Chapter 2 CONSTRUCTING MASS MURDER

THE UNITED STATES EUTHANASIA TRIALS, 1945–1947

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that . . . the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.

—PREAMBLE TO THE 1907 HAGUE CONVENTION (THE “MARTEN’S CLAUSE”)

In the years prior to World War II, the United States had long resisted international criminal tribunals as threats to its own national sovereignty. The U.S. government had opposed forming an international tribunal after World War I to prosecute violations of the “laws of humanity,” particularly in connection with the Turkish government’s alleged destruction of its Armenian population. At the time, the U.S. government supported its opposition with reference to the “vague” nature of ill-defined crimes against humanity, so far as they involved outrages committed on civilians rather than military members. When we examine the U.S. position in the context of the subsequent rejection of U.S. participation in the League of Nations, however, it would seem that U.S. refusal to endorse an international tribunal had more to do with fears of diminished sovereignty than with legal niceties like the prohibition of retroactive criminal law. This notwithstanding, the United States emerged in 1945 as the most ardent champion of postwar trials to punish the crimes of the Third Reich. The process by which this inversion came about requires explanation. As we will see, the U.S. Army’s abrasive encounter with Nazi criminality, the extreme nature of that criminality, and the lobbying efforts of numerous central and eastern European émigrés during the war all contributed to making the United States the foremost adherent of postwar trials. In the course of our discussion, we will also see how the early commitment of U.S. war crimes trial planners to a theory of conspiracy as the glue holding together its case against Nazi defendants came to dominate the U.S. approach to the regime’s criminality in both the International Tribunal and the Doctors’ Trial proceedings. Ultimately, U.S. insistence on the centrality of conspiracy to its legal interpretation of Nazi criminality is a recrudescence of U.S. fears that its own sovereignty might be diminished.

We next explore how concerns with preserving U.S. power affected judicial constructions of euthanasia criminality. In order to penetrate to this issue, we will focus on two proceedings in U.S. courts: the Hadamar trial before a military commission (in October 1945) and the Medical Case against doctors and high-ranking policymakers involved in the euthanasia program, which took place from December 1946 to August 1947. From early on, the U.S. government viewed euthanasia as the direct result of the Nazis’ efforts to launch aggressive wars to bring all of Europe under German hegemony. On the U.S. theory, euthanasia was a way to free up medical resources for use by the German army in its conquest of Europe. By connecting the destruction of “life unworthy of life” with the conduct of a criminal war, U.S. authorities were able to justify the prosecution and punishment of acts that the United States feared might otherwise be considered part of the Third Reich’s domestic policy. In short, the war connection enabled the United States to uphold the principle of sovereignty, and to do so as it passed judgment on a euthanasia program that, in its original design, targeted only German nationals. Linking euthanasia with waging aggressive war is the most salient feature of the U.S. approach to euthanasia criminality and indicates the determinative impact of extra-legal factors—namely, U.S. leaders’ preoccupation with national power—on the U.S. euthanasia trials.

EUTHANASIA CRIMINALITY AND THE LAW OF CONSPIRACY

Although the Geneva conventions laid the foundation for international recognition of duties and prohibitions incumbent on combatant nations, before 1945 no international accord defined “crimes against humanity” as a distinct category of offense, the commission of which would expose an offender nation to criminal liability. The embryo of crimes against humanity actually goes back to a landmark fin-de-siècle document: the preamble to the First Hague Convention of 1899 on the Laws and Customs of War (enlarged in the Fourth Hague Convention of 1907) and the annexed Regulations Respecting the Laws and Customs of War on Land. The preamble to the 1899 and 1907 versions refers explicitly to “laws of humanity” that afforded protection to “populations and belligerents” not specifically covered by the language of the conventions. Thus, although the Hague conventions of 1899 and 1907 dealt primarily with “war crimes,” their jurisdiction over such acts derived from a larger, more capacious source called “laws of humanity.” According to the framers of the Hague conventions, the term “laws of humanity” would extend to “unforeseen cases” not anticipated in its enumerated instances of wrongdoing. The vital paragraph of the preamble, reproduced as an epigraph to this chapter, contains the Martens clause. The thrust of the Martens clause is that “general principles” may be used as a gap-filler to cover acts formally outside the scope of the conventions. Article 22 of the Hague regulations presupposes these “general principles” in its assertion that “the right of belligerents to adopt means of injuring the enemy is not unlimited.”¹

Not until the London Charter of 1945, which served as the basis for the International Military Tribunal at Nuremberg, were crimes against humanity prosecuted as violations of international law. Even so, U.S. jurists, politicians, and policymakers never entirely overcame their tendency to identify crimes against humanity with war crimes. One of the primary arguments of this book is that the desire to defend U.S. sovereignty from external interference, not the abstract, undiluted pursuit of justice, conditioned U.S. interpretation of Nazi criminality, causing U.S. policymakers and courts in the immediate postwar years to elide the distinction between crimes against humanity and war crimes.

The Overture to Nuremberg: The Moscow Declaration and the Morgenthau Plan

In spring and summer 1942, the first reports of the Nazi annihilation of European Jews began to trickle out of occupied Europe. These were not ephemeral rumors but soundly documented accounts from firsthand witnesses. The Inter-Allied Conference on War Crimes, a group of fugitives from Nazi Germany who lobbied for legal punishment of Nazi perpetrators, implored the Allies to act. Moved by their plea, Winston Churchill warned in a speech delivered in the House of Commons on September 8, 1942, that “those who are guilty of the Nazi crimes will have to stand up before tribunals in every land where their atrocities have been committed in order that an indelible warning may be given to future ages.” Franklin Roosevelt echoed this commination in his statement that the United States would ensure, once the war ended, that war criminals were delivered up to the United Nations for trial. At the same time, the Soviet Union declaimed against “the barbaric violation by the German Government of the elementary rules of international law.” Soviet Foreign Minister Molotov spoke of a “special international tribunal” that would try German leaders after the war.²

The brio of their public statements masked the Anglo-American leaders’ fears of acting hastily in the matter. Their concerns were several: assigning too much clout to governments-in-exile; provoking reprisals on Allied POWs in German hands; and a growing disquietude at the prospect of cooperating with the Russians on war crimes trials. In October 1943 U.S., British, and Soviet foreign ministers met in Moscow to formulate a concerted policy on war crimes trials. The immediate result of this meeting was the Moscow Declaration, a joint resolution announcing the Allies’ intention to return Nazi war criminals to the countries where they had perpetrated their crimes for prosecution by national tribunals. The Moscow Declaration went on to exempt “the major war criminals whose offences have no particular geographical location” from these national trials. Instead, the major war criminals would “be punished by a joint decision of the Governments of the Allies.” The phrase “joint decision” was vague; its wording left open the possibility—although the Moscow Declaration made no explicit mention of it—of an international tribunal convened to adjudicate the crimes of the major war criminals.³

From all accounts, the Allies were deeply affected by mounting evidence of crimes without historical parallel. Shock yielded to outrage, and outrage to a spirit of vengeance that gripped the Allied leadership on all sides. At the Yalta Summit in April 1945, Churchill had suggested to Stalin that a list of the “grand criminals” be compiled, and these criminals were to be arrested and shot after establishing their identity. Churchill had grounds for thinking his proposal would strike a responsive chord in Stalin: during their meeting at Teheran in November 1943, Stalin had proposed that after the war the Allies should decapitate the German army by executing 50,000 of its officers and technicians.⁴ The British and Soviets were not alone in wishing to deal punitively with Nazi war criminals. Roosevelt’s secretary of the treasury, Henry Morgenthau Jr., was an assimilated Jewish American profoundly angered by reports concerning the mass destruction of European Jews. In 1944 he urged FDR to deindustrialize Germany after the war—a plan that would destroy Germany’s capacity to wage war in the future. He outlined a postwar reckoning with Nazi war criminals, striking a balance between the Moscow Declaration and the British proposal for summary executions. Morgenthau recommended that military commissions be established to prosecute second-tier war criminals. If the governments of countries in which criminal acts were committed requested extradition of a defendant, these military commissions would relinquish jurisdiction to the requesting government. But first-tier war criminals, dubbed by Morgenthau the “arch-criminals,” would not be given their day in court. Because their “obvious guilt has generally been recognized by the United Nations,” the formalities of a trial could be dispensed with in their cases. Morgenthau recommended that they be arrested, identified, and shot by a U.N. firing squad.⁵

Morgenthau’s plan found a doughty opponent in Secretary of War Henry Stimson. He objected that Morgenthau’s “pastoralization” of Germany would raise the specter of starvation for millions of Germans, sowing the seeds for a future war. Instead, Stimson proposed that major war criminals be prosecuted before an international tribunal assembled for that purpose. It would be an authentic trial, not a kangaroo court in which guilt was a foregone conclusion; a war crimes defendant would enjoy U.S.-style legal rights, “namely, notification to the accused of the charge, the right to be heard and, within reasonable limits, to call witnesses in his defense.” According to Stimson, defendants would be charged with violating the “laws of the Rules of War.” He pointedly discounted the notion of prosecuting anything other than war crimes, implying by analogy that a military commission had no more jurisdiction over a crime unconnected to the conduct of war than a foreign court would have to prosecute defendants involved in lynchings in the American South.⁶ Stimson’s argument by analogy ruled out the possibility of trying Nazi defendants for crimes against humanity.

Members within FDR’s administration also were outspokenly opposed to Morgenthau’s plan. FDR vacillated, affording Stimson and like-minded Pentagon officials the opportunity to formulate a concrete alternative to the Morgenthau scheme. A New York lawyer, Colonel Murray C. Bernays of the Pentagon’s Special Projects Branch, was tasked with developing this alternative plan. He prepared a six-page memorandum (“Trial of European War Criminals”) setting forth the details of a comprehensive postwar prosecution of Nazi war criminals. Historian Bradley Smith has characterized Bernays’s memorandum as “the most important single source for the ideas that shaped the subsequent prosecutions at Nuremberg.” Foremost among Bernays’s influential ideas was the strategy of making the Anglo-American theory of conspiracy the cornerstone of war crimes prosecution.⁷

The power of conspiracy as a theory of criminal liability is manifold, but its chief attraction for Bernays was its extension of liability to all members of the conspiracy for the crimes of any individual member, where such crimes were the foreseeable results of the conspiracy and furthered its goal. The law of conspiracy, Bernays realized, would solve one of the vexing problems of Nazi war crimes prosecution that had haunted the British—that is, the logistical difficulty involved in prosecuting the enormous number of defendants in individual trials. He proposed trying the Nazi Party and assorted government organizations (the Gestapo, the SA, and the SS) corporately for violations of the laws of war before an international tribunal. Although individual defendants would be prosecuted on the merits of their cases, each accused would represent an organization charged with participation in the criminal conspiracy; thus, once the accused was convicted and punished by the court, his confederates within the organization would as co-conspirators be subject to arrest, a summary trial, and sentencing by the Allies. In this way, the need to try unmanageable numbers of defendants individually would be obviated. There are glaring due process problems in this scheme, but Bernays was less concerned with giving Nazi defendants U.S. constitutional guarantees than was Stimson. Nor were Bernays’s superiors in the War Department disturbed by these considerations any more than they were troubled by building a prosecution plan around the Anglo-American doctrine of conspiracy, a charge that had never before surfaced in international law. For the pragmatic minds in the War Department, Bernays’s approach served two crucial functions: it responded to public calls for an articulate policy to deal with Nazi atrocities and challenged the Morgenthau plan at its root.⁸

As it moved upward through the hierarchy of the War Department, Bernays’s memorandum won adherents, among them Henry Stimson. In January 1945 Stimson, Edward Stettinius Jr. (the new secretary of state), and Francis Biddle (the U.S. Attorney General and later the U.S. judge at Nuremberg) developed a war crimes trial program along the lines suggested by Bernays. Central to the plan was the charge of conspiracy. It also followed Bernays in recommending that both Nazi leaders and organizations like the SA, SS, and Gestapo be charged with war crimes and with conspiracy to carry them out. Once the major war criminals and the organizations they represented had been tried and convicted before an international court, it would remain to arrest and prosecute smaller cogs in the Nazi criminal conspiracy. These lesser defendants would be prosecuted in “subsequent trials,” in which “the only necessary proof of guilt of any particular defendant would be . . . membership in one of these organizations.”⁹

FDR’s successor, Harry Truman, wasted little time in adopting the Stimson plan as official U.S. policy. In May 1945 Truman appointed Supreme Court Justice Robert H. Jackson “chief of counsel for the prosecution of Axis criminality.” After his appointment, Jackson had effective control of war crimes planning. His task in the ensuing months was to persuade other nations to endorse the U.S. plan. At roughly the same time as Jackson became chief of counsel, the United States presented a sketch of its plan to representatives from other countries assembled in San Francisco for the United Nation’s founding conference. On May 3, Stettinius and Judge Sam Rosenman, whom FDR had appointed as his personal representative on Nazi war crimes, met with envoys from Great Britain and the USSR. The United States dilated on its proposed plan for trying Nazi war criminals before an international tribunal consisting of a representative judge from each of the four Control Council powers (Great Britain, the United States, France, and the USSR). Each of the four powers would also designate a representative (as Truman had already done with Jackson) to serve on a committee to gather evidence for the trials. In addition to the “top Nazis,” war criminals to be extradited to the countries where they had perpetrated their crimes, and criminals “whose crimes were not geographically located,” the United States identified a final group of defendants whose prosecution would be more problematic—those involved in crimes in which all the witnesses were dead or evidence was not extant. To solve this problem, Rosenman proposed to “place on trial the Nazi organizations themselves rather than the individuals and . . . convict them and all their members of engaging in a criminal conspiracy to control the world, to persecute minorities, to break treaties, to invade other nations and to commit crimes.” After an organization had been “convicted,” every member shown to have joined it freely “would ipso facto be guilty of a war crime.”¹⁰

The British, Soviet, and French delegates assented to the U.S. plan. In the wake of the San Francisco conference, legal representatives from Great Britain, the United States, France, and the USSR met in London to prepare an accord regarding the trials of German war criminals, containing a charter that, in its detailed enunciation of the charges against the major offenders, would subsequently become the governing instrument of the tribunal, as well as the touchstone of both the prosecution and the defense. Article 6(c) of the charter, dealing with “crimes against humanity,” would later serve as the primary charge against the euthanasia specialists in the U.S. Doctors’ Trial. The U.S. approach to Nazi criminality in the charter stayed remarkably faithful to Murray Bernays’s original conspiracy plan. Conspiracy, in fact, was the axle around which the wheel of the three primary charges—crimes against peace, war crimes, and crimes against humanity—revolved, as reflected in the charter’s statement that “leaders, organizers, instigators, and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” In brief, this meant that defendants would not only be charged with the substantive charge but also with conspiracy to commit the illegal act. Articles 9 and 10 extended the U.S. conspiracy theory even further by authorizing the tribunal to criminalize German organizations, thus enabling any signatory nation of the London Charter to prosecute former members of such organizations solely on the basis of their membership. In this manner, state authorities in subsequent national trials would need only submit proof that the IMT had declared the organization in question criminal; once this was done, a defendant indicted for membership in it could not challenge the court’s findings on the issue.¹¹

The centrality of Bernays’s conspiracy theory to the U.S. conception of Nazi criminality is also evident in Jackson’s Report to President Truman of June 6, 1945. In his report, Jackson set forth with lapidary clarity the U.S. intention to prosecute only those crimes committed in furtherance of a “master plan” to wage aggressive war against other nations:

Our case against the major defendants is concerned with the Nazi master plan, not with individual barbarities and perversions which occurred independently of any central plan. The groundwork of our case must be factually authentic and constitute a well-documented history of what we are convinced was a grand, concerted pattern to incite and commit the aggressions and barbarities which have shocked the world.¹²

This paragraph—particularly the language in the first sentence, excluding the prosecution by the Allies of “individual barbarities and perversions which occurred independently of any central plan”—makes clear the U.S. refusal to proceed against crimes arising from motives unrelated to the larger plan to attack Germany’s European neighbors. For Jackson and his compatriots, the IMT would only try and punish those Nazi defendants whose crimes promoted Hitler’s imperialistic war of domination.

Based on Jackson’s report, one would think that crimes against humanity as a separate count would find cold comfort in the U.S. conspiracy-based approach, inasmuch as they are not technically war crimes. In fact, this was not the case. The U.S. decision to push for including crimes against humanity in the indictment against the major war criminals was influenced by anti-fascist German, Austrian, and Czechoslovakian refugees (many of them Jewish) from Nazi Germany, who, fearful that the Nazis’ brutalization and mass murder of German nationals and stateless persons would not be redressed in a postwar trial, implored the Allies to render justice for these outrages. The U.S. delegate to the U.N. War Crimes Commission in 1944, Herbert Pell, championed their cause, arguing that “crimes committed against stateless persons or against any persons because of their race or religion” must be punished after the war. The U.S. representatives in London carried this commitment to crimes against humanity with them into their negotiations with the other Allies. In their drafts of crimes potentially chargeable against the Nazis, the United States cited “wars of aggression,” violations of the “laws and customs of war,” and, in support of a count based on crimes against humanity, “atrocities and persecutions,” whether or not German law at the time had recognized their legality. These same drafts used language that would eventually filter into Article 6(c) of the charter, particularly the phrase “persecutions on racial or religious grounds.”¹³

Crimes Against Humanity and the Ex Post Facto Question

The U.S. interests in prosecuting crimes against humanity received sympathetic responses from the other Allies. Like Jackson and the U.S. team in London, the British had been implored by Jewish groups to prosecute racially and religiously motivated crimes perpetrated by the Nazis. The French and Soviet representatives, whose civilian populations had experienced firsthand the barbarism of National Socialist racial policy, readily agreed to include a reference to such crimes in the charter. In 1943 Professor Hersh Lauterpacht, an eminent international legal scholar, had called upon the Allies to prosecute Nazi war criminals for their murderous treatment of European Jews that did not formally qualify as war crimes. He used the phrase “crimes against humanity” to describe such crimes.¹⁴ Influenced by Lauterpacht, Robert Jackson adopted the phrase to denote crimes of racial or religious persecution. The term “crimes against humanity” thereafter was incorporated into a final draft of the London Charter, which later served as the legal basis for Article 6 of the Nuremberg charter and the Allies’ indictment. The text of Article 6 of the IMT Charter defined “crimes against humanity” as follows:

. . . murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.¹⁵

There is more to the charter’s definition of crimes against humanity than meets the eye. According to scholars like Bradley Smith, Lawrence Douglas, and M. Cherif Bassiouni, one of the Allies’ paramount concerns at the London Conference was to avoid the appearance that the Allies’ trials of German war criminals were instances of ex post facto law—that is, holding a defendant legally accountable for an action that, at the time it was performed, was not specifically proscribed by law. Prior to the outbreak of war in 1939, there was no statute that forbade genocide or racial persecution; hence, prosecuting Nazi defendants for crimes against humanity as an independent theory of criminal liability would be an application of ex post facto law. For this reason, Smith, Douglas, and Bassiouni contend, the drafters made crimes against humanity an “auxiliary category” of the two other charges in the charter, “crimes against peace” and “war crimes.” The relevant inkblot in the charter’s definition of “crimes against humanity” is the comma after the phrase “before or during the war.” The original draft had inserted a semicolon after this phrase. The Berlin Protocol of October 6, 1945, changed the semicolon to a comma in the final version. This alteration effectively bound crimes against humanity to any act under the tribunal’s jurisdiction—that is, to war crimes and crimes against peace. The change meant that crimes against humanity could be prosecuted only where they were proven to further the Nazis’ conspiracy to wage aggressive war on its neighbors or commit war crimes.¹⁶

Although Smith, Douglas, and Bassiouni’s argument about the Allies’ concern for the principles of legality may be sound enough with respect to France and the USSR, I believe it has less merit as applied to the United States and Great Britain. The Anglo-Americans had more scruples about principles of sovereignty than the principles of legality, and it was these concerns that caused them to insist on mooring crimes against humanity to war crimes and crimes against peace. In his address to tribunal members on this issue, the British prosecutor, Hartley Shawcross, made clear the British concern not to infringe purely domestic matters in Germany in prosecuting crimes against humanity:

The considerations which apply here are . . . different to those affecting the other classes of offense, the crime against peace or the ordinary war crime. You have to be satisfied not only that what was done was a crime against humanity but also that it was not purely a domestic matter but that directly or indirectly it was associated with crimes against other nations or other nationals, in that, for instance, it was undertaken in order to strengthen the Nazi Party in carrying out its policy of domination by aggression, or to remove elements such as political opponents, the aged, the Jews, the existence of which would have hindered the carrying out of the total war policy.¹⁷

That the principles of legality, in contrast to the principle of sovereignty, were of relatively minor importance to U.S. and British authorities is proven in other Anglo-American primary source documents. In an article published in German in 1947 defending the national trials of Nazi war criminals under Control Council Law #10, English jurist and University of London professor R. H. Graveson admitted that charging crimes against humanity under Law #10 was an example of retroactive legislation, that is, an ex post facto law. He pointed out, however, that retroactivity was only one interest to be protected in criminal law, and by no means the only one. A more compelling interest within the scope of Nazi criminal prosecution was the need to punish abhorrent and monstrously unjust acts. This need overrode the ban on retroactive prosecution, as the IMT itself had recognized. For Graveson, as for the IMT, the principles of legality were subordinate to the demands of justice.¹⁸

U.S. Chief of Counsel Robert Jackson was adamant about the overriding imperative to sanction Nazi war criminals. In his Report to the President in June 1945, Jackson posed the rhetorical question of how the Allies should treat Nazi perpetrators:

What shall we do with them? We could, of course, set them at large without a hearing. But it has cost unmeasured thousands of American lives to beat and bind these men. To free them without a trial would mock the dead and make cynics of the living.

Jackson’s report foreshadows language he would use a few months later in his opening address at Nuremberg: “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot tolerate their being repeated.”¹⁹ Given the moral ardor of Jackson’s words, it is hard to imagine how the formalistic principles of legality could have guided his decision to make crimes against humanity dependent on recognized principles of international law (war crimes and crimes against peace).

We have already observed the reticence of some U.S. policymakers to violate the perceived sovereignty of the Nazi government. Secretary of War Henry Stimson denied the jurisdictional authority of an international court to try any offense unrelated to the conduct of war. In his memo to Roosevelt, Stimson appeared to believe that wielding jurisdiction over crimes independent of war would open the door to international violations of territorial sovereignty. Nor is Stimson’s position unrepresentative of ideas about the inviolability of sovereignty in U.S. history—and the fear that foreign powers will trench upon it. Much of the curious nineteenth-century bigotry in the United States toward Catholics and Freemasons was rooted in irrational but real concerns that the Papacy, or some other foreign agency, would insinuate itself into U.S. political life and sabotage the Republic. Woodrow Wilson’s failure to gain Congressional approval for the League of Nations after World War I was largely because of apprehensions that an international body with superordinate jurisdiction would compromise U.S. sovereignty. Arguably, U.S. opposition to an international war crimes tribunal after World War I was premised on the sovereignty principle. When seen in historical context, the attitudes of U.S. policymakers toward crimes against humanity as an independently actionable species of criminality seem more intelligible. We cannot but marvel, given this context, that the United States emerged as the primary advocate of international trials following World War II.

Furthermore, by focusing on crimes related to the war, Jackson could better redeem the U.S. all-encompassing theory of Nazi criminality: a conspiracy among virtually all sectors of German society (the Nazi Party, the German government, the military, and business) to wage aggressive war against other countries. On the U.S. view, crimes against humanity, including the murder of the mentally ill and European Jews, were byways along the highway of imperialistic war. They were not, on this view, the animating force behind Nazi criminality, but incidental byproducts of the Germans’ implacable urge to wage war to expand Germany’s borders at the cost of its European neighbors. This conception of Nazi criminality was embodied in the London Agreement and the IMT Charter; it dominated the U.S. approach to Nazi criminality, both during the IMT proceedings and the U.S. Doctors’ Trial.

The hinge joining the IMT Charter and Control Council Law #10 (the legal instrument that served as the basis for the 1947 Doctors’ Trial) was a document issued by the U.S. Joint Chiefs of Staff, “JCS 1023/10.” JCS 1023/10 was a directive approved by the U.S. Joint Chiefs of Staff on July 15, 1945, setting forth what its authors hoped would be the model for war crimes policy throughout occupied Germany. It was heavily influenced by Jackson’s Report to the President of June 1945, reproducing almost word for word his definition of the crimes chargeable against Nazi defendants. Like the IMT Charter, JCS 1023/10 envisioned prosecuting both principals and accessories, as well as “members of groups or organizations connected with the commission of such crimes.” These included Nazi Party and SS officers, members of the General Staff, and the legal staffs of the Nazi “Peoples’ Courts,” who were to be detained by theater commanders and tried if evidence warranted trial. Theater commanders, however, were instructed to delay trial of higher-ranking officials until it was decided whether they would be prosecuted before an international tribunal. Jackson’s Office of the U.S. Chief of Counsel at Nuremberg was chosen as the administrative office, charged with implementing the terms of the directive. In late November 1945, the legal adviser to the Office of the Military Government U.S. (OMGUS) approached Telford Taylor (at the time involved in prosecuting members of the German General Staff before the IMT) about heading the project.²⁰

Crimes Against Humanity and Control Council Law #10

The Control Council, which served as the Allied occupation government of Germany, meanwhile prepared a draft of its own law on Nazi war crimes prosecution. Modeled on JCS 1023/10, the draft was enacted as Control Council Law #10 on December 20, 1945. The framers of Law #10 defined its purpose as threefold: first, to implement the terms of the Moscow Declaration (specifically, those portions of the declaration that envisioned the return of minor war criminals to the countries where their crimes were committed and a separate proceeding to deal with the major war criminals); second, to implement the London Agreement and Charter; and finally, “to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the IMT.” Further, Law #10 outlined the scope of crimes for which Nazi defendants could be held criminally liable. In defining such crimes, the drafters of Law #10 drew explicitly on the charges sketched in Jackson’s Report to the President (and embodied in JCS 1023/10), as well as those propounded in the London agreement. These included “crimes against peace,” “war crimes,” and “crimes against humanity”—all virtually the same as the charges in the London Charter and JCS 1023/10. Consistent with these two antecedent documents, Law #10 also provided the charge of membership in organizations deemed criminal by the IMT.²¹

To assert that Law #10’s definition of crimes against humanity was substantially the same as that described in the charter and JCS 1023/10 is not to say they were identical. In fact, the wordsmiths who fashioned Law #10’s version of crimes against humanity introduced a crucial amendment—or, rather, a crucial omission—in its version. Consider again the charter’s Article 6 version defining crimes against humanity:

. . . murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.²² (emphasis added)

Law #10’s definition, on the other hand, defines crimes against humanity as “atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.” The critical omissions from Law #10’s version are the two phrases in the charter’s definition above, “before or during the war” and “in execution of or in connection with any crime within the jurisdiction of the Tribunal.” With these elisions, the drafters of Law #10 dissolved the link between crimes against humanity and war crimes, transforming the former into its own self-contained, independently chargeable offense.²³

The odor of ex post facto law would cling to the prosecution of the major war criminals in front of the IMT. Defenders of these trials, however, could always rebut charges of retroactivity by pointing to specific written documents that expressed an international condemnation of war crimes before Hitler came to power in 1933; in some cases, as with the Kellogg-Briand Pact (1928), Germany had been among the signatories. By connecting crimes against humanity to war crimes, defenders of the IMT trials could at least make a plausible case that prosecuting crimes against humanity was in keeping with prior law, and thus did not violate the principles of legality. This argument became less convincing once the link with war crimes was annulled. The U.S. jurists presiding over the subsequent trials under Law #10 deflected the ex post facto objections of defense counsel with various justifications. In the Justice Case (Case 4), which prosecuted sixteen defendants charged with perverting the judicial process (particularly its involvement in “racial defilement” cases), the judges first pointed out that ex post facto law is not an absolute bar to prosecution in international law, then added that in any event the defendants must have known their actions were wrongful. In the Einsatzgruppen and Krupp cases (Cases 9 and 10),²⁴ the judges defended their jurisdiction on the grounds that international law had criminalized the defendants’ conduct well before they had perpetrated their crimes. These justifications were often made by way of ex cathedra statements with little analysis or sustained argumentation.

To a certain extent, we are jumping ahead of ourselves in discussing the subsequent trials under Law #10. The first of these proceedings, the Doctors’ Trial, would bring U.S. judicial authorities face to face with the Nazis’ campaign of annihilation against “life unworthy of life.” Even before the Doctors’ Trial, however, U.S. military officials presided in judgment over German medical personnel charged with murdering hundreds of Russian and Polish workers at the Hadamar killing center. As we will see, the U.S. Hadamar trial in fall 1945 already presages the U.S. tendency to conceive of Nazi criminality as an outgrowth of imperialistic war. This tendency was nourished and reinforced by extra-legal concerns to protect the principle of sovereignty. U.S. policymakers, in short, feared that allowing crimes perpetrated by governments on their own people to be prosecuted in international criminal courts would open the door to future trials of U.S. officials. Such a possibility represented an erosion of sovereignty that U.S. policymakers would not tolerate.

THE U.S. HADAMAR TRIAL, OCTOBER 1945

Americans first glimpsed the Nazi euthanasia program through the fogged lens of sensationalized accounts in hometown newspapers. The unvarnished truth of what happened at the Hadamar euthanasia center in Hessen-Nassau, however, was more chilling than any of the embroidered newspaper stories. The sensational features of these news accounts were unnecessary to portray Hadamar in a notorious light; the reality was grotesque enough. Yet, the distortions in the newspaper stories are emblematic of the fumbling early efforts by the United States to understand the National Socialist destruction of “life unworthy of life.” Although that understanding improved with time, it never wholly overcame the tendency to squeeze Nazi euthanasia into misleading a priori categories and questionable interpretive frameworks. This tendency was intrinsic to the correspondence and memoranda generated in the planning stages of the Nuremberg International Military Tribunal. It manifested itself in an U.S. criminal proceeding in the case of U.S. v. Alfons Klein et al., the U.S. Hadamar trial held October 8–15, 1945.

The Hadamar killing center in Hessen-Nassau, the subject of the 1945 U.S. Army trial by military commission and the 1947 trial by a German court. Courtesy Archiv des Landeswohlfahrtsverbandes Hessen, Kassel

Hadamar was a town of 6,000 people in the German state of Hessen-Nassau, twenty-seven miles south of the city of Wiesbaden. From 1939 until 1940, the institution at Hadamar served both as a mental hospital and a hospital for German soldiers and POWs. In late 1940, it was selected as a replacement killing center for the euthanasia institution at Grafeneck, which, along with Brandenburg, was closed in December 1940. Over the next nine months, until it temporarily closed in August 1941, the T-4 medical staff at Hadamar gassed at least 10,000 mentally disabled German nationals. In his interrogation by the U.S. Army in 1945, the director of Hadamar, Alfons Klein, claimed that euthanasia at Hadamar ceased from August 1941 until August 1942, at which time the killing of mental patients resumed, this time by means of narcotics overdoses. During this second phase, children’s wards were established at Hadamar to murder two distinct groups of children: mentally disabled German youngsters and Mischlingkinder, or half-Jewish children (many of whom were healthy before they were killed). Also during the second phase, Hadamar personnel killed concentration camp prisoners as part of the “14f13” operation. It is unclear whether another group of victims, the asocials, was murdered at Hadamar; although a witness at the German Hadamar trial in 1947 testified about plans to exterminate the inmates of workhouses there (i.e., beggars, the homeless, and prostitutes), the evidence—much of it destroyed in the waning months of the war—is not definitive on the issue. The final victim group killed at Hadamar, hundreds of Polish and Russian forced laborers ill with tuberculosis, was the subject of the U.S. Hadamar trial by army personnel in October 1945.²⁵

U.S. jurisdiction over the Hadamar defendants was premised on JCS 1023/10, which assigned authority for war crimes trials to military theater commanders. Under its terms, responsibility for conducting the trials was reserved to the Office of the Military Government for Germany (OMGUS) and the Deputy Judge Advocate for War Crimes, European Command. On August 25, 1945, U.S. generals were authorized to indict and prosecute German defendants suspected of war crimes. The trials would be conducted before one of two bodies: either a “specially appointed” military court or a military commission formed by the commander of an army in the field. A significant component in the legal foundation of the military commissions was not statutory;²⁶ rather, it was the “common law of war,” which did not specify the kind of trial to be given a war criminal—only that the procedure be a fair one. In trials before military commissions, the commission itself was free to fashion rules of procedure ad hoc, although, to facilitate the proceeding, the forms of General Courts-Martial (such as the use of charge sheets) could be adopted. Significantly, the rules of evidence observed in General Courts-martial were not binding on military commissions. Rules of evidence were to be applied only to expedite the trial and to prevent irrelevancies “lacking probative value.” The principle governing admissibility was whether the proffered evidence “has probative value to a reasonable man” as determined by the president of the commission.²⁷

The U.S. Army’s early intramural correspondence about the Hadamar killing center set the tone for the U.S. Hadamar trial. In a memorandum from HQ V Corps, Office of the Inspector General, dated April 6, 1945, Col. John W. McCaslin described Hadamar as part of the “mercy killing program” established in Germany “in accordance with the existing laws of Germany, which permitted mercy killings and which became effective in 1939.” McCaslin was no doubt referring to the Hitler decree of September 1, 1939 (actually signed on October 1 and backdated to September 1), a document that empowered Philipp Bouhler of the KdF and Karl Brandt to authorize doctors to “grant a mercy death” to “incurable” patients. According to McCaslin, the Nazis employed Hadamar to murder political enemies and foreign laborers. He then declares that under international law the army was “only concerned with the murder of these foreign forced laborers, and the fact must be established that the forced laborers were in good health at the time of extermination, otherwise no war atrocity has been committed under the existing laws of the German government.”²⁸

The claimed legality of the euthanasia program under German law appears in other army correspondence from spring and summer 1945. In a War Crimes Branch Summary Worksheet, an anonymous army officer portrays the killings at Hadamar as “systematic murder in which 20,000 political prisoners, Jews, and slave laborers are estimated to have been put to death by unidentified SS men on orders from Berlin at a concentration camp at Hadamar, Germany under a 1939 statute.” Revisionist historians would have a field day with the inaccuracies in this statement: Hadamar was not a concentration camp, but a mental institution devoted to ridding Germany of “unworthy life”; little if any evidence exists that “political prisoners” were killed there; the killers were not, for the most part, SS men but employees of the KdF and, later, rank-and-file staff members of the institution; and, finally, the Hitler decree was not a statute, but an unpublished decree—no law, as we have seen, was ever published formally legalizing euthanasia in Germany. These mistakes recur in an office memo to Lt. Col. Leon Jaworski (appointed decades later as the special prosecutor in the Watergate scandal) from a Major Burton, dated May 31, 1945, who depicted the Hadamar killings as “the wholesale massacre and murder of thousands of political prisoners, Jews, and slave laborers at Hadamar concentration camp, Germany, by Gestapo and SS men.” The factual errors in these documents suggest that U.S. military authorities regarded the euthanasia killings through the optic of their prior traumatic encounters with Nazi brutality—particularly the discovery of concentration camps in Germany by the U.S. Army and of the death camps by the Red Army in Poland, as well as the Malmédy massacre on December 17, 1944. The inextricable association of these events with the SS may account for the army’s predisposition to (mis)interpret other instances of National Socialist violence in light of it.²⁹

Most significantly for our purposes, these documents reveal the degree to which the army had assumed a legal basis in German law for the euthanasia program. Their presumption of legality meant that army officials would only consider prosecuting defendants who had killed mentally healthy victims at Hadamar. To prosecute these same defendants for killing the mentally disabled would breach the principle of sovereignty, according to which foreign powers are not legally permitted to intervene in the domestic affairs of another country. A July 1945 memorandum to a Lt. Col. Mize amply demonstrates the U.S. overriding concern with state sovereignty. Affirming that the Hadamar staff had carried out the killings pursuant to a 1939 German law, the memo’s author denies that the army had any business prosecuting the accused for killing mentally ill German patients, “because there appears to be no substantial evidence that those Germans who were killed were not, in fact, incurably insane.” On the other hand, the author continues, “there is an abundance of evidence that many of the Russians and Poles were neither insane nor incurably ill from any other disease. . . . [I]t matters little whether the law itself, which permitted the killings under certain circumstances, would be a good defense if those circumstances were complied with because they were not, in fact, complied with insofar . . . as the Russians and Poles were concerned.”³⁰

It is clear from these excerpts that U.S. Army officials were concerned above all else with defending state power. Technically, the Americans could have prosecuted the Hadamar defendants for killing mentally ill Russian and Polish workers; their mental capacity had no bearing on their protection by the Geneva and Hague conventions. In the pre-trial army correspondence, however, the option of trying the Hadamar staff for murdering the mentally ill of any nationality was ruled out from the beginning. As Colonel McCaslin asserted, only if the United States could prove the murdered eastern workers were healthy at the time of their death could they obtain a conviction under international law. If, on the contrary, the workers were incurably insane, then they were covered by German law—or so the United States presumed. For the U.S. Army officials, to prosecute the defendants for performing an act legal under German law at the time of its commission would be an impermissible incursion into the domestic affairs of the Third Reich.

The aversion of U.S. military officials to prosecuting acts considered legal under then existing German law structured the army JAG lawyers’ approach to the Hadamar killings during the trial. The commitment of U.S. officials to focus only on the murders of mentally healthy eastern workers clearly emerges in the prosecution’s opening statement before the military commission, in which the prosecution describes Hadamar as a mental hospital that cared for the mentally disabled until summer 1944, when it was converted into a killing center for Poles and Russians.³¹ This depiction ignores the thousands of German adults, disabled children, and half-Jewish youngsters murdered at Hadamar long before then. The prosecution not only neglected to mention this prior history but strove throughout the trial to counter the defense’s attempts to locate the murders of the eastern workers within the context of the euthanasia program. Inasmuch as this contextualization was the defendants’ best chance of escaping the hangman’s noose, the struggle over the degree to which it should be foregrounded became the central theme of the trial.

From the outset, the basic theory of the defense was straightforward: the defendants may have been involved in killing through lethal injections the tubercular eastern workers, but they had believed at the time their actions were sanctioned by a 1939 German law and thus were unaware their actions were wrongful. Of course, to raise this defense required the presentation of evidence concerning the alleged law and the program of mass killing developed under its aegis. Attempts by defense counsel to do just that led to the trial’s most important legal clashes. During the presentation of its case in chief, the prosecution called a former nurse at Hadamar, Minna Zachow, to recount how Polish and Russian forced laborers were given lethal injections there during summer 1944. On cross-examination, defense counsel asked the witness to estimate how many German mental patients were killed at Hadamar between August 8, 1942 (i.e., the date when killings resumed after the “pause”), and March 3, 1945. This line of questioning drew an objection from the prosecutor, who argued:

[T]he charge doesn’t cover any Germans at all. We could be here a month trying that. Counsel’s clients are not on trial for any German nationals they may have killed. This is confined entirely to the Russian and the Polish.³²

Defense counsel responded that “there was no distinction made between the Russians and Poles and . . . thousands of Germans were killed at the same hospital by the prosecution’s witnesses and they thought it perfectly proper.” The prosecution retorted that defense counsel’s exploration of the euthanasia program as it affected German mentally disabled patients at Hadamar was irrelevant, because the defendants were not charged with murdering German nationals. Defense counsel defended the relevance of the questioning on the grounds that “it goes to the heart of the defense, i.e. the action against the Poles and Russians was part of the larger program of euthanasia authorized by the ‘law of the land.’ ” Although admitting the commission had no jurisdiction over the murders of mentally disabled German victims, the defense insisted that their deaths were relevant “in order that we get a complete history and picture of this institution at Hadamar. . . . [The court] must consider the picture as it was at Hadamar and become acquainted with the state of mind of the accused and all other personnel at the institution.”³³

Defense counsel had logic, law, and the military rules of evidence on its side in this argument. The widely recognized defense of “mistake of law” was relevant to the Hadamar proceedings, because it could have negated the defendants’ intent to commit murder, an element necessary to finding the defendants guilty of the offense.^a Further, when a defendant has received incorrect advice about a law or administrative ruling from a person charged with administering it, the defendant may raise reliance on such advice as a valid defense.³⁴ Given the prosecution’s admission that a law on euthanasia was in existence, according to which mentally ill Germans were put to death at Hadamar for years prior to the murders of the eastern European forced workers, evidence of the degree to which defendants reasonably relied on the euthanasia “statute” was relevant and material to the “determination of the action” under the rules of military evidence. As we will see when we take up the German euthanasia trials in Chapter 3, characterizing the secret Hitler order as a law is dubious; yet, the U.S. government’s strange willingness to assume the legality of the Hitler order certainly opened the door to examining the impact of that order—and the program conceived pursuant to it—on the defendants’ state of mind.

The military commission hearing the case sustained the prosecution’s objection on the grounds of relevance. Defense counsel did not quietly accept the commission’s ruling but sought at several junctures in the trial to reopen the issue of whether the defendants believed their actions were legal based on the existence of the Hitler “statute.” Each time the defense revisited the issue, the military commission rebuffed its efforts, holding this line of questioning irrelevant to the case at bar.³⁵ Only when the defense presented its case in chief did the commission grant some leeway to raise the issue of mistake of law.

In its direct examination of Alfons Klein (director of Hadamar from 1939 to 1945) and Adolf Wahlmann (assigned to Hadamar as chief doctor in August 1942), defense counsel elicited information about the institution’s function within the T-4 euthanasia program. Replying to the question whether Hadamar personnel were aware of the Hitler decree that “permitted the killing of . . . incurable and mentally diseased patients,” Klein testified that they were informed in 1940 of the euthanasia “law,” and were instructed that “the Reich Government decided upon this law, that all incurable, mentally diseased should die.” On redirect exam, he related that a Gauleiter Sprenger had told him the Polish and Russian workers would fall under the same euthanasia “law”; for this reason, he claimed, “I didn’t doubt to any extent that it was not correct.” In a sworn statement, Adolf Wahlmann claimed that both Klein and State Councillor Fritz Bernotat, who was in charge of all mental hospitals and nursing homes in Hessen-Naussau, had assured him the eastern workers brought to Hadamar in summer 1944 were covered by the Hitler euthanasia order. Other defendants charged with the murders alluded to the connection between the “mercy deaths” of mentally ill German patients under the Hitler decree and the killing of sick eastern workers.³⁶

The prosecution’s discomfiture regarding this testimony is evident in the trial transcript. On Klein’s redirect examination, his defense counsel invited him to talk about the refusal of the German legal authorities to intervene in the killing process at Hadamar, despite their awareness of its existence. The prosecution balked at this line of questioning. Although the matter was relevant to the defendants’ perception of the illegality of their conduct, the military commission sustained the objection. The prosecution had less success in objecting to the testimony of Dr. Hans Quanbusch, the former public prosecutor of Wiesbaden, called as a witness for the defense. He testified that all the prosecutors and presidents of the German appellate courts throughout the Reich were summoned to a meeting in the Berlin state court, during which a photostatic copy of Hitler’s 1939 euthanasia decree was shown to the participants. Quanbusch described the decree as an administrative order rather than a law. Nonetheless, the chief prosecutors were instructed to inform their subordinates that “under no circumstances were they to do anything about charges that were being filed.” In the event a relative of a patient killed in the euthanasia operation insisted on filing criminal charges against a mental hospital, the case was to be sent to the Ministry of Justice “as a secret state matter” (geheime Reichssache). Quanbusch concluded that “through this [quashing of legal action] the physicians were protected from any suing, and it was impossible for the prosecutor to start any proceedings.” The prosecution moved to have Quanbusch’s testimony excluded from consideration by the commission in its findings of fact on the grounds of relevance, arguing that the testimony dealt with the euthanasia of German mental patients—which was not properly before the court—and not with eastern workers. The commission overruled the objection, perhaps because defense counsel claimed it was offering Quanbusch’s testimony as evidence of the duress under which defendants had acted.³⁷

Dr. Adolf Wahlmann, chief doctor at the Hadamar mental hospital beginning in August 1942. Convicted by a U.S. military commission in 1945 for his role in the murders of sick eastern workers, he was found guilty of murder by a German court in March 1947 for euthanizing German patients at Hadamar. Courtesy HHStAW Abt. 3008, Adolf Wahlmann

The government’s efforts to restrict the case to mentally healthy Polish and Russian forced workers were consistent with the views expressed in the pre-trial legal memoranda we have previously examined. As in the memoranda, so in the Hadamar trial the U.S. commitment to the principle of sovereignty skewed its conception of Nazi euthanasia criminality, leading to a number of misrepresentations. First, by excluding the mentally ill from the picture, the prosecution entirely discounted Hadamar’s connection with the euthanasia program directed at “unworthy life,” in the service of which Hadamar played a pivotal role. There is little in its portrayal of Hadamar to suggest the progression of cumulative violence as it spiraled outward from “incurable” mental patients to include Jews, half-Jewish children, disabled children, and eastern workers. In the illusory image of Hadamar invented by the prosecution, the institution “cared” for the mentally ill until the moment when the tubercular eastern workers arrived in 1944.

The commission’s second misrepresentation concerned the erroneous assumption that the Hitler decree of September 1939 was a valid law affording a legal basis for the euthanasia of mentally disabled Germans. The first newspaper accounts about Hadamar in April 1945, presumably based on information provided by army public relations, referred to the decree as a “German law” or “statute.” Intramural army communiqués leading up to the trial in October 1945 at no time questioned the legality of the Hitler order. The U.S. prosecution team’s theory of the case during the trial demonstrated uncritical acceptance of this belief, steering the prosecution away from any conception of Hadamar that might involve prosecuting Germans acting under color of German law. In this fashion, the United States virtually provided a readymade defense to the lawyers representing the defendants. By connecting the killing of the eastern workers to an alleged euthanasia “law,” defense counsel could persuasively argue that Klein and his codefendants lacked the knowledge that what they were doing was illegal. That local law enforcement authorities were aware of the killings but did nothing to prevent them or to hold the perpetrators legally accountable for them only strengthened the defense counsel’s argument.

A third misrepresentation concerned the U.S. application of the Anglo-American doctrine of conspiracy to the Hadamar killings, a doctrine that portrayed euthanasia criminality as an offshoot of Nazi warmaking and the Hadamar defendants as jointly and equally liable for the crimes. We have seen the degree to which the law of conspiracy dominated the thinking of U.S. policymakers within the government in the years preceding the Nuremberg trials. On this theory, the Nazis’ plan to wage an aggressive imperialistic war was a criminal conspiracy from which all of the regime’s criminality flowed. In its closing argument before the military commission, the prosecution laid out its theory of conspiracy, wherein all distinctions between principal and accomplice, based on their varying contributions to the criminal conspiracy, are completely annulled:

In the cases that are carefully schemed and plotted, you will find that there may be some 10 or 15 who participated in various stages in the matter laying the preparations and the foundation for the . . . commission of the act of murder itself. Every single one of those who participated in any degree toward the accomplishment of that result is as much guilty of murder as the man who actually pulled the trigger. That is why under our federal law all distinctions between accessories before the fact and accessories after the fact have been completely eliminated. Any who participate in the commission of any crime whether formerly called as an accessory or what are now co-principals and have been so for several years.³⁸

The prosecution cited U.S. Code Title 18, section 550: “Whoever directly commits any act constituting an offense defined in any law or aids, abets, counsels, commands, induces, or procures its commission is a principal.” It then applied this notion to the Hadamar killings:

Now, talking about the facts of this case, why with each of them being a principal, considered a co-principal, one is equally as guilty as the other. . . . When you do business on a wholesale production basis that they did at the Hadamar murder factory it means that you have several people doing different things of that illegal operation in order to produce results and you cannot draw a distinction between the man that may have initially conceived the idea of killing them and those that participated in the commission of those offenses.³⁹

When, in the course of its closing argument, the prosecution referred to the abolition of distinctions between principals and accomplices, it was describing the U.S. law of conspiracy as it existed in the mid-1940s. According to conspiracy law, where two or more individuals conspire to commit a crime, each is liable for offenses committed by his or her confederates in furtherance of the conspiracy. Conspiracy essentially did away with the common law distinctions between principals and accomplices/accessories.

The intial impetus behind the U.S. decision to apply the law of conspiracy to the prosecution of Nazi criminality was functional in nature: by obtaining judicial declarations that certain German organizations were criminal conspiracies, U.S. war crimes planners hoped to avoid the intractable problem of trying the tens of thousands of potential defendants on the merits of each case. There are, however, obvious drawbacks to conspiracy, chief among them its tendency to obscure the distinctive contribution of each conspirator to the crime. In the Hadamar trial, the prosecution successfully argued for the conviction and punishment of the defendants as principals—even though they were all subsidiary actors in the Nazi scheme to destroy “life unworthy of life.”

Surveying the actual contributions of each defendant to the Hadamar murders highlights the shortcomings in the prosecution’s understanding of the crime. Seven defendants were indicted at the Hadamar trial: Alfons Klein, the director; Adolf Wahlmann, the chief doctor; Heinrich Ruoff, the head male nurse; Karl Willig, the ward male nurse; Irmgard Huber, the head female nurse; Philip Blum, the institution’s cemetery attendant; and Adolph Merkel, the registrar and bookkeeper. Despite the defendants’ self-exculpatory representations during their army interrogations and at trial, the evidence presented allows us to recreate the killing of the eastern workers with a reasonable degree of certainty. Sometime in summer 1944, Klein met with State Councillor Bernotat, who informed Klein he had received a letter from the Gau Employment Office concerning the large numbers of tubercular eastern workers in Nazi labor camps. According to Klein’s testimony at trial, the letter stated that these workers were incurably ill and inquired “whether any building or institution could be used to shelter these sick people.” Bernotat then allegedly asked Klein whether the sick workers could be accommodated at Hadamar. We have reason to doubt Klein’s innocuous portrayal of Bernotat’s request; it seems highly unlikely that at this critical moment in the war, having already murdered millions of Jews, Poles, and Russians in Eastern Europe, the Nazis would have transferred “incurable” eastern workers to a killing center for the purpose of sheltering them. Our skepticism is bolstered by events that ensued after this meeting. Two weeks later, Bernotat visited Hadamar and supposedly informed Klein there was a change of plans: the “incurable” eastern workers were now to be killed at Hadamar. Bernotat, Klein alleged, had been told by Gauleiter Sprenger that all the workers were incurable and thus “it wouldn’t pay to transport them any more.” Wahlmann, on the other hand, declared that the workers were earmarked for killing in order to free up hospital space for war-related casualties. Klein claimed that Wahlmann was present at this meeting with Bernotat, an assertion Wahlmann denied. Wahlmann does admit that Klein informed him during the summer that Hadamar would receive transports of eastern workers suffering from incurable tuberculosis. These individuals were to be given “mercy killing,” using the same techniques refined in the euthanasia of mentally ill Germans.⁴⁰

The first transport of seventy-five sick eastern workers arrived at Hadamar in July or August 1944. Contrary to the statements of Klein and Wahlmann, postmortem exams of the corpses revealed that few were terminally or gravely ill before their deaths.⁴¹ They were housed on the first floor of the institution in two modest rooms that had been cleared of their occupants by Nurse Huber prior to their arrival. Subsequent transports consisted of between one to ten eastern laborers and continued from late summer 1944 until March 1945. Once Huber had settled them in their beds, the eastern workers were attended by Ruoff and Willig. Before the workers’ arrival both men had been briefed by Klein and Wahlmann on the need to kill them. Wahlmann prepared the overdoses of narcotics (chiefly veronal, trional, and chloral tablets and morphine/scopolamine injections) and handed them to Ruoff and Willig. The two nurses administered the “medication” to the eastern workers, who died shortly thereafter. The corpses were taken by Philip Blum (Klein’s cousin) to the Hadamar cemetery for burial. Adolph Merkle recorded their names and phony causes of death in the hospital patient registry, which was later conveyed to the Office of Statistics (Standesamt) for the town of Hadamar. After the first transport, morning conferences involving Wahlmann, Huber, and Ruoff (or sometimes Willig) were regularly held to sign falsified death certificates and prepare lists of patients to be killed.⁴²

Clearly, each of the defendants in this scheme discharged a specific function: Klein relayed the order from Bernotat and Sprenger, Wahlmann organized and set in motion the means of producing death through narcotics overdoses, Huber prepared space for and situated the victims, Ruoff and Willig administered the deadly cocktails, Merkle covered up the crime with false entries on patient lists, and Blum disposed of the bodies. Their roles in the plan to exterminate the ill eastern workers—reprehensible though they are—were subordinate to the higher authorities in Wiesbaden (Bernotat and Sprenger). Klein, Wahlmann, and the others did not contrive the plan themselves; they loyally carried out the wishes of those who had personally designed the plan. To treat them all as principals or co-perpetrators under a totalizing theory of conspiracy distorts their ancillary position in a much larger, much more nefarious program to annihilate individuals branded by the Nazis as “surplus” people.

The divergence between the truth of Nazi euthanasia at Hadamar and the U.S. construction of euthanasia at trial receives further confirmation when we examine the testimony of Wahlmann and Karl Willig. During his pre-trial interrogation by the U.S. Army, Wahlmann made a remarkable admission: the eastern workers were killed at Hadamar to clear hospital space for “the wounded,” presumably German soldiers and civilians injured in air raids. “My primary consideration was, that through this mercy killing, beds would be made available for the wounded, friend and foe alike.” Wahlmann opined that putting to death incurable mentally ill Germans, Russians, and Poles was justified, because “they are a handicap to us . . . when they take up room in our institutions.”⁴³

The case of Hadamar ward nurse Karl Willig lends credibility to Wahlmann’s statement. From 1938 to July 1941, Willig worked at the Herborn asylum, where in mid-1941 he assisted in evacuating Herborn’s mental patients, presumably to make possible the conversion of the facility into a hospital. After a brief stay at Hadamar, he was assigned to the mental hospital in Lübeck; here, in his own words, he “cleaned out the hospital of sick people,” again for the purpose of transforming the institution into a hospital for the German army. From Lübeck he traveled to Neustadt, “clean[ing] out hospitals all the time,” until, at the close of 1941, he returned to Hadamar, serving first as a telephone operator and later as a ward nurse under Heinrich Ruoff. Insofar as we know, in these earlier clearings of patients in mental hospitals Willig did not pursue the violent solution of killing as a way to free up hospital space. Instead, the evacuated patients were relocated to other institutions in Germany. Not until he reached Hadamar in late 1941 was he introduced to mass murder as a radical means to the end of creating hospital space for “valuable” Germans:

They always told me before that they put them away with gas. When I came up there [to Hadamar] they told me that the hospital had to be cleaned out for use for soldiers and that there was no use in those people [the mentally ill] living. I was only a little man and had to do what people told me to do.⁴⁴

Willig’s confession rings true to what we know of the euthanasia program in late 1941 and early 1942. This was the period that witnessed the onset of the Allied bombing offensive against German cities, as well as alarming reversals on the Eastern Front. Operation Brandt, as described in Chapter 1, was developed to evacuate mental hospitals for use by bombed-out civilians and Wehrmacht soldiers. The mentally disabled evacuees (including shell-shocked Hamburg women in July 1943) were sent to places like Hadamar, Meseritz-Obrawalde, and Eichberg to be starved to death or killed with overdoses of medication. In this brutalizing atmosphere Willig cut his teeth. By the time the tubercular eastern workers arrived in Hadamar in summer 1944, he was an experienced and efficient killer.

The U.S. prosecutors presented a different theory of the Hadamar defendants’ motives in their closing argument before the military commission: the motive of careerism, or “personal preferment.” On this interpretation, Wahlmann, Klein, and Huber were gamblers wagering that Germany would win the war and that they would be rewarded for their work by a triumphant National Socialist state: “They were seeking personal preferment, and there is no doubt in the mind of anyone here but they would have received personal preferment had Germany won the war.” A crass, self-regarding careerism was the force behind their descent into mass killing, the prosecution argued. It also scoffed at the defendants’ claims that they were unaware their actions were anything but legal. If this had been the case, defendants would not have been at pains to falsify the death records in an attempt to conceal the killings from the public. Further, Huber and Wahlmann spoke openly to each other of the harsh retribution they could expect if the United States won the war. The commission hearing the case agreed with the prosecution’s version of the Hadamar killings; on October 15, 1945, after a one-week trial, it found all the defendants guilty of murder in violation of the Geneva conventions and the Laws of War. It sentenced Klein, Ruoff, and Willig to death and the remaining defendants to hard labor for terms varying from life to twenty-five years.⁴⁵

What emerges from the Hadamar trial when we focus on the prosecution’s case in chief and the verdicts of the commission is the following image of euthanasia at Hadamar: the defendants were involved as perpetrators in a conspiracy to kill Polish and Russian workers suffering from tuberculosis with full knowledge that these murders were not sanctioned by the German euthanasia law of 1939 and for the purpose of furthering their careers in a postwar National Socialist Germany. By disconnecting the murders from the larger context of the Nazi campaign against “life unworthy of life,” including the mass extermination of Jews, Gypsies, asocials, Soviet POWs, and the mentally disabled, the U.S. prosecutors presented a historically truncated version of the mass murder at Hadamar. U.S. concerns with protecting its own sovereignty, even as U.S. officials assumed a legal basis for euthanasia in German law, predisposed their case toward error. Karl Willig, speaking in tears before the military commission that would sentence him to death, complained: “It is a hard fate, that we the smallest ones who never had anything to say and only had to obey have to be here accused of such a charge.” When Willig uttered these words in October 1945, there was certainly truth in them. The primary designers of Nazi euthanasia had yet to be tried; many would never be held accountable for their actions in a legal proceeding. By the time of the Medical Case one year later, however, two of the leading figures in the program to murder “valueless life” stood accused of crimes against humanity in the dock at Nuremberg. The U.S. Doctors’ Trial would depart from the inadequate understanding of Nazi criminality that characterized the army’s prosecution at Hadamar. At the same time, it would be encumbered with its own problematic conceptions of National Socialist euthanasia—conceptions that, like those of the U.S. Commission at Hadamar, were shaped by considerations of national power.

THE U.S. DOCTORS’ TRIAL, NOVEMBER 1946–AUGUST 1947

Scarcely a month after judgment was pronounced on the Hadamar defendants, the International Military Tribunal convened to try the “major war criminals” under the terms of the London Charter. Consistent with the earlier recommendations of Stimson and Jackson, the U.S. authorities at Nuremberg equated Nazi criminality with a tentacular conspiracy to wage aggressive war. Their approach was summed up by Jackson during the London conference:

[O]ur view is that this isn’t merely a case of showing that these Nazi Hitlerite people failed to be gentlemen in war; it is a matter of their having designed an illegal attack on the international peace . . . and the other atrocities were all preparatory to it or done in execution of it.⁴⁶

On this theory of Nazism, the Final Solution and the euthanasia program were mere byproducts of the Nazis’ military conquests throughout Europe. Telford Taylor perceived the danger of this reductionist understanding of Nazi criminality. In his memoirs he wrote that “the conspiracy case . . . bid fair to swallow the greater part of the entire case.”⁴⁷ Yet, Taylor and his associates remained loyal to the conspiracy theory of Nazi criminality. In his address before the IMT, Jackson’s assistant prosecutor, Sidney Alderman, identified as the “heart of the case” the “planning, preparation, initiation, and waging of illegal and aggressive war.” Alderman continued:

All the dramatic story of what went on in Germany in the early phases of the conspiracy—the ideologies used, the techniques of terror used, . . . and even the concentration camps and the Crimes against Humanity, the persecutions, tortures, and murders committed—all these things would have little juridical international significance except for the fact that they were the preparation for the commission of aggressions against peaceful neighboring peoples. Even the aspects of the case involving War Crimes . . . are aspects which are merely the inevitable, proximate result of the wars of aggression launched and waged by these conspirators.⁴⁸

Alderman conceded that the defendants were involved in this conspiracy in varying degrees. However, the law of conspiracy rendered them all jointly and severally liable for the acts of each participant in the plot to wage aggressive war: “All the parties to a Common Plan or Conspiracy are the agents of each other and each is responsible as principal for the acts of all the others as his agents.”⁴⁹

At the London conference, the Soviets and the French had regarded the conspiracy charge in Article 6 of the charter with consternation. The Anglo-American theory of conspiracy was foreign to the tradition of continental law in which France, the USSR, and Germany were steeped. Although continental jurisprudence had laws to prosecute group criminality, the charge of criminal combination was absorbed into the substantive offense at trial; there was no separate conspiracy charge once a defendant’s guilt for a crime was established. Interestingly, the historical adviser to the British Foreign Office, E. L. Woodward, shared the French and Soviets’ misgivings about conspiracy, arguing that no such scheme to wage aggressive war existed. Like the French and Soviets, too, he believed the prosecution’s case—and historical truth—would best be served by focusing on war crimes and crimes against humanity. The prosecutors at Nuremberg dismissed these concerns, committing themselves instead to the monolithic theory of a Nazi conspiracy to wage aggressive war, the central hub around which the spokes of war crimes and crimes against humanity revolved.⁵⁰

Prosecuting German doctors in a separate proceeding for medical crimes was an idea that evolved gradually as the trial of the major war criminals unfolded. At first, the United States had no intention to prosecute Nazi doctors. Control Council Law #10, enacted in December 1945, had furnished the basis for “zonal trials” (national trials conducted by each of the four occupying powers in its own zone, as opposed to the joint four-power prosecution of the major war criminals at Nuremberg). Until January 1946 Telford Taylor, appointed to succeed Robert Jackson as U.S. Chief of Counsel for War Crimes, was embroiled in the Allied prosecution of the Wehrmacht High Command and hence could not focus on organizing the subsequent trials under Law #10. Beginning in mid-January, he turned his attention to the successor trials, envisioning another international tribunal to try German industrialists and financiers and a U.S. trial of “other major criminals” in the U.S. zone of occupation. In a memorandum to Jackson dated January 1, 1946, Taylor reported that France, Great Britain, and the USSR also desired one more IMT to try the industrialists and financiers. In this memo, he sketched the proposed shape of future trials, which included, in addition to a second IMT and trials by U.S. courts in the U.S. zone, trials of “local criminals” by military courts-martial, trials of other “major war criminals” in the courts of “allied powers” or in countries formerly occupied by the Nazis, and denazification proceedings to deal with “organizational cases.” Taylor makes no mention at this stage of plans to prosecute German doctors for medical crimes.⁵¹

Although plans to hold a second IMT went forward during the first half of 1946, the U.S. and British authorities soon reconsidered their support of this plan. In a memo to Taylor dated February 5, 1946, Jackson expressed his concerns that a second IMT would lack political support in the United States. He also presciently warned that the Russians would insist on holding a second IMT in the Russian zone of occupation, with a Soviet judge presiding over the trial. Taylor and his staff continued to entertain the possibility of a four-power tribunal, especially for the purpose of trying the German chemical conglomerate, I. G. Farben. By summer 1946, however, they had developed their own misgivings about a second IMT. Taylor had apprehensions about “continental and Soviet law principles unfamiliar to the American public,” as well as the negative impact in the United States of a Soviet judge presiding over a second IMT. In June U.S. authorities adopted a “zonal courts policy,” and by August 1946 Taylor had informed the War Department of his plan for a U.S. medical case based on criminal experiments performed on concentration camp inmates.⁵²

The stimulus to prosecute German doctors for medical crimes in a subsequent trial arose during IMT proceedings against Reichsmarschall Hermann Göring, in which evidence came to light about the participation of German Luftwaffe doctors in heinous medical experiments on concentration camp prisoners. The complicity of the German medical profession in Nazi criminality was further revealed at the IMT by SS-Standartenführer Wolfram Sievers, former General Secretary of the Ahnenerbe Society and director of its Institute for Military Scientific Research. In his army interrogation, Sievers alerted the Allied investigators to the existence of a “Jewish skeleton collection” at the University of Strasbourg, created from the harvested bones of Jewish concentration camp prisoners murdered for this purpose. As early as May 1946, when the issue of a second IMT was still unresolved, Taylor’s office had assigned to an investigative group under James McHaney the task of gathering evidence about the leaders of the SS and of the German health and medical service. The plethora of evidence on medical crimes gathered by McHaney’s group and the IMT prosecution team, as well as the presence of potential medical defendants in U.S. and British custody, influenced Taylor in August 1946 to begin the U.S. subsequent proceedings with its case against the German doctors. In a letter to Secretary of War Howard Petersen in late September 1946, Taylor opined that the medical case would be “a rather easy one to try and to decide, and therefore I think a good one to start with.”⁵³

The U.S. Doctors’ Trial was designed primarily around the barbarous medical experiments performed in German concentration camps during the war. Participation in National Socialist euthanasia, charged against only four of the twenty-three defendants as a crime against humanity in violation of Control Council Law #10, was an incidental subplot in the trial. Taylor and his team chose to prosecute twenty German doctors and three non-doctors involved in medical crimes. Their criterion of choice in all twelve subsequent trials was to find “those highly placed individuals who bore the greatest responsibility for formulating and ordering the execution of the criminal policies which directly led to and instigated the aggressive wars and mass atrocities . . . committed under the authority of the Third Reich.”⁵⁴ Regrettably, a considerable number of potential defendants were unavailable for trial. Many had either been killed or, like Dr. Ernst Robert Grawitz, the highest-ranking SS and police doctor, had committed suicide; the whereabouts of others, such as Dr. Erich Hippke, the chief of the combat medical system of the Luftwaffe, was unknown.

Already in July 1946, U.S. war crimes investigators were aware that the British had assembled substantial evidence against the Hohenlychen Group, German doctors involved in lethal and disabling human experiments at the SS sanatorium of Hohenlychen. These included Karl Gebhardt, Fritz Fischer, Karl Brunner, Hertha Oberheuser, Percy Treite, Rolf Rosenthal, and Karl Brandt. Taylor’s deputy, James McHaney, initiated negotiations with the British to have these individuals delivered to U.S. authorities with an eye toward prosecuting them for criminal medical experiments on concentration camp prisoners. Around the same time as the U.S. investigators became aware of the Hohenlychen Group, the U.S. neurologist Leo Alexander, tasked with researching the complicity of German neuropsychiatrists in medical crimes, submitted reports on hypothermia experiments and the sterilization and killing of the mentally disabled. The prosecution at the IMT offered these reports in evidence against the major war criminals. Identified in Alexander’s reports as perpetrators of crimes against humanity were fifteen of the twenty-three defendants eventually prosecuted in the Medical Case. Thus, several months before the commencement of the trial in November 1946, the issue of Nazi medical experiments had come to dominate the thinking of the U.S. prosecution team in its approach to a future trial of German physicians once the IMT had concluded.⁵⁵

One name that stood out conspicuously in both the Hohenlychen Group and Alexander’s reports was the Reich Commissioner for Health and Sanitation and Hitler’s personal physician, Dr. Karl Brandt. Brandt had been under investigation by both the British and U.S. authorities since early June 1946 for his role in medical crimes at the Dachau concentration camp. The highest-ranking defendant among those indicted at the Doctors’ Trial, Brandt was an especially inviting target. His personal relationship with Hitler, his irrefutably leading role with Philipp Bouhler in the euthanasia program, and his ties to both the Hohenlychen Group and to medical atrocities performed at Dachau rendered Brandt a veritable poster child of Nazi medical criminality. By early September 1946, the U.S. prosecution team had added Brandt to a list that also included other members of the Hohenlychen Group, Rudolf Brandt (the personal administrative officer to Himmler), and the top bureaucrats in the KdF, Viktor Brack and Philipp Bouhler. By September 9, two cuts had been made that set the number of medical defendants at twenty-three.⁵⁶ The defendants were arraigned before the U.S. National Military Tribunal on November 21, 1946.

The indictment against the defendants charged them with four counts: (1) conspiring to commit war crimes and crimes against humanity (“common design or conspiracy”); (2) war crimes; (3) crimes against humanity; and (4) membership in a criminal organization. The second count (war crimes) subsumed criminal medical experimentation. Paragraph 9 of Count Two charged four of the defendants—Karl Brandt, Kurt Blome, Viktor Brack, and Waldemar Hoven—with complicity in euthanasia. The indictment describes it as a program to murder “hundreds of thousands of human beings, including nationals of German-occupied countries,” as well as “the aged, insane, incurably ill, . . . deformed children, and other persons, by gas, lethal injections, and diverse other means in nursing homes, hospitals, and asylums.” The indictment goes on to offer a laconic theory of why these people were killed: “Such persons were regarded as ‘useless eaters’ and a burden to the German war machine.” The closing sentence of paragraph 9 affirms a link between National Socialist euthanasia and the Holocaust: “German doctors involved in the ‘euthanasia’ program were also sent to Eastern occupied countries to assist in the mass extermination of Jews.” In paragraph 8, Count Two charged Rudolf Brandt and Kurt Blome with “the murder and mistreatment of tens of thousands of Polish nationals” who “were alleged to be infected with incurable tuberculosis.” The authors of the indictment briefly theorized on the reasons for the killings: “On the ground of insuring the health and welfare of Germans in Poland, many tubercular Poles were ruthlessly exterminated while others were isolated in death camps with inadequate medical facilities.” To an extent, Count Three (crimes against humanity) was redundant with Count Two. It enumerated the same charges of euthanasia against Karl Brandt, Blome, Hoven, and Brack and the murder of tubercular Poles in the Warthegau against Rudolf Brandt and Blome. (Count Three also charged Rudolf Brandt and Wolfram Sievers with involvement in the plot to murder Jews in order to supply a skeleton collection for the University of Strasbourg.)⁵⁷

In the remainder of this chapter, we will focus on the U.S. prosecution team’s conception of euthanasia as reflected in the cases of Karl Brandt and Viktor Brack. Blome and Hoven were relatively minor figures in Nazi euthanasia and thus did not command the attention of the United States to the extent that Brack and Brandt did. In its closing argument before the court, the prosecution described Brandt as the “first link” in the euthanasia chain, Philipp Bouhler as the second link, and Brack as the third. By the time of the Doctors’ Trial, Bouhler was beyond the reach of U.S. justice, having committed suicide with his wife at Zell-am-See in May 1945. Hence, the two preeminent figures in Nazi euthanasia available for trial—at least in the estimate of the prosecutors—were Brandt and Brack.

The Questionable Humanitarian: Dr. Karl Brandt

By his own account, Karl Brandt enjoyed a peaceful and uneventful upbringing until the outbreak of World War I in 1914. He was born on January 8, 1904, at Mühlhausen, Alsace (at the time part of German territory). Brandt’s father was a policeman; his mother hailed from a “medical family” (his maternal grandfather and uncle were both doctors, and a second uncle was a pharamacist). The Brandts were expelled from Alsace in 1919, sealing Karl’s membership in a class of Germans peculiarly susceptible to the allure of Nazism—ethnic Germans from “lost territories” and “threatened borders.”⁵⁸ A turbulent period ensued for the Brandt family, marked by Brandt’s transfer to different schools and his father’s detention in a French prison until 1921. In 1924 he arrived at the University of Jena to begin his medical studies.⁵⁹

After completing his studies, Brandt served as a surgeon before working in the Surgical University Clinic in Berlin in 1934, where he became chief doctor in 1936. While his career burgeoned, Brandt climbed the ranks of the Nazi Party, which he had joined in January 1932. In 1933 he became a member of the SA. In June 1934 Brandt joined the SS, receiving a rank of Untersturmführer. Around the same time, he became Adolf Hitler’s “escort physician” (Begleitarzt), a job that required him to accompany Hitler during his travels away from Berlin. In 1938, Hitler sent Brandt to examine the Knauer child in Leipzig. After confirming the attending physicians’ diagnosis and giving the green light for its killing, Brandt received a commission from Hitler to dispose of all similar cases in the future in the same manner—a commission he held jointly with the chief of the KdF, Philipp Bouhler. Bouhler authorized his deputy, Viktor Brack (chief of Main Office II), to work with Hans Hefelmann (director of Office IIb) and Herbert Linden (minister within Department IV of the Interior Ministry and later the Reich Commissioner for Mental Hospitals) in establishing a planning group of pro-euthanasia physicians. This group, which included Brandt, developed the children’s euthanasia program. His early involvement in National Socialist violence against the disabled earmarked him as a trustworthy accomplice when Hitler extended the program to handicapped adults.

Karl Brandt, escort physician to Adolf Hitler and from July 1942 Commissioner for the Health Care System in the German Reich. He and Philipp Bouhler were authorized to create the organizational framework for the children’s euthanasia program, which, under the direction of the KdF, was administered through various children’s wards installed in German mental hospitals. Along with Bouhler, he became a leading figure in adult euthanasia, agreeing to the use of poisonous gas as the most efficient means of causing patients’ deaths. As Commissioner for the Health Care System, Brandt ordered the evacuation of mental patients from psychiatric hospitals to euthanasia centers, where they were murdered. Convicted of war crimes and crimes against humanity by the U.S. NMT, he was hanged at Landsberg prison on June 2, 1948. Courtesy the U.S. Holocaust Memorial Museum Collection

Brandt participated with Viktor Brack in the carbon monoxide gassing experiments at Brandenburg in late 1939. Together they approved the carbon monoxide method of producing death—a method that would serve as the paradigm for the five other euthanasia centers in Germany. In late 1941 Brandt became Commissioner for the Health Care System. As commissioner he ordered the evacuation of mental patients from German psychiatric hospitals, allegedly in order to free up hospital space for wounded soldiers and civilians. The evacuees were transferred to other sites like Meseritz-Obrawalde, Hadamar, Eichberg, and Kaufbeuren, where they were often murdered through starvation or overdoses of narcotics. Both in his interrogations by the OCCWC (Office of the Chief of Counsel for War Crimes) and in his testimony before the NMT, Brandt portrayed euthanasia as motivated by high-minded ideals. He claimed his role in the killing of the mentally disabled ended with the first phase of euthanasia; after the official stop in August 1941, Brandt averred he had nothing further to do with it. He portrayed the first phase of euthanasia as a benign program targeting “terminal cases” that were refractory to therapy. Their deaths were a “deliverance” from protracted pain and suffering. Under interrogation he related that he saw in euthanasia “the law of nature and . . . the law of reason.” In Brandt’s eyes, this “law of nature” called into question the Hippocratic oath. During direct examination, he emphasized that “purely humane considerations” actuated Hitler’s decision to euthanize “incurably ill persons.” About his own actions within the killing program, Brandt was adamantly unrepentant.⁶⁰

The U.S. prosecuting team’s theory of Nazi euthanasia is discernible in its interrogations of Brandt and remained consistent throughout the trial. Not surprisingly, the U.S. view of euthanasia clashed with Brandt’s portrayal of it as a humanitarian measure. However, even Brandt admitted that the second (or wild) phase of euthanasia was not primarily guided by humane considerations. In his interrogations in November and December 1946, Brandt took pains to distinguish the first “humane” phase of euthanasia from the second “wild” phase. He cited as an example two instances of euthanasia locally initiated by Gauleiter in Saxony and Pomerania that had come to his attention. Brandt claimed he had informed Bouhler, Martin Bormann, and Hitler about these episodes; Hitler’s reaction was to demand immediate cessation of the killing. Brandt believed that these examples of wild euthanasia were driven by the need to reduce the “overpopulation” of mental patients in the two regions. In other words, he advanced an economistic interpretation of the second phase of killing: mental patients were put to death to conserve scarce resources. The economistic interpretation of Nazi euthanasia has an echo in Taylor’s opening statement before the tribunal, in which he identified as a motive for euthanasia the desire to rid Germany of those who had become “useless to the German war machine.” Ultimately, the tribunal in the Medical Case would endorse the prosecution’s economistic interpretation, identifying as one of the program’s “prime motives” the aim “to eliminate ‘useless eaters’ from the scene, in order to conserve food, hospital facilities, doctors and nurses for the more important use of the German armed forces.”⁶¹

As with the military trial of the Hadamar staff, the NMT’s insistence that euthanasia was linked to Nazi imperialism enabled the United States to convict Brandt without compromising the principle of sovereignty in international affairs. In both proceedings, euthanasia killing was portrayed as an offense against international law—not as a systematic program to purify German society of “unworthy life.” In both proceedings, too, preoccupations with retaining national power strictly determined the U.S. construction of Nazi euthanasia. When the focus of the Doctors’ Trial shifted to Viktor Brack, the prosecutors had an easier time connecting the destruction of the mentally ill with Nazi war crimes, because Brack faced not only the charge of euthanasia, but of setting in motion the most notorious international crime in history: the destruction of the European Jews.

The Cynical Saboteur: Viktor Brack

The oldest of three children, Viktor Brack was born in 1904 in Haaren. Before World War I, he spent some of his childhood with his mother, a Russian ethnic German, visiting her relatives in Russia. After the war, Brack related that his family was informed by his mother’s brother, who emigrated from Russia to Germany in 1920, that Brack’s grandmother had been murdered by the Bolsheviks. His mother’s sister had also reportedly died there of typhus brought on by starvation. These revelations, Brack alleged, extinguished in him any further desire to revisit the vast, sprawling country of his mother’s family.⁶²

After finishing his Abitur (college preparatory study) in 1923, Brack studied agriculture for a time until the loss of his parents’ property and the poor agricultural conditions in the Rhineland Palatinate caused him to switch his major to economics. He graduated in 1928 from a Munich technical school with a major in economics and thereafter worked in different roles: as an assistant to his father farming a small plot of land the family had acquired, as a racer with BMW in Munich, and as a chauffeur of the future head of the SS, Heinrich Himmler, a personal friend of his father. In 1932 Brack was employed as the personal adviser to Reichsleiter Philipp Bouhler, at the time the Economics Director of the Nazi Party. When Bouhler established the KdF in 1934 and became its chief, Brack became his staff director. In 1936, Bouhler appointed Brack the head liaison officer with the Department of Health, despite his lack of medical training. Thereafter, Brack became Bouhler’s deputy and the chief of Section II of the KdF. It was in this office that Brack became a major figure in organizing the euthanasia program in 1939 and the Final Solution in late 1941.⁶³

Unlike the army prosecutors in the Hadamar case, in the months preceding the Doctors’ Trial Taylor’s prosecution team was interested in the links between the euthanasia program and the larger Nazi assault on groups deemed “unworthy of life.” This interest is evident in Brack’s pre-trial interrogations, in which his interlocutors confronted Brack with their theory that the euthanasia program, rather than ending, as Brack contended, in 1941, was extended to the extermination program by the end of 1943. According to the interrogators, Nazi euthanasia was little more than a “general test” (Generalprobe) for the expanded killing program in the last four years of the war. Brack adamantly denied a link between the two events, claiming that Hitler was not thinking of the Final Solution when he ordered euthanasia to proceed.

The issue of the motives behind the euthanasia program became the primary ground of contestation between Brack and his interrogators. The struggle centered on how to characterize the euthanasia program at its inception. The interrogators began with a definition of “true” euthanasia: “Euthanasia is, according to the jurisprudence of all states governed by the rule of law, as well as according to German law, the act of assisting a patient transition from an immediately occurring and extremely painful death to a less painful one. That is, in the last stage, the administration of a dose of morphine.” Brack countered with the language of the Hitler order, which specified that only “incurable” cases were to be given a “mercy death.” Brack’s interrogators replied that the actual euthanasia program launched by the Hitler order in 1939 had nothing to do with real euthanasia: “If we assume the fiction that the Hitler order gave a certain legitimacy to this killing, do you not know that the scope of the Hitler order was grossly exceeded in the form of the execution? That not only those people who were, according to the Hitler order, ripe for euthanasia, but also others were killed?” The “other” victims referred to were “useless eaters,” whose consumption of hospital beds and medical resources impeded Germany’s conduct of aggressive war.⁶⁴

Viktor Brack, Bouhler’s deputy and chief of Main Office II in the KdF. In December 1939 Brack was charged by Bouhler with interviewing and employing personnel to staff the killing centers of the T-4 program. In 1941 he became involved in the “Final Solution,” assisting in the construction of the death camps and, most notably, the gas chambers, as well as assigning euthanasia personnel to Odilo Globocnik to aid in the liquidation of Polish Jewry. He was convicted of war crimes and crimes against humanity by the U.S. NMT and executed in Landsberg prison on June 2, 1948. Courtesy the National Archives Records Administration, College Park, Maryland

The interrogators’ conception of euthanasia was not uniform but contained at least two separate views of the Nazis’ assault on “unworthy life.” The first was economistic/utilitarian. On this theory, the mentally ill were killed to free up hospital space and health-care personnel for the German army as it waged aggressive war on Germany’s neighbors. The second was the “general test” theory, according to which euthanasia served a probative role in testing both equipment and personnel for a future, more inclusive killing of other groups of people. When confronted with each of these theories, Brack vehemently denied them, countering that euthanasia meant solely “helping a person who is suffering.” The interrogator conceded to Brack that “we could argue about euthanasia,” but maintained that the Nazi variant was not true euthanasia. Rather, the interrogator told Brack he was “entirely convinced that the actual cause was the preparation for the eastern people. Furthermore, the Jews were not directly attacked, but [euthanasia] was only a preliminary step. The beginning was made with the mentally ill, and that is the danger.”⁶⁵

Brack’s interrogator was a proponent of the general test theory of euthanasia. He opined that Brack had been selected to guide the euthanasia program because he was “a little soft,” and needed “to be toughened up.” With explicit reference to Himmler’s Posen speech of 1943, in which Himmler commended his SS-Gruppenführer for carrying out the “extermination of the Jewish people,” a disagreeable but necessary task that “made us tough,” the interrogator suggested to a protesting Brack that the euthanasia program was “an experiment in toughness,” designed to callous “soft” SS men like Brack for the massive extermination of eastern European peoples.⁶⁶ This general test understanding of euthanasia presupposes ideological indoctrination of the perpetrators in order to transform them into hardened killers of the Reich’s enemies. On this account, euthanasia was less a means of transferring scarce medical resources from the mentally ill to the German army than a longterm preparation for the mass annihilation of Jews, Gypsies, Poles, Soviets, and other “worthless” groups, facilitated by immersing the perpetrators in the Nazi thought world and coarsening their moral sensibilities through acts of programmatic violence against the mentally ill.

The general test/ideological interpretation became a polestar of U.S. prosecution of Nazi euthanasia throughout the trial. In his opening statement, Telford Taylor previewed the prosecution’s view that Nazi euthanasia sprang from “a perverted moral outlook in which cruelty to subjugated races and peoples was praiseworthy,” instilled in the perpetrators in Nazi medical training centers like the Führer School of German Physicians. For the U.S. prosecution team, the defendants were not motivated by “hot blood” or by the desire for “personal enrichment,” but by the National Socialist hierarchy of biological value. The United States pursued this theory of euthanasia in their cross-examination of Brack, who took the stand to address the two most damning charges against him: his involvement in the plot to murder European Jews and his proposal to sterilize a remnant of the surviving Jewish population with X-rays. By comparison with these charges, his role in the early stages of planning the euthanasia program paled into relative insignificance.

Brack and his attorney wasted little time in addressing each of the issues on direct examination. Their strategy could not be a policy of denying everything, because the documentary evidence against Brack was overwhelmingly incriminating. Instead, Brack and his lawyer concocted a defense that later defendants in the German euthanasia trials would advance with far greater success. Under German law, it is referred to as the “collision of duties” defense (Pflichtenkollision) and consists of the argument that the defendant committed the crime only in order to avoid greater harm. Ernst Kaltenbrunner, Heydrich’s successor as head of the Reich Security Main Office, had raised this defense at the IMT in Nuremberg, where he claimed he had done everything in his power to work at cross-purposes with the Final Solution, a “system I could only seek ways of mitigating, but whose intellectual and legal foundations I could do nothing to change.”⁶⁷ Whether Brack had Kaltenbrunner’s defense in mind as a model is unclear. He did, however, stake his life on this “sabotage” theory of criminal wrongdoing.

According to Brack, it had become clear to him by the end of the 1930s that “a struggle was underway here against an entire segment of the people [German Jews] and I did not consider this struggle to be a good one.” Brack claimed he had marveled at the prospect of “depriving” humanity of the works of Jews like Mendelssohn and Heine. In view of the cultural richness of Jewish life, Brack felt it necessary “to repudiate such a policy of hate, and that is what happened.” When he subsequently learned of the Final Solution, he resolved to make “the effort if possible to help,” to “do anything I could to prevent [the destruction of the Jews].” Brack’s claim that he was forced to give the glad hand to all around him as he secretly devised his sabotage of the Final Solution foreshadowed defenses in later euthanasia proceedings:

If I had raised the least objection to [the Final Solution] openly I would have aroused great suspicion of myself and would have aroused an all together [sic] and false reaction in Himmler. Therefore, I had to make the best of a bad matter and had to pretend that I agreed with Himmler. Therefore, I pretended to be willing to clarify the question of mass sterilization through X-ray methods.⁶⁸

The “question of mass sterilization through X-ray methods” that Brack refers to was a matter broached in a letter from Brack to Himmler, dated June 23, 1942, regarding “using European Jews as laborers.” The text of this letter reads in part:

Among 10 million Jews in Europe are . . . at least 2 to 3 million men and women who are fit enough for work. Considering the extraordinary difficulties the labor problem presents us with, I hold the view that these 2 or 3 million should be specially selected and preserved. This can be done, if at the same time they are rendered incapable of propagating. About a year ago I reported to you that agents of mine have completed the experiments necessary for this purpose.⁶⁹

On direct exam, Brack was faced with neutralizing the incriminating power of this document. He tried to do so with the argument that “the real purpose of that letter [was] . . . not to exterminate the Jews, but to preserve them.” The letter’s reference to sterilizing the Jewish remnant was a sham calculated to buy time for at least some of the Jews until the war ended. His “strategy” was to induce Himmler to grant a moratorium on exterminating the Jews long enough to conduct X-ray experiments on Jewish guinea pigs and to evaluate the results. Himmler did, in fact, accede for a brief time to Brack’s recommendation. On Himmler’s order, Bouhler commissioned two euthanasia doctors to commence sterilization experiments with X-rays, a program later abandoned as impracticable. Brack told the U.S. court he was “convinced that by performing these experiments, hundreds of thousands . . . of Jews were saved.”⁷⁰

In addition to his sterilization plan, Brack claimed he sought to derail the Final Solution by persuading Hitler to use the Jews as a source of labor rather than kill them. Again, his alleged aim was to temporize until the war had ended. Implicit in Brack’s defense is the view that the murder of the Jews was caused by the war: remove the war, and the Jews survive. Ironically, Brack’s assumption in this regard parallels that of U.S. prosecutors, who maintained throughout the trial that the Nazis’ destruction of “life unworthy of life” was the result of their waging aggressive war—a theory of Nazi criminality common to both the IMT and the U.S. NMT. Inevitably, to regard the crimes of National Socialism as the reflexes of a nation at war reduces their abhorrent quality by identifying them with excesses characteristic of war conditions. At the same time, it diminishes the centrality of these crimes to the Nazi movement, insofar as it suggests they would never have happened but for the occurrence of the war.

Ultimately, Brack’s efforts to invoke a sabotage defense could not overcome the mountain of documentary evidence amassed against him. That evidence proved that Brack had assigned euthanasia personnel from T-4 to the virulent anti-Semite and SS Police Leader for the Lublin district, Odilo Globocnik, entrusted by Himmler with carrying out the liquidation of Polish Jewry. The T-4 staff Brack assigned to Globocnik helped organize and administer the Final Solution in Poland. As if this were not sufficiently damning, the prosecution also offered into evidence one of the most notorious documents in the history of the Final Solution, the “gassing letter” from the Reich Ministry for the Occupied Territories to the Reich Commissar for the Ostland, dated October 25, 1941. In the letter, Brack is mentioned as volunteering to supply both “accommodations as well as the gassing equipment” for use in killing Jews incapable of work. The hardier Jews would be used as slave labor; those unable to work would be disposed of using the “Brackian devices.” These devices, as we have seen, were gas vans, deployed since late 1939 to murder mentally ill patients in the Wartheland. In the face of such evidence, Brack’s portrayal of himself as a well-intentioned saboteur of the Final Solution shriveled like leaves in a bonfire.

This did not, of course, deter Brack from striking the pose of a humanitarian. In his discussion of the first phase of euthanasia, he rejected the prosecution’s theory that the assault on the mentally ill was a pretext for politically and racially motivated killing. “When euthanasia was introduced, we welcomed it,” Brack testified, “because it was based on the ethical principle of sympathy and had humane considerations in its favor, of the same sort that the opponents of euthanasia claim for their own ideas.” He admitted “imperfections” in the way it was performed, but he added “that does not change the decency of the original idea, as Bouhler and Brandt and I myself understood it.” How, then, did euthanasia degenerate into a comprehensive program of mass murder? Brack’s counsel blamed Himmler for perverting the program by “distorting” it for “reasons of hatred and bigotry, and used it for the murder of the Jews.”⁷¹ Like Brandt, Brack resisted the prosecution’s theory that euthanasia at its inception was inspired by economistic, political, or racial motives.

The U.S. tribunal hearing the case was not persuaded by Brandt and Brack’s argument. It endorsed the prosecution’s depiction of National Socialist euthanasia as a program “to eliminate ‘useless eaters’ from the scene, in order to conserve food, hospital facilities, doctors and nurses for the more important use of the German armed forces.” At first, the court held, it was confined to “incurable” mental patients, but gradually “the program was extended to Jews, and then to concentration camp inmates.” The dilation of Nazi euthanasia into wholesale mass murder transpired during the second, or wild, phase of the program.⁷²

On this basis, the court found Brandt, Brack, and Hoven guilty of war crimes and crimes against humanity under Control Council Law #10. (Blome, who raised a sabotage defense of his own for his alleged role in the murder of tubercular Poles, was acquitted.) They were sentenced to death by hanging. After fruitlessly pursuing their appeals, including a writ of habeas corpus filed with the U.S. Supreme Court, the three defendants were hanged at Landsberg prison on June 2, 1948.

The U.S. approach to the crimes of the euthanasia specialists was remarkably consistent from the early views of Bernays, Stimson, and Jackson through the theories and arguments of U.S. prosecutors at the Doctors’ Trial. The armature around which charges of war crimes and crimes against humanity were molded was Nazi Germany’s launching of aggressive war. Even though the drafters of Control Council Law #10 had abolished the link between war crimes and crimes against humanity, U.S. prosecutors at the Doctors’ Trial continued to assume that euthanasia-related crimes were the excrescence of Hitler’s imperialistic war—an assumption that punctuates their indictment, opening statement, cross-examinations, and closing argument. The tribunal implicitly endorsed this conception of the prosecution by amalgamating Count Two (war crimes) and Count Three (crimes against humanity) and treating them as a single count. Henceforth, euthanasia crimes were equated in the court’s mind with war crimes—that is, as crimes secondary to and contingent upon the waging of aggressive war. This tenacious commitment to viewing Nazi criminality in the funhouse mirror of German war policy is traceable to U.S. concern for the principle of sovereignty in international law. Nazi euthanasia had to be connected somehow to the war; if it were not, the Allies would be setting a dangerous precedent for intervening in the domestic affairs of a sovereign nation.

The problem with this understanding is one of causality. Hitler had confided to Adolf Wagner in 1935 his intention to inaugurate euthanasia if and when war broke out. Clearly, Hitler had the scheme to annihilate “unworthy life” in mind well before the actual start of the war in September 1939. Furthermore, although we have no compelling evidence that Hitler had planned to murder European Jewry before 1941, violent persecution of German Jews was by no means uncommon in pre-war Germany. As Herbert Jäger insightfully observed, Nazi genocide was not the product of the war; rather, “the war was the instrument for implementing genocide.” What Jäger said about the destruction of the Jews during the war may be applied equally to other groups targeted by the Nazis:

The life of the Jews in Germany was for a long time repressed by the totalitarian regime and undermined through growing defamation and degradation, before we can even speak of genocide in the verbal and actual sense: the mass killing represented only the organization and carrying out of that which was systematically prepared in the state system, and was already perfected in the spirit, when the bonds of human solidarity were ruptured and the illusory picture of the Jew as a parasitic Untermensch injurious to the Volk was established. If a minority is first equated with vermin, then the step to the intention to “eradicate” it is no longer so great. Human dignity and life were taken from the victims long before the gas chambers were opened to them: a process of development over many years only needed to be pushed ahead to its final consequence.⁷³

For Jäger, identifying Nazi genocide with war crimes has the effect of misrepresenting genocide as something qualitatively different from—and less odious than—ordinary criminality. It emerges as the byproduct of ordinary men in extraordinary times, as periods of war always are. General William Tecumseh Sherman’s famous phrase that “war is all hell” captures a common belief that acts deemed to be atrocities during peacetime become the common coin of the realm during times of war. Yet, the hell unleashed by war is different from the inferno of Nazi criminality.

In the postwar era prominent German intellectuals have realized the importance of distinguishing between these two orders of hell. The German existentialist philosopher Karl Jaspers emphasized the conceptual divide between war crimes and Nazi crimes: a “completely different principle,” he argued, distinguished the two kinds of criminality. Similarly, Hannah Arendt insisted on the singularity of crimes against humanity, warning that they should not be conflated with war crimes.⁷⁴ Combining them in a single criminological hotchpot can nonetheless be tempting, not least because the language of National Socialism (such as the rhetoric of resource scarcity marshaled in support of euthanasia) seduces us into drawing questionable inferences about the motives behind these crimes.

The Hadamar and Doctors’ Trials reveal the extent to which U.S. commitment to preserve its own sovereignty from perceived encroachments by international judicial bodies had come to dominate U.S. approaches to Nazi criminality. On the U.S. view, euthanasia served as a means for transferring scarce resources from “unproductive” patients to the German armed forces. Neither the ends of justice nor the historical record compelled such an interpretation; rather, U.S. distrust of foreign bodies with superordinate jurisdiction predisposed U.S. authorities to connect euthanasia with the conduct of the war. Concerns with restricting U.S. prosecution only to crimes linked with Germany’s war of aggression determined how the Nazis’ assault on the mentally ill would be portrayed. In the U.S. Hadamar trial, the formidable power of this insistence inverted the customary burden of proof: in alleging that the murders of consumptive eastern workers were undertaken for the purpose of freeing up resources for the war effort, the U.S. military commission spurned the principle of individual responsibility. The result was to presume guilt in advance (even in defiance) of the evidentiary record—an inversion of the traditional presumption of innocence in Anglo-American law.

U.S. reticence to open the door to foreign interference with U.S. sovereignty is by no means a new theme in the country’s history: the opposition of the U.S. delegation at Versailles in 1919 to international trials for crimes against humanity, as well as the refusal of the Senate to ratify the League of Nations and, more recently, the 1949 U.N. Genocide Convention (finally ratified by Congress in 1986), are all telling proofs of such reluctance. By the mid-1940s, this long-lived concern with preserving national power received a fresh stimulus as Europe fissioned into two armed camps. In the tension-fraught arena of the Cold War, the United States would not brook restrictions on its ability to project its considerable power across the globe. Simultaneously, the West Germans were involved in a bid for national power of their own. In the German case, however, the goal was not to sustain their sovereignty, but to regain it after the catastrophic defeat of the war. Although the aims of the United States and West Germany differed, each shared a common preoccupation with national power. In each case, too, considerations of sovereignty structured the judicial approach to and assessment of National Socialist crimes, including euthanasia. In the following chapters, we will see how the quest for power, understood as a restoration of political self-determination, led the Germans in the postwar era to exonerate the killers of the mentally ill.

^a A mistake of law occurs when a defendant reasonably relies on the legitimacy of a law, judicial decision, or administrative ruling later declared to be invalid.