Q. Now if I ask you how does the regulation of 1944 in the decisive points differ from the regulation of 1942, please tell me that in a few words. Sum it up.
A. The essential parts are a more detailed description of the fields of work, a limited power to issue orders, for the first regulation spoke only of instructions; a certain influence on the appointments to physicians, Generalarzt, and a certain power to issue orders on the spot during inspection in case of emergency. Those are the essential points, in my opinion.
Q. Now concerning research I must ask the question, in what way was the medical service of the Waffen SS after 1942 and after 1944 under the chief of the Wehrmacht medical service?
A. It was not under him. I cannot see any subordination from this regulation and not only do I not remember it from 1942, but it did not exist, as it says he could not give instructions concerning the branches of the Wehrmacht, concerning the units of the Waffen SS under the Wehrmacht. There was no subordination. He could merely issue instructions. There were similar relation as between the high command of the Wehrmacht and branches of the Wehrmacht. That must have been more or less coordinated. The chief of the high command of the Wehrmacht could not give any orders to the Wehrmacht branches. They were not under him.
Q. I merely want to make that clear. Now the second question which I want to ask you is this: Were the research institutes of the SS and the Waffen SS in 1942 under him, or was there any power to issue instructions, and was there power to issue technical orders in 1944?
A. In 1942, as far as I remember the regulation of 1942, I do not believe there was any power to issue instructions to institutes of the Waffen SS, and in the regulation of 1944 it depends on whether they were institutes with the units of the Waffen SS under the Wehrmacht.
Otherwise the Waffen SS was not under him and the institutes of the Waffen SS could not be under him, but whether these units of the Waffen SS had such institutes, I cannot say from my own knowledge.
Q. Was there a general supervisory right of the chief of the Wehrmacht medical service?
A. No.
Q. Is the supervisory right connected with any other powers?
A. Yes, generally with the disciplinary authority. Supervision remained with the branches of the Wehrmacht themselves, the chiefs of the medical service in this case.
Q. Then I may conclude the questions on this subject, and, Mr. President I have an affidavit from this witness. I have submitted it as Exhibit 20, Document HA 40, in Document Book 2, Page 60. I do not want to repeat this affidavit here. It has already been read in part. I merely want to ask you whether the statements which you made there about the tasks of the Army Mountain Medical School and the Mountain Physiological Institute in St. Johann, whether you acknowledge them as right here under oath.
A. Yes.
Q. Not to repeat the examination of this witness on consulting physicians, I show the witness Hartleben HA 18 Exhibit 8, Document Book 1, Page 32, and I ask you, witness, have you read this statement of Professor Handloser?
A. I have read the whole document book, but I do not know from the number which one it is.
Q. It says "The institution of consulting physicians."
A. Yes. Yes, I read that one.
Q. Can you confirm the contents of this affidavit?
A. Yes, fully.
Q. And finally I have given you Document HA 2, Exhibit 37, Document Book 1, Page 5 and following and ask you to read it, the statements about necessity and purpose of the meetings of the consulting specialists, that is, the meetings of the consulting specialists.
Have you read this statement?
A. Yes.
Q. Can you confirm the correctness of these statements from your own knowledge?
A. I can confirm it from my own knowledge.
Q. Then in conclusion I should only like to ask you, what is your opinion of Professor Handloser, and in particular, his attitude on medical ethics?
A. In my affidavit of the 13th of December, which has just been mentioned, I spoke on this question and I pointed out that Professor Handloser was always primarily interested in the outstanding medical achievement and conduct of his medical officers. Perhaps I may underline this by saying that, for example, he was sharply opposed to having the rank names of the medical officers changed. The word "physician", "Arzt" is always included in the name in the German army, Stabsarzt, Generalarzt. Efforts were made to change these names, to say "Captain" instead of "Stabsarzt" or "Lt. Colonel" instead of "Oberfeldarzt." He always opposed such efforts because he was of the opinion that our title was to show primarily our capacity as a doctor. I have seldom had a super*** who was so painfully consciencious in all medical questions; none was more interested in those things and who, as a superior, weighed his decisions so carefully.
I have known Professor Handloser for thirteen or fourteen years. I was in close contact with him for years, and I believe that I am in a position to pass judgment on his personality. I can only say that in view of his exemplary medical attitude, it is my firm conviction that any medically ethically inadmissible experiments could not have been known to him. He would have endangered the whole aim of his life as a physician, and his whole atfitude would have had to be changed suddenly. But that does not happen at his age. Therefore I believe that if he had learned of such things he would have objected as far as he had the opportunity.
DR. NELTE: I thank you. I have no further questions to this witness.
BY THE PRESIDENT:
Q. Witness, were the army regulations of the German army published in printed form prior to 1939?
A. I do not quite understand what regulations you mean. If I might ask you to explain a little?
Q. There are certain regulations published, I assume, or issued by the proper authority of the government for every army. In the States they are called the Army Regulations. I do not know what they are called in Germany, but in the United States they ere printed in a book form, Army Regulations, general laws governing the members of the Armed Forces of the Army. Was there anything similar to that printed in Germany for the benefit and instruction of the German Army?
A. Yes, the regulations of the German army existed -- always existed in a printed form, or at least mimeographed form, and were not published by the government, but they were issued by the high command, that is, the War Minis try, originally; later, by the high command of the Wehrmacht for the Wehrmacht and by the high command of the army for the army and they were signed in general, according to the significance, usually by the commander in chief of the branch of the Wehrmacht, but in this case by the commander in chief of the army.
Q. What were these regulations called? What was the title of them?
A. The titles varied. There were a large number of regulations. Some of them were still being worked on. For example -
Q. Well, were these regulations never assembled and printed in one volume?
A. They were too extensive for that. There were many hundreds of regulations, but they were in a special folder with an index giving the titles of the various regulations.
Q. What was the name, the generic group name, of these regulations?
A. There was no general title. They were Army Service Regulations, Heeres Vorschriften, HDV, Number so and so. Then there wat the Title giving the contents of these specific regulations, rank and superior relationships in the army, and disciplinary penalties. There was a medical war regulation or instruction book for non-commissioned officers and so forth.
Q. Do you know of any one printed volume in which these things were all assembled and bound together?
A. No. As far as I know, there is no such book.
Q. As to the authority of the Chiefs of the Wehrmacht Medical Service, under the order of 1942, would he have authority to order the senior surgeon medical officer of a regiment or of a brigade to make a report to him upon the health conditions of that organization?
A. That would have been much too long. The Chief of the Medical Wehrmacht Service, in this case if he wanted to know something about a specific regiment, would presumably have turned to the medical chief of that branch of the Wehrmacht and asked him for the necessary information He was really in no position to do so. How was not really the superior of this regimental doctor in this case.
Q. What orders could he have issued? You said he could have issued some orders to some administrative branch. Do you mean infantry, artillary, or tank corps?
A. A medical officer could not give orders to troops at all. He could only give orders in his specialized field, and that is the field of medicine. He could issue directives on the most favorable treatment of pneumonia, but he could not give the troops any direct orders. Only the military commanders could do that. If he had a wish, in the medical respect, effecting the troops, he had to ask for an order through the troop commander.
He would have to ask the chief of the high command of the Wehrmacht, or as army medical inspector, he would have to ask the Commander of the Researve Army of Germany. He would issue the order. That is the reason the service regulations always say he is the advisor of his commander in questions of the medical service.
Q. The Chief could issue, I understand, a directive that hereafter pneumonia would be treated in a certain way, ro that a certain variety of splint should be attached to cure a broken leg. That would be a directive, would it?
A. Instructions were not issued in this connection. Advise was given. No certain method of treatment was prescribed for the doctor. The main thing was that no mistake was made; whether one doctor preferred one drug and another doctor preferred another drug, was up to the doctor.
Q. It would be a recommendation, not a direction? Is that correct?
A. A recommendation, advise, yes.
Q. What would be the effect of such a recommendation upon the officers to whom it was directed? They would use their own judgment in applying it or would they follow it?
A. You mean the medical officers?
Q. Yes.
A. The medical officers knew that what the higher medical officers told them in this respect was the fruit of medical and scientific experience of the latest years. Therefore, they welcomed such directive or advise, and generally, no doubt, followed it. They were not so limited. If I think about pneumonia, for example, various modern methods of treatment were reported in this booklet and compared with one another. The medical officer had the guarantee that he was advised according to the best medical knowledge.
Q. A directive, then, could be disregarded by a medical officer of a regiment, brigade or division, if in his judgment, the directive was not correct, was not sound in principle?
A. He had that liberty. In that case he probably would have consulted the others.
Q. Did the medical director have authority to direct or order, whatever it should be called, regimental surgeons to make reports to him at monthly intervals about the health of their commands?
A. There was no special instruction needed for this in the medical service. There was quite a definite report system. Every month a report was made by every unit about the state of health. This was done automatically.
Q. Who required that those reports be made? Was that in these army regulations we mentioned?
A. I believe that was set down in the regulations, but it is possible that there were individual orders. No, I just remember the regulations. There was a regulation about reports for the army which settled this question in detail.
Q. If the Chief of the Service desired, quickly, a certain report upon a certain division, could he send an order to the Chief Surgeon of that division to report to him immediately upon certain health conditions in that division?
A. The Chief of the Wehrmacht Medical Service?
Q. Yes.
A. No. He could not. It would have been easier for him to approach the medical chief of the branch of the Wehrmacht concerned. He would no doubt have had better connections. The basic principles in such things were, as far as I saw it, that the Chief of the Wehrmacht Medical Service when he asked for information, did not go directly to subordinate places, but to the superior of the medical officer from whom he wanted information.
Q. You mean the military superior, not another medical officer, do you not?
A. No. I am afraid we have misunderstood each other. I understood the question to be this: If the Chief of the Wehrmacht Medical Service wanted to have information, to whom would he address himself, directly to the person from whom he wanted information or through channels?
Q. You understood me correctly, but I do not understand you, I think.
THE PRESIDENT: The Tribunal will now recess until 9:30 o'clock tomorrow morning.
(The Tribunal adjourned until 20 February 1947 at 0930 hours.)
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 20 February 1947, 0930, Judge Beals presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal 1.
Military Tribunal 1 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Will the Marshal ascertain if the defendants are all present in court?
THE MARSHAL: May it please Your Honors, all defendants are present in the court.
THE PRESIDENT: The Secretary General will note for the record the presence in the court of all the defendants.
Counsel may proceed.
DR. NELTE: Mr. President before the examination of the witness Hartleben continues, I should like to submit a request to you. Generalarzt Dr. Wuerfler, who was examined yesterday, asked me to tell the Tribunal the following.
In the cross-examination yesterday, the apparent contradiction between Dr. Romberg's report and his testimony has bothered this witness. He did not go home as was his privilege, but he stayed here to be available to the Tribunal for examination, if this is necessary to clear up the situation.
This morning he gave me an affidavit and asked the Tribunal to decide whether to clear up a misunderstanding as he sees it - whether he is to be heard again personally, or whether the Court would agree of ****** after consultation with the prosecution, if I submit an affidavit from this witness. After reading this affidavit it seems valuable to me to have at least judicial notice taken of it, for it actually clears up a misunderstanding.
MR. HARDY: Such a procedure as this seems most unusual to me, Your Honor. I would like to have the opportunity of reading this affidavit. If the gist of the particular statements Dr. Wuerfler would like to make-I submit that he has been duly examined, was placed under oath; questions were directed to him in a very precise and frank manner, and his answers are on the record. Now, whether he wishes to change his testimony or not is something that i cannot understand from Dr. Nelte's remarks. I wish Dr. Nelte would be a little bit more specific.
THE PRESIDENT: If counsel for the defendant Handloser desires to place the witness again on the stand as his own witness recalled, counsel may do so.
DR. NELTE: Mr. President, if I could give the prosecutor an opportunity to decide by reading this brief affidavit, that will probably be the best solution for all of us. It is not a correction of his testimony, but an explanation of his testimony.
THE PRESIDENT: Counsel for the defendant will hand the affidavit to counsel for the prosecution and allow him to study it for a few moments.
MR. HARDY: Unfortunately, Your Honor, the affidavit is in the German language and I would have considerable difficulty in making it out at this time.
Could we postpone this until later in the afternoon? And I will have one of the members of my staff look this matter over.
THE PRESIDENT: The matter may be postponed, at any rate, until after the morning recess.
MR. HARDY: Thank You.
THE PRESIDENT: If the affidavit will be immediately sent to the office of the Secretary General it will be translated in a few moments.
DR. NELTE: Mr. President, the direct examination of this witness by me had been finished. The Tribunal had put questions to this witness, and it seemed to me as if the last question which the presiding Judge asked had not yet been answered. Perhaps the Tribunal wants to continue its questioning. 3214
THE PRESIDENT: The Tribunal has no further questions to propound to the witness. If counsel offer the defendant desires to propound further questions on his direct examination, he may do so. If not, the witness will be turned over for the cross-examination.
Have any defense counsel any questions to propound to this witness on cross-examination?
HANS HARTLEBEN -- (Resumed) EXAMINATION BY DR. STEINBAUER (Counsel for defendant Professor Dr. Bieglboeck):
Q Witness, the Judge asked you yesterday about the extent of military orders. Your answer was not very clear. Did I understand correctly that you made a distinction between "instructions" and "orders"?
A I said that in the service regulations of 1942 for the chief of the Wehrmacht Medical Services, the word "order" was not used. Instead of this word "order" the word "instructions" was used. In military language a distinction has always been made between these two concepts. An instruction, as I took the liberty of saying yesterday, is a directive, a request, a general statement as to in what direction and toward what aim something is to be done, without going intO details and making precise statements, which form the actual content and meaning of a military order. This distinction was quite usual in military language.
Have you understood me clearly now?
Q What were the results of instructions on the one hand and a military order on the other hand, in regard to a medical officer?
A I do not quite understand the question. Could you please phrase it a little more precisely?
Q Is it true that an instruction is only to give directions while an order must be executed directly?
AAbout the sense.
DR. STEINBAUER: Thank you.
THE PRESIDENT: Is there any further cross examination of this witness by Defense Counsel. If not the Prosecution may cross examine.
CROSS EXAMINATION BY MR. HARDY:
Q Doctor, you stated that the express purpose for the Fuehrer's decree of 1942 was to coordinate material or the utilization of material and personnel in the medical field in Germany; that is, the field of the Wehrmacht, civilian sector, with Karl Brandt as the top superior? Now, isn't the utilization of the material and personnel in the field of medical research a common problem of all branches of the Wehrmacht requiring a coordinated and planned directive?
A First, I may correct one thing, Professor Brandt was not the Chief in that matter, but according to the text of the Fuehrer's order, he is empowered to conduct the negotiations; that is how I explained it yesterday. As far as the joint nature of research which, as I said yesterday, at that time in 1942, was not in the foreground of interest. It is not absolute, there are branches of research which are specifically for the Luftwaffe, for example, or for the Navy--problems can appear which do not interest the Army at all, then one would not speak of any joint nature of a research assignment.
Q Well, isn't it true, Doctor, that there were a considerable number of medical men working on research problems in the various branches of the Wehrmacht?
A In various fields of research, you mean?
Q Yes.
A Yes, of course.
Q Then, that decree was to coordinate the use of material and personnel. Would it not seem logical that the field of research would also come within the scope of this decree so that they might use some of their doctors on research, for other problems to avoid duplication of their effort. For instance, the Luftwaffe working on Typhus research, the Army working on Typhus research, the Navy working on Typhus research, and the Waffen SS working on Typhus research; wouldn't it be a function of the Chief of the Wehrmacht Medical Service to coordinate that research in order to utilize the personnel and material to the best of advantage?
A In my opinion, in this case, the Chief of the Wehrmacht Medical Service, not in this case, but in any case, must examine each individual case to that effect because in the field of research very often many paths must be taken to come to a desired goal, and it is quite possible that it is even desirable for many people to work on the same problem because one never knows whether the path taken by one person will lead to the desired goal. I have said the same thing yesterday in a different direction. In all possible fields we have similar conditions from the international view point. Consider automatic research. Special favorable circumstances brought it about that a certain problem was solved in America, although, no doubt, a number of other countries were working on it also. It could be quite similar within one country in a certain field of research.
Q And, if I understood you, it would be within the scope of the authority of the Chief of the Medical Service of the Wehrmacht to coordinate and direct medical research, if such coordination and directions were necessary; is that true?
A Yes, if it proved necessary and if he is examined to that effect, he will be able to reach a decision. He would presumably sit down at a round table and discuss the thing first. You cannot act impetuously in scientific matters.
MR. HARDY: I have no further questions, Your Honor.
REDIRECT EXAMINATION BY DR. NELTE:
Q The examination yesterday, by the presiding Judge, gives me an occasion to ask you a few more questions because it seems to me that certain military directions of the Medical Service are not quite clear. The defendant Handloser, as Chief of the Wehrmacht Medical Service, was doubtless the highest medical officer in the Wehrmacht.
A Yes.
Q The Prosecution said that he may possibly have failed to exercise his duty, his duty of supervision; for this reason I must ask you, did Professor Handloser, as Chief of the Wehrmacht Medical Service, have such a supervisory duty of all medical officers of the various branches of the Wehrmacht?
A There can be no doubt that such a right and such a duty did not exist because in the service regulation there was nothing whatever said about this. The regulation would have been made to say that. For example, I remember some regulations in which, for example, in such cases it says he directs and supervises, this expression "and supervises" is lacking in the service regulation of 1944, and was certainly not in the regulation of 1942 either.
DR. NELTE: Mr. President, in my document book 3, under HA-50, page 31, I have a copy from the Army Service Regulation 21, the title is "The Leading Medical Officers at Army Headquarters of the Field Army. I believe that this excerpt can help you in determining the authority and interpreting the terms which will be important here.
Q Witness, you apparently mean the place in this regulation, "They direct and supervise the medical service within their sphere of service according to the orders of their Headquarters, and the official medical orders of their superior medical officers."
A That was the kind of example I was thinking of.
Q Now, however, that may be. One can understand the point of view of saying the highest medical officer of the Wehrmacht has a supervisory duty even if not in the concrete sense.
This results from his position, and I should like to know from you exactly what is the difference between the concrete supervision provided in the War Medical Regulations from the supervisory duties of the Chief of the Medical Service of the Wehrmacht. What must he do in order to fulfill his duty morally to be the highest Chief Medical Officer of the Wehrmacht?
A In this specific case, he could only ask for information from the medical Chiefs of the Army, Navy, Luftwaffe, and possibly of the Waffen-SS.
Q Witness, I ask for information if I have a particular reason for asking information. I want you to tell me what you would consider the duty of the chief of the Wehrmacht Medical Service. In order to supervise and to make sure that if something happens he will learn about it, what must he do?
A Under this regulation he really had no possibility of doing that. I will assume that in some way by coincidence he heard that at some place in the army or the Luftwaffe or the navy something had happened that he considered wrong or even punishable. Then under this regulation the only thing he can do is to go to the chief of the medical service of the army, the navy, or the Luftwaffe, and say, "In such and such a way I have learned that in such and such a place something objectionable has happened. Please investigate it."
Q If I tell you that in my opinion the chief medical officer has a moral duty to care for his medical corps as far as he can, then he will make use of safeguards in the form of organization in order to guarantee what he considers the ethical and the medical duty; is that so?
A Well, his ethical duty is a matter of course. All of us in the medical corps were trained to that effect; and it would never have occurred to us that anything could happen in that connection. One cannot suddenly issue an order: "I order that one may act only according to ethical points of view." One cannot order things which are a matter of course; and if it is only an individual case which comes to the attention of the chief medical officer, he would in this case have settled it in agreement with the medical officer concerned and consider it such an exception that it would not give occasion for issuing a general order. But one can, of course, say that only in a concrete, individual case.
Q Well, then we agree that to intervene one needs positive knowledge of an individual case, or for general intervention one needs knowledge of symptomatic cases?
A Yes, that's true.
Q Now, the question of responsibility is frequently brought in connection with the question of superiors, as you have heard here. I should like to ask you in connection with the question which the presiding judge asked yesterday to make clear what is a military troop order and what is a medical order.
A Military orders are all orders issued through military channels to the troops, and they are orders which affect the life of the troops.
Q Is there a military troop order in the medical service?
A Yes, that exists. I was just about to give an example. In combatting epidemics, if it is, for example, in the opinion of the chief medical officer necessary for all the troops to be vaccinated, then it is not the chief medical officer who orders the individual divisions, regiments, and so forth directly with his signature. He goes to the chief troop commander, that is, perhaps to the commander-in-chief of the army. If it is a Wehrmacht matter, he goes to the chief of the high command of the Wehrmacht. He explains to him for what reasons it is necessary to have the troops vaccinated against typhus or against dysentery; and he brings him a draft of an order which contains the necessary provisions; and this commander or chief of the high command signs this order on the letterhead of the chief of the high command of the Wehrmacht. Then it goes through channels from the high command to the subordinate commands, that is, army group commands; from there to the army high commands; from there to the corps commands; and from there to the divisions, and so forth; but always through purely military channels. The individual commander, for example, the commanding general of an army corps, passes this information on to the medical officer and his staff and consults this medical officer about measures to be taken within his corps. The order given to the individual divisions and regiments will be signed by the commanding general.
Now, in contrast to this there is the medical service, the medical service generals, a purely medical matter. For example, suppose a new and especially effective method of treatment for pneumonia has been discovered; it has been tested and its effectiveness has been proved; and medical ex perience in hospitals and clinics has shown that this method of treatment is a great step forward.
Now, the medical chief wants to let his medical officers know about this. It is purely a medical matter, purely a technical matter. This he can sign himself on the letterhead of the chief of the Wehrmacht medical service or of the army medical inspector or chief of the medical service of the Luftwaffe or chief of the medical service of the navy. This goes directly to the medical officers in the headquarters. It does not go to the headquarters of the 25th army corps but to the corps physician of the 25th army corps. The corps physician then announces this new method of treatment to his medical officers so that they know that in treating their pneumonia patients they will have a better opportunity. That is a typical incident of the medical service generals. This difference was clearly expressed in the regulation that all questions or all orders affecting the troops as a whole in any form had to go through military channels. I believe that this is perhaps clear now.
Q Yes. I want to put perhaps a more concrete question. How about directives which were the result of the meetings of the consulting physicians to the medical officers or units? Were they orders or were they instructions or what were they?
A The directives which were distributed, or, rather, the contents of the directives which were distributed were not in the usual military sense orders but advice. But the thing is like this. The medical officers, upon receiving these printed directives, of course knew that they were based on well-considered discussions, for example, at the meetings of the consulting physicians, on the basis of experience which well-known professors and doctors had; and the medical officers were thus given the latest progress in science and medical experience. Therefore, the medical officers were grateful for it; and in the great majority of cases they no doubt acted according to these directives. That, of course, was the purpose.
For example, I myself as corps physician or army physician, when I asked medical officers at the front about such directives, had the experience that one or another said to me: "In this particular point I have a different opinion."
Then I said "All right, one might have a different opinion on this point; but I will send the consulting physician from my army." If it didn't happen to be my own special field -- I was a specialist for internal medicine; and it may be that the question was a surgical question -- then I saw to it that this particular officer talked to the recognized representative, the specialist, and discussed the matter; and then he voluntarily accepted the result of greater experience.
Q Now, I'd like to ask one more question which may be superfluous but which is necessary in order to clarify the matter. A medical officer, no matter how high his position, could never give an order to a military officer, no matter what his rank?
A That was expressly forbidden.
Q On the other hand, the medical officer in all things, even medical things which affected the troops, the soldiers as such, would submit his order to the military commander and have it issued by him?
A Yes.
Q Now, a final question. Will you please tell the Tribunal the difference between a higher superior and a direct superior? The prosecution holds the point of view that if someone is a higher superior, a specialized, technical superior, he is the superior of everyone under him in the hierarchy. Is that true?
AAs you indicated, there is a distinction made between the immediate superior and the higher superior. If I specify supervisory authority, the immediate superior has supervisory authority over the field in which the medical officer is working. For example, a medical officer in a hospital is supervised first by his section physician, and he by the chief physician. It is, of course, possible for the chief physician to supervise both; but over him again is the divisional physician, who may inspect this hospital from time to time and thus exercise supervision. Above the divisional physician is the corps physician, the army physician, and the group physician, and above him the army medical inspector.