Q. Then may I put another question to you?
According to what you have said, these experiments actually materialized since the technicians had the stronger influence, as you put it, and since they were being supported by Professor Eppinger and Professor Heubner?
A. In not quite that sense. That possibly they might have gone over to the technicians' side, but they did consider it appropriate not to deprive Berkatit of all its useful purposes.
Q. Well, then, if it hadn't been decided, during that meeting, to carry out experiments - of course, this is a purely hypothetical question, Professor - what could you say on the basis of the details? What would have happened? Would Wofatit or Berkatit have been introduced in practice?
A. I'm afraid the technicians would have been victorious. They would have been victorious over decency.
Q. So you mean that, without these experiments, berkatit would, nevertheless, have been introduced in practice?
A. Yes, I believe so.
Q. And you went on to say, Professor, that the admonition of water with Berkatit, which is equal to sea water, would have done serious injury in practice and, provided it went on over six days, would lead to death?
A. It would have serious consequences after going on for over six days and would most certainly lead to death after..........
Q. And you are making those conclusions on the basis of final cases of shipwreck?
A. Yes.
Q. Then, may I put the final question. In this connection, the Chief of the Medical Department, General martius, and his assistant, Becker-Freyseng, would have been actually irresponsible if this development had been used without the action being taken? In fact the only possibility for preventing the introduction of Berkatit was to achieve that experiments were carried out?
A. It appears that it seemed to be the opinion among responsible persons that, considering the increase in air crashed, one ought to deal rapidly with the question of shipwrecked personnel and achieve the solution.
THE PRESIDENT: Counsel, I must again ask you to proceed a little more slowly. It is rather difficult for the reporters to follow. Ask your questions a little more slowly and the witness will not answer the question until the interpreter is finished with the translation of the question.
Q. Professor, you just said that it was the aim of the expert to clarify whether Berkatit might not possibly after all be introducable, consequently what was further aim, supposedly it was to find out how long Berkatit can be tolerated during the experiment?
A. How long sea water with or without Berkatit can be tolerated.
Q. In this connection, Professor, I might ask you, have you got the sea water document book before you? I will have it sent over to you. May I ask you, Professor, to turn to Document 177, Exhibit 133, which is the minutes of the conference, the one Mr. McHaney had put to you, it is page 12 of the document book; do you have it?
A. Yes.
Q. There is one question I want to put to you with reference to that present test. At the bottom of page 1 of that document you will find the description at the end of the lecture made by Dr. Becker-Freyseng, and it here says that the Chief of the Medical services is convinced that if the Berkatit method is used, damage to health is to be expected not later than six days after taking Berkatit, and will lead to death not later than 12 days after; Professor, according to the underlying idea of the experiments which you have displayed I should like to ask you: to what did your statement refer? to the experiments or to the case of an actual ship-wrecked person.
A. I would assume that this applied to the practical case of an actually ship-wrecked person, since at that stage there had been no talk of experiments. They were only really noticeable in this expostulous report.
Q. We will come to that, Professor, but in the same document the Prosecution pointed out the supposed planning of experiments such as contained herein and on page 2 of the document under Figure 2 he talked about the so-called duration of experiments of 12 days with Berkatit; first of all I would like to ask you, Professor, to look at page 3 of the same document and particularly the end of that page, and it says there, "The Commission for the determination of conditions for the experiments to be carried out is composed as follows: Professor Eppinger of Vienna, representative of the Chief of the Medical Service of the Air Force, representative of the German Air Ministry (RML), representative of the High Command of the Navy (OKM)."
If you look at that page, Professor, and then consider the series of experiments which supposedly had been discussed during the conference of the 20th, can you then imagine that during that meeting of the 20th experiments had been decided upon as according to this record, whereas as we have just read the commission only met later, namely on the 25th?
A. The whole picture is that as painted by the layman. No medical man would have written that page, -you can see from the report that it was glued together, and I can assure you that according to my knowledge that humane person as Professor Schaefer, would never have given his consent to a duration of 12 days with sea water.
Q. May I just ask you a final question, Professor --
THE PRESIDENT: You are still continuing too fast, Counsel.
DR. TIPP: Yes, Mr. President.
Q. Then may I put the final question to you, Professor, do you consider it probable considering the aim of the experiments to have mentioned that a duration of 12 days would make sense at all?
A. It would be quite senseless, absolutely senseless.
DR. TIPP: In chat case I haven't any further questions on this particular point. I beg your pardon, yes, I do. I have one more final question.
Q. As you stated, you yourself have seen the original records of these experiments, would these records show anything to the effect that during the actual experiments any type of torture was committed or that any incidents occurred which could be described as crimes against humanity?
A. I haven't found anything like that at all, and what is more I consider it absolutely out of the question. The duration of the experiment is too short. During the six days it is humanly no possible that any tortures could be connected with it that you could describe as inhumane.
Q. And that the experiments didn't last beyond six days that is something which became abundantly clear from the records?
A. Yes.
DR. TIPP: Thank you very much. No further questions.
DR. STEINBAUER: Steinbauer for the defendant Biegelbock.
BY DR. STEINBAUER:
Q. Professor, since the prosecution has not stepped down I must ask you some more questions; you have been shown photographs, some of which of course, after considerable conferences with medical offices, will be chosen by me and shown to the Tribunal; is it your impression that these people, - as a witness maintained with reference to the transport from Weimar to Munich, - would not have survived such a transport?
A. No, this is not my impression and all you would have to do is look at the trains and circumstances under which people travel from Munich to Frankfort today.
Q. We could have put these photographs together so they would have been favorable to the Prosecution as well as to ourselves; the Prosecution told you to look at Figure 5. Now let me put a question, you look at that photo and tell me: is there not a possibility that there would be distortion and that the face would show pain when people are given an injection?
A. Yes, that is plain and most people contort their faces during the actual injection and show that contortion more quickly even before the injection takes place.
Q. Then look at the picture and I ask you this question is it not a technical fact that in hypertonic solutions just as well as in thirst it is the lack of water, and that this question of water shortage is the decisive question medically speaking in connection with that question?
A. I thought I had unmistakably said that sea water endangered the life because it drains water from the system of the body. It is a condition of dehydration which arises because of salt and this salt produces dehydration without salt.
Q. That fights the expression in the face.
A. Not quite. I told you my son had quite an emaciated face after the sea water experiment, so that everybody got a big shock. But after 24 hours that disappeared.
Q. The Prosecution first of all made the gypsies die of whom I told you in Frankfurt, and now they would like to revive them and therefore they want their names; could you have given your expert opinion, Professor, if you had no name, would it have altered it in any way?
A. I wouldn't have looked for the names. They are quite immaterial to me.
Q. So to you as a medical man the only decisive factor is what these charts will show to you?
A. But of course.
Q. Consequently, you also heard from me that we were concerned with volunteers?
A. Yes.
Q. Might Dr. Marx have given you any more details than we?
A. No, no.
DR. STEINBAUER: Thank you. I have no further questions.
THE PRESIDENT: DOes the Prosecution desire to crossexamine this witness upon the questions brought out?
MR. McHANEY: The Tribunal, please, we have no further questions. However, either after the witness is excused or right now I would like to bring up the questions of the names of these experimental subjects, the Prosecution has been put in somewhat of an embarrassing position because the witness has testified all day long about documents which are not a part of the record. On the motion of the Prosecution yesterday the Tribunal, as I understood it, required the production of the documents about which this witness would pass his opinion on, whereupon some purported original drafts were produced, on approximately half of which pencilled names had been erased, by whom or when the Prosecution does not know.
Today some original documents were produced half of which were removed from one cover and inserted in a second book here. I am advised and believe that the first book at one time contained the names of the experimental subjects. I think that it is only proper that the defense counsel be required to produce the original documents and original forms without any deletions or changes whatsoever; that moreover the defense counsel be required to produce immediately the names of the experimental subjects which they have and they be furnished to the Prosecution. We can go to considerable trouble, I suppose, and by use of an infra-red machine have the names raised which have been erased from the original documents. However, we don't care to go to that trouble if we can avoid it. I also don't wish to pursue this matter too far, but we understand that the defense has these names and I think they are required to produce them. I might also add that the photographs of the experimental subjects which were also submitted to this expert and formed a part of his opinion were submitted to you as photostat copies, and show nothing but the cover of the picture. The Prosecution would also be interested in knowing what appears on the back of the original pictures.
DR. STEINBAUER: Your Honors, it is very regrettable that the expert had to be heard before my case came up, since he wanted to depart. All the agitation of the Prosecution then would have been superfluous.
You can rest assured that I would not have felt so safe if I had not shown the list to Professor Alexander. It was not too clever of him not to copy the list as he had it. It is my privilege as defense counsel to decide whether I shall submit it or not, but I am not going to have the Prosecution force me to do so. But, in order to express my respect for this Tribunal, I shall do so at the point when it is most beneficial to the defense of my client. When everything has been cleared up, then the list that the expert did not have and which did not have any basis for his expert opinion will be submitted. I am afraid that these gentlemen will have to be patient until to-morrow, then they will see and hear everything that they want to see and hear today.
MR. McHANEY: The prosecution has no control whatsoever on the way in which the defense puts in his case, but I think we are entitled to have the records on which the expert based his opinion. We have not received the original of the documents which contained the list of the experimental subjects. While certainly it is Dr. Steinbauer's privilege to put in his case any way he sees fit, when original documents are submitted, they should be submitted in their original form without changes or deletions on same. We request original or photostatic copies. We make available our records to him when they go in and we have gone to considerable trouble on several occasions to have original documents, Karl Brandt's for example.
Now, it is his right to put in his evidence as he wills but there also exists the right of this Tribunal to require the presentation of evidence which is known to be in the possession of any one. Just as defense counsel frequently asked the Tribunal and the Prosecution to submit particular documents which they knew we had.
I don't want to be disagreable about any of this. We tried now for two days to get the names and have not been successful. It is no pleasure for me to be put in this position.
THE PRESIDENT: The witness who testified today was called out of order for his apparent necessity of being in Nurnberg. During his examination he was shown documents to which reference was made, he was also permitted to testify concerning the documents even though they were not presented in evidence. When they are offered in evidence on behalf of the defendant if they appear in mutilated form or are not complete, they should then be objected to and if they are not submitted in evidence, then this testimony given this afternoon would not be considered by the Tribunal.
If the Prosecution wants to be furnished with any of the documents, I suggest that the prosecution make written application to the Tribunal, stating just what is desired, hand it to the Tribunal and the Tribunal will rule on it.
The Tribunal will be in recess until 9:30 tomorrow morning.
(The Tribunal adjourned at 1535 Hours until 09:30 Hours 4 June 1947.)
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 4 June 1947, 0930, Justice Beals presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
Military Tribunal I is now in session. God save the United States of America and. this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, have you ascertained, if the defendants are all present in court?
THE MARSHAL: May it please your Honor, all the defendants are present in the court.
THE PRESIDENT: The Secretary-General will show for the record that the defendants are all present in court.
The record will also show that the witness, Franz Vollhardt, was excused from further attendance before the Tribunal last evening, his testimony having been closed. With the defendant, Conrad Schaefer, on the stand counsel may proceed. The witness is reminded he is still under oath.
DR. KONRAD SCHAEFER - Resumed.
DIRECT EXAMINATION (Continued) BY DR. PELCKMANN:
Q Dr. Schaefer, the day before yesterday we were discussing whether it could be attributed to you that in the last conference on 25th May 1944 you actually could have d.one more than you did. Let me ask you now, what else could you have done to prevent the experiments from being carried out, whether they were to be carried out on concentration inmates or inmates of the Luftwaffe Hospital in Brunswick.
A I could have done nothing else because the chain of command would have been the same; namely, through Dr. Becker-Freyseng, Dr. Mertz, department chief, and then Dr. Kahnt, chief of staff, and, finally, Professor Schroeder himself.
Dr. Becker-Freyseng and Dr. Mertz were themselves present at this conference and took part in it all together. I could not have made recommendations to Dr. Schroeder directly because I should have had to have the permission of the department chief to do so. Moreover, Dr. Schroeder testified here that he would not allow himself to be influenced in any way in his decisions.
Q It is you opinion then, Dr. Schaefer, that if you had expressed your misgivings to Dr. Mertz, Dr. Mertz would have said to you: "This is completely unnecessary. I know all about this. I myself was at the conference and you know that I approved all these matters."
A Quite so.
Q And for this reason Dr. Mertz would continue, "I cannot have a report on this matter submitted to my superior, Dr. Schroeder."
A Quite so.
Q I should like to turn now to Document 35. This is to receive Exhibit #39. It's on page 119 of the second document book. I should like to have it put to you. Kindly read it aloud, Doctor Schaefer.
A I quote:
"The substance sent in...."
Q (Interrupting) Dr. Schaefer, please reading the heading also.
A This is a letter from Dr. Schuster whom I had asked to test Berkatit in its capacity to retain sodium chloride.
Q It was said that the salt in the body was assisted in its passage through the body by the ingestion of Berkatit. In chemical terms this is to say that Berkatit formed a compound with the salt and thus salt in sea water was carried through the body in this compound without doing any injury to the body. Was that so?
A Yes, that was Berka's theory?
Q And you opposed this theory?
A Yes.
Q You, in other words, wanted to prove that this salt from sea water formed no compound with Berkatit?
A That is so.
Q And you commissioned Dr. Schuster to investigate this matter and what was he to investigate?
A He was to prove that the salt entered into no compound with Berkatit and that no compound was formed.
Q And when did you give this assignment to Dr. Schuster?
A Roughly, the 20th of May. And this is the answer to it, of 1 June 1944. I believe it is necessary for me only to read the last sentence:
"The slight alteration of the specific resistance is due presumably to the increase in the number of molecules in the solution. No complex fixation therefore took place."
Q Dr. Schaefer, I am having this read aloud only in order to ask you whether, after the 25th of May, when you saw all you hope of prevent ing these experiments coming to naught, you still did something further in this matter?
A I forwarded this letter to the Medical Inspectorate. That was all.
Q This letter does prove that your opinions were correct in this matter?
A Yes, it does.
Q After the conference of the 25th of May did you speak to Dr. Becker-Freyseng again?
A Yes, a few weeks thereafter.
Q What was said?
A I asked him what had come of this natter. He told me he didn't know either. Apparently the whole matter was simply being dropped.
Q At that stage that seems to have been a correct opinion because, as we know from the document books of the prosecution, no decision was reached in the matter at this time. I have already proved that Dr. Schaefer had nothing to do with ordering experiments either with Berkatit or Wofatit. I should now like to put in Document 36. This will be Exhibit 40. Page 120. This is an affidavit by Karl Theodor Lesse. He says the following. I shall read the first paragraph.
"When, in the summer of 1941, I reported to Dr. Beiglboeck, I was informed that two methods for making salt-water potable were to be tested, and that I was to carry out pant of the chemical research work in the laboratory. I was informed about the effects of the effects of the Schaefer method. The Berka method was a secret process and was not revealed even later."
I shall now read the third paragraph from the end:
"The course of the experiments showed no symptoms of illness due to salt water made potable according to Schaefer's method."
And the last sentence:
"Dr. Schaefer was not present at these tests. I am unaware of any suggestions made by him."
This document further corroborates that Schaefer himself did not take parting the experiments and that the experiments with Wofetit produced no pathological symptoms.
Now, I must discuss a document put in by the prosecution. This is the affidavit of Dr. Schaefer himself, NO. 474, Exhibit 131, Document Book 5, page 6. I must go into this document because the prosecution asserted in the session of the 16th of December that this affidavit shows perfectly clearly Schaefer's full knowledge of these matters and shows what part he took in every conference that took place.
Dr. Schaefer, because the prosecution has put this document in as one that incriminates you, I must ask you, first of all, in general do you construe this document as an incrimination of yourself and as indication that you bear responsibility for the experiments that then took place in Dachau? And would you like to assert the same now regarding the other co-defendants?
A No, not at all.
Q Is it not so that, on the contrary, when you interrogated you described how it was that precisely you were not responsible for the experiments?
A Yes.
Q Dr. Schaefer, if you say that, however, I must look into why that opinion of yours is not set forth in this affidavit of yours. We must go through this affidavit point by point. You have the document before you?
A Yes, I do.
Q Let us first take #3. It says here:
"In May, 1944, I was ordered by the office of the Chief of the Medical Service of the Luftwaffe to attend a meeting called for the purpose of consisting further research on making sea water potable."
Is this statement correct?
A I should say that it is badly formulated. No new research was to be considered. It was simply to be decided whether Berkatit or Wofatit was to be the preparation introduced.
Q If I understand correctly, the idea of carrying on further experiments was discussed by other participants in the conference, not by you, during the course of the conference. Is that correct?
A Yes.
Q Then it states further. I skip one sentence, or rather I don't skip a sentence:
"Present were Becker-Freyseng, Research Advisor to Schroeder...."
Now, is that designation correct?
A In view of what I have heard here, it does not appear to be correct. At any rate, it can lead to confusion with the so-called "consultants."
Q Now, I'll take the next sentence:
"It was decided at this meeting to conduct experiments on concentration camp inmates with the Berka process although it was generally admitted that the Berka sea water process seriously impairs the health after six days and causes death after twelve days at the latest."
Dr. Schaefer, what do you understand, first of all, under the phrase "it was decided"? Was a decision reached on this matter? Was there a vote on it?
A No, there was no vote on it.
Q Then, how should it he phrased here in this affidavit?
A It should say that one of the participants in the conference made the proposal.
Q Well, but that doesn't decide anything.
A No, and that's what I said during my interrogation. That one of the persons attending made the proposal, and then I was told: "Very well. We'll write the proposal was made and adopted without a vote."
But that seems to me to be even less correct and, moreover, the word "decided" did not incriminate me in any way because it all depends upon who was in a position to make decisions.
Q In other words the word "decided" does not incriminate you because it depends on who had a right to vote?
A Yes, that is so.
Q Did you have the right to vote, and did you tell the interrogator?
A Yes, and the interrogator told me that would be decided by an expert of the Luftwaffe organization.
Q Now it says further, "Although it was generally admitted that the Berkatit seawater process, although it was generally admitted that the Berkatit seawater process seriously impairs the health?" Did you state it so during your interrogation?
A Yes, but that does not refer to an experiment but to practical cases of sea distress.
Q Yes, and it is for that reason I ask you if you chose this form during your interrogation yourself?
A No, that formulation was presented to me in its final form.
Q In that case you must explain some greater length how it happened, that this formulation was chosen; it couldn't have been chosen unless there had been some discussion with you before hand?
A I was shown Document NO 177 and since I had only the vaguest sort of recollection of the whole matter I based what I said on what was in this document NO 177.
Q How often were you interrogated, Dr. Schaefer, in how many sessions was this affidavit drawn up; please describe that in greater lenght?
A I was interrogated two or three times and on the basis of these interrogations this affidavit was drawn up.
Q Was it drawn up in your presence?
A No, it was submitted to me in its final form.
Q What do you have to say about this formulation?
A There is an obvious confusion here between conditions that are to be expected in an actual case of shipwreck or sea distress, and any experiments that might be carried out.
Q You say then that in the formulation in the affidavit there is a confusion about what you said about the proposed experiments and what you said about the dangerousness of the Berka drug as such, if it is used in an actual case of sea distress without being tested?
A Yes.
Q And you see that particularly clearly in this sentence which reads: "It was decided--" such and such, although it was generally admitted that the Berkatit seawater process seriously impairs health, etc.; now what is the incorrectness you see here?
A The incorrectness lies in the fact that in practical cases of sea distress the shipwrecked person drinks seawater in unlimited quantities water the taste of which has been improved by Berkatit, and does not have the will-power to drink only small quantities of the seawater. The quantities that he consumes become larger and larger until they give grounds for the apprehensions regarding death expressed in this sentence.
Q And for this reason you opposed Berkatit as such?
A Yes.
Q The experiments that in your opinion would not lead to these injuries, why did you oppose them?
A Because in my opinion they were completely unnecessary.
Q And in your previous interrogation you had clearly delineated this distinction, had you not?
A Yes, I had.
Q And you admit and want to say today that that distinction of yours is not to be seen in this formulation of the matter in this affidavit here?
A Yes, that is so.
Q But your opposition to Berkatit as such and your opposition to the experiments, did you make these two oppositions clear to the interrogator in your interrogations also?
A Yes, I did.
Q And it is true in this affidavit there is nevertheless nothing to that effect?
A That is so.
Q You said something about notes you had set down?
AAt the end of the interrogation I was -
Q No, no, let me interrupt. You said you had drawn up a summary of the various points that had occurred to you, well what happened to that?
A I was asked to turn in this scrap of paper to make the record complete.
Q And in this list were the points you considered important?
A Yes.
Q And this piece of paper must still be among your papers?
A Yes, it must.
Q Did you know anything about the various series of experiments at the time you were Interrogated? The series of experiments that are described in Document -- that is Exhibit 133 whether or not they are set down there correctly?
A I had only a vague notion about them and about what was experimented on.
However, in this affidavit it says: "It was further decided that the human experimental subjects were to be fed. only seawater, processed by the Berka method, for a period of 12 days." How is it that it is so formulated here?
AAt that time I said that this did not mean that the persons were to be obliged to drink seawater for 12 days.
Q However, at this time you were shown the Exhibit 133 and told that the experiments had been so carried out?
A Yes, that is so.
Q You were told it had been ascertained that the experiments were so carried out?