a. Introduction
There was considerable contention in the case as to whether an inmate of
a German concentration camp could give his voluntary consent to
participate in medical experiments. The prosecution argumentation on
this point appears in the opening statement on pages 27-74 and in the
closing statement. The applicable extract from the closing statement of
the prosecution appears below on pages 980 to 983. Selections from the
defense argumentation on this point have been taken from the closing
brief for the defendant Karl Brandt and from the final plea for the
defendant Ruff. These appear below on pages 983 to 992. The following
selections from the testimony have been taken from the evidence on this
point: Extracts from the direct examination of the prosecution witness
Dr. Eugen Kogon, and extracts from the cross-examination and redirect
examination of the prosecution’s expert witness Dr. Andrew C. Ivy. These
extracts appear below on pages 993 to 1004.
b. Selection from the Argumentation of the Prosecution
_EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION_[162]
* * * * *
* * * It is the most fundamental tenet of medical ethics and human
decency that the subjects volunteer for the experiment after being
informed of its nature and hazards. This is a clear dividing line
between the criminal and what may be noncriminal. If the experimental
subjects cannot be said to have volunteered, then the inquiry need
proceed no further. Such is the simplicity of this case.
What then is a volunteer? If one has a fertile imagination, suppositious
cases might be put which would require a somewhat refined judgment. No
such problem faces this Tribunal. The proof is overwhelming that there
was never the slightest pretext of using volunteers. It was for the very
reason that volunteers could not be expected to undergo the murderous
experiments which are the subject of this trial that these defendants
turned to the inexhaustible pool of miserable and oppressed prisoners in
the concentration camps. Can anyone seriously believe that Poles, Jews,
and Russians, or even Germans, voluntarily submitted themselves to the
tortures of the decompression chamber and freezing basin in Dachau, the
poison gas chamber in Natzweiler, or the sterilization X-ray machines of
Auschwitz? Is it to be held that the Polish girls in Ravensbrueck gave
their unfettered consent to be mutilated and killed for the glory of the
Third Reich? Was the miserable gypsy who assaulted the defendant
Beiglboeck in this very courtroom a voluntary participant in the
sea-water experiments? Did the hundreds of victims of the murderous
typhus stations in Buchenwald and Natzweiler by any stretch of the
imagination consent to those experiments? The preponderance of the proof
leaves no doubt whatever as to the answer to these questions. The
testimony of experimental subjects, eyewitnesses, and the documents of
the defendant’s own making, establish beyond a shadow of a doubt that
these experimental subjects were nonvolunteers in every sense of the
word.
This fact is not seriously denied by the defendants. Most of them who
performed the experiments themselves have admitted that they never so
much as asked the subjects whether they were volunteering for the
experiments. As to the legal and moral necessity for consent, the
defendants pay theoretical lip service, while at the same time leaving
the back door ajar for a hasty retreat. Thus, it is said that the
totalitarian “State” assumed the responsibility for the designation of
the experimental subjects, and under such circumstances the men who
planned, ordered, performed, or otherwise participated in the experiment
cannot be held criminally responsible even though nonvolunteers were
tortured and killed as a result. This was perhaps brought out most
clearly as a result of questions put to the defendant Karl Brandt by the
Tribunal. When asked his view of an experiment, which was assumed to
have been of highest military necessity and of an involuntary character
with resultant deaths, Brandt replied:
“In this case I am of the opinion that, considering the
circumstances of the situation of the war, this state
institution, which has laid down the importance of the interest
of the state, at the same time takes the responsibility away
from the physician if such an experiment ends fatally, and such
responsibility must then be borne by the state.” (_Tr. p.
2567._)
Further questioning elicited the opinion that the only man possibly
responsible in this suppositious case was Himmler, who had the power of
life and death over concentration camp inmates, even though the
experiment may have been ordered, for example, by the Chief of the
Medical Service of the Luftwaffe and executed by doctors subordinated to
him. Most of the other defendants took a similar position, that they had
no responsibility in the selection of the experimental subjects.
This defense is, in the view of the prosecution, completely spurious.
The use of involuntary subjects in a medical experiment is a crime, and
if it results in death it is the crime of murder. Any party to the
experiment is guilty of murder and that guilt cannot be escaped by
having a third person supply the victims. The person planning, ordering,
supporting, or executing the experiment is under a duty, both moral and
legal, to see to it that the experiment is properly performed. This duty
cannot be delegated. It is surely incumbent on the doctor performing the
experiment to satisfy himself that the subjects volunteered after having
been informed of the nature and hazards of the experiment. If they are
not volunteers, it is his duty to report to his superiors and
discontinue the experiment. These defendants have competed with each
other in feigning complete ignorance about the consent of the
experimental victims. They knew, as the evidence proves, that the
miserable inmates did not volunteer to be tortured and killed. But even
assuming the impossible, that they did not know, it is their damnation
not their exoneration. Knowledge could have been obtained by the simple
expedient of asking the subjects. The duty of inquiry could not be
clearer and cannot be avoided by such lame excuses as “I understood they
were volunteers,” or, “Himmler assured me they were volunteers.”
In this connection, it should never be lost sight of that these
experiments were performed in concentration camps on concentration camp
inmates. However little, some of these defendants say they knew of the
lawless jungles which were concentration camps, where violent death,
torture, and starvation made up the daily life of the inmates, they at
least knew that they were places of terror where all persons opposed to
the Nazi government were imprisoned without trial, where Jews and Poles
and other so-called “racial inferiors” were incarcerated for no crime
whatever, unless their race or religion be a crime. These simple facts
were known during the war to people all over the world. How much greater
then was the duty of these defendants to determine very carefully the
voluntary character of these experimental subjects who were so
conveniently available. True it is that these defendants are not charged
with responsibility for the manifold complex of crimes which made up the
concentration camp system. But it cannot be held that they could enter
the gates of the Inferno and say in effect: “Bring forward the subjects.
I see no evil; I hear no evil; I speak no evil.” They asked no
questions. They did not inquire of the inmates as to such details as
consent, nationality, whether a trial had been held, what crime had been
committed, and the like. They did not because they knew that the
wretched inmates did not volunteer for their experiments and were not
expected to volunteer. They embraced the Nazi doctrines and the Nazi way
of life. The things these defendants did were the result of the noxious
merger of German militarism and Nazi racial objectives. When, in the
face of a critical shortage of typhus vaccines to protect the Wehrmacht
in its Eastern invasions, Handloser and his cohorts decided that animal
experimentation was too slow, the inmates of Buchenwald were sacrificed
by the hundreds to test new vaccines. When Schroeder wanted to determine
the limit of human tolerance of sea-water, he trod the path well-worn by
the Luftwaffe to Dachau and got forty gypsies. These defendants with
their eyes open used the oppressed and persecuted victims of the Nazi
regime to wring from their wretched and unwilling bodies a drop of
scientific information at a cost of death, torture, mutilation, and
permanent disability. For these palpable crimes justice demands stern
retribution.
* * * * *
c. Selections from the Argumentation of the Defense
_EXTRACTS FROM THE CLOSING BRIEF FOR
DEFENDANT KARL BRANDT_
* * * * *
_Voluntary Participation_
Experiments on persons who offer themselves voluntarily have always been
considered admissible. In literary works care is always taken _to note
this voluntariness_; where it is not mentioned, one may conclude that it
was nonexistent.
The interest taken in the voluntariness of the person experimented upon
has various reasons.
First of all the compulsory experiment—in contrast to the voluntary
experiment—means an additional, very heavy mental strain, for the
experimenter since the health and life of a human being may be at stake
and the future existence of the person experimented upon may be
imperiled.
But the experimenter has not only a purely human interest in having the
person to be experimented upon offer himself with a certain
voluntariness; in many cases he must absolutely depend on the
_cooperation of the person experimented on_; he needs truthful
information about observations made during the experiment, which cannot
otherwise be carried out properly. Compare for instance the
high-altitude and sea-water experiments.
Finally there may exist the wish to be protected against _claims for
damages_ and to prevent the _uncovering_ of legal provisions, as well as
to guard against the possible _political odium_ that might result from
having given orders for a forced experiment.
However, one look at the literature shows that the notion of
_voluntariness_ is _strongly suspect_, and every critical reader will in
most cases associate himself with such suspicions.
The subjection to an experiment which is dangerous or even only painful
or temporarily onerous must be based on a special motive.
_Ethical reasons_ alone can give rise to voluntariness strictly speaking
only in the case of the researcher himself, that is in self-experiments,
and in the case of persons who for ethical reasons consciously wish to
support by their cooperation the aims of the researcher.
* * * * *
However, if a declaration of voluntariness is made for reasons of
_inexperience_, _thoughtlessness_, or _distress_, then it is unethical.
Into this category fall cases where persons are induced to undergo
experiments through promise of money or other advantages, while they do
not foresee the meaning of the experiments. These are the weak, who,
unprotected, are made to serve the interests of humanity. Compare with
this the case of the use of immigrants for experiments.
(_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._) The _category_ here of
particular interest is that of _prisoners_ who offer themselves
voluntarily.
First of all, one cannot assume that the _ethical level in a
penitentiary_ is so high above that of free men that here a great number
of prisoners would offer themselves for participation in an experiment
voluntarily only for purely ethical reasons. On the contrary, one can
say that _all prisoners_ are living under a certain _compulsion_. They
expect from their participation in the experiment an improvement of
their position or fear a worsening in case of refusal. Even though the
regulations about the treatment of prisoners may be fixed, in practice
there remains in this particular world a very wide scope for the
punishment of prisoners with measures which, as experience shows, may
hit the prisoner much more severely and more grievously than the
sentence of the judge itself.
If the motive of the prisoner for his “voluntary offer” is merely a
general _and vague hope_, in any direction, then there is no genuine
declaration of voluntariness, but the consent is merely the off-shoot of
his condition of constraint.
Two things have to be considered with regard to the prisoner’s
declaration of voluntary consent; the _risk_ which he undergoes and the
_advantage_ that is offered him. One can only give one’s consent to
something of which one knows the full _meaning_ and _importance_. The
prisoner must therefore have been fully informed of the possible
consequences. Here only lies the real problem of “voluntariness.” It is
not enough that the person to be experimented upon knows that, for
instance, a malaria experiment is to be made; he must also know just how
the particular person is to be used. The first easy series of
experiments cannot be compared with the daring final experiments. Who is
going to offer himself for the ultimate experiment necessary if the
other persons to be experimented on get off more lightly? What was the
nature of the consent?
Professor Ivy as expert witness has said nothing about this problem.
As a matter of fact a person to be experimented on can hardly estimate
the risk, and the recruiting officer will not be inclined to give a
frightful description of what may happen. Professor Ivy, who has
recruited volunteers himself, does not consider experiments to be an
evil. If you add that the “volunteer prisoner” has to forego all claims
in case of injury to his health, then the consent of the prisoner cannot
be considered as valid.
On the other hand the prisoner must know the advantage promised him as
his _compensation_ must be in suitable relation to the severity of the
experiment and the reward must be assured to the prisoner. If the
advantage is strikingly disproportionate to the risk and given as an act
of grace without claim after the conclusion of the experiment, then
there is no voluntary experiment; it remains a forced experiment.
Only if both basic conditions are fully met will it be possible for the
prisoner to make a free decision. He may then allow his possible death
to be included in the bargain in order to gain the chance of shortening
the time of his imprisonment by years.
Such a case is depicted in the well known pellagra experiments, where
with the collaboration of attorneys as defense counsellors, the
conditions were agreed upon by the prison administration. (_Karl Brandt
47, Karl Brandt Ex. 54_; _Becker-Freyseng 60a, Becker-Freyseng Ex. 59_.)
This is the _classical case of a voluntary experiment in prison_. It
will not always be possible or necessary to fix the advantage in the
same manner; the official promise of the prison institute may be
sufficient to exclude an arbitrary denial of the promise. Examples for
that are the leprosy experiments on a person condemned to death, and the
continuous experiments in the penitentiary Bilibid. (_Becker-Freyseng
60a, Becker-Freyseng Ex. 59._)
These experiments must, be considered admissible as _experiments where a
chance is given_.
The examples from medical literature, however, show that these general
conditions for voluntariness were not always fulfilled. So we refer only
to the experiments in the penitentiary San Quentin with streptococci on
25 convicts in 1946. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._)
Accordingly, even experiments carried out on persons without their
consent must be considered admissible.
_Involuntariness_
There are some examples of experiments carried out abroad which were
carried out as _compulsory experiments_ on prisoners _without_ their
_consent_. As an example may be mentioned the poisoning experiment
carried out in _Manila_ on 11 prisoners sentenced to death.
(_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._) The persons subjected
to experiments were executed immediately after as part of the
experiment. The _malaria experiment_ carried out on 800 prisoners has to
be mentioned too. According to an explicit statement in the press, no
advantages were granted them in return. (_Karl Brandt 1, Karl Brandt Ex.
1._)
The method described by the witness Ivy was introduced later on as a
practice of the administration.
It is evident that in these cases no declarations of voluntariness could
have been made because no criminal who is sentenced to death will make
himself available first for experiments _where he has no chance_, unless
there is some hope of a favor shown to him. But in the case of poisoning
experiments there was _no question of commutation of the sentence_
because the purpose of the experiment was the study of the effect of
poison on corpses. Thus, execution was included as part of the
experiment.
Concerning the malaria experiments the press notice explicitly said that
_no privileges of any kind_ were granted, thereby referring to the task
of the prisoners, as “social parasites”, to help fight the mosquitoes as
equal social parasites.
One must conclude that compulsory experiments are admissible, but one
_cannot_ draw the conclusion that the state is authorized to use the
prisoners at random for any experiment whatever by way of punishment.
_The gravity of the experiment_ must stand in a _certain proportion_ to
the gravity of the crime. The expiation must be such as can be expected.
This very idea of the reasonableness of the demand is expressed in the
malaria experiment mentioned where reference is made to the socially
negative attitude of the persons subjected to experiments, thus applying
the idea of _expiation_.
The same fundamental idea might have led to the resolution to use
conscientious objectors for the experiments. It seems that here
_expiation_ has been demanded from the same point of view of a _socially
inimical attitude_. It does not seem unfair if a _conscientious
objector_, as a deserter, is subjected to experiments if he adopts this
attitude only in wartime and if this attitude helps him to escape behind
prison walls, thus withdrawing from dangers which the soldier at the
front has to bear for the sake of the community. For the soldier, this
danger may consist in a dangerous epidemic disease, to which he is
exposed in wartime especially.
The idea of compulsory experiments in the sense of an experiment of
expiation has been proposed as an _expiation measure_ with regard _to
prisoners of war and political prisoners_ and has not been objected to
even by the public. So the less ethically orientated opinion of the day
frequently expresses the view that experiments on criminals should be
carried out for the purpose of expiation.
Even in the press these opinions have their representatives. So among
others a reference appeared in the London paper “The People” of 3 March
1946 (_Karl Brandt 114_[163]) There the following is said: “People
believe that all these men (the defendants at the International Military
Tribunal) will die. It is the opinion of many that they ought to have
died months ago and ought to have been shot three days after arrest by
court-martial sentence. Others are of the opinion that they should
_expiate their crimes_ by being subjected to cancer, leprosy, and
tuberculosis experiments.”
It is significant in this excerpt that it is a well-known English
author, Llewellyn who passes it on, and he does not adopt a disapproving
attitude to it.
Accordingly, it can be ascertained that such experiments of expiation on
_political opponents, prisoners of war, and civilians_ can be looked
upon as _reasonable_ and admissible, if these persons, as convicted
_criminals_, are subject to _punishment_ and if the law relating to the
serving of sentences permits experiments of that kind.
The _Geneva Convention_ in Article 46 provides for a restriction only
insofar as no punishments may be inflicted on prisoners of war apart
from those that are admissible for members of the army of one’s own
country; the same must be applied to civilians.
In comparison with this, no restrictions exist with regard to the
execution of punishment in cases of _criminal_ offenses. Therefore the
penal execution law, admissible in each state, can be applied.
If therefore compulsory experiments for expiation can be carried out on
an American citizen, they could be applied in the same way to a German
prisoner of war, assuming that the latter has been sentenced under penal
law. In accordance with this, the same must be admissible in the
execution of German penal law if the _foreign prisoner_ has been legally
sentenced to punishment.
The foreign criminal is not in a better position than the subject of
one’s own country.
The compulsory experiment must have its limits.
Here one must distinguish between responsibility for the _arrangement of
the experiment_ and for its _conduct_. In both cases the physician can
have a share in it. The _decision for the conduct_ of experiments on
human beings can come from two sides, different in character. The demand
can result from urgency in the interests of the community and can be
vindicated by _the state_. During the war, experiments can be demanded
by the _armed forces_ in case of epidemics to be expected, such as
malaria, typhus, and the like.
On the other hand the suggestion can come from the _research side_
itself, which perceives a possibility of combating an evident state of
distress, through the progress of medical science, and also demands
experiments for the sake of the community.
The decision concerning the necessity for such experiments is a
_decision of usefulness taken by the state_, consequently a _political_
decision, signifying a balancing of expenditure and of success to be
expected or hoped for.
There are different kinds of questions which have to be decided; first
of all there are economic questions to be solved by the competent
authorities; i. e., financial questions, supply of specialists,
laboratories and so on.
Responsible for it are offices with means and possibilities available,
which can dispose of them according to their own judgment. These offices
are divided further according to their special interest in individual
special spheres, such as air navigation, _Wehrmacht_, and the like.
_No decisions_ can be made by an authority _without any means at its
disposal_; this is valid for instance for the office “Science and
Research” of the defendant Karl Brandt, which fulfilled only a recording
and coordinating function within certain medical spheres. Evidently the
activity of the _Reich Research Council_ was chiefly that of an organ of
control and had to eliminate superfluous research during the war by
refusal of subsidies in order to help the small number of specialists
and material by allotment of priority ratings and financial means. This
was the task of the Reich Research Council and in the medical sphere
this part of its general regulating activity was very small.
These offices had _no power of decision as to whether experiments on
human beings_ could be made or not, and they could not have it. The
office which regulated the _infliction of punishment_ and disposed of
human beings subjected to experiments was the only office to take
decisions. This corresponds to what is known about the conduct of
experiments on human beings abroad, where the decision was also taken by
administrative offices.
The _authority for the infliction of punishments_, as the authoritative
office of the state, makes its _independent_ decision while _politically
balancing_ the _necessity_ for arranging experiments in the interests of
the community against what can be expected of the condemned. Applied to
German conditions during the war it means the following:
If the condemned are under the control of the authorities of justice
competent for the execution of sentences, the responsibility rests upon
the _Reich Minister of Justice_; if the execution of sentences is
carried out by the _Reich Leader SS and the Chief of Police_ in the
concentration camps, the latter has to be responsible for it.
In this situation _the responsibility of a physician_ can be of value
for a decision only so far as he gives a false _expert opinion_ about
the prospects of the experiment.
The government has to make the final decision about the admissibility of
experiments on human beings; the government only has to decide whether
experiments on human beings are necessary in order to combat dangers and
injury to health, as it is responsible for everything pertaining to
health. In connection with this compare the regulation of the French
Government in 1858 for the purpose of clearing up the question
concerning the treatment of secondary syphilis and the experiments made
on human beings. (_Karl Brandt 48, Karl Brandt Ex. 55._)
In war time, the decision is also conditioned by considerations
concerning _the preservation of the state_, which are _dependent on war
conditions_. Epidemic diseases can have a decisive influence on the
result of the war and might in the end be of a greater importance than
battles, as for instance the plague during the siege of Athens, or
typhus during the advance of Napoleon into Russia. Biological warfare is
the result and was prepared intensively by the enemies of Germany, as
the foreign press openly informed us.
In the same way as the state demands the _death_ of its best men as
soldiers, it is entitled to order the death of the condemned in its
_battle_ against epidemics and diseases. _No antique sacrifices to gods
and demons_ are demanded any longer, only a _well considered expiation_
as a help for the community and indeed exclusively in its interest.
The actual _responsibility_ of the physician lies in the _conduct of the
experiment itself_. The experiment has to be conducted by the physician,
but the _political responsibility for it rests upon_ the state, while
the physician is responsible for its conduct.
If the physician considers that an experiment is not feasible it can
become a _crime_ and the physician has to refuse to carry it out.
In carrying out the experiment every attention must be paid to all
_regulations_ of medical practice concerning _medical research_ at the
time.
All possible preliminary _experiments conducted on models_ have to be
made before experiments on human beings are started. That means that
preliminary experiments in laboratories, experiments on animals and so
on, have to be conducted. In case of need even experiments carried out
on the researcher’s own person belong to the preliminary experiments.
Generally, responsibility for the _extent of the experiments_ rests upon
the physician. In the arrangement of the experiments the number of the
persons selected for experiments must be as great as necessary in the
interests of the result of the experiment, but in the interests of the
persons selected for the experiment the number must be as small as
possible.
The conduct of the _experiment_ must be _correct_ and _excesses_ which
could increase its danger _have to be avoided_.
Finally, the _experiment must be stopped_ by the physician if it is
evident that the expected result is attained or most probably will not
be attained.
The _assignment of persons_ needed for an experiment in the course of
infliction of punishment can take place only at the instigation of the
executory office in whose custody the prisoner is held.
* * * * *
It has been pointed out that many persons used for experiments were
_foreigners_, and that this fact should have prevented experiments on
them. In this connection the following reference is made:
It is a fact that strong resistance movements in the West, and
especially in the East, waged a total partisan war against the German
troops and caused bloody sacrifices. International law does not object
to capital punishment for participants in illegal combat and illicit
sudden attacks against members of the occupation army. If, therefore,
instead of the permissible execution of capital punishment, mitigation
through an attempt at expiation occurs, special consideration should be
given to this fact.
The reproach that no experiments should have been made on _political
prisoners_ contradicts the fact that the political opponent, in all
countries and at all times, has in most cases been punished more
severely than the criminal, namely on the basis of criminal law
governing treason, espionage, and contravention of war measures, i. e.,
political orders. Reference is hereby made to the fact that every
occupation army threatens capital punishment for many, otherwise
insignificant, offenses.
* * * * *
_EXTRACTS FROM THE FINAL PLEA FOR
DEFENDANT RUFF_[164]
* * * * *
_Prisoners as voluntary experimented subjects_
The question has repeatedly come up in this trial whether or not the
experimental subjects in the Dachau high-altitude experiments by
Ruff-Romberg were volunteers, although the people were in _detention_,
that is to say, indisputably under duress.
The expert Professor Dr. Leibbrandt has held to his one-sided opinion in
this respect too, and has advocated the theory that prisoners can never
be regarded as volunteers. This opinion is doubtlessly false; in other
times, the expert perhaps would not have supported it. For the
administration of justice in other cases also accepts legally binding
statements of prisoners, and does not think of declaring them legally
ineffective, only for the reason that the prisoner in consequence of his
imprisonment finds himself in an embarrassing situation, and therefore
not completely master of his own free will.
One surely is not mistaken in supposing that none of the defendants,
even if he has ever such great experience as a medical man, at that time
thought without exception of all the possibilities which we have to
consider now, when for many months we have had to search for the legal
basis of the whole problem of human experiments, and have had to think
of all eventualities. According to his sentiment, at that time each
physician and research man said to himself: If the experimental subject
agrees to the experiment, everything is all right. For this always
appeared to the physicians to be the highest principle: An experiment is
legal if the experimental subject agrees to it, provided that the
physician observes the necessary care when performing the experiment. As
proved here by this trial, there exists in no country a written law
regulating the legal conditions of experiments on humans. On the other
side, however, the human experiment is such a far-reaching and often
such an indispensable matter that one might speak of an unwritten law,
which generally and tacitly is accepted and acknowledged by the whole
world. Counsel for some of the defendants have demonstrated to the
Tribunal in their document books the opinion of the whole world on this
unwritten law, in the most varying degrees, from the absolutely harmless
to the absolutely deadly experiment, and has certainly thereby compiled
valuable material which is suitable for forming the basis of a
codification of this unwritten medical law and to show safe future roads
for the development of justice in this sphere. Lacking a written law,
the physician and research man even today can only recognize the
conventional legal concept as a rule for his conduct as expressed in
international medical literature.
* * * * *
When reading this international literature, however, there cannot be any
doubt that the volunteering of the experimental subjects warrants in
every case the legality of human experiments, and that, therefore, the
more sentimental attitude of our research workers was right when,
because of their knowledge of international literature, they made the
question of the legality of human experiments depend in the first place
on the voluntariness of the experimental subjects.
As far as one can see, international medical literature up to date
nowhere represents the opinion that the consent of a prisoner is
ineffective because, by reason of his imprisonment, he had no free will.
On the contrary, in many cases it has taken an important step forward,
and had frequently, without meeting any opposition, reported on
experiments performed on prisoners whose consent was not regarded as
essential. Many experiments, some of which were reported on here in
Court, and some of which are described in the documents submitted by the
defense, demonstrate clearly that obviously the opinion prevails
everywhere that in the case of prisoners, in particular those who have
been sentenced to death, the consent of the prisoner to the experiment
can be replaced by the permission of the authorities, even in the case
of experiments which were very dangerous and where fatalities occurred
in more or less large numbers. The published reports also talk about the
number of deaths in the experiments described, some slightly camouflaged
but to a large extent openly, without the research worker or the reader
realizing that murderous actions were being reported, because otherwise
the reaction would have been a completely different one.
The question becomes particularly acute if these experiments were
carried out in a totalitarian state or during a total war. It is not the
point in this connection whether a dictatorial regime is desirable or
should be rejected, nor whether a war as such appears to be criminal
(for example because it will be judged as an aggressive war later on);
the attitude that, under such exceptional conditions as exist in a
dictatorship or total war, even life-endangering experiments on human
beings may perhaps be more justified than under normal conditions is
obviously based on the thought that the state governed by dictatorship
can and will ask for greater sacrifices, from criminals too, especially
during total war.
As a matter of fact the following thought appears to have occurred to
many a defendant during this trial: During a total war the state asks
everybody to be ready at any time to serve at the front, and during the
aerial war every woman and every child at home is exposed daily and
every hour to mortal danger; many a citizen would therefore think it
unsatisfactory if a criminal, who is burdened with heavy guilt or may
even have committed a crime punishable with death, remains free from all
danger, in other words is in a better position than the upright citizen.
It appears now that many an experimental subject who was used at that
time for experiments was of the same opinion, because the witness Karl
Wolff stated on oath that the prisoners to whom he spoke in Dachau said,
that “they would contribute voluntarily to Germany’s war effort and show
a sign of their actual good will.” (_Ruff 21, Ruff Ex. 20._) The same
ideas were also stated by various defendants during their interrogation.
* * * * *
d. Evidence
_Testimony_
Page
Extracts from the testimony of prosecution witness Eugen Kogon 993
Extracts from the testimony of prosecution expert witness Dr. 994
Andrew C. Ivy
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
EUGEN KOGON[165]
_DIRECT EXAMINATION_
* * * * *
MR. MCHANEY: Before we go into the details of the typhus experiments, I
would like to ask you if you know anything about the manner in which
subjects were selected for the experiments which you have mentioned and
which took place in Buchenwald?
WITNESS KOGON: The selection of experimental subjects was not the same
at different times. In the very first period the inmates of the camp
were called upon to volunteer. They were told that it was a harmless
affair; that the people would get additional food. After one or two
experiments it became impossible to get any volunteers whatever. From
then on, Doctor Ding asked the camp physician or the SS camp commandant
to select the suitable persons for the experiments. He had no special
directives for this. The camp administration chose people arbitrarily
from among the prisoners, whether they were criminals, or political
prisoners, or homosexuals. Intrigue among the prisoners themselves also
played a role in the selection, and occasionally people came for whom
there was no special reason, but they came into the experiments. From
the fall of 1943, approximately, the camp leaders did not want to keep
the responsibility for the selection of experimental subjects. Doctor
Ding himself no longer wished to have verbal instructions from Mrugowsky
to carry out the experiments, but he demanded written orders. For this
purpose he approached Mrugowsky with the request that the Reich Leader
SS should appoint his own people for the experiments. SS Gruppenfuehrer
Nebe of the Reich Criminal Police Office in Berlin then, according to a
directive from Himmler which I saw, ordered that only those people were
to be used who had at least a ten-year sentence to work out. Then, the
officials of the Reich Criminal Police Office in Berlin twice selected
110 and 99 people in Buchenwald, who were made available for the
experiments. They were exclusively criminals with a previous record. In
the last period, people were selected from various concentration camps
and prisons in Germany. Transports came to Buchenwald with these people.
In addition to this, political prisoners from the camp itself were
almost always included in these series of experiments, either because
they were inconvenient to the SS in some way or because they were
victims of camp intrigues.
Q. Were all of these experimental subjects condemned to death, who were
experimented on in Block 46?
A. I do not know of a single case in which anyone came to the
experimental station in Block 46 because he had been condemned to death.
Once in the case of four Russian prisoners of war, it was claimed that
they were to be shot, but there was no judgment, no sentence. They
belonged to the category of Russian prisoners of war, of whom about
9,500 were shot, hanged, or strangled in Buchenwald.
Q. Were any special considerations or favors granted to the experimental
subjects who survived these experiments?
A. During the first two or three weeks before the experiments were
carried out, the experimental subjects received better food in order to
get them into the condition of a normal German soldier. Apart from that,
none of the prisoners who survived received any advantages, and they
were never promised any such thing.
Q. Was an effort made to pick experimental subjects who were in good
physical health, that is, comparable to a Wehrmacht soldier?
A. The condition did exist, and as far as was compatible with the other
conditions of selection, it was fulfilled.
* * * * *
Q. Mr. Kogon, at the conclusion of yesterday’s session you had explained
to us the manner in which experimental subjects were selected for the
medical experiments in the Buchenwald camp. Will you tell the Tribunal
whether any non-German nationals were experimented on?
A. Among the experimental subjects who had been selected for Block 46,
there were not only Germans but also Poles, Russians, and Frenchmen,
particularly during the last years.
Q. Were there any prisoners of war experimented on in Block 46 to your
knowledge?
A. Yes.
* * * * *
EXTRACTS FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS
DR. ANDREW C. IVY[166]
_CROSS-EXAMINATION_
* * * * *
DR. SERVATIUS (Attorney for defendant Karl Brandt):
Witness, yesterday you testified that voluntary consent is the first
prerequisite for human experimentation. Previously you had said that you
yourself had been reluctant to apply for volunteers. Is that so?
WITNESS DR. IVY: No.
Q. Didn’t you say just now that you didn’t want to ask your students to
volunteer but left that to other agencies so that your authority might
not constitute some form of coercion?
A. Yes, that is insofar as my personal direct request to the individual
is concerned, I thought, because of my position as a professor, it might
unduly influence the student to say yes.
Q. You were probably of the opinion that your authority might persuade
him to do something that he otherwise would not do.
A. Yes—through individual contact.
Q. I say, Professor, don’t you know that in general the volunteer aspect
of the person’s consent has been under suspicion?
A. I don’t understand that question. Will you repeat it?
Q. Is it not so that in medical circles and also in public circles these
declarations of voluntary consent are regarded with a certain amount of
suspicion; that it is doubted whether the person actually did volunteer?
A. Can you be more specific?
Q. In your commission you probably debated how the volunteers should be
contacted; is that not so?
A. Yes.
Q. On this occasion was there no discussion of the question that you
should assure yourself that no coercion was being exercised, or that the
particular situation in which the person found himself who applied was
being exploited?
A. Yes. I was concerned with that question.
Q. There were discussions about that?
A. Not necessarily with others, but there was always consideration of
that in my own mind.
Q. Witness, a number of documents were submitted yesterday, Friday, from
which it was to be seen that volunteers did volunteer, for instance
eight hundred or more prisoners applied for a malaria experiment[167];
and there was a radio report; all of these persons had a motive for
volunteering. What are the motives of a prisoner that persuade him to
volunteer?
A. These prisoners said they volunteered in order to help people who
might have malaria.
Q. In this report the individual persons were asked, five or six of them
were—one says that he volunteered because he is condemned to life
imprisonment, and he has applied to oblige the army. Another says that
he is doing it because his brother is a soldier at the front and has
malaria. And another one says—two of my brothers in the army had
malaria; and a third one says in the last war—
MR. HARDY: Dr. Servatius refers to Document NO-3450, Prosecution Exhibit
519 for identification, and I request that he supply the passages so
that Dr. Ivy can properly testify.
DR. SERVATIUS: Witness, from this radio report I shall read the answers
of the experimental subjects to you. One Mr. Quail says: “I expect,
Captain Jones, that these men have many reasons for their volunteering
for this war.”
CAPTAIN JONES: “Yes, they have. Many have sons and brothers in
the armed services, others have other patriotic motives, but I
am not the one to tell about them.”
QUALL: “I get the point.”
CAPTAIN JONES: “With the permission of Warden Rangen we are
going to talk to several of these volunteers right now. Here is
a man who is older than some of the others. What is your name?”
JOHNSON: “I am George Johnson, number so and so.”
QUALL: “Johnson, I have heard you have a pretty high fever as a
result of these tests.”
JOHNSON: “That is right; at one time my temperature was 108
degrees.”
QUALL: “108 degrees, and you are here to tell the story.”
JONES: “What was your main reason for volunteering for these
tests?”
JOHNSON: “I served in the U. S. Army during the First World War,
and here, by going through with these tests, I helped some of my
buddies in the war just ended.”
QUALL: “Thanks, Johnson. Now, here is Charles Eirtz, number so
and so.”
EIRTZ: “My brother was killed in the crossing of the Saar
[Sarre] River; that made up my mind for me; we weren’t being
shot at here; it was the least we could do.”
QUALL: “And here is George Storm; George Storm, number so and
so.”
STORM: “Two of my brothers in the service caught malaria. If I
can help the Army, I can help my brothers.”
QUALL: “Here is a man who is one of the many inmate nurses
helping out in the war. What is your name?”
LEOPOLD: “Nathan Leopold, number so and so. I was a malaria
volunteer, and now I am acting as a nurse.”
QUALL: “How do most of the patients react under these tests?”
LEOPOLD: “All the men are good soldiers; their morale is high.”
QUALL: “Now, two inmates who are no strangers to malaria.”
WALKER: “My name is George Walker, number so and so, and my
nephew is a malaria patient in an Army hospital.”
MCCORMACK: “I am James McCormack, number so and so. My brother
is in the Army, too. If these tests will help cure him of
malaria, it will all be worth while.”
QUALL: “Medical officers are particularly interested in this
next case. Your name?”
NORMAN: “Al Norman, number so and so.”
QUALL: “Why is your case unusual, Norman?”
NORMAN: “Because I have had five relapses since I first
contracted malaria; that is the highest number any patient had.”
I shall stop reading. I believe this gives the general impression. Is it
correct that all of them are giving idealistic reasons as the motive?
MR. HARDY: Prior to the question I suggest that the document be handed
to Dr. Ivy, if he wishes to refer to other sections of it in his answer.
DR. SERVATIUS: I shall do so immediately; however, I have one question
first. Are these not all idealistic points of view as the person’s
motive?
WITNESS DR. IVY: Yes. On the basis of my discussions with people who
observed these experiments at Stateville, Illinois, the idealistic
motivation of this group was very high. As a matter of fact, the effect
of this public service rendered by these prisoners is being followed up
to see whether or not it has special reformative value, and up to the
present time this question indicates that this public service has been
of great reformative value, in that the incidence of return to
criminality under parole is markedly decreased.
Q. Do you know Nathan Leopold, or do you know who he is?
A. Yes.
Q. Is it true that he was condemned to fifteen years in the penitentiary
for murder?
A. To much more than that.
Q. Do you think he is the right person to give an opinion regarding the
high morale status of the inmates of a penitentiary?
A. He can never expect to get out of the penitentiary, and I see no
reason why he should not express himself, without any duress or
coercion, accurately and as he feels.
Q. I will show you this report, and please ascertain if you have any
remarks to make about it.
A. No, I have none.
Q. The idealistic points of view are associated with the state of war,
are they not, aside from the last one?
A. No, I do not agree, because if any coercion were brought to bear upon
these prisoners to serve in medical experiments, that would soon—within
a week—come to the attention of the newspaper reporters and would
appear on the front page of every paper—most every paper in the United
States.
Q. I should like to tell you again what Jones says here. He says:
“Others have patriotic motives * * * many have sons and brothers in the
armed services.” Captain Jones gives that as the main reason. And then
other individuals are brought up who make statements in the same sense
to the same effect. Is that not so?
A. I believe that is entirely reasonable; because an individual is a
prisoner in a penitentiary is no reason why he should not be patriotic
or love his country.
Q. Perhaps you will admit that no one would give that as his motive for
helping before a German de-Nazification court, namely, that he wanted to
help the army.
A. I did not get the question. Will you please repeat it?
Q. Never mind. Now, Witness, of the experiments we have here, none of
these volunteers were outside the penitentiary; now, why did not persons
outside the penitentiary volunteer in the malaria experiments:
businessmen or teachers, for example? Because we must assume that not
only inmates of penitentiaries have ideals.
A. As I explained yesterday, conscientious objectors were used, and
prisoners were used, instead of teachers and businessmen because those
individuals had no other duties to perform. Their time was fully
available for purposes of experimentation.
Q. Is it not an evil to carry out experiments?
A. No.
Q. You don’t think so?
A. It is not an evil to carry out experiments.
Q. But isn’t it an evil to have to go through an experiment as an
experimental subject?
A. I should say not. I have served myself as an experimental subject
many times, and I do not consider it an evil.
Q. Don’t you think it is very unpleasant to become infected with
malaria, to have fevers, and other undesirable symptoms of that sort?
A. Yes. It is unpleasant, but not an evil.
Q. Perhaps we don’t understand each other. You don’t want to say it is a
pleasure to have malaria?
A. No. It is not a pleasure.
Q. Is it not a very unpleasant and serious disease that lasts for many
years?
A. It is unpleasant, yes.
Q. If all these persons apply for idealistic reasons, why are they
offered recompense?
A. I suppose it is to serve as a small reward for the unpleasantness of
the experience.
Q. Don’t you believe that the money was the motive for many of them—a
hundred dollars?
A. That is rather small. From the point of view of prisoners in the
penitentiary in the United States, a hundred dollars isn’t much money.
Q. For a prisoner that would be quite a lot of money, it seems to me,
for someone at liberty it is not so much.
A. No. Our prisoners in the penitentiary in the United States, when they
work in factories in the prisons, receive pecuniary compensation for
that work.
Q. I believe that is so throughout the world.
A. That is put in a trust fund for them to use when they get out.
Q. Do you think that the money is sufficient recompense or compensation
for what the experimental subject has to go through?
A. I should not consider it so, and I don’t believe that any of the
prisoners did. As a matter of fact, I was told that some of them would
not accept the money.
Q. If one declares oneself to be a volunteer, must one not weigh the
advantages against the disadvantages?
A. I believe so.
Q. The disadvantage here is the risk of a serious disease, the advantage
is fifty or a hundred dollars.
A. I should say the advantage is being able to serve for the good of
humanity.
Q. For what reason was the money not paid immediately, but in two
payments? So far as I remember from a document yesterday, the hundred
dollars was paid as follows: fifty dollars after the first month, and
the other fifty after one year. In other words, a prisoner has to do his
job first. Now, why was that so?
A. I presume that that is just the common way of doing business in the
United States when an agreement is involved. I presume the lawyers had
something to do with that.
Q. Was the reason not this: that the prisoner would lose his enthusiasm
for the experiment and would cease to cooperate? Could that have been
the reason for being a little circumspect in the payment?
A. I doubt that.
Q. Do you know of a case where the experimental subject did not wish to
continue the experiment?
A. That has not been my experience. And according to the response that I
got to that question when I put it to Dr. Irving, he said that no one
expressed a desire to withdraw at any time.
Q. Professor, I have seen a document on experiments in hunger that were
carried out on conscientious objectors. That appeared in a periodical.
It is described how these conscientious objectors went through
considerable unpleasantness and did not want to continue the experiment.
They kept their promise only at great effort. Is that known to you?
MR. HARDY: I suggest that counsel refer to the document that he is
talking about at this time and make it available for Dr. Ivy, or make
the facts available, the particular data, so that Dr. Ivy will be fully
aware of the circumstances.
PRESIDING JUDGE BEALS: Does counsel have a document which he can make
available? Then he will use it.
DR. SERVATIUS: I have only one copy in English here. (Presented to
witness.) I shall have to find the passage I am referring to.
I can’t seem to find it. This is a long document and somewhere there is
the statement that the experimental subjects have to summon all their
forces to remain in the experiment. However, I shall drop the subject
for the moment. Witness, is there not another inducement that persuades
prisoners to volunteer for experiments? Is not the prospect of pardon or
other advantages the reason for applying?
WITNESS DR. IVY: When these malaria experiments started, that prospect
was not held out to the prisoners, hence the possibility of a reduction
in sentence, in being placed on parole sooner than otherwise, was not a
prospect. However, since some of these malaria experiments have been
terminated, a reduction of sentences in addition to that allowed for
ordinary “good behavior” has been granted by the parole board. For that
reason Governor Green of the State of Illinois appointed a committee
with me as chairman to consider this question which you have in mind:
How much reduction of sentence can be allowed in such instances so that
the reduction in sentence will not be great enough to exert undue
influence or constitute duress in obtaining volunteers? I have my
conclusions ready and can read them to you, if you desire to hear them.
Q. Please do so. May I ask when this committee was formed?
A. The formation of the committee, according to the best of my
recollection, occurred in December 1946, when the prisoners with
indeterminate sentences were up for consideration for parole. This was
the first time the question of reduction in sentence came up.
Q. One more question, Witness. Did the formation of this committee have
anything to do with the fact that this trial is going on, or with the
fact that this malaria case was published in Life magazine and that it
was explicitly stated that the experimental subjects were receiving no
compensation, no pardon, reduction of sentence? Is there any connection
between those things?
A. There is no connection between the appointment of this committee and
this trial, for this reason, that there is a division of opinion
regarding the work that the parole boards do. Some believe that the
parole boards are too soft; others believe that they are too hard. If a
reduction in sentence were too great, parole boards would be criticized
in the newspapers. Obviously the parole board wants to act on the basis
of the best opinion on medical ethics that they can obtain. Accordingly,
this committee was appointed.
Q. Would you please be so good as to read what you intended before?
A. There are two conclusions:
“Conclusion 1: The service of prisoners as subjects in medical
experiments should be rewarded in addition to the ordinary time
allowed for good conduct, industry, fidelity, and courage, but
the excess time rewarded should not be so great as to exert
undue influence in obtaining the consent of the prisoners. To
give an excessive reward would be contrary to the ethics of
medicine and would debase and jeopardize a method for doing
good. Thus the amount of reduction of sentence in prison should
be determined by the forbearance required by the experiment and
the character of the prisoner. It is believed that a 100 percent
increase in ordinary good time during the duration of the
experiments would not be excessive in those experiments
requiring the maximum forbearance.
“Conclusion 2: A prisoner incapable of becoming a law-abiding
citizen should be told in advance, if he desires to serve as a
subject in a medical experiment, not to expect any reduction in
sentence. A prisoner who perpetrated an atrocious crime, even
though capable of becoming a law-abiding citizen, should be told
in advance, if he desires to serve as a subject in a medical
experiment, not to expect any drastic reduction in sentence.”
I might explain, when I used the expression “reduction in sentence in
prison,” that that implies that when the prisoner is released on parole,
he is still under supervision, observation, or sentence outside of
prison. He is subject to arrest and return to prison at any time; so
when we say reduction of sentence in prison, we do not mean that there
is an actual reduction of sentence prescribed by the court. That is the
law in the State of Illinois.
Q. Witness, if the experimental subjects are prisoners, are they told
about this policy ahead of time?
A. They will obviously have to be told of this policy from now on, since
the matter has come up for the first time.
Q. Yesterday a prosecution document was shown to you. That was Document
NO-3968, Prosecution Exhibit 517, Department of Justice, Bureau of
Prisons, a document from Texas. This was in no document book but was put
in only yesterday. I shall have this shown to you immediately. This is a
form from the Department of Justice, Bureau of Prisons, a statement of
voluntary consent and it says here the following:
“I agree to cooperate to the fullest extent with the physicians
conducting the study during an over-all observation period of
approximately 18 months. I understand that at the conclusion of
the observation period, I am to be furnished with an appropriate
Certificate of Merit and a statement of my voluntary cooperation
in the study and the fact that I have thus rendered voluntarily
an outstanding service to humanity will be placed in my official
record.”
Is that not a rather extensive promise which might induce a prisoner to
apply without having a purely idealistic motive?
A. A Certificate of Merit is an attractive little certificate that the
prisoner could have framed and he could hang on the wall of his prison
cell. After he was released, he could take it home and show it to his
friends, and I think it might serve as an incentive to prevent the
previous wrongdoer from going into the ways of wrongdoing again.
Q. Do you not think that it has a very practical usefulness? Do you not
think that it would lead the police to treat one a little more
leniently?
A. I doubt it, although I can’t testify regarding what the police might
do.
Q. Don’t you think that it would be of some aid when looking for a job
after his release?
A. When a prisoner is released on parole, before he is released, a job
is found for him.
* * * * *
_REDIRECT EXAMINATION_
* * * * *
MR. HARDY: Now, Doctor, concerning your testimony regarding the
conscientious objectors, I have a few points which may tend to clarify
this situation in the minds of defense counsel. Would you tell us how a
person is classified as a conscientious objector?
WITNESS DR. IVY: Well, first, everyone within a certain age group in the
United States had to register.
Q. Register for the draft?
A. For the draft or selective service.
Q. That is, conscription into the United States Armed Forces?
A. Yes. Then at some time later the actual draft occurred. The
conscientious objector could announce that he was a conscientious
objector to serving in battle or serving with the military organization
at the time of registration or at the time of induction or being
drafted.
Q. And after he registered his objections to participating in any manner
in the Army, was he then allowed to return to his home, or was he asked
to cooperate in matters which did not involve things of a military
nature?
A. No. He was assigned to the Civilian Public Service Agency and asked
if he wanted to cooperate by rendering public service.
Q. And that public service was work as orderly in a hospital and work in
various libraries, perhaps, and other public institutions?
A. Yes, or forest fire prevention, and cleaning up the woods.
Q. Was this man, this conscientious objector, in confinement?
A. They were only placed under confinement when they would not cooperate
in any way.
Q. Was there a national committee to take care of the interests of the
objectors?
A. Yes. As a general rule the conscientious objectors were supervised by
a civilian religious group, such as the Quakers or the Mennonites.
Q. Was the conscientious objector under any duty to volunteer for
medical experiments?
A. None whatsoever.
Q. However, he was under obligation to work in various libraries or
forest fire prevention, etc., if requested to by the committee?
A. Yes. It was necessary for him to render some sort of public service.
Q. Then you determined that you needed experimental subjects. How did it
happen that you decided that conscientious objectors might be made
available to you?
A. As I recall, the National Research Council, in view of the fact that
the medical students and dental students were mustered into the Army and
could no longer serve as subjects in experiments in universities and
medical school laboratories, took the matter up with the Director of the
Civilian Public Service, who then decided that the conscientious
objectors might be allowed to volunteer for such work in connection with
medical schools and research institutes.
Q. And by that token you were permitted to approach conscientious
objectors to ask them whether or not they would volunteer for medical
experiments?
A. I or the investigator did not approach the conscientious objectors
directly. We requested that a certain number of volunteers be allowed or
sent to us through the Director of the Civilian Public Service Agency.
Q. And those conscientious objectors were sent to your university
laboratories?
A. Yes. That is correct.
Q. While they were at your laboratory were they living in the
dormitories at the university?
A. Yes, in the dormitories or in the hospitals.
Q. Were they under any surveillance at all?
A. One person in the group was appointed as a leader, supervisor of the
group, and it was his duty to see that the men carried out their
instructions properly and on time.
Q. Was it possible for any one of these objectors to receive leave or to
have week end liberty?
A. It was not in most experiments.
Q. Well, assume for the moment that you were not going to use the
experimental subject for a period of two or three weeks. Was he in such
a position that he could not go on leave or go to the city or was he
supposed to remain at your university at all times?
A. No. He could leave for certain periods of time, varying in length
from a few hours to a few days, depending upon the nature of the
experiment. If it were a dietary experiment, then he had to eat at the
diet table all the time.
Q. Then he actually had freedom of locomotion, in contradistinction to a
prisoner in an institution or penitentiary?
A. Yes.
* * * * *
* * * * *
[Further materials from the record in the Medical Case appear in Volume
II. See Contents, p. VI, this volume.]
-----
[162] Closing statement is recorded in mimeographed transcript, 14 July
1947, pp. 10718-10796.
[163] Document rejected by the Tribunal.
[164] Final plea is recorded in mimeographed transcript, 17 July 1947,
pp. 11154-11176.
[165] Complete testimony is recorded in mimeographed transcript, 6, 7, 8
Jan. 1947, pp. 1150-1290.
[166] Vice President of the University of Illinois in charge of the
College of Medicine, Dentistry, Pharmacy, and Nursing, and distinguished
professor of physiology at the Graduate School of the University of
Illinois.
Complete testimony is recorded in mimeographed transcript, 12, 13, 14,
16 June 1947, pp. 9029-9324.
[167] Counsel for the defendant Karl Brandt refers to experiments
carried out in the United States during World War II.