MR. DENNEY: If your Honor please, I have some testimony of a witness that was given before Military Tribunal I which I can read in at some tine. It is only about 10 or 12 pages. I am just trying to give your Honors an idea of what the work at hand is, if it will help Dr. Bergold out. It will probably take half an hour or so.
THE PRESIDENT: Is Dr. Ruff to be called?
DR. BERGOLD: Yes.
THE PRESIDENT: Is he here?
DR. BERGOLD: Not at the moment. It is one o'clock already.
MR. DENNEY: The Marshal says Dr. Ruff is outside.
THE PRESIDENT: Well, all right, then we will start at 2:30 with the witness Ruff.
THE MARSHAL: The Tribunal is recessed until 1430 hours.
(A recess was taken until 1430 hours)
AFTERNOON SESSION
THE MARSHALL: All persons in the Court, please secure your seats. Tribunal Number II is again in session.
DR. BERGOLD: May it please this Tribunal, I would like to ask for permission to bring Dr. Alexander, instead of Ruff. Dr. Alexander asked me to do so because he has a very important conference later on. I hope it doesn't matter in what sequence we bring them in.
THE PRESIDENT: Whichover witness you like. Whom do you want?
DR. BERGOLD: I would appreciate it if Dr. Alexander could come in.
THE PRESIDENT: Call Dr. Alexander.
DR. LEO ALEXANDER, a witness, took the stand and testified as follows BY JUDGE PHILLIPS:
Q Will you repeat this oath after me:
I swear by God, that the evidence which I shall give in this court will be the truth, the whole truth and nothing but the truth, so help me God.
(The witness reported the oath.)
JUDGE PHILLIPS: Be seated.
DIRECT EXAMINATION BY DR. BERGOLD:
Q Witness, I would appreciate it not to speak too fast and furthermore I'd appreciate it if you could make a short pause between my questions and your answers, because of the translators.
A Yes, sir.
Q Witness, would you tell the Tribunal your name -- your first name and last name?
A Leo Alexander. No middle initial. Born October 11, 1905.
Q Doctor, what is your profession?
A Doctor of Medicine; specialist in neurology and psychiatry.
Q Thank you. Doctor, as far as I know, you are in charge of the experiments under indictment in case 1?
A Yes; I have been.
Q Doctor, I shall now come to the first experiments, namely, high altitude experiments in Dachau. Today we had a witness hero, Romberg, who testified to the effect that, within the framework of the German Research Institute for Aviation, there were no death cases, but that the death cases occurred within the framework of other experiments carried out by Dr. Rascher. Could you affirm the fact, if between those two experiments, which are in the report of the 28th of July 1942, and those other experiments which were carried out by Dr. Rascher?
MR. DENNEY: If your Honor please, I don't understand what he's talking about -- asking this witness to confirm the fact that Romberg said this morning that nobody died in any Luftwaffe experiments conducted at Dachau. Certainly the witness wasn't at Dachau then.
DR. BERGOLD: No. There must be some sort of misunderstanding, Mr. Denney. I asked him, as an expert, if during the series of experiments which are in the report of the German Research Institute, and all other experiments which became known to him, of Rascher, if there is a difference between the two experiments? I thought that this was an expert question.
DR. DENNEY: I still don't understand it.
THE PRESIDENT: Well, the important thing is this: Does the witness understand it? Do you, Dr. Alexander?
THE WITNESS: Frankly speaking, not quite. I don't write know what is being driven at.
DY DR. BERGOLD:
Q Witness, is the report of the 23th of July 1942 of the DVL known to you?
A Yes
Q Is there a difference between these experiments as defined in this report and the special experiments which Rascher carried out upon Himmler's orders in Dachau?
A Well, there's that difference -- that fatal experiments are not mentioned in the report.
Q No. I'm sure that those are certain experiments in favor of the Luftwaffe, which are laid down in this report; is that correct or not?
A Yes.
MR. DENNEY: If Your Honor please, I think the report speaks for itself. If he wants him to say anything about the report, let him take it, look at it and ask him his questions, but Dr. Bergold is now trying to read into the record the fact that this report doesn't mention any deaths.
DR. BERGOLD: Not quite.
MR. DENNEY: And therefore he says that this is the only thing that had anything to do with the Luftwaffe, and all the other experiments that were carried on down there, when somebody else was concerned, and died, he says these are all Himmler's. Now that's obviously his contention, but it doesn't help the Tribunal any.
THE PRESIDENT: Well, Dr. Bergold is assuming that Dr. Alexander is familiar with this report.
DR. BERGOLD: Yes.
THE PRESIDENT: And then he asks him a question which, I dare say, the Tribunal could answer just as well. What does the report say?
DR. BERGOLD: No, not quite. This morning we spoke of two different series of experiments. Romberg seated that the first experimental series was the one for the Luftwaffe, for the benefit of the Luftwaffe, as it is described in this report. Furthermore, Rascher, carried out a second serial of experiments upon Himmler's orders, with its own goals.
THE PRESIDENT: We understand that. Now what is your question of this witness?
DR. BERGOLD: Well, now I wanted to know from this export if he could tell us what difference exists between the two different experimental series.
BY THE PRESIDENT: Oh, you are assuming that he knows the details of both experiments?
DR. BERGOLD: Yes, your honor.
BY THE PRESIDENT: And, regardless of Romberg's testimony, you want him to distinguish between the two?
DR. BERGOLD: Yes, your Honor. I take it, that he knows, because Dr. Alexander was in charge of the examination of these experiments. That is how I understood it, anyway. I was informed thus.
MR. DENNY: You can ask him anything, I submit, your Honor, about the report that he wishes, but I have never seen any other report like this, based on these other experiments he is talking about, which was certainly not going to accept as SS experiments; but, if he wants to say that I have this group and this group, because Romberg said so, and will you tell me how this group of which he has the report, differs from the experiments that Romberg said, were conducted for the SS and Himmler. I don't see hour this witness is competent to testify about that.
DR. BERGOLD: On the basis of the examination that he made, I assume.
BY THE PRESIDENT: Examination of what?
DR. BERGOLD: Your honor, Dr. Alexander, as export, examined all the experiments which were carried out at Dachau. I don't know that is correct. Maybe, I have not been informed correctly.
BY THE WITNESS: That is correct. As a matter of fact, I was the first medical officer who saw the report on the altitude experiments. The report is an exhibit, I presume; and I saw it in Himmler's collection of books.
BY THE PRESIDENT: Well, it isn't here.
BY THE WITNESS: Yes, that is the report.
BY THE PRESIDENT: That is the document which Dr. Bergold now has?
BY THE WITNESS: The document, which I assume, if Dr. Bergald will show it to me, I can recognize.
(The witness is shown the document)
BY THE WITNESS: (perusing the document) This is a photpstat of the report which I found in Himmler's files, which were captured (pause) -shortly after their capture in late (pause) -- that was in early June of 1945.
This is the report, as I recognize the signature, and the general arrangement of the papers. And this report is included in the photostat of the CIX report which I wrote.
BY THE PRESIDENT: Well, does this report cover the experiments alleged to have been conducted by Rascher?
BY THE WITNESS: This report is signed -- (pause) -- may I have it again, please?
DR. BERGOLD: Yes. (Hands document to the witness)
BY THE WITNESS: (perusing document) This report is signed by Ruff (pause) and Romberg (pause) and it says (examining) in Rascher's name: "Unterzeichnet im original". Which means in the original signed by Rascher.
BY THE PRESIDENT: Now, all the material which the witness has been asked to pass upon is in this exhibit?
DR. BERGOLD: No, your Honor, it isn't.
BY THE PRESIDENT: At any rate, that's the document which the witness holds in his hand?
MR. DENNY: That's what I want to be sure about, because Dr. Bergold keeps asking him about his theory of the Himmler experiments, where death occurred.
BY THE PRESIDENT: All right, this report will be admitted.
Q In the report which you have in your hand, doctor, are there two kinds of experiments indicated?
BY THE WITNESS: In this report, there are several kinds of experiments. There are experiments which are called "sinking" experiments.
BY TIE PRESIDENT: -- No, no; you misunderstand me. I do not mean scientific experiments, but two different experiments under two separate, series, divisions or heads? Is there anything in that report, which so indicates?
A I would have to refresh my memory. (Examines document) I do not think this (pause) -- the report is addressed, as you see, on the left hand corner, to the Reichsfuehrer SS and to the -BY THE PRESIDENT:
--- let me put the question this way:
Q. Is there anything in the report which indicates that one series of experiments was conducted by Romberg and Rascher for the SS and. for the Luftwaffe and another series conducted by Himmler for the SS?
A. In this report there is nothing to indicate that the Luftwaffe itself had any part. This report in written on the letter head of the "Deutsche Versuchsanstalt fur Luftfahrt", the German experimental institute for Aviation, "EV", I think it stands for "registered concern", which really is not governmental but private. It is addressed to the Reichsfuehrer SS, to the Realm leader SS, which is Heinrich Himmler. There is nothing in this report to indicate that the Luftwaffe, officially, had any part in it, except for the fact (pause) --- which we know from other sources, namely; that Romberg and Rascher were Luftwaffe Officers.
BY THE PRESIDENT: Well, the only source of information which you have, you derived from this report?
A. No, I had my information from many more sources. On the basis of this report now there is nothing to indicate (pause) -- from this report there is nothing shown that the Luftwaffe had any part in it, unless we knew that Romberg and Rascher were Luftwaffe Officers. There is nothing in this report to indicate that this is a Luftwaffe report.
BY THE PRESIDENT: All right. Go ahead, Dr. Bergold.
BY DR. BERG0LD: Witness you said just now that Romberg was a Luftwaffe physician, are you sure about that? This morning, he said he was a civilian.
A. I don't know, I will agree with you (pause) -- at the time he was described to me, at the time of my investigation, when I saw this report.
I looked it over. And, of course, I saw the names, and I was then told that Dr. Ruff was the Director of this private concern, while Rascher and Romberg were described to me as Luftwaffe officers. I have since learned that Romberg was a civilian employee of the Luftwaffe. He had some Luftwaffe connections, because we knew about the fact that he had examined some Luftwaffe in France. He had some Luftwaffe connection. He may be a civilian employee of the Luftwaffe--
DR. BERGOLD: -- I think not --, Doctor, he was an employee of the CVL.
BY THE WITNESS: (continuing) My investigation at the time brought forward -
DR. BERGOLD: I only wanted to, make sure that you do not know it with certainty.
BY THE WITNESS: He was not in uniform, but Ruff wore a Luftwaffe uniform at the time. And after I found this report I went to Dachau to find out what went on there; and I then interrogated numerous witnesses and asked than about what happened. And then I received the information which has been embraced in various reports, and which I am sure has been submitted to this and the other courts.
BY DR. BERGOLD: Q. Concerning the Luftwaffe, and the high altitude experiments, was there any other secret report, or was there another secret report by Rascher made to Himmler?
A. This report preceded a number of reports which are called "interim reports", which are proceeding reports, and I think the most elaborate one is the one if I recall rightly of April 5th, 1942, which is the report which contains the famous data concerning vivisection of beating hearts and so forth, which I think is well known to this court. These reports, these intermediary reports are not signed by Romberg and Ruff. They were signed only by Rascher.
Q. Witness, in this report which you are holding right now, an experiment was described as a "sinking" experiment from an altitude of fifteen kilometers --correction, "from an altitude of fifty kilometers -- still, correction, "15", and near the end it says: "React to pain stimuli" -
BY THE FITNESS: -- on which page let me see it. (examining document) Oh, yes.
DR. BERGOLD: -- Witness, -
BY THE PRESIDENT: -- Dr. Bergold, to shorten the proof, the Tribunal is satisfied that the reference to pain is a reference merely to sensation, and does not indicate suffering. And so you needn't ask the witness about that.
DR. BERGOLD: Good. Then I can spare my question.
Q. Witness -
BY THE PRESIDENT: -- What I have said, has reference to pain - 1082 a stimuli about which you just questioned the witness.
DR. BERGOLD: Yes.
BY THE PRESIDENT: That's what we are understandinq to mean "sensation stimuli".
DR. BERGOLD: Thank you, your Honor.
BY DR. BERGOLD:
Q. Witness, do you know, from International literature, that certain writers have the opinion that so-called foreign experiment should also be carried out on people condemned to death, under the terms and under the condition that they volunteer for this kind of experiment, and furthermore, that they be pardoned if they survive this experiment?
A. It is a popular assumption.
MR. DENNY: If your Honor please, I do not think that has any relevancy here as to what some writers think about whether or not experiments should be carried out on human beings, and whether or not they should be pardoned. That is in line with what I said this morning. I can not see how any trend expressed by text writers, whether they be people who are experimenters or not, have anything to do with the experiments with which we are here concerned.
THE PRESIDENT: Well, Mr. Denny, we are not applying statutory law here.
MR. DENNY: I realize that, Sir.
THE PRESIDENT: Would it not be true that the known acceptance of a legal principle, for example, the known definition of humanity, would be a pertinent field of inquiry?
MR. DENNY: Yes, it would.
THE PRESIDENT: In the absence of a statutory definition, and if is nationally accepted by civilized nations that a certain type of experiment is not inhumane, it seems to me the defense ought to be permitted to allege that.
MR. DENNY: Very well, if your Honor pleases.
BY DR. BERGOLD:
Q. Witness, I suppose you can still remember my question, May I ask you to answer it?
A. It is a popular conception that such could or should be possible among laymen. I also have read in the papers that once in a while a condemned man will ask, instead of being executed, to be made the subject of a dangerous experiment. However, I know of no single case in the United States where such an offer was actually accepted and whore that was done. The reason for that may be that it invalidates the idea of the death penalty because if a man could evade the death penalty by submission to a dangerous experiment, he would then also have the opportunity to get off the death penalty by other public services, possibly even by payments. And while in China that is permitted, I think it would definitely put the whole idea of the death penalty open to serious objection because the death penalty should only be pronounced if a man is so dangerous to society that he will have to be annihilated. And if this idea as I said, could be validated by heroic services or other possible conceivable actions for the common good, then it could be argued that in this case the death penalty would have been unjustly pronounced in the first place. I have heard legal men argue about that end, as I said, I myself know of no single case personally in which, in the United States, the offer of a criminal to be made subject of a dangerous experiment, was accepted.
Q. Doctor, your statements are very interesting. However, these statements are your opinion and not an answer to my question. I asked you if, in the International medical literature the people are of the opinion that if a criminal who is condemned to death comes as a volunteer, that is on being asked, not by asking himself, that experiments should be done on him. That is my exact question. Your opinion is very interesting to me, Doctor. However, that is not the answer to my question.
A. I know of prisoners, criminals, having been used in experiments but I do not know that any man condemned to death was among them. And knowing the circumstances surrounding death row in American prisons (I have examined a good many men in death rows). I would regard this doubtful that it could be arranged because the thing is -even seeing such men -- so much hedged with formalities that I cannot see how it could be done practically.
It is something that is being said once in a while but I would regard it as strictly impossible that it could have been done in the United States. Certainly not in Massachusetts, the penal system of which I know very well. I cannot conceive of any of the Commissioners of Correction whom I have known, permitting it. And also North Carolina, where I served for a time, I would regard it at impossible too. I do not know anything about any other -- the intimate working of prisons in any other states.
THE PRESIDENT: The question, Doctor, is this: What is the consensus of opinion generally among writers on international penology or medical matters as to the propriety of such experiments?
A. Of course my knowledge of the literature may be limited. I have read a bit about it but I think that the main objection among scientists against it would be that they would inadvertently become executioners, which I think nobody would cherish.
BY DR. BERGOLD:
Q. Doctor, I think you are evading me a little bit. I did not ask you how it is in America. I asked you, according to the International literature whether such experiments have been carried out, yes or no, and from discussions you had with my colleagues. Dr. Sauter, for instance -- I know that the defense during the first trial introduced literature and I take it that you have studied that literature in the meantime -- if one says I become a henchman through that, I want that as a clear and simple question. In International literature were cases known where experiments were carried out on criminals condemned to death with their consent and with the consent of the government? Were they carried out -- yes, or no -- . that is my question?
A. No.
Q. You don't know of any?
A. The literature which I have been given, -- I mean which I know anyway-- I know the papers to which Dr. Sauter and Dr. Rose at times and Dr. Brandt were referring to -- they did not refer to men condemned to death.
Q. What kind of men did they refer to?
A. Ordinary prisoners.
Q. Oh, I see. In other words, experiments with normal prisoners were carried out, is that it?
A. Yes.
Q. Also experiments which were dangerous in part?
A. With very limited danger.
Q. You know of a book of Paul DeKruif, don't you?
A. I know not only Paul DeKruit but also his reputation for veracity and I would not believe a word Paul DeKruit says. You can quote me to him himself. Paul DeKruif's books are full of inaccuracies. He cannot be quoted as an authority. Most of it is imagination.
Q. Doctor, what do you think of these malaria experiments, then which were carried out in penal institutions and penitentiaries -3 penitentiaries as a matter of fact -- in the United States?
A. I know them very well, and I have, if you want me to, I have the application blanks which the prisoners had to sign and the reasons they gave for volunteering. If you want to, I have especially studied before coming, the special conditions in all these experiments.
Q. It is correct, however, that they did volunteer?
A. Yes. They were contacted by the prison radio. The prison broadcasting system asked for volunteers and when nobody was canvassed personally. That is the information which I have. Then application blanks were distributed so that the requests would come from the prison. If you want to offer them in evidence I have the application blanks here. Duplicates were placed at my disposal by the University of Chicago which sponsored the program. On this blank the prisoner was explained -- it was explained to the prisoner what the experiment was all about and what the dangers were and he was told that if he wanted to try it and if he was considered eligible he could volunteer.
Then, out of the large number of volunteers, only a limited number were selected. Then all that was done publicly and a radio program was arranged and over the Chicago network the volunteers were asked to state their reasons for volunteering; and on this radio program the prisoners stated their reasons. And the men gave reasons such as "my brother is in the army. He is in the South Pacific." "I cannot join the army because I am in prison so I want to help that way." Another says "My nephew is a malaria patient in an army hospital and that is the only way I can help win the war" and similar reasons. And on the whole...then also the morale was kept high by speeches from army officers who commanded the men and told them they were proud to fight the same war with them. On the whole a spirit of high morale and sort of enjoyment of the adventure was maintained.
Q. Witness, that is enough.
A. I understand from the University of Chicago that no one died in that service.
Q. Well, that is possible. That can happen once in a while. Were there experiments carried out in other states? Unfortunately I do not have all the material from my colleagues upstairs. However, I would gladly present that to you. I am sure we will have a fight upstairs when all these papers will be shown. In any case, experiments carried out on volunteers under the volunteer system were permitted from the point of view of morale?
A. Yes.
Q. And it is also correct, theoretically at least, in those malaria cases, that people could have died, because malaria also kills?
A. It is theoretically possible.
Q. Thank you.
DR. BERGOLD: I do not have any further questions to the witness.
DIRECT EXAMINATION BY DR. BERGOLD:
DR. BERGOLD: In your Exhibit Book No. 2 you have some extracts of an official copy of the Freezing Conference on 26 and 27 October 1942, held in Nurnberg, and I wonder if you would please tell me what exhibit number you gave that?
MR. DENNY: It appears on page 29.
DR. BERGOLD: If your Honor please, this is a complete copy of the report in English. The copy that your Honor has only contains excerpts from a few pages in it.
Q. Doctor, where did you study medicine?
A. In Vienna, Austria.
Q. And, one of the members of our staff gave you a copy of this report at some prior time? You have seen it before?
A. Yes, I have.
Q. And, would you tell the court whether or not some one who reads this report, as a medical man would be able to determine whether or not death had occurred during the experimental period or the experimentations that went on, which are here described?
A. When I looked over this report, I looked it over. I did not look it over for certain things which are mentioned quite clearly in the report. It is obvious from the report that deaths occurred, but when I looked it over as an expert I was asked as to whether or not the report made it obvious that deaths and symptoms observed, were due to experimentations, and not due to observations incidental to partly observations.
Q. And, what is your conclusion about that?
A. My conclusion is that it is obvious from reading this report that it deals with experimentations.
Q. And these are not observations which are incidental to mercy sea rescue missions?
A. Exactly.
Q. On page 11 Doctor, that is page 43 of the original, there is a large paragraph in the middle of the page. The second to the last sentence of this states the rigor is a condition reflex and not, as many persons apparently think, a contraction of the corresponding muscles due to cold. It ceases spontaneously at death. Could you say that that was in line with your conclusions?
A. Yes, I think probably that observation could only have been made if persons watched them and not actually observed them in mercy sea rescue work. And that is what is at least clear in the prior sentences. In the copy which I was given to make this check I underlined all the sentences that gave the thing away, and there are some which are stronger than others.
Q. Perhaps you would be good enough to point these out to the court?
A. Particularly the sentences on page 11, the middle paragraph which reads which is very unlikely. "The rapidity with which numbness occurs is remarkable. It was determined that already 5 to 10 minutes after falling in, an advancing rigor of the skeletal muscles sets in, which renders the movement of the arms especially increasingly difficult." That would imply if it had been an accidental observation that the person would have had to watch the man in the water from a beat in degrees which would have been very unlikely in war times, because the thing to do is to pull them out as fast as you can. And, I continue: "With a drop of the rectal temperature to 31 degrees, a clouding of the consciousness occurs, which passes to a deep cold-induced anesthesia if the decline reaches below 30 degrees or more" which might be duplication.
Q. Are you familiar with the employment of Pathologists in Germany? Why do they employ Pathologists? What is the Pathologists' function?
A To do autopsies.
DR. BERGOLD: I have no further questions.
CROSS EXAMINATION BY MR. DENNEY:
Q. Witness, the defense just asked you if a medically-trained man could recognize, without further difficulty, those experiments, As a layman, however, what do you think his impression would be?
