Brack was convinced of the legality of this decree on the basis not only of juridical but also other effective indications of much more significant independent steps taken by Hitler in domestic and foreign policy.
Brack’s conviction, that of a nonjurist, of the legality of the Fuehrer Decree, based on the explanations and information of his juristic associates and the concurring or at least nondissenting statements of the highest representatives of the Reich justice authorities at the meeting of General Public Prosecutors on 23 April 1941, can therefore not be doubted. (Brack 36, Brack Ex. 36.)
Even if one denies the legal validity to the Hitler Decree, though I regard it as valid, Brack committed a legal error at least as far as the particular legal position of Hitler within the state is concerned, under which decree otherwise illegal activities are to be excused. This legal error is sufficient to abolish his guilt or at least the grave guilt of deliberate intent. According to the German law valid at the time, at any rate, this is the case. According to that, a so-called error outside of criminal law—which is indeed the error about the legal validity of the decree of 1 September 1939—excludes the unlawful character which is an essential of the term “deliberate intent”.
EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
FISCHER[[154]]
Acts committed under orders and in relation to a specific military position
The defendant Fischer participated in the experiments for testing the effect of sulfanilamide upon orders of his medical and military superior Karl Gebhardt. It is recognized in the penal code of all civilized nations that action upon orders represents a reason of exemption from guilt, even if the order itself is contrary to law, but binding for the subordinate. In examining this legal question, one proceeds from the principle that the court disregards the reasons of justification and exemption from guilt put forward by me in the case of the defendant Karl Gebhardt and considers that both the order given to the defendant Karl Gebhardt himself, as also the passing on of this order to the defendant Fritz Fischer, are contrary to law.
The adherence to a binding order, even though it be contrary to law, on the part of the subordinate creates for him a reason of exemption from guilt and, therefore, renders him also exempt from punishment. This question is disputed only insofar as some consider the action of the subordinate not only excused but even “justified.” Further examination of this question at issue seems, however, not necessary in these proceedings, since the result is the same in both cases, namely, the perpetrator’s exemption from punishment.
The decisive question in the case on hand therefore is whether and to what extent the “order” for the sulfanilamide experiments was binding for the persons carrying it out.