A That I do not share Professor Leibrandt's point of viewcan no doubt be seen from my numerous self-experiments which were not without danger, but I did experiments on other human beings considerably different than Professor Leibrandt, because I believe that human experiments is both good and bad, like any other human action it can be permissible or criminal, depending on the special conditions under which it takes place. I consider the problem much more serious and much more complicated than Professor Leibrandt described it here. For him and for Mr. Moll, whose book Professor Leibrandt quoted here at length, experimental medicine is a subject of historic philosophical, psychological consideration. From such a point of view from his desk, it is very easy to judge experimental medicine and one of its most important tools, human experiments, and to condemn it, but at the same time to recognize the results of experimental research and to use these results as Professor Leibrandt does, for example, as a practicing psychiatrist, as he uses malaria treatment for paralysis which a few years ago was still in a stage of human experiments, but Professor Leibrandt was kind enough to explain himself that life is a logical and he himself is no exception. The whole medical world has a different point of view then Professor Leibrandt does. It is very easy to find dozens of examples of this. I have said that I consider the problem more serious and. more complicated then it looks according to Professor Leibrandt's description. It is serious because it affects the basis of medical action and medical responsibility. There is no doubt that the doctor is primarily obligated to help the patient who asks him for aid, and there is no doubt either that the doctor as a research workers has the obligation to work on the progress of medicine and to find new ways and means of treating the individual patient. That this field is very difficult is indicated by the fact that as fan as I know no country in the World has a valid law setting for the duties and rights of the doctor as a research worker.
According to German law a medical action, for example an operation is an assault which is not punished, simply because it is performed at the request of the patient or because it is not immoral or because there was no malicious intent, but German penal law, at least, can not find any positive judgment on medical action.
Professor Leibrandt has quoted Dr. Moll's book "Medical Ethics" and has called it in a sense the medical code of ethics. I did not know this book before this trial. I never heard it quoted in a lecture or saw it quoted in any other book, although for eight of my 11 semesters were before 1933. But in the meantime I have studied Moll's book very thoroughly. Moll's writes expressly that everything which he writes about medical ethics refers only to the strictly limited duties of the doctor, as the doctor treats the patient. He states expressly that for other branches of the medical profession, for example the university professor, a medical professor, and the doctor as a research worker, there are other duties. Moreover how much Moll's medical ethics, which was published in 1902 is limited by its time is clear from one example. For Moll it is a serious problem whether, for example, a gyneocological examination can be made by a male doctor, and Moll tries to avoid this difficulty by saying that such examination should be carried out only by female doctors. This is only an example of how in less than half a century the concepts of ethics change, especially if it is not a matter of ethics but of prudery.
If one has read Moll's book and if medical ethics is not a slogan, but a life task, one sees in this book only the enormous difficulties and one sees that Moll's books is no more a cheap patent solution for all medical questions than the Oath of Hippocrates, for example. I don't think that anyone in the World will reproach the American physiologist Wendell Henderson, who is very well known and quoted very often in Germany, because from 1914 to 1918 he worked on the problem of poison bullets by order of his Government. Of course, the doctor and the research workers, beyond the narrow framework of his patients has an obligation to the community in which he is placed by fate.
As a witness who is certainly not suspected of Naziism, I may say the Swiss Psychiatrist Professor Bleuler, who in 1919 in his book "Artistic Thinking and Medicine," wrote "I should like to emphasize that a doctor is not the helper of one patient at the expense of the other living beings and human beings of the future, but is the helper of many. And for that reason he must let his results be influenced by the general social point of view just as well as from the individual point of view of a certain patient."
I read this book for the first time in 1939. I have quoted it repeatedly in my own work. For example No. 7 and 9 of the papers on this list which is Exhibit No. 1. What is said here by the doctor as a helper of the individual, and the community, is valid in my opinion, or the same way for the doctor as the research worker.
I consider that the very serious side of the problem which becomes complicated, because human experiments are carried out daily and everywhere in enormous numbers in all fields. It is performed on volunteers and non-volunteers, on healthy persons and on sick persons, on children, insane persons, prisoners, internees, rich and poor. So much has been said about it here that I don't want to "carry coals to New Castle." I shall therefore not cite any individual examples, but only want to say that not only for the layman, but also for the experts in looking over the literature on the subject is it extremely difficult, if not impossible to draw a clear line between experiment examinations, tests or simple observation.
Q Witness, you have told us your basic point of view briefly; do you consider all types of human experiments equal disregarding the question of the experimental subjects or of their basic differences?
A Of course there are great differences, and distinction must be made between a clinical experiment on one hand and a physiological experiment on the other hand. In the clinical experiments, the research worker must have sick persons if possible for his research work, or he must make persons sick in order to observe the origin, course and influence of the disease. For instance, Goldberger's pellagra subjects in Mississippi actually contracted pellagra, the same subjects of the Swiss scientist Bleuler, whom I mentioned before, were actually sick and were observed and given specialized treatment, while they were sick, so were Arnims famous experimental subjects. Klausen in Hawaii actually contracted true lepra. Smith and Fay in the United States and Eltorm in Denmark carried out their experiments, cold treatment with rectal temperatures up to 24 degrees celsius on cancer patients, and Dill and Forbes carried out the same treatment on the insane.
On the other hand there is the physiological experiment, which would include either simple examination of normal procedure for example the composition of the heart blood by means of introducing a catheter from a blood vessel into the heart experiments, as Korne and Hillner in New York and Michael in London performed, or the examination of the blood supply of the brain by Lennox and Gibbs by a puncture of the neck vein.
All of the physiological experiments are made to determine the limit of endurance. I should like to refer to the work of our own physiological experiments made under great heat, for example, cold or dust or a similar thing, medical questions about expeditions in the Polar regions or on the top of the highest mountains of the world. Such physiological experiments were carried out for example in the form of fatigue and hunger tests on conscientious objectors in the United States.
In aviation medicine we were used to this sort of problem even during peace time, because altitude is one such problem of endurance. The decisive thing in all such physiological tests, to my mind, is that the person in charge of the experiment always controls, always is able to approach the extreme minute, step by step and can stop the experiment at all times. He merely need make the conditions normal again which had been made abnormal for the purpose of the experiments.
The sea-water experiment, which is one of the subjects of this trial, will later give me an occasion to go into this subject in greater detail. Here specifically I hope to be able to show that it was not the purpose of the experiments to penetrate beyond the limit of what is normal, but to test this limit. In conclusion, I should like to say that I hope I will not be misunderstood to mean that I consider only physiological experiments permissible. I know that clinical experiments can be absolutely essential and that clinical experiments may be performed under quite permissible conditions. Since Professor Schroeder and Dr. Ruff have already gone into the same subject, I need not say any more about it. I cannot see how these experiments are supposed to have been among destructive plans, which in the opinion of the prosecution are held in common by all the experiments on trial here. I believe that everyone who seriously deals with this problem, especially anyone who performs dangerous self-experiments on the problem as a Doctor must come to the conclusion that the point of view of completely rejecting human experiments does not help at all.
Q Witness, I have the impression that you have thought about the problem of human experiments more than the normal doctor does. So far you have spoken of this problem only from the point of view of medical ethics, but I do not believe that medical ethics is the only point of view which must be considered here. Will you please tell us something about this problem from the point of view of general ethics, I believe that is rather important in this question.
A Of course general ethics also play an important role. The doctor is only one side, on the other side is the rest of the public such as private patients, experimental subjects, such as prosecutors or as judges, but I should like to point out two things. First, these are particular questions belonging to a very complicated specialized field which are very difficult to judge and it will not be possible without the opinion of an expert. On the other hand, general ethics is something which has been established eminently since the time of Adam and Eve, which finds only one correct solution for every question. I don't believe that the problem is as simple as that and misunderstood and misdirected ethics would not harm the Doctor, because there are always fewer doctors than lay-man, that would not harm medical science ethics, but it would harm humanity as a whole. I should like to give one historical example. Today hundreds of thousands of people annually would die of small-pox, would become blind, or would suffer defacing scars if Immanuel Kant's idea had prevailed, who in 1794 opposed smallpox vaccinations in the form of variolation as a violation of the laws not to bring one's self into danger of death and who a few years later opposed the introduction of vaccinations seriously because and I quote: "Through Yenner's innoculation humanity puts itself on a level with animals and a type of brutality might be injected from the animals." In spite of Kant's ethics, in spite of a lack of means opposed to vaccinations, which only existed in Germany, this problem has been solved for the good of the population, who was more ethical Immanuel Kent or an absolute state authority, which in a sense of racial planning ordered the doctors to perform vaccinations.
Q Now a final question on the ethical side of the problem. Witness, you know the oath of Hippocrates, which you have mentioned and which has been repeatedly quoted by the Prosecution and that it has been set up in a way as the binding fundamental law for all branches of medi cine; now I am a lawyer, not a doctor and I had little to say against this point of view of the prosecution and was quite astonished to hear some time ago on a program broadcast by a Munich radio station a commentary by a Doctor Suesskind who comments on this trial and who commented on the previous trial that a number of doctors had written to him saying that this oath had been to them only a vague concept up to this trial, because many of them had learned of it only long after they had finished their studies and worked as assistants.
I was more astonished to learn that no doctor in Germany is ever sworn to this oath in its original form or any other form. Now, witness, will you please comment on this matter of the Hippocrates oath, which goes like a red thread through the whole trial?
A. I knew the oath of Hippocrates as a student already. After I graduated from high school in my first semester as a medical student, together with a friend who was studying philology, I read Hippocrates in Greek. I did not take this oath to Zeus and other Greek Gods any more than any other German doctor, nor did I take the oath in a modernized and improved form, as is the custom in some other countries when a young doctor receives his certificate. The oath of Hippocrates, of course, contains a number of very important and fundamental duties of a doctor, but it does not contain any more than Moll's book does any indications of the duties of a doctor as a research worker. Since Hippocrates himself was not only a practicing physician but without doubt a medical research worker of some quality, one can only conclude that he says nothing in his oath about the duties of the medical researcher, because he, probably just like Mr. Moll, realized the enormous and almost unsurmountable difficulties with which this problem confronted him, and again like Moll the oath of Hippocrates contains many things which, when it was written, 500 years B C, was valid and correct, but which has been changed in the meantime. For example, the strict separation between the doctor and the stone surgeon and the surgeon, has nothing to do with medical ethics, and if today in Germany the struggle against paragraph 218, for the release of social indications, for the interruption of pregnancy
Q. May I interrupt you, you mean paragraph 218 of the Reich Penal Code, witness, which in Germany prohibited and furnished abortion and permitted it merely for medical reasons?
A. Yes, that is what I meant. If this struggle is being carried on today passionately and as the article of "Nurnbergernachrichten" of the 18 January 1947 shows, is carried out publicly, an advocator of paragraph 218 will hardly be able to refer to the oath of Hippocrates in his defense where an abortion was prohibited for all reasons, even for medical reasons.
It was not forbidden because Hipocrates considered it unethical, but simply because in those days surgical technique was not developed to the extent that such an operation could be performed without danger. But I should like to point out one thing that I have always raised so far in the discussions of the Hippocratic oath. Hippocrates was the founder of a very limited medical school or guild on the island of Cos, and his oath was intended for the protection of this young guild or doctors against the priest doctors who had been all powerful up to that time. Hippocrates sealed his school hermetically against all others by this oath and his great ethics were that the followers had to swear that everything he learned at this school would never be told to any other doctor except to the members of the school of Cos who had taken the same oath. For Hippocrates the medical journals and medical text books would have been a very great violation of his oath and unethical for the purposes of his school. The oath of Hippocrates does have one great advantage, it comes from antiquity. Hippocrates himself did not write a long commentary on his oath and anything or nothing can be proved by it today.
Q. Witness, I think you have said enough about the medical aspect and I gather that you mean to say that neither Moll's book nor the oath of Hippocrates nor any other publication clarifies the ethical side of the medical activity, because this problem is so complicated that it cannot be settled simply. Now, in conclusion a final practical question whether the subjects were volunteers or not, under what conditions would you personally consider experiments on human beings, not self-experiments, but experiments on other human beings permissible?
A. First of all the experiment must be necessary, that is, the problem underlying it must be important, and no solution must be possible in any other way. Second, the experiment must be conscientiously prepared for by model experiments, by animal experiments and if possible by self--experimentation of the doctor; and, third, of course, the execution of the experiment must correspond to the rules of medical action. That is the root of considerable thought which must be given to the matter here. Those are the three conditions which I consider necessary.
JUDGE SEBRING: I didn't understand your last words, he named three conditions. I didn't get them. I didn't understand the last one.
WITNESS: In the third place, the execution of the experiment must strictly conform to rules applied to medical action. I meant to say by that for the doctor as a research worker the experimental subjects must not be considered as a number or case but must be a human being just like any patient who comes to him for aid and he must take into consideration all their needs as human beings.
DR. TIPPS: Mr. President, I am at the end of the general questions and I would suggest that we adjourn now before going into the individual counts of the indictment.
JUDGE SEBRING: Witness, in regard to your views on human experimentation you have named three requisites, three, - one, two, three?
A. Yes.
Q. Now, suppose those requisites or prerequisites are present, to what extent in your view is it ethically necessary to advise the experimental subject of the natural purpose and perhaps reaction so far as he, the experimental subject, is concerned, to be expected from the experiment?
A. I would put that under point 3. I would say that just as the doctor should tell the patient as far as he can what treatment he considers advisable for a certain case, especially if it is an operation with a certain degree of danger, of course, the doctor as a research worker must tell his experimental subject so that the subject understands what the experiment is all about, what danger may be involved, what damage may be done, but also how important the problem is and what can be achieved by the solution of the problem.
Q. Could you approve as medically ethical any experiment which fell short of that point, of giving complete advice to the experimental subject?
A. If I may repeat your question, you asked whether I would consider it unethical to carry out an experiment with an experimental subject to whom I did not explain the danger and all of the details of the experiments?
Q. Precisely.
A. In an experiment which involves danger I would consider it absolutely essential to explain these dangers to the subject beforehand.
THE PRESIDENT: The Tribunal will now be in recess until nine-thirty o'clock tomorrow morning.
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 20 May 1947, 0930, Justice Beals presiding.
THE MARSHAL: Persons in the court room will please find their seats.
The Honorable, the Judges of Military Tribunal I.
Military Tribunal I is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the courtroom.
THE PRESIDENT: Mr. Marshal, you ascertain if the defendants are all present in court.
THE MARSHAL: May it please your Honor, all defendants are present in court.
THE PRESIDENT: The Secretary-General will note for the record the presence of all the defendants in court.
Counsel may proceed.
HERMANN BECKER-FREYSENG - Resumed DIRECT EXAMINATION (Continued) BY DR. TIPP (Counsel for the Defendant Becker-Freyseng):
Q Dr. Becker-Freyseng, yesterday, at the end of the session, we were discussing the general ethical fundamentals referring to the experiments on human beings which we concluded. Today, we are going to discuss the individual counts of the indictment as they are raised against you. The prosecution charges you at first to have participated in a conspiracy to commit crimes, together with your co-defendants, crimes against humanity and war crimes. I shall be very brief in connection with this count because in my opinion there is no legal basis for any conspiracy in that respect. However, that is a question which will later be discussed in your final plea. Therefore, witness, I ask you what was your connection before May 1945 with your co-defendants with whom you are alleged to have carried on a conspiracy?
A I did not know ten of my defendants. These are Dr. Genzken, Professor Mrugowsky, Dr. Rudolf Brandt, Dr. Poppendick, Mr. Sievers, Mr. Brack, Dr. Hoven, Dr. Pokorny, Dr. Fischer and Miss Oberheuser. I knew the names of four of the gentlemen on the basis of their position, but I never exchanged, a word with them. These are Professor Karl Brandt, Professor Handloser, Generaloberstabsarzt Professor Gebhardt and Professor Blome. I knew Professor Rostock in his capacity as head of the medical faculty of the University of Berlin. On the occasion of qualifying as a lecturer I was introduced to him and I discussed this question with him. On the basis of mutual activity within the Air Forces, or rather within aviation medical research, I knew Professor Rosa, Dr. Ruff, Dr. Romberg and Professor Weltz. In the same way, I naturally also knew Generaloberstabsarzt Professor Schroeder as my highest superior. I knew Herr Doctor Konrad Schaefer and Professor Beiglbock.
Q Before I start entering upon the subject of the individual experiments, which are the subject of the indictment against you, I may ask you to describe your position during the war. You knew that it is your position in particular which has been taken by the prosecution as the basis of the indictment against you. In my opinion a number of concepts have to be clarified which have been either misunderstood or mistranslated. The first point, the prosecutor in the session of the 12th of December 1947, in the English record, page 309, designated you as Chief of the Department of Aviation Medicine with the Chief of the Medical Service of the Luftwaffe. Accordingly, you are to have occupied a leading position in research work. You had the key position in the air medical research, as Professor Alexander once described it. May I ask you, witness, to clarify this point here?
A First, I have to say in that connection that with the Chief of the Medical Service of the Luftwaffe there was no department at all for aviation medicine.
Q Witness, I believe that before clarifying your position in particular it will be necessary to describe to the Tribunal briefly the organization and the structure of the Medical Service. I think it is necessary to do that in order to understand what you really granted to testify. Would you please do that.
A Yes. Professor Schroeder has described the structure of his office in this witness stand, seen from his own perspective. In other words, he saw the pyramid from its top. Since I was really at the base of this pyramid, may I again describe the structure from my perspective. In the Medical Inspectorate, rather, in the position of the Chief of the Medical Inspectorate of the Luftwaffe, approximately 23 referents were active. Every referent administered, I might say, a definite referent. Any such referent consisted of this one referent, one female clerk, and on some occasions, one soldier who was a clerical assistant. I do not believe that this unit in the German usage of language can be designated as a department. These referents were organized in groups or departments. In the office we had two such departments, the so-called first department, or organizational department, and then the second department, or the medical department.
To each of these departments belonged perhaps eight referatss and at the head of each department was the department chief. In addition to these two departments there were two so-called independent groups or units and one independent referat. These two independent groups were the groups for medical air precautionary matters, then the group for the pharmaceutical service. The independent referat was the referat for budget matters concerned with all financial questions. The essence of these independent referats were that the head of these groups, the budget referat, with his sphere of work, held the position of a departmental chief. That is to say he could make independent decisions, which was expressed by his signing the letters himself which eminated from his field of work. All the other referats had no authority to make decisions.
Q I think it would perhaps be better to go into the details a little later. Now we are talking about the structure of this office and you were just saying that the lowest branches were the referats, which were combined in the departments and at the head of each there was a departmental chief; would you please continue.
A Yes. Above these two departmental chiefs, or the independent referats, was the chief of staff and over the chief of staff there was the medical inspector, who from the first of April, 1944 was the chief of the medical service of the Luftwaffe.
Q In order to summarize, witness, this agency had the structure of a pyramid, the bases of which were the individual referats who were each headed by a referat. In the referats were included the department of which there were two. The highest position was the medical chief himself, who was at first Professor Hippke and then Professor Schroeder. Between the departmental chief and tho medical chief, there was also a chief of staff.
You yourself were one of twenty five referats and at first you were only an assistant referat.
A Yes, this description is correct.
Q Very well. Now, witness, let us continue where we interrupted earlier. Let us talk about the assertion of tho prosecution that you were the chief of the department for aviation medicine.
A It can be seen from my description that no such department existed; for that reason I could not have been the chief of a non-existent department.
Q What was really your position from what time on did you hold it?
A In August of 1941 I was assigned to the medical inspectorate as an assistant referat at the Referat aviation Medicine. I remained in that position until 15 May, 1944; from 15 May 1944 until 8 May 1945 I was tho referat for Aviation Medicine.
Q One further question for clarification. Witness, you know that your co-defendant Dr. Schaefer designated you as tho research consultant of Professor Schroeder. This can be found in the document book of the prosecution, document book No. 1, I beg your pardon, document book of the prosecution, document book 5, document No. 474, Exhibit 131, on page 6 of the German and page 6 of the English document book. Would you please once more clarify this point clearly?
A I do not believe that Mr. Schaefer meant that I was the research consultant in all research matters. Dr. Schaefer had much too little insight into our office in order to know that. In addition he has far too little military or organizational experience in order to be able to deal with these questions at all.
At the most, he could only answer this question from the very narrow prospective of the research in which ho acted in collaboration with me. I, therefore, do not believe that he really wanted to express any such general opinion.
Q One further question, witness, you were saying that in your opinion Professor Schaefer did not mean that you were then research consultant in all medical question; in your position as referat from May, 1944 were you not at least the research consultant in the field of aviation medicine?
A I was referat and not a research consultant; that becomes evident from the fact that in the agency of the chief of the medical service of the Luftwaffe, there are approximately 20 to 25 so-called consulting physicians and among them there were four consulting physicians for aviation medicine.
Q Could you tell us who these consulting physicians for aviation medicine were?
A These four consulting physicians were: first, Professor Strughold; second, Professor Anthony and after he had been transferred then Dr. Benzinger and then either Dr. Kottenhoff or Dr. Koch, I no longer know that exactly.
Q. Witness, it may be advisable now to compare the activities of the consulting physicians with the activities of the referat; when for instance would the medical chief turn toward the referat and when would he turn toward the consulting physician on aviation medicine?
The referat was always approached whenever it was a question of dealing with current work. For inst once, whenever some request or some question arrived from a technical agency or an army unit, whenever a suggestion arrived from a research institute by mail at the office, it was a matter of course that the referat in charge was entrusted with the dealing of this matter.
When, on the other hand, we were concerned with a scientific proposal, let us say a proposal for a now research assignment or something like that, and it was a matter which was not absolutely clear, then either the referat on his own initiative suggested to him the attitude of the consulting physicians on that subject, the attitude of either one or more of these consulting physicians or the department chief, or the chief of staff or the medical chief, did it on his own initiative or ordered it. Naturally the referat also uttered his view regarding any such proposal. We were in no way just mail clerks or file messengers, but under circumstances the referat suggested a number of alternatives on that subject, he pointed out the many difficulties and in order to solve these difficulties he asked that another recognized expert be heard on the subject, an expert for instance in the form of the consulting physician. In order to put it explicitly, while a personal view was expected from the consulting physician a material view was expected from the referat - perhaps many of those material views.
Q If I understand you correctly, witness, the referat so-called delivered to the medical chief, the so-called technical equipment and he dealt with all the technical preparations for any decisions that had to be made, whereas the consulting physician made the actual proposals for any work that was to be carried out; is that a correct presentation; we shall discuss that of course in detail a little later.
A Well, this distinction between tin technical and material prerequisites... Of course, the suggestions made by the referat were also material, but as consulting physicians we always had top exports in the field whose opinions ware in no way binding for tho medical chief.
The medical chief just listened to their opinions, in other words, what I want to say is tho consulting physician had to adopt a more personal manner toward these natters.
Q. I think, Mr. President, that this point has been now clarified somewhat. I may recall in this connection the testimony of Dr. August Dienock who was heard as a witness for Professor Schroeder, and who also had given some testimony in regard to that point. This was in the session of 26 February 1947. You will find the corresponding testimony in the German record on page 3764 and in the English record on Page 3726.
THE PRESIDENT: Counsel, I note that in document No. 474, the affidavit of defendant Schaefer, to which you referred, the defendant Becker-Freysing is described as a research adviser and not as a research consultant. I don't know whether that makes any difference in the German language but from what you said yesterday it seems to me that the English word "consultant" conveys to you a somewhat different meaning from that which it frequently conveys to us. Of course, many words are used sometimes in a different sense, but this exhibit to which you referred, the one I gave, uses the word adviser, not consultant.
DR. TIPP: Mr. President, I may say perhaps the following in that connection. This word "consultant" in particular has been used in various meanings during this trial. As a rule as far as I could ascertain this word as used for the so-called consulting physicians. The interpreter translated that word this morning as consulting physicians, whereas the other interpreters perhaps just said "consultants" but I do think that this point has been clarified sufficiently and I need no longer go into it.
MR. HARDY: May it please the Tribunal, this point is one which has taken a considerable length of time in this Tribunal in that Schroeder spent some time on it and Mr. August Dienock spent some time on it, and now we are here again and I must frankly admit from the explanation we have this morning I am confused.