A. That is possible; but since I was the sponsor, or the so-called responsible investigator, I could not delegate that responsibility to somebody else.
Q. Certainly, Professor, since you were concerned with your own research, May I now ask you, Professor, how in general -- I am not talking about your experiment, but about others --- how was this done in each case in experiments which you applied for but which you didn't execute yourself? How was it ascertained in each case whether the experimental subjects were volunteers? Did you undertake this examination yourself in each case, or did you leave the responsibility for that to the executing physician or to the office which referred the experimental subjects to you?
A, No. The subjects had to be volunteers, otherwise, they would never go to the place where the experiment was going to be done. The fact that they left the camp for conscientious objectors and went to the laboratory was prima facie evidence that they were volunteers.
Q. So they didn't have to be examined as individuals. Now, the last subject, Professor. If I understood you correctly, you said in the discussion of malaria experiments that such experiments on prisoners or CO's were supposed to be for the good of the community; is that correct?
A. Well now, malaria experiments were not done on conscientious objectors to my knowledge; they were done on prisoners in the penitentiary.
Q. Yes, prisoners. And the result of these experiments, if I understood you correctly, was supposed to serve humanity. In other words, to express it differently, as Governor Green said according to your testimony, the State of Illinois carried out these experiments in order to help the United States win the war; is that correct?
A. Yes. In the case of the prisoners, they were motivated in order to help people sick with malaria, and in their comments they frequently referred to soldiers, or friends in the army.
In the case of the conscientious objectors, their objective was to contribute to knowledge, knowledge for the prevention or alleviation of human suffering.
Q. Thus, you agree with me, Professor, with the statement I can make, that the experiments aimed at helping the winning of the war in these special sectors of medical research.
A. That was particularly true of the malaria experiments. It was not true of our minimum vitamin requirement experiments. There we had in mind rehabilitation of the stricken European areas. We wanted to know what food was best in relation to vitamin content, to supply people in war stricken areas, to keep them in good health.
THE PRESIDENT: I ask the prosecution if he has any redirect examination of this witness.
MR. HARDY: Yes, I have, but I think I can cover it in a half hour. He may continue until 4:30. I think I can finish up between 4:30 and 5:00.
THE PRESIDENT: Do any other Defense Counsel desire to ask questions of this witness? Dr. Tipp has asked for an hour, and he has had eighty minutes or more.
DR. WEISSGERBER: (Attorney for Defendant Sievers) I did not have the intention to put any questions to the witness, but the result of the examination, today causes me to ask three brief questions, and answering them will probably take a very short time only.
THE PRESIDENT: Will ten minutes be sufficient?
DR. WEISSGERBER: Yes, Your Honor; that will be enough.
THE PRESIDENT: Dr. Tipp may continue for ten minutes.
DR. WEISSGERBER: Thank you very much.
BY DR. TIPP:
Q. Professor Ivy, thus you recognize that necessities conditioned by the war were a basis for experiments, do you not?
A. Yes.
THE PRESIDENT: I cannot see, Counsel, that these questions of cross examination are particularly pertinent to the direct examination or to the issues at present here.
DR. TIPP: If I may reply to this, Your Honor, briefly. The question of the experiments was raised, discussed repeatedly, and a number of my colleagues tried to point out that the experiments in part, or for the most part, were undertaken because of the necessities caused by the war-time conditions. This point of view has so far not been recognized by the Prosecution, and I believe that the answer of the expert may clarify this matter considerably.
THE PRESIDENT: The Tribunal understands that situation. I don't know that Dr. Ivy is an expert who can testify on that subject. I think if you have no further pertinent questions, we might turn the cross-examination over to Dr. Weissgerber.
BY DR. TIPP: If your honors please, I have only one more question, since my time has been, limited by the Tribunal. My question is the following: As you said, the voluntary nature of the experimental subject is the first basis for the admissibility of experiments on human beings altogether. To that extent I understood you correctly, did I not?
A. Yes, I think that should come first in the list of requirements.
Q. You stated today regarding the prerequisites for voluntary experiments on persons condemned to death that they are admissible from the ethical point of view, experiments of a nature that the condemned were given a medical preparation which might have fatal consequences --- Prof. Rose started this discussion: A volunteer was administered poison in this case. Is not such an experiment, however in contradiction to the following sentence from out of Hipprocrates; "I shall give no human being lethal poison, even if he asks me for it.
A. That, I believe refers to the function of the physician as a therapist, not an experimentalist, and the part that refers to the Oath of Hippocrates is that he must have respect for life and the human rights of his experimental patient.
Q. Thus, you believe that you have to differentiate between the physician as a therapist, that is the curing physician, and the physician as a research worker; and thus you admit that in each of these functions different laws, different paragraphs of the Oath of Hippocrates apply.
A. Yes, I obviously do.
DR. TIPP: Thank you very much. And in that case I have no further questions.
CROSS EXAMINATION BY DR. WEISSGERBER: (Attorney for Defendant Sievers)
Q. Professor, may I ask you to refer to Document Book II of the Prosecution, that is the document book with Document No. 402, Exhibit 66. It is page 88 in the German, and page 82 in the English Document Book; Exhibit 66. Professor Ivy, I now assume the case that a layman, a non-physician, reads this report by Ruff, Rascher, and Romberg; that he studies it thoroughly, or has the contents of this report explained to him thoroughly, very carefully. Are you of the opinion that this man, who is not a physician, can gather from this report that the experiments that were conducted are not in agreement with the medical professional ethics.
MR. HARDY: May I ask the Defense Counsel refer to a particular report.
THE PRESIDENT: I understood Counsel to identify the document to which he referred.
MR. HARDY: I am sorry, I did not understand what report was indicated.
THE PRESIDENT: Will Counsel identify the report, the document again
DR. WEISSGERBER: It is Document NO-492,Prosecution Exhibit 66. Professor, shall I repeat my question or would you like to answer it right now?
A. You are referring to Document 402, I believe, of the RuffRomberg-Rascher report?
Q. Yes.
A. No, he would not, but when he read the description on pages 88, 89, and on the top of 90 of the behavior of the patient subjected to slow descent from high altitude, he might be considerably shocked with the symptoms described and he might inquire whether such an experiment were necessary.
Q. If such a man, who is not a physician, now, is assured by the competent authorities that the experimental subjects are volunteers, does this man, who is not a physician, have cause to think in that way?
A. Yes, he still can be rather upset at the description of those experiments, being a lay person.
Q. Certainly, but do these thoughts of his own force the layman now to draw the conclusion that, seen from the point of view of medical professional ethics, these experiments were not admissible?
A. Not necessarily.
Q. Now, Professor, would you please look at the last document in this volume -it is Document No. 1612-PS, Prosecution Exhibit 79; that is on page 122. May I assume, Professor, that you have already read this document before?
A. I have glanced at it but I have not read it carefully.
Q. It is concerned with Research orders which Himmler gave directly to Dr. Rascher, that is, in December 1942. Can a layman who sees such a letter gather from it that the execution of these experiments, for reasons of medical professional ethics, is not admissible?
A. Certainly not from this document.
Q. Would you please repeat the answer?
A. Certainly not from what this document says.
DR. WEISSGERBER: All right. Thank you very much. I have no further questions.
THE PRESIDENT: The prosecution may re directly examine the witness.
REDIRECT EXAMINATION BY MR. HARDY:
Q. Professor Ivy, in your experiments in the field, of explosive decompression conducted at 47,500 feet were they conducted in a manner similar to the experiments outlined in the Ruff-Rascher-Romberg report, which is Document NO-402 in Prosecution Document Book No. 3?
A. No.
Q. What is the great discrepancy between the Ruff experiments and your experiments?
A. In the Ruff experiments the subject was suddenly lifted to an altitude of 49,000 or 50,000 feet, and from that point he descended slowly, simulating the descent that would occur with the parachute open, the subjects being exposed to oxygen lack from that time until they reached an altitude, we shall say, roughly of 18,000 to 20,000 feet. In the experiments that we performed the subject was explosively decompressed to 40,000 or 47,000 feet, where he remained breathing oxygen at the surrounding pressure at 40,000, or with additional pressure or pressure breathing at the altitude of 47,500 feet.
Q. Why didn't you find it necessary to extend your experiments to that phase as contained in the Ruff experiments?
A. Because we felt that on the basis of calculations we could determine the amount of oxygen to place in the bail-out bottle on the flyer's pants leg that would take him from an altitude of 40,000 or 47,500 feet down to a safe level where he would no longer need a supplementary supply of oxygen.
Q. Professor Ivy, concerning the questions put to you by defense counsel as to the ability of a layman to analyze these various reports of the experiments, isn't it true that if a layman read the Rascher reports that the layman might be even more severely shocked by them than a physician?
A. I should say no to that question because there are portions of the Rascher report that will shock the physician just as much as the lay man, and the physicians of the United States Army and Navy who first came into Germany and learned and read of the experiments which had been done on human beings, without their consent, I assure you were shocked just as much as laymen would be.
Q. During the course of your examination by the defendant Ruff, discussion of anoxia took place and you stated, I believe, that a person may be exposed to anoxia as a result of slow descent but that the symptoms may not develop until a period of 5 or 10 days had passed. Is that correct?
A. No. I said that it is possible for subjects to be exposed to a period of anoxia and then recover therefrom and have a period of no symptoms for a period of 5 to 10 days and then develop symptoms of neurological damage.
Q. Well, is it possible that those symptoms sometimes did not manifest themselves until months or years after the lesion of the basal ganglia inflicted by the basal action episode?
A. No.
Q. You don't know of any work along those lines, as to whether or not this anoxia condition would develop or be manifested months or years later?
A. No. If they did not appear within two weeks, there is no evidence indicating that they may occur later with which I am familiar.
Q. Now, Doctor concerning your testimony regarding the conscientious objectors, I have a few points which may tend to clarify this situation in the minds of defense counsel. Would you tell us how a person is classified as a conscientious objector?
A. Well, first everyone within a certain age group in the United States had to register.
Q. Register for the draft?
A. For the draft or selective service.
Q. That is, conscription into the United States armed forces?
A. Yes. Then at some time later the actual draft occurred. The conscientious objector could, announce that he was a conscientious objector to serving in battle or serving with the military organization at the time of registration or at the time of induction or being drafted.
Q. And after he registered his objections to participating in any manner in the army, was he then allowed to return to his home, or was he asked to cooperate in matters which did not involve things of a military nature?
A. No, he was assigned to the Civilian Public Service Agency and asked if he wanted to cooperate by rendering public service.
Q. And that public service was work as orderly in a hospital and work in various libraries, perhaps, and other public institutions?
A. Yes, or forest fire prevention, and cleaning up the woods.
Q. Was this man, this conscientious objector, in confinement?
A. They were only placed under confinement when they would not cooperate in any way.
Q. Was there a national committee to take care of the interests of the objectors?
A. Yes, as a general rule the conscientious objectors were supervised by a civilian religious group, such as the Quakers or the Mennonites.
Q. Was the conscientious objector under any duty to volunteer for medical experiments?
A. None whatsoever.
Q. However, he was under obligation to work in various libraries or forest fire prevention, etc., if requested to by the committee?
A. Yes, it was necessary for him to render some sort of public service.
Q. Then you determined that you needed experimental subjects. How did it happen that you decided that conscientious objectors might be made available to you?
A. As I recall, the National research Council, in view of the fact that the medical students and dental students were mustered into the army and could no longer serve as subjects in experiments in university and medical school laboratories, took the matter up with the Director of the Civilian Public Service, who then decided that the conscientious objectors might be allowed to volunteer for such work in connection with medical schools and research institutes.
Q: And by that token you were permitted to approach conscientious objectors to ask them whether or not they would volunteer for medical experiments?
A: I or the investigator did not approach the conscientious objectors directly. We requested that ascertain number of volunteers be allowed or sent to us through the director of the Civilian Public Service agency.
Q: And those conscientious objectors were sent to your university laboratories?
A: Yes; that is correct.
Q: While they were at your laboratory were they living in the dormitories at the university?
A: Yes, in the dormitories or in the hospitals.
Q: Were they under any surveillance at all?
A: One person in the group was appointed as a leader, supervisor of the group, and it was his duty to see that the men carried out their instructions properly and on time.
Q: Was it possible for any one of those objectors to receive leave or to have weekend liberty?
A: It was not in most experiments.
Q: Well, assume for the moment that you were not going to use the experimental subject for a period of two or three weeks. Was he in such a position that he could not go on leave or go to the city or was he supposed to remain at your university at all times?
A: No, he could leave for certain periods of time, varying in length from a few hours to a few days, depending upon the nature of the experiment. If it were a dietary experiment, then he had to eat at the diet table all the time.
Q: Then he actually had freedom of locomotion, in contradistinction to a prisoner in an institution or penitentiary?
A: Yes.
MR. HARDY: I have no further questions, your Honor.
BY THE PRESIDENT:
Q: Dr. Ivy, is it or is it not your opinion that the experiments in slow descent from an elevation of 47,500 feet which were carried out by the defendants Ruff and Romberg were likely to cause physically injury to the experimental subjects?
A: I said it was possible that this might injure the learning mechanism in the brain but otherwise there was no reason to believe it would cause physical injury.
Q: I didn't remember just what your answer for that was.
A: And it was for that reason I said I should be reluctant to do such experiments on myself or those subjects and would try to find some other way to answer the question.
MR. HARDY: The examination of Dr. Ivy is finished, your Honor. I might inquire how long Dr. Steinbauer will continue with his redirect examination of the defendant Beiglboeck.
THE PRESIDENT: I would ask Dr. Steinbauer how long he thinks the further examination of the defendant Beiglboeck will require.
DR. STEINBAUER: May it please the Tribunal, I shall need about an hour and I request that I may continue the case tomorrow. I shall then hurry with Professor Beiglboeck, and I agree to it that Tschofenik can be examined then because he has to return. I only want to have an opportunity to examine Dr. Beiglboeck because I did not know Tschofenik was here. Then immediately afterwards, perhaps in the afternoon, I could also examine the two other witnesses who are here so that the examination of witnesses can be concluded. I think the prosecution produced some other witnesses for the cross-examination.
HR. HARDY: That is agreeable with me. The other witnesses we have, I haven't been able to talk to yet and I don't know just when they will be able to take the witness stand. However, the witness Tschofenik will be availble tomorrow and as stated by defense counsel, he can be called after the case of the defendant Beiglboeck is completed.
It is agreeable with prosecution.
THE PRESIDENT: The Tribunal will be in recess until nine-thirty tomorrow morning.
THE MARSHAL: The Tribunal will be in recess until nine-thirty tomorrow morning.
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 5 March 1947, 0930, Justice Beals presiding.
THE MARSHAL: Persons in the court room will please find their seats.
The Honorable, the Judges of Military Tribunal 1.
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 room.
THE PRESIDENT: Mr. Marshal, will you ascertain that the defendants are all present in Court.
THE MARSHAL: May it please your Honor, all the defendants are present in court.
THE PRESIDENT: The Secretary General will note for the record the presence of all the defendants in Court.
Counsel may proceed.
DR. STEINBAUER: For the defendant, Professor Beiglboeck:
BY DR. STEINBAUER:
Q. Witness, in re-direct examination I have to ask you only one question, since due to yesterday's examination of the expert many questions have been clarified. Mr. Hardy asked you who is Dr. Popper. I am asking you, did you have anything to do with the removal of Dr. Popper and the other two Jewish assistants during the year 1938 from Eppinger's clinic?
A. No, in 1938, the Jewish assistants were dismissed from all Vienna clinics. This was done at the request of the ministry. I had no influence of any kind and I could not have prevented it nor did I ever approve the manner in which this was done and at that time I was in no way responsible for personnel matters in the clinic and I can only say I had nothing at all to do with it.
DR. STEINBAUER: I have no further questions to put to the witness, Your Honor.
JUDGE SEBRING: Doctor, can you explain why these men were removed from Dr. Eppinger's clinic? I think you said about that time all Jewish clinicians in Vienna were removed. Did I understand you correctly?
A.- Yes, Your Honor, that was after the German troops entered Austria, that is, a few days after the declaration of the Anschluss this dismissal was undertaken by the ministry.
Q.- Was that a part of the German anti-Jewish program so far as you know?
A.- That happened with the transformation of Austria by the National Socialist Government, and was, of course, a part of the Nazi program.
I have no further questions.
THE PRESIDENT: Does any Defense Counsel have any questions to propound to the witness?
DR. TIPP: Professor Schroeder and Dr. Becker-Freyseng:
BY DR. TIPP:
A.- Witness, I too have only one question to ask you. Yesterday you heard that the expert of the Prosecution, Professor Ivy, stated that Professor Eppinger was not an expert in the field of kidney research. Perhaps you can state your opinion in this matter in conclusion, and I assume that the Court will be interested in knowing what papers Professor Eppinger published in this field and related fields.
A.- I can only state from memory and I know the following about it. About 1921 Eppinger, together with Hess, published a book called "Uber die klinik der Nierenerkrankung", the "Clinical treatment of Kidney Diseases". In 1923, Eppinger wrote a book, "Therapie und Pathologic dos Menschlichen Oedems", Therapy and Pathology of the Human Edema. In this book he made basic studies about the salt and hydrogen metabolism and about the effect of the thyroid gland of these functions of the kidney.
About 1936, those two students of his, Popper and Handel, published a very thorough study about the functions of the kidney, which were conducted under the constant, lively interest of Eppinger himself. In 1942 or 1943, his student Albrich told me about publications which concerned nephritis experiments in animal experiments, and which opened up an entirely new point of view especially for the early stages of nephritis. On the basis of these last two works, especially in 1942 and 1943, Eppinger carried on new investigations on the entire field of kidney pathology and in his not yet published work, which was supposed to have the title in German "Permeabilitaets Pathologie", as far as I remember gave a new presentation of kidney pathology. That is what I know about his works, about this field, but I am convinced that among the many hundreds of scientific papers which he wrote there are also some smaller ones which are concerned with these questions in particular.
DR. TIPP: Thank you, I have no further questions.
THE PRESIDENT: Are there any other questions on the part of any defense counsel?
The Prosecution may cross examine
MR. HARDY: Prosecution has no further questions to put to the defendant Beiglboeck.
At this time, Your Honor, I wish to state that we have the witness Tschofenig here this morning and he is ready to take the witness stand. After the examination of the defendant Beiglboeck is completed. I should like to call Tschofenig prior to the submitting of the Beiglboeck documents by defense counsel.
THE PRESIDENT: There was one other witness to be called by the defendant Beiglboeck, the witness Mettbach. Is he available, Dr. Steinbauer?
DR. STEINBAUER: The witness has been summoned for this afternoon - the witness Mettbach, because he had to go to work.
MR. HARDY: I believe that we will have completed the testimony of the witness Tschofenig by noon today, Your Honor.
THE PRESIDENT: The Tribunal will proceed to hear the testimony of the witness Tschofenig.
The defendant Beiglboeck is excused from the stand and will take his place in the dock.
The Marshal will summon the witness Tschofenig, who will be called out of order.
(JOSEPH TSCHOFENIG, a witness, took the stand and testified as follows.)
JUDGE SEBRING: Please hold up your right hand and be sworn.
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
DIRECT EXAMINATION BY MR. HARDY:
Q. Marshal, would you extend the earphones of the witness Tschofenig so that he can put them on properly. They are not down far enough.
Your name is Joseph Tschofenig, is that correct?
A. Yes.
Q. You spell your last name T-s-c-h-o-f-e-n-i-g?
A. T-s-c-h-o-f-e-n-i-g.
Q. Thank you. When and where were you born, witness?
A. On the 3rd of September 1913 at Pontafel.
Q. Would you briefly tell the Tribunal your educational background, that is, your primary education in your childhood and the extent of your education and what you did prior to the time that you were arrested by the Gestapo in 1940?
A. As a child of a railroad worker's family I went to the elementary school and then to senior school for three years. Thereupon to the technical school for machine construction and electrotechnics. After this education I worked for a few months in my profession.
DR. STEINBAUER: Mr. President, as far as I know from the transcript and from the rules of the Tribunal, Tschofenig has been brought here to be my witness for cross examination. I am under the impression that Mr, Hardy now wants him to examine him anew. I think that this would be improper.
MR. HARDY: Your Honor, I have called this witness as a rebuttal witness and made it quite clear. After he was on his way here, some defense counsel requested him for cross examination. That was at the time I had read this third affidavit and Mr. Tschofenig is here as a rebuttal witness.
THE PRESIDENT: Yes, prosecution requested the calling of the witness and the witness was called for the prosecution, to examine him as a rebuttal witness. Of course, counsel for defense will have every opportunity to cross examine but the prosecution should open the examination as the witness was called by the prosecution in rebuttal.
BY MR. HARDY:
Q. Would you continue, Mr, Tschofenig, please.
A. After a few months in a technical activity I also participated in political life, because I am of a social democratic family.
With that already in 1932 I came into conflict already at that time with the laws of that time and was arrested a few times. After the 12th of February 1934 I became a Communist and as such I took part in illegal activities. I was in the concentration camp Woellersdorf. After being released I worked in my profession for a few months and then I was supposed to be arrested again. I escaped from this arrest and I worked illegally politically in Austria. After the annexation of Austria by the Third Reich I remained in Austria illegally and only toward the end of 1938 I left Austria. I was an immigrant in Belgium where, in connection with the events of the 10th of May 1940, I was transported by the Surite (Burete) together with all other immigrants to southern France. The German authorities came to the camp Cyprienne where we were kept and fetched me and others from this camp and transported me back to the Gestapo in my home town and after some investigations I was transferred from there to Dachau Concentration Camp.
Q. That was in the year 1940 that you were transferred to Dachau Concentration Camp?
A. Yes.
Q. In the month of December?
A. Yes, in the month of December, on the 8th of December.
Q. When did you leave the Dachau Concentration Camp?
A. In the Dachau camp I was liberated by the American troops.
Q. Were you ever incarcerated in a penitentiary or prison for criminal activities other than those of a political nature?
A. No.
Q. Can you tell the Tribunal briefly, Mr. Tschofenig, what you are doing at the present time and what you have done since your liberation from a concentration camp, that is, your work, etc.
A. After my liberation by the American troops I became a member of the International Inmates Committee as representative of the National Committee of the Austrians at Dachau. As leader in the International Inmates Committee I went along on transport of my fellow inmates to Austria hoping that there I would be able to see again my wife and my child.
I found out that five days before my liberation my wife was murdered in a Gestapo prison. After this stroke of fate the English Red Cross brought me to Carinthia with a number of my comrades and there as representative of my party I immediately entered the then provisional government of that province. After the election on 25 November 1945 I was a representative in the Land Diet of my party and as such I am active in political life today.
Q. You are a member of Parliament, so to speak, in Austria at the present time?
A. I am a member of the Carinthian Land Diet of the province of Carinthia and chairman of my party in the Land Diet.
Q. I see. Mr. Tschofenig, when you arrived in Dachau, you first worked with the other inmates on special projects and in February 1941 you were sent to the camp hospital to work, is that correct?
A. Immediately after I arrived there, I was given a clean up job and there I worked for two months with pick and shovel, After that labor detail I was sent to the camp hospital as house worker in the beginning of February 1941.
Q. Mr. Tschofenig, the translation here is spontaneous. That is, the interpreter translates into English immediately after you have spoken in German. So, if you would kindly speak a little slower, it would be helpful.
INTERPRETER: Mr. Hardy, he is speaking too slowly.
MR. HARDY: I have been misinformed. Would you speak a little faster?
Q. Now, in the camp hospital what were your duties?
A. In the camp hospital I was first a domestic worker and then was used as a male nurse for prisoners and when one of my comrades could take an assistant into the x-ray station he took me as an assistant into the development room of the x-ray station. And through the developments that took place in the events of the camp the responsible innate manager of the x-ray was transported to Auschwitz and under those conditions the circumstances arose and I, as the only inmate who understood anything about it, was appointed in that capacity.
