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.
Q. That was in the summer of 1942?
A. Yes, that was the beginning of the summer of 1942.
Q Well, in this capacity as Chief of the X-ray station, what were your duties?
AAt the beginning of my activity. I took the usual X-ray pictures and-assisted in the taking of X-rays. When the order of the camp came that all of the camp inmates were to be examined for tuberculosis in 1943 by a fluoroscope, the physicians could, at that time, not accomplish their tasks any more and therefore left it entirely up to the prisoners and, due to that, I was able, through those fluoroscope examinations, to bring prisoners, for whom it was necessary, to the hospital where they could recover a little bit.
Q Was there always a doctor in charge of the X-ray station?
AA t the beginning, there was always a responsible director, a SS physician, who was in charge of the X-ray station and already in 1942 it happened that no responsible SS physician was appointed as director of the X-ray station and, thus, the X-ray station was left to itself.
Q Well then, after 1943, you were quite independent in your position as Chief of the X-ray station, is that correct?
A I was independent to the extent that it concerned the competence of the station itself.
Q. Do you recall a transport which arrived in Dachau in the summer of 1944 containing Gypsy inmates?
A I remember that very well.
Q. Could you tell us something about the disposition of the Gypsies after arrival in Dachau?
A The transport which arrived - on the average, had the normal weight of every prisoner.
Q When did you see them for the first time?
AAccording to the instructions of the camp, I had to take a fluorescope of every transport that arrived in the camp and, in this way, the transport, after they had changed their clothes, came immediately to the hospital, first to the dispensary and then to the X-ray station for fluoroscope.
Q How many of the Gypsies did you exclude from the experiments as physically unfit?
A. Since I had already heard about the projected experimental station before, I tried, as far as possible, to keep some prisoners from the transport out of this. There were, as far as I remember, 15 to 20 of them whom I excluded.
Q. Were there other examinations made to determine their fitness for the experiments?
A. After the fact had been established by my examination of them that there was not a sufficient number for the experimental station, the dispensary, through the cape himself, and the camp physician - determined themselves the fact that they were suitable inasmuch as they were simply examined and transferred to the experimental station.
Q. Were all the experimental subjects used in the experiments considered to be in perfect physical condition?
A. This transport, considering that it was for a concentration camp, can be considered as in good physical condition. That is, they were all able to work.
Q. Were the ones excluded by you in your examinations definitely not used in the experiments, or were they later picked up and used in the experiments?
A. I don't know that any more because the transport was then transferred to an invalid block from where the prisoners were then transferred to the experimental station a few days later.
Q. Do you know Professor Dr. Beiglboeck.
A. Processor Dr. Beiglboeck I saw a few times in the camp and he also came to the X-ray station a few times himself.
Q. Did he examine any of these inmates to your knowledge?
A. Dr. Beiglboeck, you mean?
Q. Yes.
A. Yes, Dr. Beiglboeck, after he heard of the results of the examinations that I got, expressed some suspicion of my results of the 9335a examination and asked me for X -rays, and through the instruction of the camp physician to take as few X-ray pictures as possible because we did not have the material for the, Dr. Beiglboeck again checked the persons whom I had examined.
Q. Well, did any of the persons whom you excluded then become available for the experiments as a result of the examination by Professor Beiglnoeck? Do you know that?
A. My findings-already during the experiment-had been reported as being incorrect to the doctor and then he decided to make his own examination and represented my examination as being incorrect and with that he effected that I myself could not take a fluoroscope alone of these patients any more or of these prisoners who were in the experiments.
Q. Did you ever see Professor Eppinger at the Dachau concentration Camp?
A. I myself, in the hospital, was told by one of my comrades that Professor Eppinger, before the seawater experimental station was established, came as a visitor to the Luftwaffe station and he stayed for two days.
Q . During the time the seawater experiments were being conducted did you examine any of the experimental subjects?
A. During the seawater experiments, sick persons or experimental subjects were also brought to me for examination, and during these examinations Dr. Beiglboeck expressed his mistrust of my results of the examination.
Q . Did you notice any physical change or visible change in the physical condition of the inmates used in the seawater experiments when you examined them during the course of the experiments as opposed to your examination which you conducted prior to the beginning of the experiments?
A. I found out for sure already, after two weeks, that the physical condition had deteriorated considerably due to the experiments.
Q. Did you know of any incidents where the inmates were particularly upset as a result of the experiments?
A. I heard about that and also one case of maniac attack of one of the patients who were in the experimental station.
Q. Do you know whether or not, Mr. Tschefenig, that these experimental subjects were volunteers or was that knowledge ever brought home to you?
A. My personal impression was, from the very beginning, that this transport had been brought to Dachau under false pretense and that the people had been told not that they were going for experiments but for work, and when they found out what it was about everybody tried to get out of it.
Q. Were you able to ascertain the nationalities of the various subjects?
A. I myself was not able to do so. Every day I did up to 300 fluoroscope examinations and 100 X -ray pictures and could talk very little with the prisoners who newly arrived at the camp about their nationality or about their ideas.
Q. Could you tell us approximately when the experiments began end when they were completed or do you specifically recall the dates?
A. The exact date I cannot remember. It was in the summer of 1944 and, as far as I know, the experiments lasted for about six weeks.
Q. Do you know what happened to the experimental subjects used in the experiments after the completion of the experiments?
A. After the completion of the experiments the experimental subjects were examined as to their ability to work or not to work and they were divided into groups. Those who were sick were transferred to the normal block hospitals.
Q. Were any of the inmates used in these experiments-these sea water experiments-at Dachau ill as a result of the experiments?
A. I don't know very much about this since, after the completion of the experiment. I was unable to take a fluoroscope of all of these experimental subjects.
Q. Well, did any of them have to report to you for X -ray after the completion of the experiments?
A. I know that after the completion of the experiments, three of these experimental subjects came to the station for internal diseases.
Q. Do you know for certain that those three subjects were from the experimental station wherein the seawater experiments were conducted?
A. Yes.
Q. When those people came to your station for X-ray, can you describe to the Tribunal their condition?
A. Every patient who was brought to a station which treated internal diseases was in the morning brought for examination to the X-ray station as a new arrival in this station and of those people these three were brought from the station for internal diseases on the next morning to the X-ray station. One of them was no longer able to walk himself. He was on a stretcher and was carried on a stretcher up to the X-ray apparatus.
Q. What symptoms did they show as a result of the X-ray examination; did they show any positive results to the heart and the lungs?
A I still remember very well. I had to state as a result of the examination that just the patient who was brought on a stretcher that his lungs as well as his heart were alright.
Q. Do you know what happened to that inmate who was brought in on a stretcher after you X-rayed him?
A The results of my examination went to the station where the inmates were kept. I received word that it was not necessary to report the result of the examination to the station since the inmate had died, The opinion of the station physician, who was an inmate himself, was that the ultimate cause were the sea-water experiments and that death had been caused by that.
Q Did you receive this information as official?
A This report I received officially through the station, with the instructions to give my report to the secretary's office.
Q Do you know how long after the completion of the sea-water experiment that this subject died; was it a period of two weeks, three or four days or how long; do you recall?
A I remember because after they were transferred to the station for internal diseases it was only three days later that the patient died; it was not a case of typhoid and there were no other symptoms of illness that could be determined.
Q. Were you able to see his charts or records and determine from them the cause of death?
A When I examined him, I saw the curves, the sickness curve myself where the block was mentioned from which he came from, Block 1-A, that was the experimental station, and I could determine that the clinical examinations had given negative results; that wan identical with my examination.
Q. Now, for the benefit of this Tribunal, Mr. Tschofenig, once again are you absolutely sure that this many you refer to died as a result of the sea-water experiments?
A This was the general opinion in the hospital and it is also my own opinion that this patient from the sea-water station died as a result of the experiments.
Q Your Honor, I have no further questions.
THE PRESIDENT: The counsel for the defendant may cross-examine.
CROSS-EXAMINATION BY DR. STEINBAUER:
Q Which religious denomination do you belong to?
A I believe in God.
Q This is a Nazi conception.
A It means that you have no confessional ties and affiliations but still believe in God.
Q Where are you living, in Austria?
AAt Klagenfurt.
Q And where do you live now, in Nurnberg?
A In Nurnberg. I am living at the hotel.
Q. Do you walk around freely?
A Yes.
Q. How does it happen then that the Austrian newspaper wrote, especially your party organ, which is always well informed, "Tschofenig was kidnapped by the British and brought to Nurnberg?"
A That is the case because all officers which I had something to discuss with did so without any interpreters and the summons for a witness, they did not look at the paper which summoned me to come here as a witness, and they treated me as a prisoner or threatened to do so.
Q. Thus you did not like to come to Nurnberg? Speak more slowly and wait until the interpreter is ready.
A I gave testimony when I found out that Dr. Beiglboeck was working in a British hospital in the British zone of Austria before I gave this testimony to the Police.
Q. We shall speak about that later. Witness, at the moment I am only interested in that your party organ writes that the British kidnapped you?
A I was of the opinion that it was sufficient to give an affidavit and in that way to make my statement under oath in Klagenfurt before the Tribunal here and that would be sufficient.
Q Thus, it is possible that you did not want to come before an American Tribunal or that you have reasons to change your testimony in any way?
MR. HARDY: Your Honor, I must object to this, the witness stated he came here voluntarily, he stated through an oversight he was given considerable trouble on his way, he is here now voluntarily and is quartered in the Deutscherhof Hotel and he is going to return to Klagenfurt. There was no coercion or duress exercised over the witness in any way and I want that clear for the record.
THE PRESIDENT: The objection is overruled.
BY DR. STEINBAUER:
Q. Well, witness, in any case your party organ had the impression, otherwise they would not have written that you don't want to go to Nurnberg; is that correct?
A I did not read any newspapers from Austria thus I do not know what was written there.
Q Well, I can tell you what was written; it says that the British government of Corinthia requested you repeatedly to appear, you did not come and thereupon English soldiers came to fetch you; is that correct?
A That is not correct. I received a request to come to Nurnberg, by the British Element, Civilian Affairs, I asked them to transport me back again as quickly as possible, as I am very busy and I d.o not have the time to be away from Congress for a long time and the Corinthia Parliament is in session now.
Q, Well, and there are other big doings going on and it was very necessary that you are not away from home, I can understand that. In my duties as a defense counsel, I also obtained some information about you personally, and got the reply, "Very intelligent, but fanatic."