“In the summer of 1941, however, plans were made for the ‘final solution’ of the Jewish question in Europe. This ‘final solution’ meant the extermination of the Jews, which early in 1939 Hitler had threatened would be one of the consequences of an outbreak of war, and a special section in the Gestapo under Adolf Eichmann, as head of Section B-4 of the Gestapo, was formed to carry out the policy * * *
“* * * Adolf Eichmann, who had been put in charge of this program by Hitler, has estimated that the policy pursued resulted in the killing of 6,000,000 Jews, of which 4,000,000 were killed in the extermination institutions.”
Did you ever have any conferences or discussions with Eichmann concerning the extermination of the Jews and the solution of the Jewish problem?
Defendant Brack: I already said that I did not remember having heard the name Eichmann at all.
Q. I want to put to you NO-997, which is Prosecution Exhibit 506 for identification, your Honors. This is a draft of a letter from the Reich Minister for the Occupied Eastern Territories to the Reich Commissioner for the East:
“Solution of the Jewish Problem.
“Reference: Your report of 4 October 1941, concerning the solution of the Jewish problem.
“I have no objection against your suggestion for the solution of the Jewish problem. Attached please find a memorandum concerning the conversation between my expert consultant, Amtsgerichtsrat Dr. Wetzel, Oberdienstleiter Brack of the Chancellery of the Fuehrer, and Sturmbannfuehrer Eichmann, expert consultant to the Reich Security Main Office. Please note the details of the matter from this memo. Will you please take the necessary steps at the Reich Security Main Office and with Oberdienstleiter Brack from the Chancellery of the Fuehrer via your Higher SS and Police Leader. Please keep me informed.
[Handwritten] F. d. H. M.
[For the Minister]
| “2d Copy | |
| “(a) | Reich Security Main Office |
| “(b) | Chancellery of the Fuehrer |
| Attention: Oberdienstleiter Brack, | |
| Copy of (1), including enclosure for information.” | |
Did you receive a copy of this letter?
A. May I first ask you what the date of this letter is?
Q. Only 1941 is mentioned here. But that is the date I told you. Did you receive a copy of this letter, Herr Brack?
A. I did not receive a copy of it nor did I even see a copy of that letter, nor do I know this Amtsgerichtsrat Wetzel.
Q. Did you have a conference with Eichmann on this problem, on the solution of the Jewish question?
A. I already said I cannot even remember the name Eichmann, nor can I remember the name Wetzel.
Q. Do you know anything about the matters discussed at this conference concerning the solution of the Jewish problem?
A. No. I know nothing.
Q. You have no idea. You never made any suggestions as to what kind of treatment or what kind of gas chambers should be used for the solution of the Jewish problem? You never did that?
A. I can remember nothing in this connection.
Q. You were questioned by the Tribunal last Friday as to whether plans were made for the construction of the gas chambers in the euthanasia stations or whether an engineer or specialist was ordered to assist the directors of the stations in setting up such gas chambers, were you not?
A. Yes.
Q. You were not able to give any information to the Tribunal on that fact, were you?
A. No. I said I didn’t concern myself with these matters.
Q. Is the name Kallmeyer, K-a-l-l-m-e-y-e-r, familiar to you?
A. Yes. But I can’t remember in which connection.
Q. His wife executed an affidavit for you here. (Brack 39, Brack Ex. 23.) Do you remember him now?
A. Yes. Yes, I remember him now.
Q. Was Kallmeyer the engineer, or was he a chemist, who made these plans for gas chambers and assisted the directors in euthanasia stations in setting up these gas chambers?
A. No. Kallmeyer had to check that the gas chambers were operating properly, but I don’t believe he made any plans for that purpose.
Q. Kallmeyer was the man who supervised these gas chambers, was he not?
A. I believe so, yes, but not for long, only for a short time.
Q. All right. And does the name Kallmeyer refresh your memory as to eventual plans you made together with Eichmann about the solution of the Jewish problem, Herr Brack?
A. No.
Q. I want to put to you Document NO-365, which will be Prosecution Exhibit 507 for identification, your Honors. This is a draft from the Reich Ministry for the Occupied Territories dated Berlin, 25 October 1941.
“Referent AGR. Dr. Wetzel
“Re: Solution of the Jewish Question
“1. To the Reich Commissioner for the East
“Re: Your Report of 4 October 1941 Concerning Solution of the Jewish question
“Referring to my letter of 18 October 1941, you are informed that Oberdienstleiter Brack of the Chancellery of the Fuehrer has declared himself ready to collaborate in the manufacture of the necessary shelters, as well as the gassing apparatus. At the present time the apparatus in question are not on hand in the Reich in sufficient number; they will first have to be manufactured. Since in Brack’s opinion the manufacture of the apparatus in the Reich will cause more difficulty than if manufactured on the spot, Brack deems it most expedient to send his people direct to Riga, especially his chemist Dr. Kallmeyer, who will have everything further done there. Oberdienstleiter Brack points out that the process in question is not without danger, so that special protective measures are necessary. Under these circumstances I beg you to turn to Oberdienstleiter Brack, in the Chancellery of the Fuehrer, through your Higher SS and Police Leader and to request the dispatch of the chemist Dr. Kallmeyer as well as of further aides. I draw attention to the fact that Sturmbannfuehrer Eichmann, the referent for Jewish questions in the RSHA, is in agreement with this process. On information from Sturmbannfuehrer Eichmann, camps for Jews are to be set up in Riga and Minsk to which Jews from the old Reich territory may possibly be sent. At the present time, Jews being deported from the old Reich are to be sent to Litzmannstadt, [Lodz] but also to other camps, to be later used as labor in the East so far as they are able to work.
“As affairs now stand, there are no objections against doing away with those Jews who are unable to work with the Brack remedy. In this way occurrences would no longer be possible such as those which, according to a report presently before me, took place at the shooting of Jews in Vilna and which, considering that the shootings were public, were hardly excusable. Those able to work, on the other hand, will be transported to the East for labor service. It is self-understood that among the Jews capable of work, men and women are to be kept separate.
“I beg you to advise me regarding your further steps.”
Herr Brack, are you still going to maintain what you said here in direct examination, namely, that you tried to protect the Jews and to save the Jews from their terrible fate and that you were never a champion of the extermination program?
A. I should even like to maintain that misuse, terrible misuse, was made of my name. I see from this letter and from the date of this letter that all these negotiations were carried out at a time when I was far away from Berlin, when I was on sick leave. If I have the possibility I hope I shall be able to bring witnesses who will testify to that effect. I must frankly admit that at this period something was going on which entirely contradicted my opinion, but this could only have been done under misuse of my name and my agency. I was not willing to participate in these things.
Q. Can you tell me, Herr Brack, where Riga and Minsk are located?
A. Riga is on the Baltic in Latvia, and Minsk is in Russia.
Q. These two places were outside Germany, were they not?
A. Yes.
Q. Prosecution has no further questions at this time.
CROSS-EXAMINATION
Dr. Servatius: What kind of directives were given at that time about the execution of the Euthanasia Program?
Witness Schmidt: Well, the same directives as were finally carried out—to move the invalids from lunatic asylum to the euthanasia institution. I personally received subsequently the orders from the Reich committee which had already been discussed during that meeting.
Q. Did you at that time consider that an order for murder?
A. In no way at all. The jurists in Berlin told us that this was a legal matter, that it was a Hitler decree or a law which had been duly approved; also that the jurists had discussed whether Hitler was authorized to issue such a decree and decided in the affirmative, and we were told that this was a matter which was a quite legal—
Q. Witness, a little slower.
A. That it was a legal task of the State which had already been planned in 1932 and which was also being planned in other countries and that we would not incriminate ourselves in any way, on the contrary, a sabotage of this order would be a criminal offense. The question of secrecy was also discussed in detail and it was stated that this was a kind of law now; that the patients were not to have knowledge of such a measure beforehand because otherwise they would be excited, and that was probably the main reason why this law could not be published. In addition at that time we were at war and those kinds of measures should be kept secret in the interior.
Q. Who were the people to be concerned by the Euthanasia Program?
A. The incurably sick. However, it was not quite clear to me where the limit was to be drawn. For me personally, such a measure could only be considered in the cases of persons who were dying anyhow.
Q. Was there any mention made at that time of “useless eaters” and other economic points of view?
A. I never actually heard the words “useless eaters” at all during the war.
Q. Was it mentioned at the time that the institution had to be kept free for other purposes, and that that was the reason?
A. The reason for this measure was only touched upon briefly. We were told that these were tasks of the state which had become urgent because of the war and, yes, of a eugenic nature.
Q. How about the children?
A. At the time there was always talk about the last medical aid.
Q. Well, if I understood you correctly, the decisive viewpoint was the medical one?
A. Yes. I only observed it from the medical point of view.
Q. Now was the procedure actually carried out from this point of view? Or didn’t this so-called program actually go far beyond its limits in its execution?
A. The limits of the program were certainly exceeded to a great extent. I personally did not see it myself, but on the basis of the reports I received, I must say that excesses certainly took place.
Q. Witness, how was it in your institution with reference to excesses?
A. In my institution procedure was taken only on the basis authorized by law. We also had a therapy station. Of course, I must say, it was not very nice to watch these transports.
Q. Now, you said that later on Eastern workers were picked up?
A. Yes.
Q. Wasn’t that in excess of the original order which you received?
A. I cannot say that. I don’t know.
Q. Do you know where the order came from to transport these people away?
A. From the Ministry of the Interior. It was given to us by the superior office of the Ministry of the Interior.
Q. You mean the Reich Minister of the Interior?
A. Yes.
Q. You further mentioned that the action was concluded in August 1941, that it was stopped. Do you know the reason for this?
A. Yes. I do not know the official reason, but I heard of it unofficially. I heard that Herr von Galen protested, and that was probably why the whole procedure was stopped. I emphasize that I don’t know for certain, but anyway for me it was a reason.
Q. Well was this procedure actually stopped everywhere in the end?
A. No. When Hadamar was closed I immediately assumed that some other institution would continue this task or that the procedure would be followed up in some other way. That is also what Mr. von Hegener said when he was there.
Q. You said that these Eastern workers were collected by the same busses as before?
A. Yes. The busses were the same. They were big black busses, and we knew the drivers because they came frequently.
Q. To whom did the busses belong? To the Gauleiter’s office?
A. These busses were owned by the transport company. The Sick Transport Company in Berlin. Some of the personnel remained in Hadamar.
Q. Was there no medical personnel?
A. No. There was no medical personnel.
Q. You said something about the excesses with reference to the program.
A. One must differentiate between how things were until the action was stopped in 1941, and how it was later on.
Q. What excesses do you know of before the action was stopped in 1941?
A. You mean individually?
Q. Yes, in your institution.
A. There were none at all in our institution. The people were transported away.
Q. You acted according to directives?
A. Yes. I personally was not in charge of this action. My chief was in charge. But as far as I know no excesses were committed by the nursing personnel. Of course, some of the obstinate patients refused to enter the busses. That is natural.
Q. Were these all extreme cases which were sent for under this Euthanasia Program?
A. Of course, it depends where the limit is drawn. One can maintain the view that a large part of the patients, perhaps, might have undergone a certain change through modern shock treatment or some other modern method of treatment. But with those cases there in which the mental disease was in a very advanced stage, in my opinion, most of the patients no longer had any chance to enjoy life.
DIRECT EXAMINATION
Dr. Servatius: Witness, you are charged with participation in the Euthanasia Program. I shall show you the decree of 1 December [1 September] 1939. (NO-630, Pros. Ex. 330.) Please describe how this decree came about.
Defendant Karl Brandt: After the end of the Polish campaign in about October [sic], the Fuehrer was at Obersalzberg. I was called to him for some reason which I can no longer remember and he told me that because of a document which he had received from Reichsleiter Bouhler, he wanted to bring about a definite solution in the euthanasia question. He gave me general directives on how he imagined it, and the fundamentals were that insane persons who were in such a condition that they could no longer take any conscious part in life were to be given relief through death. General instructions followed about petitions which he himself had received, and he told me to contact Bouhler himself about the matter. I did so by telephone on the same day, and I then informed Hitler about my conversation with Bouhler. Thereupon he drafted a formulation of this decree, not in the form we have here, but in a similar form, and certain changes were made. My request was that a precaution be introduced because of the medical participation, and I used an expression for this which was familiar to me from expert opinions. It stated that euthanasia could be carried out on persons and then comes the formulation “who are incurable with a probability bordering on certainty.” Since this formulation was strange to him, “on the most careful diagnosis of their condition of sickness” was added. Therefore, when this decree was signed about the end of October, the text read as follows: “Reichsleiter Bouhler and Dr. Brandt are charged with the responsibility of extending the authority of certain doctors, to be designated by name in such a manner that persons who, according to human judgment, are incurably sick, can, on the most careful diagnosis of their condition of sickness, be accorded a mercy death.”
Q. Did you talk to Bouhler?
A. At first I only talked to Bouhler on the telephone and even after the decree was signed I did not talk to him immediately but sent the signed decree to him in Berlin.
Q. And what was Hitler’s idea of euthanasia? What did he understand by it?
A. The decisive thing for him was also expressed here in the decree, namely, that incurably sick persons—actually it should have read insane persons—other persons were absolute exceptions—could be accorded a mercy death. That is, therefore, a measure dictated by purely humane considerations, and nothing else could be thought under any circumstances, and nothing else was ever said to me.
Q. You said that the Fuehrer gave you the assignment on the basis of a telephone call from Bouhler? The call from Bouhler could not have been the only reason. There must have been others.
A. It was not a telephone call. There was some kind of a documentary incident which was decisive. It may be that the Fuehrer already had these documents or that Bouhler spoke to him again about them. I don’t know exactly. But this was not the cause of the Euthanasia Program being started. In his book, “Mein Kampf,” Hitler had already referred to it in certain chapters, and the law for the “prevention of the birth of children suffering from hereditary diseases” is a proof that Hitler had definitely concerned himself with such problems earlier. The law for the “prevention of the birth of children suffering from hereditary diseases” is actually a law which followed the events. It certainly arose because children with congenital diseases existed. Proof that this is a problem which affects the whole world lies in the fact that similar laws with similar formulation and contents have been passed in other countries.
Dr. Gerhardt Wagner, who was Dr. Conti’s predecessor, discussed these questions at the Party rally in Nuernberg. I did not talk to Gerhardt Wagner at that time and had nothing to do with these things. However, I hear now that in 1935 Gerhardt Wagner had a film made presenting the problem of the insane. Apparently the film was made in asylums with insane persons.
Q. Witness, did not the requests received by Bouhler and the Fuehrer play a certain part?
A. Requests to this effect were certainly constantly received by Bouhler, and the Chancellery of the Fuehrer always received such things. I only know that these requests were afterwards passed on to the Reich Ministry of the Interior. I myself know of one request which was sent to the Fuehrer himself through his adjutant’s office in the spring of 1939. The father of a deformed child approached the Fuehrer and asked that this child or this creature should be killed. Hitler turned this matter over to me and told me to go to Leipzig immediately—it was in Leipzig—to confirm the fact on the spot. It was a child who was born blind, an idiot—at least it seemed to be an idiot—and it lacked one leg and part of one arm.
Q. Witness, you were speaking about the Leipzig affair, about this deformed child. What did Hitler order you to do?
A. He ordered me to talk to the physicians who were looking after the child to find out whether the statements of the father were true. If they were correct, then I was to inform the physicians in his name that they could carry out euthanasia.
The important thing was that the parents should not feel themselves incriminated at some later date as a result of this euthanasia—that the parents should not have the impression that they themselves were responsible for the death of this child. I was further ordered to state that if these physicians should become involved in some legal proceedings because of this measure, these proceedings would be quashed by order of Hitler. Martin Bormann was ordered at the time to inform Guertner, the Minister of Justice, accordingly about this case.
Q. What did the doctors who were involved say?
A. The doctors were of the opinion that there was no justification for keeping such a child alive. It was pointed out that in maternity wards under certain circumstances it is quite natural for the doctors themselves to perform euthanasia in such a case without anything further being said about it. No precise instructions were given in that respect.
Q. Was this problem of deformities dealt with anywhere else?
A. The problem of deformities was probably discussed before this Leipzig case. However, in the course of the summer it was worked on in a more concrete form, first of all by the Ministry of the Interior. In this case, Dr. Linden participated as a special consultant, probably as representative of Dr. Conti—who became Reich Minister for Health after the death of his predecessor Wagner, and then afterwards State Secretary in the Ministry of the Interior.
Q. Who was Dr. Linden?
A. Dr. Linden was Ministerialrat in the Reich Ministry of the Interior. He was a doctor and was the competent official who was later in charge of this office for the mental institutions, perhaps he already was at the time, I don’t know exactly. Later on, during the treatment of the euthanasia question he was appointed exponent of all these matters.
Q. What was the procedure at the time? Was Hitler informed about all these matters?
A. In August 1944 he ordered me to participate in a conference which took place between Dr. Linden, Mr. Bouhler, and some other people. The question of the registration of these deformities was discussed, and also how to set about this registration. Dr. Linden, on behalf of the Ministry of the Interior, submitted pertinent documents, questionnaires, etc., which were then discussed once more in detail. It was the preparatory work for the Reich Committee for the Registration of Serious Hereditary and Constitutional Diseases, which was subsequently established.
CROSS-EXAMINATION
Mr. McHaney: Now, Witness, this is the first time that I have ever heard mentioned in connection with the Euthanasia Program that anybody’s consent had to be obtained, and I take it that it is a rather fundamental matter. Are you ready to swear to this Tribunal that the Reich committee never performed euthanasia on children without obtaining the consent of the parents of the child?
Defendant Karl Brandt: I said yesterday that the approval of the parents was necessary for the euthanasia of children, and I am of the opinion that such approval was actually given.
Q. Was the approval written approval or verbal approval?
A. That I don’t know. I cannot say.
Q. Have you ever seen any written approval?
A. I believe that during the first period when this authorization was submitted for signature to Bouhler and to me, all the other papers were together with it, such as approvals, etc. It may be that during the later period we were only concerned with the authorization papers and that the other papers were left with the Reich committee. However, I did see such letters of approval but I don’t believe that they were in writing in every case. I think they were partly given orally through the local physician or some other agency which dealt with the case.
Q. Well, Witness, let’s look at this letter again. I find some difficulty in reconciling your testimony about the necessity of consent by the relatives of the child with what’s written here in this letter. For example, the third line reads: “It seems that the relatives of Anna Gasse tried to obtain her release by every possible means.” If, Witness, it was necessary to obtain consent, why was there any question about releasing Anna Gasse?
A. I cannot say that either. According to my opinion, the child could not be kept in an institution if the parents wanted it at home.
Q. And the last sentence which reads, “If from a medical point of view such release is warranted, one could perhaps take into consideration whether one should not perhaps comply with such request in the interest of the good reputation of the institution.” Don’t you find that language just a bit restrained, Witness?
A. Yes. I think it is very restrained.
[93] Trial of the Major War Criminals, vol. I, pp. 247, 301, Nuremberg, 1947.
[94] Defendant in case before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[95] Objection to admission in evidence sustained.
[96] Ibid.
[97] Objection to admission in evidence sustained.
[98] Defendant (in absentia) before International Military Tribunal. See Trial of the Major War Criminals, vols. I-XLII, Nuremberg, 1947.
[99] Code name for the killing of non-German nationals and Jews who were inmates of the concentration camps.
[100] Trial of the Major War Criminals, vol. XX, pp. 490-1, Nuremberg, 1948.
[101] Trial of the Major War Criminals, vol. I, p. 247, Nuremberg, 1947.
[102] United States vs. Alfons Klein, et al. See Law Reports of Trials of War Criminals, vol. I, pp. 46-54, London, 1947.
[103] Ibid.
[104] Not introduced in evidence.
[105] Not introduced in evidence.
[106] United States vs. Alfons Klein, et al. See Law Reports of Trials of War Criminals, vol. I, pp. 46-54, London, 1947.
[107] Ibid.
[108] Final plea is recorded in mimeographed transcript, 18 July 1947, pp. 11220-11244.
[109] Defendant before International Military Tribunal. See Trial of the Major War Criminals, vol. I, pp. 298-301, Nuremberg, 1947.
[110] Literally: Nonprofit Sick Transport Company.
[111] German or of similar blood (of German blood), Jew, Jewish mixed breed Grades I or II, Negro (mixed breed).
[112] Defendant in case of United States vs. Josef Altsetoetter, et al. See Vol. III.
[113] Enclosures were not available.
[114] Complete testimony is recorded in mimeographed transcript, 16, 17 Jan. 1947, pp. 1866-1946.
[115] Complete testimony is recorded in mimeographed transcript, 7, 8, 9, 12, 13, 14, 15, 16, 19 May 1947, pp. 7413-7772.
[116] Trial of the Major War Criminals, vol. I, pp. 250, 252-253, Nuremberg, 1947.
[117] Complete testimony is recorded in mimeographed transcript, 16 Jan 1947, pp. 1816-1863.
[118] Complete testimony is recorded in mimeographed transcript, 3, 4, 5, 6, 7 Feb 1947, pp. 2301-2661.
Under count III of the indictment, “Crimes against Humanity”, the prosecution alleged that the defendants had engaged in medical experiments “upon German civilians and nationals of other countries” and that the defendants had participated in executing “the so-called ‘euthanasia program’ of the German Reich, in the course of which the defendants herein murdered hundreds of thousands of human beings, including German civilians, as well as civilians of other nations”. [Emphasis added.] Insofar as these offenses involved German nationals, the defense argued that international law was not applicable. The defense argued that under, the Charter annexed to the London Agreement, crimes against humanity within the meaning of the Charter do not exist unless offenses are committed “in the execution of, or in connection with, any crime within the jurisdiction of the Tribunal”. Although the analogous provision of Control Council Law No. 10 does not include the words of limitation “in the execution of, or in connection with any crime within the jurisdiction of the Tribunal”, the defense argued that Control Council Law No. 10 was only “an implementation law” of the London Agreement and Charter, and hence could not increase the scope of the offenses defined by the London Charter. Pointing to the section of the judgment of the International Military Tribunal entitled “The law relating to war crimes and crimes against humanity”,[119] the defense noted that the IMT stated: “to constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal”,[120] that is, crimes against peace or war crimes. Although the indictment in the Medical Case did not allege that crimes were committed against German nationals before the outbreak of the war on 1 September 1939, the defense further argued that any offenses against German nationals committed after 1939 had not been shown to be “in execution of, or in connection with” crimes against peace and war crimes and hence were not cognizable as crimes within the jurisdiction of the Tribunal.
Extracts from the closing statement of the prosecution appear below on pages 910 to 915. A summation of the evidence on this question by the defense has been taken from the closing brief for defendant Karl Brandt. It appears below on pages 915 to 925.
The Law of the Case
Before proceeding to outline the prosecution’s case, it may perhaps be desirable to anticipate several legal questions which will undoubtedly be raised with respect to war crimes and crimes against humanity, as defined in Article II of Control Council Law No. 10. Law No. 10 is, of course, the law of this case and its terms are conclusive upon every party to this proceeding. This Tribunal is, we respectfully submit, bound by the definitions in Law No. 10, just as the International Military Tribunal was bound by the definitions in the London Charter. It was stated in the IMT judgment that:[122]
“The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive and binding upon the Tribunal * * *.”
In outlining briefly the prosecution’s conception of some of the legal principles underlying war crimes and crimes against humanity, I shall, with the Tribunal’s permission, adopt some of the language from the opening statement of the prosecution in the case against Friedrich Flick, et al., now pending before Tribunal IV. [See Vol. VI.] General Taylor there said—