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.
Q.- Doctor, didn't it occur to you just in America, that with your splendid radio network, you could readily have received volunteers for your experiments by advertising for them by air, and, if this did occur to you, why didn't you do it?
A.- That obviously is impractical to collect people from all over the country and to bring them to one point for purposes of an experiment.
Q.- I am not requiring that people should be collected from all over the country; but America has such large cities that you could find thirty, forty or fifty volunteers in one city alone. Now, why was that not done?
A.- Well, sometimes that is done.
Q.- But you didn't do it. You used conscientious objectors.
A.- Yes, that's right, because the conscientious objectors were available at that time and we did not have unemployed to use.
Q.- There were unemployed people in prisons - thousands of them.
A.- Yes, we used the unemployed in prisons, and also the conscientious objectors.
MR. McHANEY: If the Tribunal please, personally I think the point being pursued by Dr. Sauter has been covered in exhaustive detail, He has been repeatedly asked the same things, the same question, and I also object to his arguing with the witness. If he restricts his questions and puts his questions shortly and precisely, I am sure he will get a short answer, but we usually get a question, plus four or five sentences of argument.
THE PRESIDENT: Counsel should avoid asking argumentative questions. The subject has been pretty well covered; but counsel may proceed.
BY DR. SAUTER:
Q.- I shall turn then to another theme, although I do remember cases where individual questions were asked by the prosecution and were kept on the floor for two or three times as long as this question of mine which the witness has still not answered.
Witness, you told us this morning that in the case of these experiments in which Ruff, Romberg and Rascher were involved, - the last being dead-, you said that Ruff bore the greatest responsibility, then came Romberg, and finally, Rascher. Did I understand you correctly, or did you mean something different?
A.- No, that is the order of seniority gave, on the basis of scientific experience.
Q.- Before you expressed this opinion, Doctor, did you make certain of the role and what authorities Dr. Rascher had in the Dachau con centration camp, and did you take that into consideration the special circumstances under which Rascher lived there?
A.- I believe so. I read the record and the documents regarding that point.
Q.- What I am referring to, Doctor, is not in the record or in the reports. What do you know about Rascher's position in Dachau and about his relations with the Reichsfuehrer SS Himmler who was in charge of all concentration camps? Do you know about these relations?
A.- I am only familiar with that which I have read in the record and in the documents.
Q.- In what record? You mean, the record of the trial?
A.- The record of the trial.
Q.- The record of this trial, you mean?
A.- Yes, in the record of this trial.
Q.- And in the reports?
A.- And the documents.
Q.- Do you know from this record who, at the time when the experiments in Dachau began, Dr. Rascher was subordinate to officially?
A.- In the early part, he was scientifically subordinate, according to my information, to Dr. Weltz.
Q.- What do you mean, at the beginning? When?
A.- That is, in December and January, February of the time of the experiment or of the year of the experiment.
Q.- Why do you still embrace the point of view that Dr. Ruff was responsible for Rancher since Rascher who was subordinate to no one?
A.- I said that, in so far as scientific responsibility is concerned, Ruff was senior and Romberg was second and Rascher was third.
Q.- That's what you said. But I want to know you reason for saying it.
A.- Because of their experience in scientific work in aviation medicine.
Q.- How have you figured out how much experience Stabsarzt of the Luftwaffe Dr. Rascher had? Rascher was a Stabsarzt of the Luftwaffe and Ruff was a civilian. How do you know that Rascher knew much less about the field of aviation medicine in which he was working that Ruff did?
A.- I know that Dr. Ruff has been working in the field of aviation medicine for some time and has done important work in that field, and I learned from reading the record that Dr. Romberg had been his assistant for several years, and no one had ever heard of the work that Rascher had done in experimental work in aviation medicine, and, from the record, he had no training in experimental work in aviation medicine that was anywhere equal to that of Dr. Ruff and R. Romberg.
Q.- You are speaking of the scientific responsibility. We have heard today of the legal responsibility, the moral responsibility, and now we are hearing about the scientific responsibility. Do you base this assumption of yours only on the fact that this concluding report of July, 1942, was also signed by Ruff as chief of his institute or do you assume that or. Ruff was present at the experiments in Dachau and continuously collaborated in the experiments there? What do you assume?
A.- I assume that Dr. Ruff signed the report in his capacity as head of the institute and as a scientific collaborator, but not as a collaborator who took part directly in the experiments at Dachau.
Q.- Did you take into consideration, witness, the fact that Dr. Ruff has stated, under oath, and has not been contradicted, that through throughout the whole experiments he was only present at Dachau for one single day in order to assure himself that the experiments wore being carried out in an orderly fashion and to check on this?
A.- Yes.
Q. Than, please tell me, if you consider Dr. Ruff responsible, how could Dr. Ruff, who was in Berlin, in your opinion, prevent culpable acts in Dachau of which he knew nothing? You just said that he was responsible? that means primarily responsible?
A.- I believe he was responsible because he was the senior man in this group of investigators.
Q.- Doctor, if you are here in Nurnberg and your assistant, with whom last month you discussed some experiments and other, and who is carrying out these experiments in America, commits a crime while doing so, do you hold yourself to be responsible if you are here in Nurnberg and can't prevent the crime? Please, were you the responsible person or not?
A.- If he is associated with me in some experiment that ho is conducting I believe it is my responsibility to return immediately to my laboratory to study the truth of the report and the circumstances surrounding it, and then have that carefully investigated, At least, my responsibility extends that far.
Q.- Your responsibility consists of this, that if you find out about abuses or offenses you should return to America, investigate the case and draw the necessary conclusions? In that you say is your responsibility. Do I understand you correctly?
A.- Yes.
DR. SAUTER: Mr. President, in that case I have no further questions. I should like you to permit the defendant Dr. Ruff to ask a few medical questions of the witness which he can settle more expeditiously and expediently than myself.
THE PRESIDENT: The defendant may propound medical questions to the witness.
BY DR. RUFF:
Q. Dr. Ivy, you reported yesterday and also this morning something about some fatalities that had occurred in American aviation research. Now, I should like to ask you that aside from these deaths, regarding which you have already testified to here, do you know of any others in addition to the death of the major who had a fatal accident when parachuting from a greet height and the five or six deaths that occurred during training?
A. I know of no other deaths.
Q. Don't you know of the one death that took place during the course of the centrifugal experiment in which the experimental subject was thrown down by the centrifugal machine and thus was killed?
A. I am not familiar with that.
Q. You are not familiar with that. Then do you know about the two cases of death that Professor Alexander, the expert for the prosecution, told my counsel, Dr. Sauter, about? These were two deaths in a low pressure chamber ascent in which experimental subjects in different experiments, of course, died because allegedly an oxygen reduction valve became iced over and for this reason the experimental subjects received no oxygen. Do you know of those two deaths?
A. Was that in the course of experimental work or routine indoctrination? Those two deaths may have been included in the five or six deaths to which I referred.
Q. I don't believe so. I am about to turn to the six fatalities that occurred during indoctrination. The case was described by the medical experts, by the prosecution expert, and it was said that of course there was a very precise investigation into this matter but that finally further investigation was quashed because it was discovered that this valve had been frozen over. Would you consider such a freezing of the valve with the consequent death of the experimental subject at a height of say 12,000 meters - would you consider that an extenuation for the observing physician or sergeant?
A. I do not understand what is meant by the expression "extenuation for the attending physician or sergeant". The meaning of "extenuation" is not clear.
Q. Let me express myself differently. If such a valve fails, would that constitute for you an act of providence that led to this accident and a reason for declaring that the sergeant in question was morally and legally innocent of any crime?
A. I should say that was a mechanical failure and not a human failure.
Q. Dr. Ivy, let me remind you that from the moment when the supply of oxygen is interrupted until death occurs at a height of 12,000 meters there is a rather long lapse of time. How long this time is neither of us knows probably, but at any rate it is a considerable period of time. During this time in the first place the subject becomes altitude sick, he has cramps, he falls unconscious, etc. This lapse pf time should be long enough for the crew operating the low pressure chamber to bring the subject back to a safe altitude again. Is that not so?
A. Yes, those presumptions are reasonable. I can't say that they are accurate because I do not know the exact circumstances surrounding these alleged deaths.
Q. Then let me turn to the next fatality.
THE PRESIDENT: I am going to ask the witness if he finished his answer to the preceding question. Did you finish your answer?
THE WITNESS: I did but I don't know whether it got through to the recorders.
THE PRESIDENT: I think it did.
BY DR. RUFF:
Q. Dr. Ivy, I come to the next fatality which occurred within the framework of aviation medicine within America. In these five or six cases that are alleged to have taken place during training indoctrination was your documentation for which you have said regarding them - what papers are you referring to - were any papers on these deaths published?
A, I believe there was a report, mimeograph in nature, that was released. I am not acquainted with any publication of that data in a scientific journal. I have heard the matter discussed on two occasions in meetings of sub-committees of the Committee on Aviation Medicine of the National Research Council.
Q. Perhaps I can be of assistance to you and tell you the publication. At least, I think it is that we are talking about the same cases. The title is "Collapse at High Altitudes", written by Mashland, and appeared in the Air Surgeon, November 1944, on page 3. However, you did not see the paper in this periodical?
A. Not in that periodical.
Q. Now, let me put a few cases from this to you and ask you whether we are talking about the same cases. The first case did not happen in the low pressure chamber but in a medical experiment in an aeroplane. The director of the experiment had the subjects carry out gymnastic exercises in the plane at 35,000 feet. Following this exercise bends occurred; there was a collapse; when they returned to earth, there were severe headaches and subsequent death. Is this one of the cases you are also referring when we talk about these five or six fatalities?
A. I am quite sure that we are referring to the same report, except I believe I saw it in mimeographed form and not in the publication "The Air Surgeon".
Q. Then another collapse is described not in a training flight but a high altitude flight for medical purposes which had the same outcome as the first; then the third case is an ascent in a low pressure chamber to 38,000 feet and at that altitude there was collapse and various other symptoms and finally death. Mashland. in the paper I just mentioned writes about the history and treatment of such collapse as may arise in such cases as these. The other two fatalities were much of the same nature and I need not go into them.
Now, I only have this one Question. Are you familiar with an unpublished report by John Grey from the AAF School of Aviation Medicine, Randolph Field, Texas, of 3 October 1944, "The Present State of Decompression Sickness"? This is not a publication but an internal report. Do you know this report?
A. Dr. Grey has submitted quite a large number of reports from the School of Aviation Medicine at Randolph Field. I do not have in mind the contents of the particular report to which you are referring.
Q. I did actually name the title, and I assume that you have yourself especially concerned yourself with decompression sickness and consequently are familiar with the modern literature on the subject. This is a report "The Present Status of the Problem of Decompression Sickness".
A. I have probably read the article but I do not recall the contents under that particular title.
Q Now, do you not recall having been able to see at least between the lines in this report something about fatalities or possible fatalities?
A Well, I know that the subject of collapse after routine exposure to high altitude in the performance of high altitude tests was of special interest to the field of physiology at the school of medicine at Randolph Field. I also know of one of the occasions, at the meeting of the sub-committee on decompression sickness at which this matter of most high-altitude collapse was under discussion, Dr. Gray received his training in physiology under my instructions.
MR. HARDY: Your Honor, if the witness Ruff desires to question Dr. Ivy on this particular report of Dr. Gray, then I ask that he submit a copy of the report to Dr. Ivy so he can refresh his recollection.
THE PRESIDENT: Has the witness his copy of the report by Dr. Gray? If so, he should submit it to Dr. Ivy for identification.
BY TEE DEFENDANT RUFF:
Q We would have put this in as evidence if we had it, At the Aereo-Medical Center of Heidelberg this report was available to me in 1945 and I only have the excerpt from it that I made at that time. We are trying to get the original and will then put it in as evidence.
Dr. Ivy, when you spoke of these six fatalities during training this morning, I said that not all of these fatalities took place in training or indoctrination, but let us not that in the indoctrination or training six fatalities did take place; is that not so?
A That is my recollection.
Q The people who were used for such training indoctrination were for the most part members of the Air Force; were they not?
A Yes, cadets, in the process of training.
Q Who were being trained, that they were under training means also that theretofore they had received a very careful medical examination; isn't that so?
A Yes, that is correct.