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?
A Bouhler decided, yes, which ones were to be actually selected. When and how he discussed that matter with Brandt I really don't know.
Q You named some of the doctors who were active in euthanasia stations. Do you know who was in charge of the euthanasia station Brandenburg?
A During my interrogations I already stated that I could no longer say with certainty where or at what stations these physicians were working. I thought at the time to remember and I already stated what I knew at that time. However, I don't know that it is all quite correct.
Q Is the name Wirth (W-i-r-t-h) familiar to you in this connection?
A Yes, I know that name.
Q Will you tell the Tribunal who Wirth was?
A Wirth was a Captain in the Police who was in charge of the local registry office at Grafeneck.
Q Is the name Gorgass familiar to you, G-o-r-g-a-s-s?
A The name Gorgass, yes. I heard the name Gorgass now as the result of reading the newspapers. I, of course, can not remember whether he was active as an expert or in any other function within the euthanasia program.
Q But you know that he had a function in this program, don't you?
A Yes, I remember that again.
Q You named some of tho doctors who were active in the euthanasia program. Now, I would like to know whether you can advise us how many exports there were? Experts?
A I really can not give you the number. I know there was quite a number of them, 10, 15 or 20. I am afraid that I can't give you the exact number.
Q How many top experts were there?
A There were three top experts at any rate, there may have boon four.
Q You gave us the names of three. I understand you are right? They were Heyde, Nietsche, Falkelhauser. Is that right?
A No, Schneider.
Q Heyde, Nietsche, and Schneider? Who was the fourth one?
A The fourth may have been Professor Decrinis but I no longer know that with certainty.
Q You were chief of Office II of Bouhler's office, is that correct?
A Yes.
Q Would you say you were something like a deputy to him as far as the euthanasia program was concerned?
A No, certainly not.
Q You were his collaborator, is that correct?
A Yes.
Q What exactly was your activity concerning the euthanasia program?
A My activity varied. At first I had to establish connections with all those agencies who could name physicians. I had to got into contact with the physicians themselves.
Q which wore the agencies which gave you the names of these doctors?
A There was the Ministry of the Interior, that was Dr. Linden, then there was the Reichsarzt-SS Dr. Grawitz.
Q Somebody else?
A No, nobody else.
A What else did you do to get the program in operation?
A I participated in the conferences. I arranged conferences for Bouhler whenever he intended to hold them and many more things like that.
Q You could possibly state this a little bit more in detail, can't you?
A It is rather difficult to state it in greater detail. My duties were of such a varied nature that I could hardly recall the details after 7 or 8 years have lapsed. Nobody could demand that from me.
Q What did you do after the euthanasia program was in progress? Euthanasia stations worked, questionnaires were filled out, the people were administered mercy deaths, what was your activity in the program then?
A. I no longer or hardly any longer concerned myself with that part of Bouhler's assignment because I didn't have to, since it ran by itself, and I again turned to the tasks within my own sphere of work to a full extent.
Q. All right. But, for instance, who supervised the operation of T-4? It was the place where all these questionnaires were kept. It was the heart of the thing, wasn't it?
A. Yes. T-4 had its own chief.
Q. Who was the chief?
A. That was, at first, Bohne, and later Allers.
Q. And what was the position of the top experts in T-4, or in connection with T-4, especially Heyde and Nietsche?
A. That is very difficult to say. One could perhaps say that Bohne, to all intents and purposes, was the Chief of T-4, hut really, as far as medical matters were concerned, Heyde made the decisive decisions. Bohne was no physician.
Q. And you made the liaison between Heyde and Bouhler, isn't that correct?
A. Yesterday I rejected the words "liaison man" which, at one time, I did recognize because, after all, I didn't have my office in T-4 but was located in my office on Vosstrasse. I may have been the mediating man between Bohne and Bouhler. Whenever Bohne or Linden came to Bouhler's office, Bouhler was not always there, was not always in a position to receive them, and often detailed me to listed to them personally and then, in turn, report to him in the course of the general reports that I had to make daily.
Q. Euthanasia, as you said yourself, involves a considerable medical problem, isn't that correct?
A. Yes, certainly.
Q. Who was in charge of this part of the program?
A. All the persons who were designated by Bouhler, as experts and partly as consultants. There were psychiatrists, there were physicians, there were professors.
Q. So, and the top expert - the first top expert - was Heyde, was he not?
A. Yes, he was one of the top experts.
Q. So, he was directly under Bouhler, was he not, according to what you just said?
A. No, he really had a free hand. Heyde wasn't Bouhler's employee, in the same way as Professor Schneider or Professor Kiener or anybody else weren't Bouhler's employees. These physicians were the representatives of the medical thought which prevailed during the execution of euthanasia.
Q. But Bouhler was in change of the execution. Bouhler and Brandt were the two people who got the assignment by Hitler, were they not, so it seems to me natural that these people were just in charge of Heyde.
A. Well, in that case it would have had the result in Heyde giving up his position as a lecturer and going over to Bouhler and Brandt as their employee if there was to be a definite relationship of subordination, but that certainly wasn't the case.
Q. Isn't there a possibility that one person has two different tasks?
A. Yes, that is possible, but these are considerations which didn't prevail at that time and I can hardly give you any authentic statement now as to how to distinguish between these relations.
Q. But you know that Heyde was the first top expert? That you know, don't you?
A. Heyde was the first top expert.
Q. You testified here that you are convinced that a man like Heyde never would have lent himself to the carrying out of the euthanasia program in concentration camps, is that correct? In the way it was described by the witness Mennecke?
A. I don't think that Heyde would have placed himself at the disposal of something like that.
Q. You have further testified that he and Nietsche and Falkelhauser were the people who gave you the assurance that the examination which was carried out in concentration camps by order of Himmler, or at the request of Himmler, would be for the benefit of the inmates and that these people never would have taken part in such measures as Action 14F-13 was. Is that correct?
A. No, what I said was that I did not believe that people like Heyde or Nietsche would have participated in anything like that. I certainly never discussed that with them.
Q. But I understood you testifying that you know that doctors who were connected with the euthanasia program carried out examination in concentration camps. Isn't that correct? On the request of Himmler? Didn't you say that? Examinations?
A. No, I said that I was convinced that such people, if they have performed any such examinations, have performed them in a. way which corresponded to their scientific ideas and would have done that correctly.
Q. Did you know that examinations of insane or mentally disturbed people were carried out in concentration camps?
A. No, I didn't know that. I received the order and I passed it on. I don't know, however, whether, how, and by whom this order was executed.
Q. To whom did you transfer this order?
A. I already said that I no longer knew whether I transferred this order to Heyde, Nietsche, or Allens. I assume that it must have been one of these three gentlemen.
Q. And this order was purely for the carrying out of examinations, not of the applying of the mercy death to people who were found insane in these concentration camps, was it?
A. Yes this was done exclusively for the purposes of examination.
Q. Do you know anything about a connection of Heyde with the Action 14-F-13?
A. No, I know of no connection whatsoever.
Q. Would you, as collaborator of Bouhler, take the responsibility for such activities of Heyde about whom you testified here that you are convinced that it would have been impossible that he would have lent himself to such activities?
A. I cannot assume responsibility for any acts of any person of which I know nothing. If I say that I am convinced that some person did the right thing, this certainly does not constitute a positive knowledge that the person concerned always acted correctly. This is purely an expression of my conviction. If any third person should have acted in an incorrect way, I certainly cannot assume responsibility for his acts.
Q. But you were the close collaborator of Bouhler, and Bouhler was in charge of the program. The top expert, the first top expert, of the program was Heyde and Heyde carried out these measures. I want to put to you Document No. NO-3799, which will be Prosecution Exhibit 497 for identification. This is an affidavit of a camp doctor in Dachau, Muthig. I am reading from paragraph 3 - no, paragraph 4 - I'm sorry:
"In the fall of 1941 during an official visit by Dr. Lolling to my infirmary I was informed by him that a commission of four physicians under the direction of Professor Heyde would visit the Concentration Camp Dachau in a short while. The purpose of this commission was to select concentration camp prisoners who could not work for transfer for the purpose of euthanasia and to transfer them to the Concentration Camp Mauthausen to be gassed. The announced commission appeared a short while after this conversation with Dr. Lolling. It consisted of four psychiatrists, and the leader of the commission was Professor Heyde, who was also one of its members. I myself as well as the other camp doctors of the Concentration Camp Dachau had nothing to do with the commission or their work. I did see, however, that these four doctors were sitting at four separate tables between two barracks, and that many hundreds of concentration camp prisoners were formed up before them, and had to go to one of the doctors one by one. The prisoners were screened there according to incapability to work and their political documents and were selected accordingly.
I know that this commission spent only a few days in Dachau and that it was impossible for them to give a medical examination to so many prisoners in so short a period. The examination consisted solely in the examination of the documents while the concentration camp prisoner was present. Selected in this action were prisoners, men of German nationality and citizens of other nations, Jews, etc. I can definitely state that Professor Heyde directed that commission, and that he was a member of it himself, although I have forgotten the names of the other doctors.
"In December 1941, several weeks after this commission had left the CC Dachau, the first transport consisting of several hundred CC prisoners who had been selected by this commission of psychiatrists left for the CC Mauthausen to be gassed, and another transport of prisoners, also consisting of several hundred selected by the commission, left for the CC Mauthausen in January 1942. I cannot swear whether there were more transports, as I was transferred from CC Dachau shortly after the second transport. The action of selecting prisoners unable to work for the purpose of euthanasia in CC Dachau was known under the name 'Aktion Heyde'."
DR. FROESCHMANN: Mr. President, I would like to put the question to the prosecution as to whether it intends to offer this Document NO2799 in evidence.
DR. HOCHWALD: I offered it now for identification. We do intend to offer it as an exhibit but it was offered according to the ruling of the Tribunal for identification.
DR. FROESCHMANN: Mr. President, until such time as this Document NO-2799 is offered as an exhibit officially I object to this document's being shown to the defendant, because first of all we have not yet had the opportunity to look at the document beforehand, in order to investigate its probative value. In addition, it seems to me that this Dr. Julius muthig, who made this statement on 17 April 1947, can easily be made available so that he can be put on cross-examination.
DR. HOCHWALD: The witness is available for the defense for crossexamination. He is, as far as I know, in Dachau in confinement.
THE PRESIDENT: The objection is overruled. The counsel for prosecution may examine the witness concerning the document which has been identified and marked, which counsel states will be offered later. If counsel for the defense desires the witness for cross-examination, he will notify the Tribunal and the Tribunal will consider his request.
BY DR. HOCHWALD:
Q. Are you still of the opinion that the personality of Heyde gave you the assurance that an examination carried out by him in a concentration camp could be for the benefit of the inmates?
A. If the contents of this document correspond to the facts, I should have to correct my opinion. I may point out to you that Heyde in the Fall of 1941 had already left the administration of euthanasia.
Q. You were a collaborator of Bouhler's, were you not? How far was it you went on your own initiative?
A. That depends entirely upon the circumstances. I really don't know what you mean by initiative. Do you mean, was I an ardent representative of euthanasia, or are you referring to the extent of my authority?
Q. No, I am asking you whether, in the circles which were informed of euthanasia in spite of the top secrecy of this program, you were considered as a representative to a certain time, 1944 for instance.
A. The Question didn't come through.
Q. I asked you whether the people who were working in this program did not consider you from 1944 on as the representative of the euthanasia program sometime in 1944?
A. That perhaps is possible. It is possible that because of some error somebody considered me as a representative of that program from the year 1944 on. I should like to emphasize again, however, that in the year 1942 I left for the front and since that time had nothing at all to do with euthanasia or its administration. If any person in the year 194is of the opinion that I was Bouhler's representative in the euthanasia work , if would only be a blatant error. I wasn't even in Germany at that time.
Q. Did you, when the allies occupied Germany, make some arrangements that the gas chambers of certain euthanasia stations may be destroyed so that the evidence of euthanasia may disappear?
A. No, I made no preparations of that kind. I wouldn't have been in a position to do so. I never even thought about any such thing.
Q. Do you know whether or not Hitler issued an order to this effect?