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The Nuremberg Doctors' Trial: Framing Collective Memory

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The Nuremberg Doctors' Trial: Framing Collective Memory THE NUREMBERG DOCTORS' TRIAL: FRAMING COLLECTIVE MEMORY THROUGH ARGUMENT by DOYLE W. SRADER (Under the Direction of Edward M. Panetta) ABSTRACT In 1946, a military tribunal constituted by the United States government put twenty-three physicians and medical support staffers from the recently defeated German Nazi regime on trial for war crimes and crimes against humanity consisting of participation in medical experiments conducted on concentration camp inmates. The trial produced sixteen convictions, seven acquittals, and the Nuremberg Code, which remains to this day a founding document in biomedical ethics. The Code does not mark a consensus, but rather an enduring controversy, in the medical field. This study examines the role of constitutive elements of argument in the framing of collective memory about the Nazi medical experiments within the specialized community of medical professionals. Findings included the core elements of the prosecution's proposed frame, points of stasis between prosecution and defense, and the tribunal's incorporation of the broad sweep of the prosecution's case with some of the defense's pleas of extreme necessity in the verdicts. From the state of human subject research ethics pre-Nuremberg to the present date, a definite break and alignment into enduring positions is discernible, which first appears at Nuremberg. The trial thus reconfigured discursive space and both opened up and channeled the possibility of deliberation on ethical matters in the global medical community. INDEX WORDS: Collective memory, Nuremberg Code, Karl Brandt, Nazi doctors, Informed consent, Argument, Constitutive Rhetoric THE NUREMBERG DOCTORS' TRIAL: FRAMING COLLECTIVE MEMORY THROUGH ARGUMENT by DOYLE W. SRADER B.A., Baylor University, 1992 M.A., Baylor University, 1993 A Dissertation Submitted to the Graduate Faculty of The University of Georgia in Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY ATHENS, GEORGIA 2003 © 2003 Doyle W. Srader All Rights Reserved. THE NUREMBERG DOCTORS' TRIAL: FRAMING COLLECTIVE MEMORY THROUGH ARGUMENT by DOYLE W. SRADER Major Professor: Edward M. Panetta Committee Celeste M. Condit Thurmon Garner Thomas M. Lessl Dean G. Rojek Electronic Version Approved: Maureen Grasso Dean of the Graduate School The University of Georgia August 2003 iv DEDICATION To Douglas, Katie, Cole and Kaleigh. May their generation become aware of the lessons of Nuremberg, and teach their children to teach their children, so those lessons will never be forgotten. v ACKNOWLEDGMENTS I would like to thank Jean Eldred for comments on the method, Marouf Hasian for invaluable research guidance, Edward Panetta and Katherine Srader for patience and support, Drs. Condit, Garner, Lessl, Logue, Rojek and Rubin for agreeing to serve on my committee, and Kelly Saros, Marcia Tiersky, David and Karen Runnels, Melane McCuller, and Rick, Dianna, Nicholas, Courtney and Gabrielle Reese, for helping me cling to sanity. vi TABLE OF CONTENTS Page ACKNOWLEDGMENTS ...............................................................................................v CHAPTER 1 THE RIDDLE OF THE NUREMBERG MEDICAL TRIAL....................1 The Nuremberg Medical Trial as a communication phenomenon..............4 Pre-scientific and private codes ................................................................9 The road to the Nuremberg medical trial ................................................13 The road from Nuremberg......................................................................17 Medical research ethics after Nuremberg................................................21 The mixed legacy of the Nuremberg Medical Trial.................................25 2 LAW, CONSTITUTIVE ARGUMENT, AND COLLECTIVE MEMORY .............................................................................................33 Law as performative communication......................................................34 Constitutive functions of legal performance............................................41 Legal communication as framing of collective memory..........................50 The Nuremberg Medical Trial: Studying the proceedings as constitutive argument framing collective memory .....................................................58 3 CONSTRUCTING AND CONTESTING A DOMINANT FRAME.......65 Stipulating the framing function .............................................................65 Constructing the dominant frame............................................................71 The system-wide corruption of German medicine...................................73 vii The unscientific nature of the experiments..............................................78 Contesting the dominant frame...............................................................83 4 POINTS OF STASIS .............................................................................94 Content and relational dimensions of argument ......................................95 Points of stasis in the Nuremberg Medical Trial .....................................96 What versus why....................................................................................99 Principle versus expediency ................................................................. 108 Individual versus state.......................................................................... 117 Culpability versus constraint ................................................................ 131 5 IMPOSING APPARENT CLOSURE: THE TRIBUNAL SPEAKS...... 143 Protecting fairness................................................................................ 145 Substantive findings ............................................................................. 158 The Nuremberg Code ........................................................................... 166 Shielding and unsettling the grand narrative ......................................... 173 6 CONCLUSION.................................................................................... 175 Legal performatives at Nuremberg ....................................................... 176 Illocution: Collective memory .............................................................. 177 Perlocution: Discursive solidarity......................................................... 181 Fusion: Constitutive rhetoric ................................................................ 186 Directions for future research ............................................................... 190 REFERENCES................................................................................................ 196 1 CHAPTER ONE THE RIDDLE OF THE NUREMBERG MEDICAL TRIAL On December 9, 1946, General Telford Taylor, an attorney representing the United States War Department, stepped to the podium and began to speak. His audience was a trio of military officers empanelled as judges, in Nuremberg, Germany. His text was the opening argument for the prosecution in the case of United States v. Karl Brandt, et al. After speaking in broad terms of the charges brought against the defendants, he said, It is our deep obligation to all peoples of the world to show why and how these things happened. It is incumbent upon us to set forth with conspicuous clarity the ideas and motives which moved these defendants to treat their fellow men as less than beasts. The perverse thoughts and distorted concepts which brought about these savageries are not dead. They cannot be killed by force of arms. They must not become a spreading cancer in the breast of humanity. That murder should be punished goes without the saying, but the full performance of our task requires more than the just sentencing of these defendants. Their crimes were the inevitable result of the sinister doctrines which they espoused, and these same doctrines sealed the fate of Germany, shattered Europe, and left the world in ferment. Wherever those doctrines may emerge and prevail, the same terrible consequences will follow. That is why a bold and lucid consummation of these proceedings is of vital importance to all nations. That is why the United States has constituted this 2 Tribunal. I pass now to the facts of the case at hand. (Nuernberg Military Tribunals, 1949, pp. 27-29) In delivering an overview of the prosecution’s mission to the court, Taylor deliberately emphasized its communicative and argumentative mission. Its purpose was not to incapacitate the defendants, for they were citizens of a defeated nation and the institutions that enabled their work had already been disbanded. Its purpose was not to exact restitution, for no restitution could approximate justice, due to the scale upon which the alleged crimes had been committed. The purpose was to communicate, both to the global audience of that moment, and to future audiences for generations to come, the unacceptability of the charged crimes. The prosecution team’s mission was to refute the defenses for the defendants’ conduct, and in so doing speak about the boundaries of ethics and the reach of law beyond national boundaries. Given these facts, most Americans would recognize this story at once: the Nuremberg trial of major Nazi war criminals, at which Hermann Goering, Karl Doenitz, and other heads of the Third Reich were tried, found guilty, and sentenced to death. Yet that trial had finished several months earlier. At the time the plans for the trial of major war criminals had been laid out, the planners also prepared for a set of specialized trials, which would focus upon lawyers and judges, industrialists,
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