DR. SAUTER: President, may I ask that the brief afternoon recess should be taken now so that the cross examination should begin only after the recess. I have a few questions to discuss with my colleagues about the form that the cross examination shall assume.
THE PRESIDENT: Very well, counsel. I would suggest that the Prosecution identification documents be gathered up and returned to the counsel for Prosecution.
The Tribunal will now be in recess.
THE MARSHAL: Persons in the courtroom will please find their seats. The Tribunal is again in session.
MR. HARDY: May it please the Tribunal, I request that the Tribunal ascertain how many defense counsel intend to cross examine Dr. Ivy so that the prosecution can, in turn, ascertain how long Dr. Ivy will remain on the stand. I have many other duties to take care of in the course of the next two or three days and I want to sort of gauge my work and if it will be possible to ascertain how long Dr. Ivy will be under cross examination it will be helpful to the prosecution.
THE PRESIDENT: Will defense counsel who desire to cross examine the witness, Dr. Ivy, please signify so by rising.
MR. HARDY: Thank you, Your Honor.
CROSS EXAMINATION BY DR. SAUTER (Counsel for the defendants Ruff and Romberg):
Q. Witness, you are an expert in the field of aviation medicine?
A. Yes.
Q. May I ask you what fields within aviation medicine you have worked on specifically, because my clients, who are recognized specialists in this field, attach importance to ascertaining precisely what fields you have worked in particularly?
A. I have worked particularly in the field of decompression or pressure drop sickness, and I have also worked in the field of anoxia or exposure to altitude repeatedly at a level of 18,000 feet to ascertain if that has any effect in the causation of pilots' fatigue.
Q. At what time did you specifically concern yourself with the fields you have just named? Was that before the Second World War, during the Second World War, or was it earlier than that?
A. My interest in these fields of aviation medicine, including free fall which I did not mention, started in 1939.
Q. Regarding your specific work in this field, witness, you have also made publications. I believe you spoke of two publications. Did I understand you correctly, or were there more?
A. There were two in the field of decompression sickness. There was one publication in the field of the effects of repeated exposure to mild degrees of oxygen lack. My other work has not yet been published, but was submitted in the form of reports to the Committee on Aviation Medicine of the Rational Research Council of the United States.
Q. When were these two papers published of which you just told us that they were published; when, and where they printed by a publishing house. Did they appear in a journal or a periodical?
A. One appears in the Journal of Aviation Medicine either in September or October of 1946. The other appears in the Journal of the American Medical Association in either December or January of 1946 or 1947. The publication on the effect of repeated exposure to mild degrees of oxygen, lack oat altitude appears in the quarterly bulletin of Northwestern University Medical School and part of the work, insofar as its effect on the elimination of the basis in the urine is concerned, appeared in the Journal of Biological Chemistry around 1944 or 1945, I am not sure of that date.
Q. Theretofore, witness, you had thus made no publication in the field of aviation medicine before the papers of which you just gave the dates of publication?
A. The question is not clear.
Q. You just gave us the titles of the publications you have published and whn; now I asked whether before the dates you just gave you did not have any publications in the field of aviation medicine?
A. No, my first research started in 1939.
Q. You yourself have carried out experiments too; is that not so?
A. Yes.
Q. With human experimental subjects, of course?
A. Yes and on myself.
Q. And with a low pressure chamber?
A. Yes.
Q. Were these frequent experiments or were they experiments in which you yourself took part only infrequent in number?
A. The experiments in which I took part were infrequent in number compared to the total number of experiments which I performed.
Q. Did you take part in these experiments as the director of the experiments, as the person responsible or were you usually the experimental subject yourself?
A. I served in both capacities. For example, I have frequently gone to the altitude of 40,000 ft. to study the symptoms of dens with an intermediate pressure device, which we produced in our laboratory. I have been to 47,500 ft. on three or four occasions, on one occasion at 52,000 ft. for half an hour. I have frequently been to 18,000 ft. without supplemental oxygen in order to study the effect of the degree of oxygen lack present there for my ability to perform psycho-motor tests.
Q. Can you tell us approximately during what year you began these experiments of your own?
A. In 1939.
Q. 1939; did you at this time carry out explosive decompression experiments too? Witness, one moment please, the English for that is "explosive decompression." That is thus the experiment in which one ascends slowly to a certain height, let us say 8,000 meters and then all at once suddenly one is brought up to a height of 15,000 meters; that is, first slowly up to 8,000 and then suddenly to, let us say, 15,000 -- that is what I understand under the term "explosive decompression" experiment, and my question is: whether you also carried out such experiments and if so when and to what extent?
A. I carried out over one hundred experiments on explosive decompresion in various laboratories on animals, the rabbit, the dog, the pig and the monkey. I did not serve as a subject myself in experiments on explosive decompression, but a student who was trained with me in physiology, Dr. J. J. Smith did the first experiments on explosive decompression in which human being subjects were used at Wright Field. I am familiar with the work which Dr. Hitchcock did on this subject at Ohio State University in which he studied some one hundred students under conditions of explosive decompression.
To what altitude, witness; to what maximum altitude did you carry your own explosive decompression experiments?
A. In animals it was up to 50,000 ft., in the case of human subjects the maximum was 47,500 with pressure breathing equipment.
This altitude you reached in your own experiments. Now, Doctor, it would in rest me to know to what maximum altitude have any experiments in explosive decompression been carried in America; what do you know about this maximum altitude?
A. I believe that 47,500 or slightly above is the maximum.
Q. Witness, do you know the German Physiologist Dr. Rein; Professor Rein, do you know his name; R-e-i-n from Goettingen?
A. Yes.
Q. At the moment he is the ordinarius for Physiology at Goettingen, he is a rector at the University and a member of the Scientific Advisory Committee for the British zone. On the basis of your own knowledge do you consider Professor Rein an authorative scientist in the field of physiology and aviation medicine?
A. I consider him an authorative physiologist, I am not acquainted with his work in the field of aviation medicine.
Q. Mr. President, I previously put in evidence -- I want to recall that now -- n expert opinion from this Dr. Rein regarding Dr. Ruff in Document Book Ruff Document No. 5, Exhibit 3. This expert testi-money is from Professor Rein.
In your own experiments, witness, you also used conscientious objectors, is that not so? Did I understand you correctly?
A. Yes, in some of the experiments.
G. Rill you tell us why you, specifically happened to use conscientious objectors, were they particularly adapted for these experiments; or what was the reason for you some conducting experiments to use especially conscientious objectors?
A. Yes; it was their duty, their volunteer duty to render public service. They had nothing else to do but to render public service, In the experiments in which we used the conscientious objectors, they could devote their full attention to the experiments. Many of the subjects, which I have used, have been medical students or dental students, who besides serving as subjects had to attend their studies in schools.
In the experiments we did on the conscientious objectors, they could not attend school at the same tame and carry on or perform all the tests they were supposed to perform. For example, we used a group of conscientious objectors for repeated exposure to an altitude of 18,000 feet without the administration of supplemental oxygen. These tests involved the following of a strict diet, they involved the performance of work tests and psycho-motor tests, which required several hours every day to perform. Another group of conscientious objectors that I used were used for vitamin studies in relation to fatigue.
These conscientious objectors had to do, a great deal of carefully measured work during the day as well as to perform psycho-motor tests; so, medical students or dental students could not be used. we had to have subjects who could spend their full time in the experiments.
JUDGE SEBRING: Dr. Sauter, at this point I should like to ask a question, if I may.
BY JUDGE SEBRING:
Q. Dr. Ivy, do you know whether or not American citizens who were conscientious objectors were drafted into the American military service during World War II.
A. No. They were drafted into this Civilian Public Service Corps and, as I indicated, there were two types of conscientious objectors: one type that did not cooperate in any way - they were imprisoned - and there was another type that were willing to perform public service as long as it was not in the nature of military duty.
Q. And what group is it that you say you used for your experiments?
A. The latter group.
Q. Do you know the nature of the oath, if any, that they took when they were inducted into this special service?
A. No, I do not.
Q. Do you know what their general physical qualifications were as compared to the physical Qualifications of the man who was inducted into the military service of the United States?
A. Well, some of them were excellent physical specimens.
Q. What I mean to say is this. Was there a physical Qualification scale set up for them in regard to age brackets and physical qualifications just as there was for the men who were inducted into military service?
A. I presume so because they would be drafted, and they would have to report that they were conscientious objectors.
Q. Then, so far as you knew, they were drafted; they had to register their names, numbers, residence, and so forth and were drafted just as all other American citizens within certain age brackets were drafted?
A. Yes.
Q. And then when it came time for selections for induction into the service they registered the fact that they were conscientious objectors and then were placed in a special organization for public service if they would agree to do public service or, if they would agree to do nothing, were placed in prison.
A. That is according to my information.
JUDGE SEBRING: Thank you.
BY DR. SAUTER:
Q. Witness, from the answers that you have given so far, I am still not clear in my mind precisely why you hit upon conscientious objectors in particular as the experimental subjects. You said there were two groups of them: some were in prison and some had to perform public service. From the latter group you took your experimental subjects, but please give me a clear answer to the question: Why did you specifically use such conscientious objectors for your altitude experiments?
A. They could devote full time to the experimental requirements. They did not have to do any other work as was the case of medical students or dental students, the only other type of subjects that I had available to me.
Q. Doctor, these persons were obliged to perform public service. If these conscientious objectors had not been there or if they had been used for public service, then you wouldn't have had any experimental subjects either. There must be a specific reason why you specifically used conscientious objectors and I ask you, please, to tell me that reason.
A. Well, we couldn't have done the experiments unless the conscientious objectors had been available. That is the answer to your question.
Q. Could you not have used any prisoners, even conscientious objectors who refused to do public service and, therefore, were in prison without doing any work? Could you not have used them?
A. Well, that would have meant that I and my assistants would have to go to the prison which was quite a distance away. The conscientious objectors could come to us at the university where they could live in the university dormitory or in the university hospital.
Q. Doctor, if your experiments were really important - perhaps important in view of the state Of war - then it is difficult to understand why the experiments could not have been carried out in a prison, let us say. Other experiments have been carried out in prisons to a large extent and in another context, Doctor, you told us that you simply had to get in touch with the prisoners; you simply wrote them a letter or you put up a notice on the bulletin board and then, to a certain extent, you have prisoners available. Can you give me no other information as to why you used specifically and only conscientious objectors?
A. No, if it had been convenient and necessary for me to use prisoners, I believe that we could have gotten prisoner volunteers for this work.
Q. Witness, were you ever in a penitentiary as a visitor?
A. Yes.
Q. Did you see there how the criminals condemned to death were housed?
A. Yes.
Q. Are they completely at liberty there or are the criminals condemned to death locked up in their cells?
A. They were locked up in their cells.
Q. Now, can you please tell us how a criminal condemned to death is to see the notice that you would put on the bulletin board? You told us today that it was very simple - you simply put a notice on the bulletin board - and for hours I have now been trying to figure out how a criminal condemned to death, who is locked up in his cell, is going to see that notice on the bulletin board.
A. While these prisoners are taken out for their meals, they can pass by a bulletin board or a piece of paper with the statement on it which I read can be placed in their cells for reading or, as a large group in the dining room, the statement can be read to them.
Q. Are criminals condemned to death together at meals in America?
So far as I know, there too the criminal condemned to death is given his food through an opening in the cell door; he cannot eat in a common mess hall.
A. Yes, but you must recall that I did not specify that the criminals which were used for malaria experiments were prisoners condemned to death; neither did I specify that if I were to go to a penitentiary to see if I could get volunteers for a nutrition experiment that I should select prisoners condemned to death.
Q. If you are speaking here of condemned criminals as experimental subjects, are you speaking of criminals condemned to death or just of criminals who have just received some sentence or other.
A. I have not used prisoners or criminals condemned to death. You have been using that statement. I have used prisoners.
Q. You spoke only of prisoners then?
A. That is correct.
Q. Are those prisoners in pre-trial imprisonment who have not yet been put on trial or are those prisoners who have already received some sentence?
A. Prisoners who have already received some sentence.
Q. In other words, prisoners who have been condemned or sentenced?
A. But not necessarily to death.
Q. Yes, other sentences, aside from the death sentence, included. Did you as a scientist interest yourself in the question of why a person was sentenced, for what crimes he was sentenced?
A. No, I did not.
Q. Did you at least concern yourself with the question whether the man was condemned, was sentenced by a regular court or a court martial or an extraordinary court?
A. None of these prisoners would have been sentenced by a court martial; they would have been sentenced by an ordinary civilian court.
Q. How do you know? Did you see the personal files of these prisoners or did you see the opinions and sentences on the basis of which the prisoner had been incarcerated?
A. Only on the basis of the type of prisoner that would be incarcerated in a certain penitentiary.
Q. Now do you, as a doctor, know exactly what sort of prisoner is incarcerated in this penitentiary and what sort of prisoner is incarcerated in another prison? How do you know that?
A. That's a matter of common knowledge to one who reads the newspapers, the press, who is generally informed on such matters.
A In a Federal penitentiary then you might have prisoners who have been incarcerated because of courts-martial?
Q Are inmates of Federal penitentiaries used for experiments too, as far as you know?
A Yes, they may be.
Q In other words, political prisoners too, that is, prisoners who were condemned by a court-martial or by another court?
A We have no political prisoners in the United States.
Q Are not prisoners condemned for high treason or treason and the like. Those are political crimes.
A Not to my knowledge.
Q On conspiring with the enemy during the war; that such cases have not only arisen but they have also been punished, and you must know that from reading your newspaper, Professor; those are political prisoners. Do you not have those in America?
A Not to my knowledge.
Q Doctor, if I understood you correctly, you stated this morning that a medical experiment with fatal consequences is either to he designated either as an execution or as a murder; is that what you said?
A I did not say that.
Q What did you say then?
A It was more or less as I quoted it, as I remember, I said under the circumstances which surrounded the first death in high altitude experiments at Dachau, where Pr. Romberg is alleged to have witnessed, Dr. Rascher kill the subject; that the death could be viewed only as an execution or as a. murder; and if the subject were a volunteer, then his death could not be viewed as an execution.
Q Witness, in your opinion, is there a difference whether the experiments are to be traced back to the initiative of the experimenter himself, or whether they are ordered by some authoritative office of the State which also assumes the responsibility for them?
A Yes, there is difference, but that difference does not pertain, in my opinion, to the moral responsibilities of the investigator toward his experimental subject.
Q That, I cannot understand, Doctor. I can imagine that the State gives an experimenter the order, particularly during war time, to carry out certain experiments, and that in peace time, on his own initiative, the researcher would not carry out such experiments unless he was ordered to by the State. You must recognize this difference yourself.
A That does not carry over to the moral responsibility of the individual to his experimental subject. I do not believe that the State can assume the responsibility of ordering a scientist to kill people in order to obtain knowledge.
Q Witness, that is not the question. I am not interested in whether the State can order some one to murder; I am interested in the question, whether, in your opinion, the State can order, let us say dangerous experiments, experiments in which perhaps facilities may occur. In America, too, deaths occurred several times in experiments; what is you view on this?
A The State, as fay as I know, in the United States of America has never ordered scientists to perform any experiment where death is likely to occur.
Q Doctor, I did not say where death was probable, I said where death is possible, and I ask you to answer the question I put to you. If deaths are probable, then you are correct, then it is murder. If deaths are possible, then I want to know what you say to that, And, let me remind you, Doctor, that even in the American Airforce deaths did occur; in other words death was possible?
A Yes, I agree that it its possible for deaths to occur accidentally in experiments which are hazardous. As I said in my testimony under such conditions when they do occur, their cause is investigated very thoroughly as well as the circumstances surrounding the death
Q I should like now, Doctor, to draw the inevitable conclusions from your answer: If a doctor undertakes an experiment and another scientist watches this experiment, merely as a spectator, and he sees that the experimenter is making an error, or that the experimenter is carrying the experiment so far that there is a possibility - not probability - the possibility of death, In such a case do you believe that the one doctor is under obligation to prevent the first doctor by force from carrying out his experiment?
A I do.
Q Forceably. I am not asking you whether he has the moral obligation to advise the other doctor to stop, to draw his attention to this or that. I am asking you whether he has the legal obligation to hinder him from his experiment by force?
A I know nothing about the legal obligations.
Q Oh, about that, you know nothing, Doctor, in the course of the day you stated that in America a compilation was published regarding the prerequisite under which experiments on human being may be carried out. You know what I am speaking of, do you not?
A No.
You, told us that a committee, I believe or an association had made a compilation regarding the ethics of medical experiments on human beings. First of all the question of volunteers; second, animal experiments; third, the hazardousness. Can you recall now what I am referring to?
A Yes.
Q That was in December 1946, I believe.
A Yes, I remember.
Q Such instructions for doctors, or such a compilation of medical norues did. that not exist before December 1946, in America then?
A You apparently did not get the clear understanding of what I said. In that regard, I said that I happened to be chairman of a committee appointed by Governor Greene of the State of Illinois to con sider the ethical conditions under which prisoners in the state penitentiary may be used as subjects of medical experiments.
This question has come up because those prisoners who served as subjects in the malaria experiments have come up for a consideration of reduction of sentence to be so large that if a prisoner when asked or invited to volunteer would say, no, he would be saying no under duress, or he would be penalizing himself if he said no and did not get a large reduction in sentence. In other words, a reduction in sentence as a reward for serving as a subject in a medical experiment should not be excessive. I also said because I was a representative of the Board of Trustees of the American Medical association, I submitted to them some ethical principles and asked them to take action regarding, or to make a statement regarding the ethical principles of the American Medical Association in regard to the Question of human beings as subjects in medical experiments on the basis of their principles of medical ethics. And, they took action, and I gave the three principles in my testimony this morning. As a matter of tact, I read a. letter from the Secretary of the American Medical Association.
Q. This was December 1946?
A. Yes.
Q. Did that take place in consideration of this trial?
A. Well, that took place as a result of my relations to the trial, yes.
Q. Before December of 1946 were such instructions in printed form in existence in America?
A. No. They were understood only as a natter of common practice.
Q. But you said that in Germany there was some decree from the year, 1931, B believe, which was issued by the Reichsminister of the Interior?
A. That is right.
Q. Have you read it?
A. Yes.
Q. To what experiments or to what medical actions docs his decree refer?
A. It refers to a decree of the Ministry of Public Welfare regarding the carrying out of scientific experiments on human beings or concerning regulations for modern therapy and the performance of scientific experiments on human beings.
Q. You didn't quote that in full, witness, for it refers not to experiments of all sorts but only to experiments on patients in hospitals. In other words, it refers to experiments on persons who were sick in bed in a hospital. Is that not so?
A . I shall read the paragraph below the title: "The Reich Health Council has emphasized the necessity of taking measures to insure that all doctors are acquainted with the following regulations and has, therefore, unanimously agreed that all doctors working in institutions for private or for medical welfare must sign a certificate on entry binding then to these regulations."
Q. From which it can be seen, doctor, that this decree applies only to clinics and hospitals. That is what it says there.
A. I ten no 7, however, states that " medical ethics rejects utilization of social distress in the performance of new therapy" .
Q. The exploitation of the poor, you will admit, and of those who occupy a socially weak position for medical experiments. That's why the decree was issued by the Department of Public Welfare. Do you agree with me in that?
A. Yes, but I see no reason why it should be restricted to that extent because medical ethics have general application and. are not to be confined to a small restricted group of persons.
Q. Doctor, the reason is obvious. The poor person is not to be used for an experiment simply because he is promised, let us say, 1000 marks, and a rich man doesn't have to carry out experiments. That is the reason. W ell now, witness, something else about this decree you just read. I assume that you have concerned yourself pretty closely with how this decree came to be passed because you have it with you and because you referred to it in your direct examination. Do you know that this decree you quoted from never became a law, that this was nothing but a draft and remained merely a draft?
A. Well, I do not believe principles of medical ethics should necessarily have to become a law in order for them to be followed out for the good of medical science and medicine in general.
Q. Now, let me ask you something else, doctor. Give me the reason why in America sentenced persons are used for experiments at all. Give me the inner reason for this, not only in America but also in other countries, why don't you take free persons for experiments?
A. Well, in part it is for the same reason that we used conscientious objectors. Conscientious objectors had. nothing else to do except to render public service, Prisoners in a penitentiary can give their full time or full attention to the experiments, and of course, they are subject to strict control.
Q. A person who is, for example, to be subjected to a plague experiment, must he really devote all his attention to this plague experiment, for the experiment to succeed? Is that your opinion, as an expert, Professor?
A. As a doctor has other things to do, so does a medical student or a dental student, If they happen to become mildly incapacitated, having some feeling cf sickness, they will not be able to perform their other duties whereas if a prisoner or someone who has nothing else to do becomes somewhat sick nothing is interfered with.
Q. Do you consider he fact that a person must go through a plague experiment and then for a long time must count on being a victim of plague, Professor, do you really think that this can be characterized as a slight indisposition?
A . Well these patients of Strong's were not given the plague. They were given an injection of killed or attenuated plague organisms so that they would urn no temperature, or only a slight temperature - 1 decree Fahrenheit or so. They were not sick for a long time.
Q. Professor, Colonel Strong, whom you have just quoted tells us in the Philippine Medical Journal, which I have put in evidence in connection with Blome and Rose, describes his plague experimentsYou know from that, because you have read it, that he worked with living plague bacilli.
A. Yes, but they were attenuated.
Q. They were living plague bacilli and author Strong himself wondered why there had been no fatalities. Is that so?
A. No, he did not wonder. He said they did not have any reason to anticipate any fatalities because these organisms did not cause illness in guinea pigs. That is plainly evident in the photostatic copies which were submitted in evidence.
q. The photostat that you submit to us, professor, contains a little woe excerpt from all the extensive material that we have submitted.
Witness, when reading Strong' s paper on these plague experiments did it not strike you, too, that Strong carried out these experiments on 900 prisoners condemned to death all of whom volunteered?
A. No, I am not acquainted with that. I have not seen those records.
Q. But it says so in the report. 900 persons condemned to death in the city of Manila-- 900 volunteers.
A. I have not seen that report.
Q. We racked our brain as to how it was possible that there were 900 persons condemned to death in such a small city as Manila, how come there could be so many volunteers. But, now something else in this context. In many regions where these experiments were carried out, the Strong experiments in the Philippines and in other areas such as America, there are unemployed people who arc only to happy to cam something. Let us say, you said tho people received $100 in reward, and probably they received free food, and extra cigarettes and cigars. Why were unemployed people not used? Why did you use conscientious objectors, why people under sentence, even people condemned by federal courts. Can you give me a satisfactory answer to that question, witness?
A. To my knowledge there were no unemployed people in the United States during the War.
Q. And before the War?
A. There wore unemployed people in the United States before the W a.r during the depression but experiments on malaria on a large scale were not conducted then. Pharmaceutical chemists of the country had not been organized to synthesize some 80,000 compounds for testing of effectiveness in the treatment of malaria.