some lawyers were against euthanasia - not all of them were for it.
Q. You lectured in the Ministry of Justice about euthanasia, did you not?
A. Yes.
Q. What did you tell these gentlemen as to how many people approximately in Germany would be administered a mercy death? How many persons?
A. I don't believe that I mentioned any number there.
Q. What impression could these gentlemen have about the number of people who should get the privilege of mercy death by this action?
A. As far as I remember, these matters weren't discussed at all. I first showed them Hitler's decree; secondly, I presented to them the draft of the law which had been worked upon. On the other hand, Heyde spoke about the medical execution.
Q. What was the impression Heyde gave to these people? How many persons possibly would be privileged to get a mercy death in connection with this action?
A. I don't know whether Heyde mentioned any numbers, either. I only know that no objection was raised during that meeting against the problem of euthanasia.
Q. Did you tell in this lecture who would be exempted from the privilege?
A. I don't believe that I said that. I think that that was mentioned by Heyde.
Q. Are you sure about that?
A. I said "I believe". I really don't know any more.
Q. It was mentioned, wasn't it? These classes of people who were exempted were mentioned?
A. I really can no longer say today.
Q. Can you tell me about this work of Binding and Hoche? You are very familiar with this work, aren't you?
A. No, I am not. I said that I studied this.work, and I already stated yesterday that I didn't particularly like it. I said that I was more favorably disposed toward another book, the one by Melzer. I didn't particularly understand the legal statements made by Binding.
Q. That was the only reason why you did not like this book by Binding and Hoche, or had you other reasons too to dislike it?
A. I really can't tell you that at the moment. I only know that it didn't seem as clear to me as other books.
Q. But you are familiar with the principles stated there, aren't you?
A. Partly perhaps.
Q. I have the impression from this book that these authors by no means ask for the right to kill incurable mental patients no longer capable of work or eventually even incurable, but only suggested killing of incurable imbeciles - and, so far as I know, there is a difference between an insane person and an imbecile - in accordance with some formal legal procedure, a very complicated legal procedure, implemented with every possible decree. Is that correct? Am I correct in assuming that that is the principle on which the book of Binding and Hoche is based?
A. Well, I must tell you quite frankly that I really cannot confirm whether you are right or not. I didn't quite agree with what Binding says about denying the right of life to the patient. That is how I conceived his opinion. On the other hand, I always thought that it was a duty to aid the patient by granting him mercy death. I think that I was on a different level, although I arrived at the same aim.
Q. So, in other words, your opinion then about the mercy death or about the privilege of mercy death went much farther than the opinion of Binding and Hoche? Isn't that correct?
A. No, not farther hut different.
Q. And where is the difference?
A. Binding has said that the incurably insane person no longer has a life which is legal property. This is a purely legal concept under which I couldn't imagine anything. Whether the life of an incurable patient constitutes a legal property or not I cannot judge. I really cannot judge whether mercy death could be granted to such a person. What was important to me was the question of whether he is suffering to such an extent that one is justified in relieving him of that suffering. This is an argument that I understood.
Q. But there are very many insane who are not suffering at all, aren't there? Who have no pains? Who are, many times, feeling subjectively quite well? Who do not want to die? Is it possible to administer to such people the mercy death, according to your opinion, or according to the opinion of Binding?
A. Well, I really cannot judge that. Please ask a physician.
DR. FROESCHMANN: Mr. President, I object to this type of questioning. Mr. President, you will remember that the Tribunal yesterday afternoon forbade me to deal with the problem of euthanasia as regards the legal and medical point of view. I think that this ruling should also be applied to the prosecution.
IR. HOCHWALD: If Your Honors please, the witness stated at great length yesterday his personal position to the problem.
THE PRESIDENT: The cross-examination is proper. The objection is overruled. If, on cross-examination, the prosecution opens up avenues which were not proper upon direct examination, upon re-direct examination counsel for the defendant might be permitted to ask certain questions. But the difference between direct examination and cross-examination is pronounced. The objection will be overruled.
At this time the Tribunal will be in recess, and today it will be in recess until 2:00 o'clock.
(A recess was taken until 1400 hours, 16 May 1947.)
AFTERNOON SESSION (The hearing convened at 1415 hours.)
THE MARSHAL: The Tribunal is again in session.
MR. HARDY: May it please the Tribunal, before the continuation of the cross examination of the Defendant Brack by Mr. Hochwald, I have two questions to take up with the Tribunal.
The defense counsel has requested that the case of the defendant Beiglboeck come before the case of the Defendant Hoven, so that the cases of Becker-Freyseng, Schaefer and Beiglboeck will be continuous, in as much as the three cases delve into the sea-water experiments and it won't break up the continuity of the presentation of the evidence. The prosecution has agreed with the defense counsel if it is agreeable to the Tribunal and we would like to hear the case of the defendant Beiglboeck before the case of the defendant Hoven.
THE PRESIDENT: The suggestion made by counsel for the prosecution and for the defense will be approved and adopted by the Tribunal.
MR. HARDY: In addition to that, defense counsel for the defendant Mrugowsky, Dr. Flemming, has notified me this morning that he intends to call another witness on behalf of the defendant Mrugowsky. He wishes to call that witness after the testimony of the defendant Brack has been completed. I have no knowledge as to what that witness will testify and have not been able to formally object or acquiesce and I should like to hear from the defense counsel for the defendant Mrugowsky as to the name of the witness and what the witness will testify to.
THE PRESIDENT: The defense counsel for the defendant Mrugowsky will advise the prosecution and the Tribunal.
DR. FLEMMING: Mr. President, we are here concerned with the witness Scharlau.
The witness Scharlau has been approved to be heard here on behalf of the defendant Mrugowsky. He will first of all testify as to the time during which the meeting took place in the Ministry of the Interior on 29 December 1941. In addition, he will testify concerning a number of questions in connection with the Hygiene Institute. He will speak about the discussion to which the hand-note of the defendant Sievers refers. It says there that the field of work of Rascher was discussed with Mrugowsky. Scharlau had been present during that conference and his presence is mentioned by Sievers in that file note.
MR. HARDY: Your Honor, due to the fact that this application has been approved by the Tribunal, I have no objection to the calling of the witness, however, I might ask the defense counsel if it would be possible to secure an affidavit from the witness, then perhaps the prosecution could stipulate with the defense counsel and then perhaps avoid calling him before the Tribunal.
THE PRESIDENT: How long do you estimate, counsel, that the testimony of this witness will require?
DR. FLEMMING: Perhaps one hour, Mr. President; and I am now speaking of the direct examination which I think will last at most for one hour.
THE PRESIDENT: Does the Counsel for the defendant think it possible to have the witness prepare an affidavit and use that in place of calling tho witness in open court?
DR. FLEMMING: I shall investigate the question once more and then come to some agreement with the Prosecution.
MR. HARDY: It is apparent, Your Honor, that the case of the defendant Brack may well be completed early Monday morning. In that event it will be necessary to call this witness on Monday, and I assume that Dr. Flemming can ascertain whether or not an affidavit will meet his needs this afternoon, and we can agree on it the first thing Monday morning, and bring it up before the Tribunal at that time?
THE PRESIDENT: I assume that Counsel for the defendant can make up his mind whether or not an affidavit will be sufficient on behalf of his client before very long. The Tribunal would hear the witness following the case of the defendant Brack, if the Counsel for the Prosecution had no objections to the matter as stated.
MR. HARDY: The Defense Counsel has outlined three points that the defense witness will testify too, and it seems to me those points can well be taken Care of in an affidavit as well as taking up the time here before the Tribunal. In that event I would stipulate with tho Defense Counsel after he has executed the affidavit. If the prosecution docs not desire to cross examine I do not think it is necessary to bring the witness here on direct examination.
THE PRESIDENT: Yes, I understand the position of Counsel. Tho Counsel will consult and decide at the earliest possible moment as to tho course the Defense Counsel desires to follow. The witness can be heard following the case of the Defendant Brack, if it is not deemed by tho Defense Counsel that an affidavit is sufficient.
The cross examination may continue.
BY DR. HOCHWALD:
Q. May it please the Tribunal, Herr Brack, before the recess we spoke about the Binding and Hoche book on Euthanasia, did we not?
A. Yes.
Q. I would like to refresh your memory as to the contents of this book. I have here a few short excerpts. This is document No. 2893, which will be Prosecution's exhibit 496 for identification, Your Honor. Do you have the document before you?
A. Yes, I have it before me.
Q. This is the book you wore speaking about, were you not?
A. Yes, the title is correct.
Q. So, I quote from page 28:
"But one conclusion results as unconditionally necessary: The full regard of the will of life of all human beings, of the most sick and the most tortured and the most useless ones too."
and, you will find another quotation from page 34:
"As already stated above, any authority of annihilating is to be excluded if connected with breaking the will of life of the individual to be killed or the killed."
Do you agree with this point of view?
A. I have already said this morning these purely legal considerations cannot be commented on by me; I can only say that I was not in a favorable disposition toward these considerations. Maybe I did not understand them, because I am not a lawyer. Maybe it is because these considerations contain aspects to which I could not agree. At any rate, these are considerations which have nothing at all to do with the considerations which prompted me -- which were initiated simply by pity for the human being - rather than by calculated reasoning.
Q. All right, but, so you are of the opinion that the privilege of mercy death can also be given to people who still have the possibility to resist and who want to live, is that your opinion?
A. No, no, in no way at all. If somebody has the will to live it would no longer constitute an act of mercy.
Q. But, you do remember the document D906, Prosecution's exhibit 376, that is in document book 14, part 3, page 281, Your Honors. And I want to quote only one sentence. Unfortunately I do not have the German, but it is only one sentence. I want to quote:
"The wildest scenes imaginable are reported to nave taken place then, as some of these people did not board the bus voluntarily and were therefore forced to do so by the accompanying personnel."
Do you not think these people had still the possibility and power to resist and they did resist? Didn't they?
A No I do not believe that. There are two possibilities here. Either this is a statement which is based upon a rumor which may have resulted in connection with and because of the secrecy, and an exaggeration of something which really took a different course entirely or in the case as it is represented here we are concerned with patients of the kind I saw on my visits to these institutions who had been locked into the so-called strong houses and who constituted severe danger for entire humanity.
Q If they were behind lock and key the danger for humanity wasn't so big, was it? This is an official report so far as I can see from the document and not information of rumors. Do you know that the ideas of Binding and Hoche were by no means universally approved in Germany and in other places?
A I really can not judge that because as I already said up to tho time Bouhler received that order I did not at all concern myself with the problem of euthanasia but during conversations I heard just as many approving as rejecting opinions.
Q All right. The letter of authorization which we have been speaking about, Exhibit 330, to Bouhler and Brandt says that Brandt and Bouhler had the responsibility of enlarging the authority of certain doctors by name. Who did select these doctors?
A Bouhler selected them.
Q Bouhler was not a medical man. Did he know the doctors?
A No, but he had that order by Hitler. Professor Hoffmann or Professor Schneider couldn't select these physicians. It was Bouhler who had received that order to increase their authority.
Q I take it from the document Brandt and Bouhler got this authorization from Hitler, and not Bouhler alone.
A Yes. Brandt, of course, had to give his approval but Bouhler at first made the selection among the physicians which were designated to him by name.
Q And Brandt gave his approval, is that right?
A I don't know. I must assume so. I wasn't always present during conversations between Brandt and Bouhler.
Q Did you ever receive a list of names of doctors who were authorized to administer euthanasia?
A No. I already stated that I don't know whether I did receive such a list. I don't know whether any such list existed. At any rate I didn't receive one. I also said that considering the small number of physicians I hardly think that any such list was compiled.
Q Am I right in assuming that it must have come to your knowledge whether such a list existed or not?
A No.
Q Where could a list have been without that you would have seen it?
A Such a list could have existed in Bouhler's office. It could have been the same in Linden's office.
Q Who selected the doctors in the euthanasia stations about whom you told the Tribunal today that they had the last judgment whether mercy death should be administered or not?
A I can not give you any information about that in detail. I do know, however, that Linden made such proposals to Bouhler and I furthermore know that Bouhler then had these physicians call on him and then talked to them.
Q Bouhler alone, in other words, selected these people on his own responsibility?
No. I was just saying that Linden made the corresponding presentation to him.
Q You said that Linden made the proposals but that Bouhler selected them, is that correct?