David Irving v Penguin
Ltd and Prof Deborah Lipstadt ON THE DAY of closing statements, March 15, 2000, Mr Justice Gray (right) invited Mr Irving to submit to him a written response on "concessions" which the Defence alleged he had made during the trial. Since Mr Rampton had quite improperly interrupted his closing speech to make further points (see transcript, Day 32), and had submitted a further document to the Judge after closing speeches, Mr Irving submitted this list of points which he apprehended the Court had perhaps failed to grasp. By letter written after handing down his Judgment on April 12, 2000, the Clerk to Mr Justice Gray confirmed that this document had been received. The Judge took into account however only one of the points it contains.
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Claimant's Response to the Defendants' Closing Statements, March 21, 2000, continued... 5(i)(g) The "Schlegelberger" note (11)(i)(vi) I am not aware that I made the concession as stated, particularly with regard to the scale of the killings referred to, and Mr Rampton has not ventured to provide a reference to the page-locations of such alleged concessions. The reality is that my books have always stated what is here stated in 11(i)(iv) and 11(i)(vi). (11-14) The Schlegelberger Document. The document's date is certainly late March 1942 or very early April 1942. Mr Justice Gray advised Mr Rampton on Day 6, at page 168: "Mr Rampton, does it simplify matters if I say I am prepared to accept that there is good internal evidence that it is March or thereabouts 1942?"
5(i)(h) March 27, 1942 and April 27, 1942 Goebbels diary entries (1-2) As the Defendants point out in paras (1) and (2) I give evidence in HITLER'S WAR and GOEBBELS. MASTERMIND OF THE THIRD REICH that sixty percent of the Jews referred to were being liquidated. This is the opposite of "Holocaust denial." (2) On March 27 1942, when Goebbels wrote this in his diary, Hitler was still contemplating Madagascar, Africa, Siberia, and other destinations for a geographical solution. (3) (i) As stated, there is no evidence. (ii) and (iii) The parts that I quoted were more horrific than the parts which I allegedly "suppressed" (in fact edited out in a normal process of digesting for publication). There is no evidence that Goebbels and Hitler did discuss the topic, notwithstanding the Defendants' speculation. Speculation is not evidence. Further, Mr Rampton pretends that Sir John Keegan, who is not a Holocaust historian, said that it "defies reason" to suppose that Himmler would not have told Hitler about what was happening in the Generalgouvernement. In fact he has doubly misquoted Sir John Keegan. The reference is on Day 16, at page 9. Mr Justice Gray was inquiring of the witness whether it would be "perverse to say that Hitler did not know about the Final Solution?"
"Would defy reason" is a conditional reply - conditional on the question as posed by the Claimant - and is very different from "defies reason" as stated by the Defendants in reference to a totally different and much more specific question. (v) Editing out vague Goebbels's adverbs like ausführlich is part of the natural editing process involved in tautening and digesting text to a reasonable length. In the light of the full text printed in HITLER'S WAR (1991 edition) page 465, first paragraph, the editing does nothing to alter the colour or weight.
5(i)(i) (1-4) Himmler minute September 22, 1942. The Defendants have failed to refer to the Karl Wolff testimony, which Mr Justice Gray ordered obtained from the Institut für Zeitgeschichte, and which was put to the expert Dr Longerich on Day 26, especially at pages 21-23. This provides support for the view that in August 1942 Himmler told Wolff he was doing things without the knowledge of the Führer.
(4)(i) and (iv) These points are agreed. (4)(v) Himmler wrote his agenda for his own use, and not for publication. He would have had no need to write euphemisms to himself. If he wrote Auswanderung that indicates that he intended to speak only of Auswanderung to Hitler. He was aware that Hitler was thinking only in terms of emigration. It is evident from documents cited by Prof. Evans at 408, e.g. the Goebbels diary May 30, 1942, that Hitler used the word Auswanderung only in its proper geographical sense. The Defendants have not shown otherwise. See the cross-examination of Evans at Day 23, at pages 67-69.
5(i)(j) Himmler note, December 10, 1942 (1-4) I am rebuked for omitting from the 1991 edition of HITLER'S WAR the parenthesis ("Himmler's notes do not indicate that he mentioned to Hitler the alternative fate of the others") which appears in the 1977 edition. The later edition was substantially abridged, by about 30%, to bring all three volumes under one cover. In 1980 I had a new a very fine U.S. editor, who lectured to me that when one writes books one tells readers what did happen, and not what did not. This is a classical example. The instruction to keep the influential ones "alive and well" was in the 1991 edition (at page 511), which gives sufficient indication of the fate awaiting those less fortunate. Mr Rampton in para. 4 ascribes this latter sentence solely to Dr Longerich's report, which is manipulative. (6) Mr Rampton says I have translated abschaffen as "extract" in the 1991 edition. In my paraphrase - not direct quotation - of the two versions of the document (handwritten and typed by Himmler's staff) this is a wholly adequate translation of the two words abschaffen and abtransportieren.
5(i)(k) Hitler's meeting with Antonescu and with Horthy in April 1943 In HITLER'S WAR (1991) at page 542 I described Hitler's hectoring of Horthy about "Jewish Bolsheviks" etc., and elsewhere gives other evidence as to his views and actions. It omitted from the 1991 edition the similar statements made by Hitler to Antonescu which had been quoted in the 1977 edition. It is clear that Hitler would have been far more concerned about the matters that I did quote - that Antonescu's own ministers were plotting against the Axis alliance - and in a shortened version of a Hitler biography I selected this to be retained. In a Holocaust history the choice would have been different.
5(i)(o) Ribbentrop's testimony and evidence from his cell in Nuremberg In both the 1977 and 1991 editions of HITLER'S WAR (at pages ... and 809 respectively) I indicated by an ellipsis that I had cut the text. Mr Rampton does not show this ellipsis. The part which I quoted gave Ribbentrop's first-hand account of how he saw Hitler. The part which I cut gave only his speculation "one must suppose that he at least knew about it, if not even ordered it. . ." Mr Rampton did not mention that in both editions I quoted a statement by Himmler's brother Gebhard, and another by his adjutant, that they believed Himmler had been acting on Hitler's orders. These were more convincing pieces of speculation in this direction than the part that I cut.
5(i)(p) Marie-Claude Vaillant Couturier There is no question that Judge Biddle wrote "this I doubt". There is no question that Marie-Claude Vaillant Couturier, made several clearly fantastic claims at Nuremberg - the SS beating machine, "700,000 Jews" arriving from Hungary, Jewish women's babies were aborted and drowned in buckets of water. It seems she had also forgotten her lines. Under direct examination she stated she had been told the Hungarian figure at Auschwitz by others, under cross-examination she stated she had learned the figures herself while working in the offices, being given the information by an SS Oberaufseherin Helga Roth (although Vaillant Couturier was an imprisoned French Communist). Under direct examination Ms Roth became a Slovakian United Nations UNRRA worker. I do not see that the way I recorded this in NUREMBERG, THE LAST BATTLE was unreasonable. I do not see that what I said in a more colloquial way in speeches was, under the circumstances of an unscripted and ex tempore speech, a distortion.
5(i)(q) Kurt Aumeier I refer to my closing statement Day 32 at pages 105-106.
5(i)(r) Criminal Statistics for 1932 To say that Jews represented 20 percent (i.e., 42 of 210) of narcotics smuggling cases and 11 percent (i.e., 29 of 272) of international narcotics dealers is not to say, as Mr Rampton renders it: "The Jewish community dominated the crime scene." I said that Goebbels statements were "not always wrong." Interpol did exist then. It was founded by Heydrich. The Haus am Wannsee where the famous conference was held was the Interpol headquarters.
5(ix) Answers to "Assessing Mr Irving as an Historian" Concessions about the Einsatzgruppe Shootings of Jews in the East and Deportations Pre-Trial Stance 1. K3/7/11 etc. "Killing of Jews numbered hundreds or thousands at a time." All my recent books give much larger figures. See e.g. HITLER'S WAR (1991) pages 819-20, note to page 511: There I report a 1942 estimate of 700,000 executions of Jews for Warsaw alone; e.g., GOEBBELS. MASTERMIND OF THE THIRD REICH (1996) has similar passages. I also quote the March 1943 Korherr report to Himmler (HITLER'S WAR, 1991, at page 538) speaking of 1,419,467 Jews being subjected to "special treatment." 2. As for the "without orders". HITLER'S WAR (at pages 346-7, 1991 edition) gives details of the Commissar order and the Guidelines of early 1941. 3. On television in Australia in 1995 I said that in my view up to four million Jews were killed. (See Radio Interview with David Irving, Radio 2GB, Sydney, July 27, 1995. Trial Bundle D2(iii), Flag 21).
(The Writ in the current action was served fourteen months after the above conversation).
Alleged concessions at trial: 4. Day 4, page 86-7: The role of Heydrich has always been plain, even from my books published long before this trial. See HITLER'S WAR (1991) at pages 222ff., and similarly in the 1977 edition. 5. Day 4, pages 115-116: My Lai: The December 1, 1941 intercept with which the Court is familiar shows that Himmler had knowledge of many of these massacres, but that many of them were unauthorised and exceeded the guidelines. 6. Day 5, pages 10, 12: "Shootings in Russia were systematic". These flowed from the Commissar Order and the March 1941 guidelines, as was always stated in my books. E.g. Hitler's War (1977), page 212; and (1991) pages 345-6, ("The Jewish-Bolshevik intelligentsia as the present 'subjugators' of the people must be got rid of.") 7. Day 2, pages 275-6: "That Hitler did know about the murder of the Jews on the Eastern front but did not care." No concession: The Commissar Order and guidelines which he had issued in May 1941 provided the mechanism. He was not demonstrably aware of the scale. 8. Day 3, page 90: Bruns report. I did not agree at the page referenced by Mr Rampton that I should have brought Altenmeyer's reference to an order from Hitler in the Bruns report to my readers' attention. I said clearly in court I had put it on the Internet, and explained that it had no place in my biography. 9. Day 4, pages 91-94: I agree that the newly found December 18, 1941 Himmler diary/agenda entry means that Hitler agreed with Himmler that certain Jews - we do not know which - "were to be liquidated as being partisans". 10. Day 4, page 107: I agree with the description given. 11. Day 4, page 195: I agree with the description given. This does not differ from the position stated in HITLER'S WAR. 12. Day 5, page 104: This does not differ from the position stated in HITLER'S WAR on page 426: "On October 6, 1941, Hitler pronounced ... 'all the Jews must be removed from the Protectorate - and not just to the Generalgouvernement ... but... all the Jews are to disappear from Vienna and Berlin too.'"
Adherence to alleged concessions 13. Day 5, page 10: It is a monstrous distortion of Mr Justice Gray's intervention and my response to it for Mr Rampton to suggest that I again accepted all the above points. The Judge's summary of the concessions had little resemblance to the above list. 14. Day 24, pages 152-4: I never conceded, as falsely claimed by Mr Rampton, that Hitler actually read Report No. 51 and was thus had knowledge of the scale of the shootings of Jews. This evidence had no bearing on the issue of responsibility either. 15. Day 24, pages 161-6: In the course of my cross examination of the witness I do not agree that I tried to relativise the issues. 16. Day 25, pages 1-2: My position paper represents the position I have always adopted. It differs only from the misrepresentations wrongly attributed to me by the defendants.
Chelmno and Serbia Pre-trial stance 17. For the purposes of dealing with the issues expeditiously (vide the overriding objective of the CPR (at r.1.1(2)), I agreed at trial that the "Reinhardt" sites at Chelmno, Treblinka, Majdanek, and Sobibor were Nazi killing centres. This was to enable the court to examine at greater length, as it did, the main alleged factory of death at Auschwitz. As to the Reinhardt sites, I left open the question as to the mechanism or methods used for killing, and the scale on which the operations were conducted, and whether the sites also operated at any time as transit camps. As to the 152,000 Jews at Chelmno, I wrote in HITLER'S WAR (1991) on page 426: "There were 152,000 Jews involved in all, and Chelmno began liquidating them on December 8." I draw the Court's particular attention to the entire contents of this page, 426, of HITLER'S WAR (1991) which I also attach as a photocopy to this response.
Alleged concessions at trial 18. Day 2, page 242 etc: I agree that gas vans were used on a very limited scale (three vans) at Chelmno and elsewhere. This has never been denied by me. I did not agree the figure of 97,000. If 97,000 be a correct figure, then it was systematic. I disputed the practicability of the 97,000, given the use of three vans over five weeks. 19. Day 6, page 50: I agree that on the evidence of the Turner letter gas vans were used to liquidate Jews in Serbia. This has never been denied by me. 20. Day 5 at page 125: I did not agree that Aktion Reinhardt's "purpose was the wholesale murder of Jews" That was Rampton's question. I made plain that in my view one aspect of Reinhardt was the killing, the other the systematic looting of their personal property. 21. Day 5, pages 133-4: The "hundreds of thousands" phrase was Mr Rampton's question, not my answer. I do not agree with his estimates of the scale of the killing operations at these camps. 22. Day 17, pages 17-19: The defendants showed the Court no documentary evidence in support of these figures and I know of none elsewhere. See para. 17 above. 23. Day 8, pages 170-1: See para. 17 above. 24. Day 19, pages 192-3. Reference is made to the sites in both 1977 and 1991 editions of HITLER'S WAR (the latter at pages 466-7).
Adherence to alleged concessions 25. All three paragraphs are correctly stated.
Concessions about Auschwitz and Auschwitz-Birkenau Pre-trial stance 25. I drew a distinction between Auschwitz and Birkenau, particularly with regard to (iv). 26. K3/2/14: The correct position was not "the gas chambers at Auschwitz were deliberately masterminded..." but "the story of the gas chambers at Auschwitz was deliberately invented..."
Alleged concessions at trial 27. Day 29, pages 88-92: The Kinna document: I agreed that Jews were being killed at Auschwitz even before I was shown that document. I repeatedly stated that many Jews may have been murdered at Auschwitz, but that the figure is less than commonly supposed. In this view I am joined by historians like Prof. Arno Mayer and Prof. Sir Frank Hinsley. 28. Day 2, pages 157-8: I agree (see for instance Day 29, at page 33) that random gassings evidently took place in the Auschwitz farmhouses or cottages known as Bunker 1 and Bunker 2. These are described by Höss and Aumeier. 29. Day 8, page 118: I do not agree that this page carries references to Crematoriums II to V. I agree that a part of Crematorium II appears to have been designated as a Vergasungskeller. 30. Day 8, page 119-20: Accordingly there was no position to "retreat" from. 31. Day 17, page 180: See e.g. para. 28 above. 32. Day 19, at pages 192-3: Nothing on these pages can be taken as a concession by me that Crematoriums I, II, III, IV and V at Auschwitz were homicidal gas chambers. The agreement on those pages refers to the Reinhardt sites , on the purpose of which agreement also see above at para. 17.
Adherence to alleged concessions 33. Day 29, page 33: See para. 28 above. 34. Day 7, page 176: Mr Rampton has again misquoted. The references (which are not here but elsewhere) to the "legend" are not only to Auschwitz I (the Crematorium I which was "reconstructed" by the Poles in 1948) but to the "factory of death" at Crematorium II, allegedly site of 500,000 gassings, in Birkenau.
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