On the other hand, he may have decided to break the experiment because the patient was not taking all the sea-water, I mean all the Berka water.
Q. I think the defendant made the explicit statement that in regard to some of the subjects, he came to the conclusion that they were gaining access to water and he confronted them with that fact and then threatened them with the fact that he was not going to give them the cigarettes he had promised them because they were not engaging in the experiment fairly and then they entreated him to be allowed to again embark upon the experiment, whereupon he started a new period. And I am interested, the Tribunal is interested in whether or not, at the time they started the new period, they were physically in condition that they should have been allowed to do so.
A. Subject No, 11 is supposed to have received 500 cc of sea-water; his experimental period was seven days and then he was taken off the experiment and then a few days later started on a second period for five days. If you will refer to the list of numbers that you gave me, you will not find Subject 11 there. He was supposedly on the 500 cc of sea water for two different periods.
Q. Well, in fairness to the defendant, I believe I should say, that is as I understood his testimony this morning, he called attention to those subjects by number who had not already been dealt with by the Prosecution. I believe in fairness to the defendant that ought to be stated.
Doctor, perhaps that will take some time and perhaps you would like to go back over those records with our question in mind and perhaps be in a position in the morning, after you have had an opportunity to analyse all of those sheets.
.....
A. I have already done that.
Q. I see.
A. I thout maybe you wanted me to take them up one at a time on the basis of my study of these records of the group of subjects who were exposed to two experimental regimes without more than four or five days between. All of them were in good condition at the time the second period was carried out. Now they had not all gained as much weight, by that I mean they had not returned to their original body weight, all of them.
A On the basis of their pulse, on the basis of their temperature and other data available, I couldn't say that they were debilitated to such an extent that they could not tolerate of renewal of the regime for the period on which they were placed.
Q May I ask you now this, Sir? In your opinion, under what circumstances should a volunteer for a sea water experiment such as we are considering here be allowed to drop out of an experiment before it's conclusion. I mean be allowed to drop out of his responsability on his own request?
A That isn't an easy question to answer. In the experiments which I have performed involving, theaggravation of sea water with and without dilution or in which I have restricted the water intake to determinate minimal water requirements, I have permitted the volunteer subjects to withdraw from the experiment whenever they expressed the desire to do so, regardless on the fact that they agreed at the start to continue until they were released.
Q Then let me ask you, should the factor whether the experimental subjects feel that he is unable to continue with the experiment be a matter to be determined by him or should it be determined solely by the man conducting an experiment?
A I do not believe that it should be solely determined by the man conducting the experiment.
Q If it should appear from the evidence that the person conducting the experiment reserved for himself the decision as to whether or not the experimental subject should be allowed to drop out because of physical ormental distress or discomfort and did not allow the experimental subject to make that decision or choice for himself, would you consider that experimental subject, who desired to drop out of an experiment during its course but who was not allowed to do so by the man conducting the experiment, was thereafter a volunteer?
A I do not believe that he would be a volunteer and the reason why I have always permitted subjects to withdraw from the experiment when they expressed the desire was from one, a humanitarian standpoint; number two, from a pragmatic standpoint from which I mean that if I forced him to continue he would not be reliable and cooperative and I could not expect to obtain reliable data from him; so I permit them to drop out as soon as they express their desire -- the reason of humanitarian and pragmatic ethical philosophy.
Q Let us assume that at the outset and prior to the beginning of the experiment the person who is going to conduct the experiment advised the potential experimental subjects that he himself was going to reserve for himself the decision, the sole decision, whether am experimental subject would be allowed to drop out during the course of the experiment and let us assume that the experiment started and that, because of extreme physical or mental distress or discomfort, one of the experimental subjects expressed a desire to drop out and let us assume that the man conducting the experiment determined that they should not drop out because prior to the beginning of the experiment he had warned them that he would reserve that decision for himself, would you think that after that time that experimental subject would be in the sense of a volunteer?
A No. My answer is the same as before because when you coerce or cause a volunteer subject to continue as a subject you can expect cheating and unreliable cooperation and, hence, that challenges the scientific nature of the complete experimental design and at the same time you are exercising coercion.
THE PRESIDENT: There will be no further questions from the Tribunal.
BY MR. HARDY:
Q Professor Ivy, in connection with the sea water records, did you note thereon any indications that Professor Beiglboeck had performed liver punctures on the experimental subjects?
A Yes.
Q Could you explain to us whether or not in these experiments, these liver punctures were necessary, whether if necessary they would be harmful, and whether or not a person suffers as a result of a liver puncture?
AA liver puncture is a diagnostic procedure which has been used considerably in the last five or six years. When the procedure is carried out by a skilled and experienced operator, the danger of the procedure is minimal, very small. In itself it cannot be said to be a dangerous diagnostic procedure.
Q Do these records indicate that Dr. Beiglboeck performed lumbar punctures on any of the experimental subjects?
A Well, when the first looked over the subjects we did not know exactly what the abbreviation "LP" meant. We thought that that might mean a lumbar puncture, or a liver puncture. We also were not certain regarding the meaning of the abbreviation "HP". "H" could stand for liver, "hepatic," or "H" could stand for the German word "hind-brain", but we thought that "HP" stood for cisternal puncture and "LP" for lumbar puncture. I don't understand that "LP" refers to liver puncture and "HP" to intravenous medication.
Q Would where be any purpose whatsoever in performing a lumbar puncture in these experiments?
A Well, I do not think so. From a scientific standpoint one could say that it would be wort while knowing whether or not the ceribo spinal fluid pressure was changed by dehydration, whether or not the concentration of ceribo spinal fluid was changed.
Q Would there be any purpose in the course of sea water experiments as performed at Dachau and performed by Professor Beiglboeck to perform a cisternal puncture?
A No more than the reasons I gave you for a lumbar puncture. The lumbar puncture is a much safer procedure than a cisternal puncture.
MR. HARDY: Your Honor, at this time I would like to proceed to the examination of Professor Ivy concerning the high altitude pressure. Dr. Sauter is now here in the courtroom and he informs me he can represent defense counsel for Weltz and defense counsel for Romberg as well as for himself for Ruff.
THE PRESIDENT: Very well, proceed.
BY MR. HARDY:
Q In order to bring Dr. Sauter up to the points that we reached this afternoon in connection with the high altitude research, Dr. Ivy, I am going to request that we go back over the questions concerning the report, Document NO 402, now if you will turn to page 88 of Docu ment Book, No. 2 which is the data given concerning an experiment performed at Dachau, the protocol of which appears in Document NO 402, I wish to ask you the following question: Was it necessary to perform such a hazardous experiment as elicited here on page 88 in Document Book No. 2 in the report of Ruff, Romberg and Rascher?
A. In my opinion no.
Q. Do you consider on the whole the experiments set forth in Document NO-402 to have been particularly dangerous?
A. Only those experiments involving slow desent or descent with the parachute opened from the higher altitude do I consider dangerous.
Q. That is those experiments which were concerned with slow descent from an altitude exceeding 15000 meters or 47200 feet?
A. Yes. All those in which the period of unconsciousness or oxygen lack were prolonged I indicated that that might cause injury of the cells of the brain in a permanent way which would be indicated by a test of the learning mechanism.
Q. Well, in a slow descent experiment of this sort how long would the brain and the heart be deprived of adequate oxygen?
A. As I indicated the experiments, the results of the experiments, show that the subjects were unconscious for fifteen or, I believe, up to thirty minutes because of lack of oxygen and they were disoriented for a period of from thirty up to ninty minutes.
Q. Well, now the extremeness of these conditions are recorded by the authors on page 97 of Document Book II. Therein they report that no lasting injury due to oxygen lack occured. Is that statement uncritical?
A. I believe it is in so far as the brain or cerebrum is concerned. But I believe it is a correct statement so far as the heart is concerned.
Q. But in these experiments they did not study the learning mechanism of the brain, did they?
A. No.
Q. Would you explain to the Tribunal just what you mean by the study of the learning mechanism of the brain?
A. Well, in order to learn the cells of the cerebral cortex must be normal. The cells in our body which are most sensitive to lack of oxygen are the cells of the cerebrum.
Hence, in determining whether or not a period of oxygen lack had caused any injury to the body test should be applied to that bodily mechanism which is most susceptible or sensitive to oxygen lack. It is for that reason, I believe, these experiments were incomplete and it could not be stated categorically the body of these subjects resulted in damage from oxygen lack.
Q. An experiment of this type, would you be reluctant to do such an experiment on yourself?
A. Yes, I should unless it were absolutely necessary to provide some information that could not be obtained by some other method.
Q. Do you mean by experimentation on animals, monkies or other animals?
A. Yes, and even perhaps myself.
Q. Well, would the difference between the result on animals and the result obtained on men be striking?
A. In some instances Yes but not in this particular instance, I should say that the difference between the results obtained by Lutz and Wendt and the results on animals obtained by Ruff, Romberg, and Rascher on these human subjects was not enough to indicate that these experiments were necessary. And that is what I should anticipate on the best of my knowledge.
BY JUDGE SEBRING:
Q. Doctor, that was the question I was going to ask. Could that have been anticipated with your knowledge prior to the time you had it and the reports of Ruff, Romberg and Rascher.
A. Yes that is correct because we know the particular pressure of oxygen at these various altitudes and we know how long there will be an adequate amount of oxygen in the blood to maintain physiological function. And we know at what altitude there is sufficient amount of oxygen in the air to oxygenate the blood in order to bring about consciousness. With that knowledge one can determine the amount of oxygen that has to be put in a bale out bottle in order to preserve consciousness from one high altitude to a lower safe altitude.
Q. Was that knowlege known, were those facts known generally in the medical world in the year 1942, doctor?
A. Yes, in 1942.
BY MR. HARDY:
Q. Professor Ivy, in your opinion is it possible for a physician, that is a senior physician or a medical scientist, to be attached to a distant laboratory by having his assistant working in that distant laboratory?
A. Yes. I have done that. I have had my assistants or men working under me in my laboratory to to other laboratories and work there on problems under my supervision.
Q. Is that a common practice in the scientific field?
A. Relatively so, yes.
Q. Assume, doctor, that you were offered an assignment to work for instance in the University of California laboratory. Now you are situated in the University of Illinois and you sent an assistant to work in the University of California laboratory. Would you feel that you were responsible for the scientific activity of your assistant?
A. Yes, as long as he is under my jurisdiction I am responsible for his scientific activities.
Q. If in the course of his work a death occurred in his laboratory and the assistant reported the death to you, that is, assuming that he is experimenting on human beings. Would you then be impressed or unimpressed by the report given to you that a death occurred in his work?
A. Well, I should be very much impressed and I should either go myself to investigate the circumstances surrounding the death or I should have some one locally in whom I had a great deal of confidence make the investigation and give their report to me.
Q. Then it is the senior investigator's responsibility to care fully check the cause of any irregularities in the course of any assistant's research program?
A. Yes.
Q. Is it a common occurence for a person to die or to be killed in the course of experiments in aviation medicine or clinical investigations of any sort?
A. Yes, it is relatively rare. As a matter of fact I only know of one death which has occurred in all of the experimentation which has gone on in the United States in the field of A viation Medicine and that is the case of Major Boynton who in the study of free fall balled out of an airplane I recall at something like 40,000 feet. All of the other experiments worked. I know of no death having occurred.
Q. Well when a death does occur, for example a case like Major Boynton, did the deceased become a so-called medical hero a martre to medical science?
A. Yes, we consider Major Boynton a hero, a medical hero, in the field of aviation medicine and I might say that on the occasion of his death the causes were investigated very carefully by the Air Surgeon.
Q. Dr. Ivy, because of the fact that you are so familiar with laboratory and aviation research I should like to have you read several documents kiiping the contest in mind that after which I desire to obtain your opinion as an expert. First I should like to have you read on page 76 of Document Book II. That is--
THE PRESIDENT: Counsel, how long will it take to read and discuss these documents?
MR. HARDY: It might be adviseable to adjourn at this time. We could discuss this the first thing in the morning. This will be a rather extensive question.
THE PRESIDENT: Are you going to read these documents into the record?
MR HARDY: I want to read the particular sections into the record so that it will appear in the record just what Dr. Ivy's opinion will be based on as to the particular section I referred to.
THE PRESIDENT: You might read these sections into the record and then in the morning direct Professor Ivy's attention to those documents.
MR. HARDY: If your Honor pleases, I would just as soon wait until tomorrow morning.
THE PRESIDENT: The Tribunal will now be in recess until 0930 o'clock tomorrow morning.
Official Transcript of the American Military Tribunal in the matter of United States of America, against Karl Brandt, et al, defendants, sitting at Number, Germany, on 13 June 1947, 0930, Justice Beals presiding.
THE MARSHAL: Persons in the Courtroom 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 court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present in Court?
THE MARSHAL: May it please Your Honors, all defendants are all present in the court.
THE PRESIDENT: The Secretary General will note for the record the presence of all the defendants in court.
Counsel may proceed.
PROFESSOR IVY - Resumed DIRECT EXAMINATION - Continued BY MR. HARDY:
Q Dr. Ivy, at the close of yesterday's session I was beginning to take up the matters pertaining to the various reports by Rascher, and by Ruff, Romberg and Rascher, and I should like to have you read parts of these documents, keeping the context in mind, after which I desire to obtain your opinion as an expert.
DR. SEIDL: (Dr. Seidl for defendants Gebhardt, Oberhauser and Fisher) Your Honor, I object to the questioning of this witness in the manner in which it has been done so far, and as apparently the Prosecution intends to continue. This witness was introduced into this trial by an affidavit which concerned itself exclusively with seawater experiments. Now, the attempt is being made to submit a whole series of documents to the witness which are in no way connected with the seawater experiments. The attempt is being made to make the witness an expert on experiments which are in no way connected whats ever with the things stated in his affidavit.
I object to this procedure, and more so because this is taking place at a time and place after the other defendants case have been concluded as far as the defense is concerned.
In addition several of defense counsel have already made their final pleas based on the results of their efforts and already submitted them to the translation division. Therefore the Prosecution had a chance to find out about these final pleas. I consider it inadmissible after the Prosecution months ago finished its case now after the defense completes its case the whole trial in a certain sense begins at the beginning again, and in answer to certain things which the defense has stated the Prosecution brings in an export who is supposed to answer what the defense stated. The Prosecution when its case in Chief was being discussed already brought an expert before the Tribunal, that is Dr. Leibrandt. At the time when Dr. Leibrandt was examined here in Court this witness was also present in Numbers, and the Prosecution would have had the opportunity at that time to question this witness, or this expert before the Court if the Prosecution desires to do so. However, I consider it inadmissible that now, afterwards, the Prosecution examines an export in regard to documents which contents speak for themselves, at a moment when the Prosecution knows the entire case of the defense by the statements of defendants themselves, as well as by the documents the defense has submitted. I am convinced Control Council Law No. 7 can give no legal basis for this procedure, and furthermore I am convinced that these tactics of the Prosecutor are contrary to the general legal principles of any code of legal procedure, because it is not possible after the conclusion of the entire case of the defense again on the part of the Prosecution to introduce new evidence into the trial.
HR. HARDY: May it please Your Honor, I have no comment on this remark other than the fact I request the Tribunal to instruct defense counsel on the theory of rebuttal evidence on the part of the Prosecution, and I want to make it clear to Dr. Seidl in as much as he was not present when I requested this Tribunal to call Dr. Ivy out of of order, as a rebuttal witness of the Prosecution due to the fact Dr. Ivy must return to the states immediately, and on that particular day Dr. Seidl wasn't here, and the Tribunal ruled that we can call him out of order, and he is here as a rebuttal witness.
The Prosecution has chosen to call him as a rebuttal witness that is the reason why he did not appear before this Tribunal before.
DR. SAUTER: (For defendants Ruff and Rombert) May I also take the floor. I ask for permission to speak, Mr. President, especially for those of the defendants who now have to suffer most under the present submission of evidence and by the help of the expert are supposed to be condemned; they are the defendants Ruff and Romberg whom I am representing. I agree completely with the protest of my colleague, Dr. Soil, and I would like to supplement his remark by the following: Already at a very early stage of the trial the defense from their point of view considered it suitable, perhaps even necessary, to call some unprejudiced, completely unprejudiced impartial foreign experts, to call them to court for one or another question, and the defense hoped that within this scope of the examination of these experts the difficult medical questions might be clarified impartially. The questions which this trial brings up are especially difficult for us lawyers. At the time, if I am not mistaken, the court refused the applications of two defense counsels to call two foreign experts. Within the circle of the defense counsel we at the time, of course, discussed the attitude of the court, and at that time we reached the conclusion that there is no point in making applications for calling further experts, as the court had told us their negative attitude toward us. Now at the very last moment of the trial and I really have to say, gentlemen, at the very last moment of the trial, the Prosecution comes with a foreign expert, whom we are seeing here for the first tine in the courtroom here, and by this means the Prosecution tries to overthrow the entire evidence submitted so far.
I do not consider that correct. We defense counsel have always been of the opinion that here especially, before an American Tribunal, we want to conduct the trial in an absolutely fair manner, and I believe that this cannot be brought in agreement with the fact that yesterday the prosecution announces an export is coming, first they say about seawater experiments. The expert, without keeping the prescribed time limit, is called and immediately he starts testifying about high altitude experiments when it had not been announced he would testify about these at all. Now, for the defense the result is a very great difficulty from this way of treating the case. I am a lawyer. I am legally trained, just as the judges are, and of course it is very difficult for me to understand these medical questions, even though due to the half year period for which the trial has lasted I have learned quite a bit about these medical questions. It is for the defense absolutely necessary that these difficult questions be prepared in discussion with the defendants in an adequate manner. In a short time spent since last night this has not been possible for us. We speak downstairs in the jail through a glass and through bars to the defendants, and we have found out by experience that every question and every answer has to be repeated two or three or four times until we can understand each other finally, and then we have at our disposal for the discussion of all these important questions a period of perhaps one hour. That is the way it was last night. During this short period and under those difficult conditions to go through these difficult questions for which the export has prepared himself since January is completely impossible for the defense counsel. As defense counsel I require the prosecution that such a witness who has been at their disposal for months, that the prosecution will in advance tell me what the expert is to be examined about, and if the Prosecutor does not do that, of course, I am powerless, and I shall leave the courtroom with the feeling my clients have been treated unjustly, and I appeal to your support, gentlemen.
I cannot be expected, that such difficult and complicated, questions shall be treated by me in such a short time, in such a manner that I have the feeling I have done my duty here. Thus, gentlemen, I ask you not to admit long weeks after the conclusion of the Ruff and Romberg case the witness' testimony as he is examined here as an expert on altitude questions.
DR. SERVATIUS: (Counsel for Defendant Karl Brandt.) Mr. President, insofar as I understand it, the expert has been called as rebuttal witness for the defense evidence. To what extent such a rebuttal is admissable under American law, I don't know very well and I don't believe my colleagues know it either. The heart of the letter, however, is that this expert appears here who should have appeared months ago. We think that the unjust part of the question of this expert speaking about all these questions is that he appears as a foreigner while the experts for which we made application has been refused.
The Frenchman, Georges Blanc, even stated to defense counsel he was ready to appear here and we would all have been ready to submit to this authority. This expert here is an American, who is called here in a case of the United States. We have misgivings to the effect that the witness cannot be free and he must be prejudiced and I want to point out this point in particular.
Therefore, I also agree to the application of my colleages that the examination of the witness insofar as it exceeds the sea-water experiments should be refused.
MR. HARDY: In that connection, Your Honor, insofar as it exceeds the sea-water experiments, I am not aware that the Prosecution introduced the affidavit from Dr. Ivy concerning sea-water, but it was the defense that introduced the affidavit, and it was the defense counsel who limited him to sea-water experiments.
I think I have perfectly qualified Dr. Ivy to testify on the matters which I am to bring up in this examination. I see no reason why I should not be allowed to continue if the Tribunal sees fit to allow me to continue to examine this rebuttal witness at this time due to the circumstances that he must return to the United States on Tuesday.
THE PRESIDENT: It will be advisable that the Prosecution make a statement concerning the natters concerning which Dr. Ivy will be examined.
As to the foreign experts, requested by the defense counsel, it was never the policy of the Tribunal to order the production of a witness who resided in a foreign country, because it was impossible to enforce the ordering of any witness who had been pretended and who would voluntarily cone here. He could be called by the defendants at any time. That was always open to the defendant. But, due to the matters which defense counsel is well aware the Defendants Information Bureau could never undertake to present to summon and procure the attendance of a witness residing in a foreign country as there are too many difficulties and that is a natter of impossibility. The Tribunal adopted that policy in the beginning, as to the procedure in criminal trials. The only procedure we know anything about and are accustomed to is that the prosecution presents its case, the defendants present their case and the prosecution may then call rebuttal witnesses to discuss, consider and testify to evidence introduced by the defendants. This evidence in rebuttal is limited to the defendant's evidence, new evidence is not to be introduced, but just as in the arguments the prosecution offers its arguments, the defense replies and the prosecution replies to the arguments of the defendants The order of acceptance of evidence follows that same principle.
The witness of course is called out of order but he is called as a rebuttal witness, as ordinarily he would have been called after the defendant's close their case. The defendants in no way are prejudiced in calling this witness out of order. They have the privilege of cross examining him and if the defendants can procure any rebuttal witness the case is still open and if they can call any witness who will come here from any foreign country to testify, the Tribunal will hear him. That rule had been strictly understood al all times. It is absolutely impossible for the Tribunal or the Defendants Information Center to bring witnesses from foreign countries.
The objection is over-ruled in calling the witness out of order. The testimony of the witness is perfectly regular according to the procedure which has been and will be followed in this and I assume before all other trials pending before these Tribunals.
DR. SAUTER: Your Honor, in consideration of your decision I then make a new application and ask you for permission to make this application right now. Before I stated the reasons why for a legally trained defense counsel it is very difficult, without having a very thorough discussion with his client to undertake a cross-examination or redirect examination about very difficult medical questions. These statements, which the expert made already today, I could discuss only in part with my clients and what the expert will state today I shall not be able at all to discuss with my clients, therefore, it is absolutely impossible for me during the cross examination to clarify everything that has to be clarified in our opinion. Therefore, I make the request to the Tribunal, in consideration of these special circumstances, without prejudice for other cases, the Tribunal should grant me the permission that the necessary questions about these medical matters, that these questions may be asked of the expert by Dr. Ruff himself, as well as at the same time in the name of his co-worker, Dr. Romberg. This manner of treating the case seems to me expedient as an exception---
JUDGE SEBRING: Repeat that again, I did not understand fully the import of your request.
DR. SAUTER: I should repeat my request? I just stated that last night in the short period at my disposal, it was not possible for me to discuss all these medical questions with my clients adequately, which were brought up by the expert. Yesterday and today the expert, at the questioning of the prosecution, will and has possibly quite extensively discussed a number of questions regarding the problem of altitude experiments.
It is my duty immediately following tho direct examination to ask the expert questions and I am not able to do so, as I am a lay-man from a medical standpoint, I cannot do so without having discussed these questions for hours with my client and have clarified them to such an extent that I can ask the necessary questions and make the necessary representations. In consideration of the special circumstances in this case, I therefore asked the Tribunal that during the cross examination that the questions which I should ask, that tho Defendant Ruff be permitted to conduct the cross-examination, and they will be clarified and I believe it would also serve to expedite the trial, if a medical, expert a specialist should ask, as a medical expert, the questions of another expert and clarify the medical questions. This should not create a precedent for other cases because this is an exceptional case.
THE PRESIDENT: Doctor, you mean by that your request is that as you examine the present witness that your client may be allowed to come into the pit with you, sit with you at counsel table and discuss with you the questions to be put and if necessary put the questions himself to the witness who is now in the box; is that the point?
DR. SAUTER: Not quite, Your Honor. I would consider it best because the only medical questions which have to be clarified can be clarified during tho cross-examination and these questions should be clarified by having Dr. Ruff himself, on his own, ask the questions and conduct the cross-examination. He can formulate the questions, he can understand the answers better and evaluate them better than I as a lawyer. Whether this should be done from his place in the dock where the Defendant Ruff is sitting by having a microphone put in front of him or whether this should be done from some place else, that is up to the President at this time.
MR. HARDY: Of course, Your Honor, the prosecution objects to this procedure. I might point out in this connection, Your Honor, that th examination concerning high altitude will be very limited and defense counsel will have ample opportunity to study with his defendant and perhaps Dr. Ivy will be here until Tuesday and the high altitude will be postponed until Monday.