Day 16 Transcript: Holocaust Denial on Trial

Part I: Initial Proceedings (1.1 to 2.17)

IN THE HIGH COURT OF JUSTICE 1996 I. No. 113 QUEEN’S BENCH DIVISION Royal Courts of Justice Strand, London Monday, 7th February 2000 Before: MR JUSTICE GRAY B E T W E E N: DAVID JOHN CAWDELL IRVING Claimant -and- (1) PENGUIN BOOKS LIMITED (2) DEBORAH E.

LIPSTADT Defendants The Claimant appeared in person MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons and Mishcon de Reya) appeared on behalf of the First and Second Defendants MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on behalf of the First Defendant Penguin Books Limited MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of the Second Defendant Deborah Lipstadt (Transcribed from the stenographic notes of Harry Counsell &Company, Clifford’s Inn,

Fetter Lane, London EC4 Telephone: 020-7242-9346) (This transcript is not to be reproduced without the written permission of Harry Counsell &Company) PROCEEDINGS – DAY SIXTEEN

Day 16 Monday, 7th February 2000. (10.30 a.m.) MR JUSTICE GRAY: Mr Irving and Mr Rampton, I have received a letter from I think it is a German lawyer called Gunter Murmann, the significance of which is not immediately obvious to me, but I thought I had better hand it down to you to make what you will of it. I know you have been receiving a lot of similar documents. Have a look at it when you have a convenient moment. Yes, Mr Irving? MR IRVING: May it please the court.

I have here this morning a witness on summons, Sir John Keegan. I also have a number of points that I wish to submit to your Lordship. I think, out of fairness to Sir John Keegan, we ought to hear his evidence first, and then I will put to your Lordship the various procedural points which I wish to. MR JUSTICE GRAY: That sounds perfectly sensible. Let us have him straightaway.

Part II: Sir John Keegan’s Cross-Examination by David Irving (2.18-13.24)

MR IRVING: I call Sir John Keegan. < SIR JOHN KEEGAN, sworn. < Examined by MR IRVING. Q. [Mr Irving]: My Lord, Sir John’s evidence will go entirely to reputation and no other matter in this court. Sir John, first of all, to make it perfectly plain to the court, you are here pursuant to a witness summons, in other words, what used to be called a subpoena. Is that correct? A. [Sir John Keegan]: I was subpoenaed by you. I would also like to say that

until this moment I have never met you, never spoken to you and never corresponded with you. Q. [Mr Irving]: That is precisely what I was going to ask next. In other words, I have not rehearsed with you in any way what I might or might not ask you by way of questions? A. [Sir John Keegan]: I would not have agreed to that in any case. Q. [Mr Irving]: Yes, of course. A. [Sir John Keegan]: Sir John, you are now Defence Correspondent for Telegraph Newspapers Limited?

A. [Sir John Keegan]: Defence Editor. Q. [Mr Irving]: Defence Editor of Telegraph Newspapers Limited. How long have you held that post, please? A. [Sir John Keegan]: I was Defence Correspondent to begin with in 1986 and became Defence Editor about 1990. Q. [Mr Irving]: You have, it is fair to say, a very high reputation in England as what I might call an establishment historian?

A. [Sir John Keegan]: Well, I was knighted for services to military history Q. [Mr Irving]: My congratulations and the congratulations of the court go to you for that very recent honour. It was in the New Year’s Honours list? A. [Sir John Keegan]: Yes. Q. [Mr Irving]: I do not wish to detain you at all long, Sir John, here this morning. I am grateful to you for coming in spite of your disability.

I just want to take you through a number of papers which I have handed to you a few minutes ago going back to 1980. I believe your Lordship also has that

small clip of them? MR JUSTICE GRAY: Yes, I do. Thank you very much. MR IRVING: Do you remember writing an article for The Times Literary Supplement in about April 1980? A. [Sir John Keegan]: Yes, I do not, because I review a great deal, but I am quite sure that I did write what is quoted here. Q. [Mr Irving]: Is it right that in that review you wrote — this is a review of another book, not a book by myself? MR JUSTICE GRAY: Well, both, is it not?.

A. [Sir John Keegan]: I am sorry, I did not understand the question. MR IRVING: This was not reviewing a book by me, was it? It was reviewing some other book. A. [Sir John Keegan]: If you say so. Q. [Mr Irving]: Is it right that you wrote the following words: “Two books in English stand out from the vast literature of the Second World War, Chester Wilmott, ‘Struggle for Europe’ published in 1952 and David Irving’s ‘Hitler’s War’ which appeared three years ago”?

A. [Sir John Keegan]: Yes, and that is my general opinion. I think that, taken together, they are — if I were to recommend to a starter two books which would explain the Second World War from Hitler’s side and from the Allies’ side, those are the two books I would choose. Q. [Mr Irving]: This does not, of course, mean that you endorse or accept all the views that I might be held to propagate in them or not, or otherwise?

A. [Sir John Keegan]: Indeed not, because later on in the papers you have given me I reprove you for your lack of a moral point of view in your discussion of Hitler and of his status relative to Churchill and Roosevelt. Q. [Mr Irving]: Is it right to say that this opinion which you expressed in that review was not only publicly held but also privately held by yourself? A. [Sir John Keegan]: Yes. I often say you have to read Hitler’s War.

Q. [Mr Irving]: Can I draw your attention to letter No. 2 in the bundle? This is a letter from a man called Mr Alan Williams? A. [Sir John Keegan]: Yes, he used to be my editor at the Viking Press, my American publishers. Q. [Mr Irving]: Yes. The late Alan Williams was also my editor, of course, so he knew us both. Is it true that sometime early in 1980 you had a conversation with our mutual friend, Alan Williams, in which you commented on the same book ‘Hitler’s War’?

Will you read, please, the middle sentences of the second paragraph? Does he state —- A. [Sir John Keegan]: “John Keegan is, as you may know, writing a book for us on the D-day invasion. While we were talking about it, he said that there were two general survey books that really stood head and shoulders above all the rest, one of them the Chester Wilmott and the other ‘Hitler’s War’”.

Q. [Mr Irving]: He did not know —- A. [Sir John Keegan]: “He did not know I had any involvement with the latter volume when he said this”.

Q. [Mr Irving]: Thank you very much. Were you expressing your true opinion in that conversation with Mr Wilmott? A. [Sir John Keegan]: Of course. Q. [Mr Irving]: Has he accurately reflected in this letter what your opinion was at that time? A. [Sir John Keegan]: Yes. Alan Williams and I were great friends. Q. [Mr Irving]: Yes, he was a man of insight and perception. In fact, I gave him a silver tray from Harrods inscribed for his bravery in publishing my book.

He had it displayed in his office. Would you turn to page 5, Sir John? A. [Sir John Keegan]: Yes. Q. [Mr Irving]: Is this a panel from the Sunday Telegraph of August last year? A. [Sir John Keegan]: Yes. Q. [Mr Irving]: Is it headed “Book of the Century”? A. [Sir John Keegan]: Yes. Q. [Mr Irving]: Do you there make your choice of which book you considered to be the book of the last century? A. [Sir John Keegan]: Yes. Q. [Mr Irving]: Can you remember what book that was?

A. [Sir John Keegan]: Of course, it is a ‘Struggle for Europe’. I regard it as a slightly odd choice, and I do not expect many people to support me, but it happens to have been an enormously informative influence on me. Q. [Mr Irving]: I also read it. I agree with you, for what it is worth. It is a very fine book indeed. So your opinion on the

Chester Wilmott book had not at that time changed? A. [Sir John Keegan]: No. Q. [Mr Irving]: You still rank it among the highest. Finally, would you turn to pages 6 and 7 which, I am afraid, is the only copy I have of a two page extract from your recent book ‘The Battle for History’. A. [Sir John Keegan]: Yes. Q. [Mr Irving]: Will you agree that in that you repeat once again, 16 years after the first time you expressed this opinion —- A. [Sir John Keegan]: Yes, I do.

Q. [Mr Irving]: — that Hitler’s War was a valuable book? A. [Sir John Keegan]: Indeed, you are honest enough to include a message on the Internet which points out that you omitted —- Q. [Mr Irving]: One sentence, yes, in the bundle. Would you read out that sentence too perhaps, for the record? This is somebody writing an e-mail to me, chiding me. A. [Sir John Keegan]: Could I quote the whole thing?

MR JUSTICE GRAY: It would help me if you did because I am not sure which sentence has been omitted from what. MR IRVING: I am not sure if it is in your Lordship’s bundle. It would be page 10 if it is in your Lordship’s bundle. Do you have page 10? MR JUSTICE GRAY: Yes, I do. MR IRVING: Would you read out that brief message on page 10 from a correspondent? A. [Sir John Keegan]: It is a message from somebody called Graham Broad on a web

site, dated 28th December 1999: “If Mr Irving is going to quote John Keegan when Keegan supports him, he might as well have the integrity to quote him when Keegan does not. He cites at length from Keegan’s’The Battle for History’, but does not, to my knowledge, anywhere on this web site quote Keegan’s remark on page 10 of that book. Some controversies are entirely bogus, like David Irving’s contention that Hitler’s subordinates kept from the fact of the Final Solution”.

Q. [Mr Irving]: That is, of course, still your opinion, is it not? A. [Sir John Keegan]: I am sorry? Q. [Mr Irving]: That is, of course, still your opinion, is it not, that I am wrong on the Holocaust, or that my opinion on that is flawed? MR JUSTICE GRAY: That Hitler did not know.

A. [Sir John Keegan]: Well, I read Hitler’s War, the appropriate passages, very carefully over the weekend, and I continue to think it perverse of you to propose that Hitler could not have known until as late as October 1943 what was going on to the Jewish population of Europe, and indeed many other minority groups as well, not only minority groups. Q. [Mr Irving]: I do not accept your word “perverse”, of course.

We have spent many weeks here in this very room, examining how perverse or otherwise it is to put forward that proposition. Would you accept that, to somebody who has not had complete access to all the records that are now

correctly available, it may still seem an unusual opinion? MR JUSTICE GRAY: That is almost by definition an impossible question for him to answer. MR IRVING: It became rather tortuous in the utterance, I am afraid. MR JUSTICE GRAY: I think, bringing yourself up to date with historical knowledge as it has been emerging, do you still retain the view that it is perverse to say that Hitler did not know about the Final Solution?

A. [Sir John Keegan]: I think, my Lord, that it defies common sense. MR IRVING: It does indeed defy common sense, and this is what makes it such a fascinating subject to investigate. Would you agree with that? If it turned out to be against all common sense and yet not demonstrable, would it be worth investigating? A. [Sir John Keegan]: It would be so extraordinary that it would defy reason.

Q. [Mr Irving]: I agree, “extraordinary” is possibly a better description of this conclusion than “perverse”. Perverse, would you agree, implies a wilfulness, a deliberate tendentiousness in the way one looks at the documentation? MR JUSTICE GRAY: Well, wrong headed, I think is the meaning. MR IRVING: Wrong headed, yes. Can I ask you finally to turn to pages 8 and 9? My Lord, the only reason this is included is this is one way of putting this before your Lordship.

MR JUSTICE GRAY: Yes.

MR IRVING: Are you familiar with the United States Holocaust Memorial Museum? A. [Sir John Keegan]: Well, I have passed it. I have not been in. Q. [Mr Irving]: Would you accept that this is an official history published by the United States Holocaust Memorial Museum by its former director, Michael Berenbaum? A. [Sir John Keegan]: Yes. Q. [Mr Irving]: I am sure I will be corrected by Mr Rampton if that is wrong. Would you turn to page 9? A. [Sir John Keegan]: Yes.

Q. [Mr Irving]: Would you accept that Professor Aberhard Jackel is a leading German historian? A. [Sir John Keegan]: I am never heard of him, but then I am a military historian of a rather technical sort and it is not necessary that I should have heard of him. Q. [Mr Irving]: Could I ask you briefly to read the paragraph number 5, beginning with the words “rehearsal for destruction” and I will ask you a question about it. Just read it to yourself.

A. [Sir John Keegan]: (Pause for reading) Yes. Q. [Mr Irving]: Would you agree that the tenor of that passage is that this German Professor is stating that, until my biography of Hitler was published in 1977, there had been no worth while research on the Holocaust, and that the publication of my book provoked the historians of the world into finally doing the research on that subject?

A. [Sir John Keegan]: I do not think I can agree with that. As an under graduate I think I read what I still think is a remarkable book called the Final Solution by Gerald Reitlinger, and I felt that I have learned from Gerald Reitlinger everything substantial that I know about the Holocaust. Q. [Mr Irving]: Of course. A. [Sir John Keegan]: And that not much has been added to that since.

Q. [Mr Irving]: There has been a book by Raul Hilberg in the interim as well, ‘The Destruction of European Jewry’? A. [Sir John Keegan]: There have been an enormous number of books on the Holocaust. Q. [Mr Irving]: Not before 1977. A. [Sir John Keegan]: I am sorry, it is not my subject. I do not know the unrolling of the historiography of the subject in that detail.

Q. [Mr Irving]: My question to you, Sir John, was, would you agree that the tenor of this paragraph is to suggest that, in the eyes of this leading German historian, that, until my book on Hitler was published, there was no worth while research into the Holocaust, and that triggered, with this outrageous hypothesis, as he puts it, the entire research which has developed since then? A. [Sir John Keegan]: I do not know. I could not endorse that. I do not know enough.

Q. [Mr Irving]: You appreciate my question? I am not asking your opinion, I am asking whether this—-

MR JUSTICE GRAY: Let us cut this short. It obviously says what you have just indicated it says, but Sir John is not able to agree with it from what he knows. MR IRVING: Very well. Sir John, finally I had to coerce you into the witness box, although in the 1980s and 1990s you wrote very favourable things about my writings. Can you in a very brief sentence explain why you were unwilling to come voluntarily? A. [Sir John Keegan]: Yes. Briefly, perhaps not.

Just because I admire Hitler’s War, which I do, I admired it again when I was reading it last night, it does not mean to say that I endorse your opinions beyond what you have to say, about what I am interested in in Hitler’s War, which is your picture of how Hitler conducted military operations. As a military historian, that is the sort of history in which I am interested and I think you do it extremely well in Hitler’s War.

That does that not mean to say that I can go further in following you. It seemed to me this was to be a very contentious case, and one is easily misunderstood, I think, in discussion of this dreadful episode, this terrible period in European history, easily misunderstood. I did not wish to put myself in a position where I might be misunderstood. Q. [Mr Irving]: Would be it fair to say that you were apprehensive about the repercussions of giving evidence on my behalf?

A. [Sir John Keegan]: Naturally. I am not giving on your behalf.

Q. [Mr Irving]: Giving evidence as a witness for the claimant? A. [Sir John Keegan]: Under subpoena. Q. [Mr Irving]: Yes. No. The question was —- MR JUSTICE GRAY: This is a slightly meaningless debate. Sir John is right. He is here compulsoriy, not voluntarily. He has no choice but to answer your questions, which he has done very clearly.

MR IRVING: The evidence I was trying to produce here was evidence of the fact that this is an exposed position that one takes, and that there are professional repercussions which can be expected by those who take this position in view of the very unfortunate nature this debate has adopted. It is very difficult for me to produce evidence on that matter, particularly as a lot of the witnesses are not going to be called.

MR JUSTICE GRAY: If I may say so, it is a point that does not really need evidence. I am not blind to the realities of the position and I understand the point you are putting. MR IRVING: I am indebted to your Lordship and in that case I have no further questions. MR RAMPTON: I have no questions. MR JUSTICE GRAY: Sir John, that finishes your time in the witness box. Thank you very much. You are free to go. < (The witness stood down)

Part III: Court Proceedings (13.25-29.10)

MR JUSTICE GRAY: Mr Irving, I think you have some procedural points to make?

MR IRVING: Yes. MR JUSTICE GRAY: Before you do that, can I just ask you where, if anywhere, you are suggesting I put the clip you have just handed in? MR IRVING: Miss Rogers has generated a catalogue of these stray items and no doubt the catalogue will grow longer. MR JUSTICE GRAY: I think they might say they are their stray items. Shall we put this into one of the C bundles, perhaps C4? MR RAMPTON: Back of J2 is suggested. MR JUSTICE GRAY: That is really your documents, is it not?

MR RAMPTON: No. Ours are L. MR JUSTICE GRAY: You probably claim J, too, do you not? I will put it wherever you suggest. MR RAMPTON: I do not have one, so I cannot really help. MR JUSTICE GRAY: I do not have one either. J2? MR RAMPTON: Yes, something called J2. MR RAMPTON: It is Claimants Bundle E, Global, which apparently is in J2. Why, I do not know. MR JUSTICE GRAY: If there is a J2, which I doubt, I would like one. Yes, Mr Irving?

MR IRVING: My Lord, your Lordship will see that I have provided to you once again a number of newspaper articles. MR JUSTICE GRAY: Yes. MR IRVING: I do not know how far I am testing your Lordship’s patience on this matter, but I am a litigant in person and

I certainly need education on this matter and possibly members of the press also need education as to what is permissible and what is not in a non-jury action. MR JUSTICE GRAY: Well, show me. MR IRVING: I am not familiar with any ruling which says in a non-jury action it is open season on one or other of the parties in an action. MR JUSTICE GRAY: Certainly that is right. It is not.

On the other hand, it is presumed — you may or may not agree with it — that judges are more able to ignore what is written outside court and more able to focus on the evidence. I hope I am doing that, which I have slightly discouraged you in the past when you have raised various newspaper articles.

I cannot obviously tell the press what they should and should not say, but show me what you are objecting to because, if you have a point—- MR IRVING: I will provide your Lordship with three articles which I certainly do not expect you to read in an instant. Two are, in fact, from newspapers produced by Guardian Newspapers. One is the Guardian which was published on Saturday, a major article by a man called Jonathan Friedland, who is a very well-known and very responsible journalist.

The other one is an article published in The Observer yesterday. The one published in The Observer yesterday by Mr Neil Acheson seems to equate David Irving, Jorg Haider and Adolf Hitler in a rather

unbecoming manner. “If Irving wins and Heider wins, then what?” I have also highlighted “Niematz Wieder never again and Den Anfenge, stop it at the start”, what used to be called in Latin I believe principe obstat.

The repugnance of those articles is that of course the Guardian Newspaper are Defendants in a second action I am bringing of a very similar nature, which they maintain is of a similar nature, and they have a clear and vested interest, in fact, in trying to see me knocked out in this action.

Then, slightly more sinister and more difficult to control, I appreciate, by your Lordship are the articles being written by London journalists for the foreign press which then come bouncing back to us through Cyber space. MR JUSTICE GRAY: Probably not bouncing back to all that many people, would they be? National Post?. I have never heard it. MR IRVING: It is a major Toronto newspaper published by Conrad Black in conjunction with the Daily Telegraph.

Article called “David Irving versus The Dead”, written by a man called Geoffrey Wheatcroft, who is a British, London based journalist. MR JUSTICE GRAY: Which bit in this? MR IRVING: Well, the whole article is sinister in as much as it also incorporates a number of items that have so far not been produced in court, including privileged items, and this morning in today’s Ottawa Sun, I believe, there

were also quotations from Professor Richard Evans’ report, which is a highly libelous and defamatory document and it is privileged only when used in connection with a report in the case. MR RAMPTON: My Lord, this discussion is becoming unwieldy for two reasons. One is that I am excluded from it because I do not have what Mr Irving is referring to. The other is that the reason why people have access to Professor Evans’ report is that Mr Irving put it on his web site.

MR IRVING: With a severe health warning, warning people that the entire contents of the report are considered to be libelous. MR JUSTICE GRAY: Are the entire contents of the report on your web site? MR IRVING: They are accessible with a password. There is a health warning that flaps down so that anybody who looks at it is warned in advance that the contents are deemed to be defamatory and untrue, and will be established when we have Evans in the box.

MR JUSTICE GRAY: I have not read these obviously because you have just presented me with them. All I would say, subject to anything Mr Rampton wants to say afterwards, is that it is not open season and, in particular, if journalists who are based here choose to write in foreign publications articles which perhaps do create a risk of prejudice, then they must realize that they may be

amenable to this court’s jurisdiction, albeit that the publication in question occurred abroad. But beyond that I am slightly reluctant to get into this because it is a bit of a diversion. I can certainly understand you get fed up with it. It is not going to affect my mind, that is the point. MR IRVING: I am faced here by extremely powerful and wealthy litigants who have expended a lot of effort in posting a defence to this case, and more than that I will not say, my Lord.

MR JUSTICE GRAY: Yes. MR IRVING: In that case I do not ask your Lordship to read the articles. I think that has now dealt with that. MR JUSTICE GRAY: I will glance at them or, if you rather, I will not, whichever. MR IRVING: By uttering your warning that it is not open season —- MR JUSTICE GRAY: Mr Rampt

on may disagree with that as a matter of law. MR RAMPTON: It is open season. I believe, there being no jury, it is open season except in one respect. It would not be right and would be a contempt of court to put direct or indirect pressure on the litigant or any of his witnesses. MR JUSTICE GRAY: Yes. MR RAMPTON: It is also of course if they were saying terrible

thing about your Lordship. That could theoretically become contempt, but I do not believe that is what we are talking about. Otherwise not. MR JUSTICE GRAY: I am not so sure about that. If you write here for publication in a journal which you know is going to come back, it seems to me that that could amount to a contempt. This is a very gentle warning shot over the bows. MR RAMPTON: It would depend on the content. MR JUSTICE GRAY: Of course.

MR RAMPTON: That which is merely, what shall we say, tendentious in its reporting? MR JUSTICE GRAY: It has to establish a substantial risk of serious prejudice. MR RAMPTON: It would have to be such material that Mr Irving said in honesty to your Lordship, “I really do not think I can continue under this kind of fusillage”. MR JUSTICE GRAY: It may not have to go quite as far as that.

MR IRVING: I can give one example of the kind of pressure that we come under by virtue of the press reporting now. The principal of the school attended by my little girl, the ballet school, well, enough. MR JUSTICE GRAY: That sort of thing must be personally upsetting for you but it cannot possibility affect my mind because I do not know anything about it. MR IRVING: If ordinary citizens are affected in this way by

this abusive press coverage even at this stage in the case, then eventually this will mean that the entire public gallery of this court will be affected by it, and waves of hostility will be felt by the members of this courtroom. MR JUSTICE GRAY: Mr Irving, all I would say is that, as long as you can carry on, which you are doing, despite what you are having to put up with, then I hope you will find me approaching the evidence unaffected by anything that may be published in newspapers.

MR RAMPTON: Can I add this? If the public’s mind is affected adversely to Mr Irving by a fair and accurate report of the proceedings in court, then only Mr Irving has himself to blame. MR JUSTICE GRAY: That of course is true, but I think his complaint is that these are things that are said or published which really do not reflect in any way the proceedings in court. That I think is his complaint.

MR RAMPTON: The only one of those things that I have read is the Guardian article and, so far as that is concerned, I would not agree. MR JUSTICE GRAY: I have not read it. MR IRVING: My Lord, a number of newspapers are prejudging the issue and, as your Lordship is aware, we are just at the watershed, so to speak. We are now beginning to hear the defence witnesses in detail.

MR JUSTICE GRAY: Yes. They do not have the last word, though, do they? MR IRVING: My Lord, I now turn to the question of these very witnesses, once again the non-appearing experts, the witnesses whom we are informed on Thursday would not now be being called. Once again, I am asking for your Lordship’s tutelage as to in what manner I can address the matters that they have raised in their expert reports, using the abundance of material that we have developed.

These witnesses have in some part relied on witness statements put in lower down the hierarchy, so to speak, which I also impugn. There is one famous case of one of the witnesses who accused me of having the skin heads at one of my meetings, who himself turned out to police records as a skinhead gang leader. There is no way that I can put that kind of material before your Lordship because these witnesses are not now going to be called.

MR JUSTICE GRAY: Well, the way I would suggest, I am not saying this would necessarily, as it were, work but these are things you would have wanted to put to Eatwell and Levin, I suppose? MR IRVING: Eatwell and Levin, for example, yes. MR JUSTICE GRAY: You probably can put — I do not know what you are talking about — some of the things you were going to put to them to one of the other experts. MR IRVING: That is what I hope to do, but your Lordship will

appreciate it is going to be difficult, for example, now that we know that the Russian witnesses are not going to be coming, we had an abundance of questions that I intended to put to them, for example, about the legality or the legitimacy of their holdings of these papers under The Hague rules, materials like that, and the conditions which rule in the Russian archives, how accessible they are to other historians, things that would have assisted your Lordship in forming an opinion and I am just

—- MR JUSTICE GRAY: You can give that evidence yourself. You have been there. MR IRVING: Yes. Well, some of that evidence, yes, my Lord, but it is difficult because I have the last word in this case, my closing speech, it would be improper, indeed unfair, for me to adduce or lead that kind of evidence in a closing speech without having tested it in any way. MR JUSTICE GRAY: Yes, no, you could not do it in your — you would have to give evidence, as it were, from the witness box first.

Try putting the material to whichever you think is the most appropriate expert who is being called. Mr Rampton has been, I think, fairly liberal in the sense he has not objected when he might otherwise have done because this is such a curious case, it is all experts. So try to do it that way. I think you will find that you will get your point over. MR IRVING: This is a little bit of red flag waving so that

your Lordship understands why sometimes I am putting material to witnesses when you think to yourself, “Well, this is not covered by this witness’s statement”. MR JUSTICE GRAY: Yes. You have put things to Sir John Keegan which you would not in an ordinary case have had the right to put to him, but nobody objected and the points got other to me. MR IRVING: I am indebted.

The third point, my Lord, concerns the snatch of remarks by me from the Errol Morris film which your Lordship may remember, the film ‘Mr Death’. It was put to your Lordship as a transcript of fragments of remarks by me on the question of what generates anti-Semitism, where does anti-Semitism come from? MR JUSTICE GRAY: Is this the National Alliance? MR IRVING: No, it was the other little thing that they put in afterwards. I think Miss Rogers is probably looking for it.

It was, I think, highly prejudicial. There is one sentence in there which actually reads, “I am a racist” and taken, of course, out of context that sentence can be flung at me around the world and, no doubt, will be. MR JUSTICE GRAY: Well… MR IRVING: What I am asking your Lordship is that I should either see the film or have a much longer transcript of those remarks in —- MR JUSTICE GRAY: That sounds to me entirely fair.

MR IRVING: — continuous form because the problem was in that particular fragment of conversation, Errol Morris, the producer, asked me to role play, so to speak. “Imagine yourself in that position and state what your motives would be”. MR JUSTICE GRAY: Sorry, I have already said whenever you feel that the context puts a different spin on the part that the Defendants are relying on, you are perfectly entitled to draw my attention to the context.

MR IRVING: It was not actually a piece used in the film. It was a piece that they picked up, the Defendants picked up, off the cutting room floor, so to speak, and then wiped off and produced for your Lordship’s delectation. MR JUSTICE GRAY: I cannot at the moment claim to remember which bit it is. MR RAMPTON: I will tell your Lordship where to find it. It has been in the files since goodness knows. It was a late arrival in the sense that it was not in the original file.

It is at tab 9 of the bundle K4, and a complete transcript of the whole untransmitted or pretransmission interview is in that tab transcribed by the court transcribers. Mr Irving has had the tape as well. MR IRVING: Do we not have the film of it? MR JUSTICE GRAY: What is the film going to add which is not in the transcript, Mr Irving? MR IRVING: Unfortunately, this tape is, I believe I am right

in saying, very fragmentary. It jumps and stops and starts in the way that things do that are taken off a cutting room floor. MR JUSTICE GRAY: Well, it looks to me like a complete transcript. MR RAMPTON: I am told it is a complete transcript. MR JUSTICE GRAY: There we are. You have it there. You can ask the Defendants if they will provide you with the tape or you can read it into the transcript, Mr Irving, but I do not think I can do anything about it, can I?

MR IRVING: Reverting to the witness statement of Professor van Pelt, my Lord, again a general question: we covered parts of that in the cross-examination and I think your Lordship welcomed the fact that I did not intend to go through it paragraph by paragraph. How much attention is your Lordship going to pay to the paragraphs that we did not test under cross-examination?

MR JUSTICE GRAY: I am a little troubled by this, but the way I think it is right to deal with the parts that you were not cross-examined on, that is to say, those parts of Professor van Pelt’s expert report which did not form any part of Mr Rampton’s cross-examination of you, I am treating as not being part of the Defence of Justification, unless and until they crop up in the evidence of other witnesses —- MR IRVING: For example —-

MR JUSTICE GRAY: — as a result of their being cross-examined by you. MR IRVING: — the testimony of the Commandant of Auschwitz, Rudolf Hoess, was hardly tested, I believe — and Mr Rampton? MR JUSTICE GRAY: No, we have had enough on Rudolf Hoess to make him part of the Defence of Justification. He is — you have been cross-examined about this — one of the camp officials, or the camp official, on whom the Defendants place really most reliance, I think it is fair to say.

MR RAMPTON: My Lord, the position at Auschwitz is quite different from the rest of the case. Van Pelt contains the evidence that a responsible historian would have looked at as a minimum. Mr Irving has made it perfectly clear that until this case came along he has never looked at it. It is the convergence of all the evidence in van Pelt that makes the case that Mr Irving should have known about before he jumped on the Leuchter bandwagon. So the whole of that is before your Lordship.

Evans is quite different. If I do not cross-examine on parts of Evans, your Lordship can probably assume that I do not pursue them, but not so with van Pelt. MR JUSTICE GRAY: I think that in a way that is a correction of what I have just said. I think you will find that already reflected on the transcript is the proposition that the Defendants do not have to go through each individual

eyewitness, for example, or each individual document relating to the construction of Auschwitz, although we have had quite a lot of it, because they say that is the totality of the evidence you ought to have looked at.

The distinction Mr Rampton draws is between that, on the one hand, and, on the other hand, criticisms of you for perverting the historical record, mostly in ‘Hitler’s War’, which they are only entitled to rely on if they put it to you fair and square in cross-examination, and that is a fair correction —- MR IRVING: I am startled by this distinction between the two reports. MR JUSTICE GRAY: Well, it relates really to the nature of the criticism that is made.

In relation to perversion of the historical record, a positive case is made against you, you have deliberately done this, you have deliberately manipulated the data, and Mr Rampton has put that, he has not put the whole of Evans’ report, but he has put a lot of it. So that is the kind criticism made there. But in relation to Auschwitz, as I understand it, it is really a rather different criticism.

It is that you have taken a perverse view which ignores and flies in the face of the totality of evidence that there was gassing at Auschwitz. So do you follow why it is a different kind of case? MR IRVING: I appreciate what Mr Rampton and your Lordship are

trying to say, but your Lordship will remember quite clearly that on more than one occasion I asked the witness, “Are these the eyewitnesses that you are relying on? Are there any more?” We had dealt, I think, by that time with five and he quite clearly said, no, there are no more that he was relying on at that point. MR JUSTICE GRAY: Not quite.

MR IRVING: And I think it is perverse now for Mr Rampton to say, yes, but what about Hoess or what about Aumeier or what about the others who are in the written report, but who the witness was inviting me not to cross-examine him on, shall I put it that way?

MR JUSTICE GRAY: I think, I hope, I accurately reflect Professor van Pelt’s evidence when I say this, that in relation to inmates’ eyewitness evidence, he was inclined to rely only on the very early reports, because he accepted the possibility of cross-pollination and contamination, or whatever you would like to call it, with the later ones.

But in relation to camp officials, I do not think he ever said that he was discarding any of them, as it were, as some support for the proposition that there was gassing there. That is my broad recollection of his evidence. MR IRVING: Well, in my closing speech I may have to remind your Lordship of the actual words. Your Lordship will probably remember that I also said to him, “How many

survivors were there?” and we came to several thousand. I said, “Why have you always then picked on just those five? Why haven’t you ever questioned any of the other 10,000?” MR JUSTICE GRAY: That is a point you are perfectly entitled to make. MR IRVING: My Lord, that is all I wish now to… MR JUSTICE GRAY: It is not a bad thing to have those points ventilated. Now I think it is Professor Browning? MR RAMPTON: He is here, my Lord. Yes.

Part IV: Professor Christopher Robert Browning examined by Mr. Rampton and Cross-Examined by David Irving (29.11-112.19)

Section 29.11-45.9

< PROFESSOR CHRISTOPHER ROBERT BROWNING, sworn. < Examined by MR RAMPTON QC. MR RAMPTON: Professor Browning, what are your full names? A. [Professor Christopher Robert Browning]: Christopher Robert Browning. Q. [Mr Rampton]: Have you made an expert witness report for the purposes of this case? A. [Professor Christopher Robert Browning]: Yes, I have. Q. [Mr Rampton]: Do you have it with you? A. [Professor Christopher Robert Browning]: I have my own report.

I do not have the pagination of the court’s. Q. [Mr Rampton]: We must make —- A. [Professor Christopher Robert Browning]: The reformatting of it. Q. [Mr Rampton]: — sure you have the same version as we do. I ask you only this, in so far as that report contains statements of fact, are you satisfied so far as you can be that they are accurate?

A. [Professor Christopher Robert Browning]: There are some things that I have become aware since the report that I would have added if I had known of them as of mid July 1999, but it only affirms what I have already written, except it changes some dates but, in general, I would say, yes, that the report still stands. Q. [Mr Rampton]: In so far as it contains expressions of opinion, are you satisfied in your own mind that those opinions are fair? A. [Professor Christopher Robert Browning]: Yes.

Q. [Mr Rampton]: Will you please remain there to be cross-examined by Mr Irving? < Cross-Examined by MR IRVING. MR JUSTICE GRAY: Mr Irving? MR IRVING: Good morning, Professor Browning. A. [Professor Christopher Robert Browning]: Good morning. Q. [Mr Irving]: You say you have made a number of fresh determinations on dates and things recently, since July 1999, that you would have written certain dates differently?

A. [Professor Christopher Robert Browning]: Yes, particularly the dates as to when certain special of Operation Reinhardt appeared. Q. [Mr Irving]: Which spellings? A. [Professor Christopher Robert Browning]: I would say now that we have not two but three different spellings, one with a T, one with a DT and one with a D, and that those all appear as of 1942 when earlier the first DT spelling I had found had been of 1943. Q. [Mr Irving]: What is the significance of 1942, in your opinion?

A. [Professor Christopher Robert Browning]: The significance of this would be if there are three

different spellings, that it was made in honour of any particular individual because one would know how the spelling was. Well, obviously, this was phonetic and they spelled it in any way that it occurred to them, and, of course, in 1942 is the height of the clearing of the gettoes and the killing of the Jews in Poland. Q. [Mr Irving]: Yes. We were going to come later on to the Aktion or Operation Reinhard.

Am I correct in saying that there has been one school of thought, the thought that the Operation Reinhardt had been named after the late lamented or unlamented chief of the security police, Reinhard Heydrich? A. [Professor Christopher Robert Browning]: That is one suggestion made because the files on personnel in Berlin spell it with just a D which is the way he spelt his name, so that was one suggestion that has been made which I do not endorse.

Q. [Mr Irving]: While we are on the matter, because we are going to have a joint journey of discovery and exploration over the next day or two, I think, have documents come to your attention that have the initials AR in them instead of a security classification? A. [Professor Christopher Robert Browning]: I only saw reference to that from the transcript here. Q. [Mr Irving]: Yes? A. [Professor Christopher Robert Browning]: But I had not noticed that myself.

Q. [Mr Irving]: It is an interesting discovery, would you agree? A. [Professor Christopher Robert Browning]: I would like to look at the documents to see how it was

written, but I had not noticed that before. Q. [Mr Irving]: Yes. You are familiar with the correspondence between Wolff and Gunsen Muller? A. [Professor Christopher Robert Browning]: Yes. Q. [Mr Irving]: In July 1942? A. [Professor Christopher Robert Browning]: Yes. Q. [Mr Irving]: Where Wolff — can you remember what Wolff wrote to Gunsen Muller?

A. [Professor Christopher Robert Browning]: Yes, he wanted trains and Gunsen Muller replied that, yes, he had trains and told him how many would be going each day. Q. [Mr Irving]: It is correct that Wolff replied that he was glad to hear that 5,000 of a chosen race were going to be sent to —- A. [Professor Christopher Robert Browning]: That is my memory of the document, yes. Q. [Mr Irving]: And is there any significance you would attach to the fact that that had the initials AR on it?

A. [Professor Christopher Robert Browning]: It could indicate that a copy of this was to be filed in some file called Aktion Reinhardt. Q. [Mr Irving]: So we are constantly discovering new things, is this correct? A. [Professor Christopher Robert Browning]: Yes. Q. [Mr Irving]: So that the last chapter on the Holocaust really still has to be written? A. [Professor Christopher Robert Browning]: We are still discovering things about the Roman Empire. There is no last chapter in history.

Q. [Mr Irving]: It is quite an adventure, though, is it not, as fresh

archives around the world open up, would you agree? A. [Professor Christopher Robert Browning]: Yes. Q. [Mr Irving]: Have you worked in — I suppose you have worked in the German archives, have you not? A. [Professor Christopher Robert Browning]: Yes. Q. [Mr Irving]: Have you worked in the archives in Munich? A. [Professor Christopher Robert Browning]: Yes. Q. [Mr Irving]: Have you had the opportunity to work in the Moscow archives yet?

A. [Professor Christopher Robert Browning]: No, I have not. Q. [Mr Irving]: What other major holdings are there of records on the Holocaust — for example, in the United States? A. [Professor Christopher Robert Browning]: There would be the National Archives collection of captured German documents and the microfilms at the United States Holocaust Museum from various East European archives and the Berlin Document Centre of Microfilms now also in the National Archives.

Q. [Mr Irving]: Have those microfilms also been placed in the German Federal Archives now? A. [Professor Christopher Robert Browning]: The German Federal Archives took over the originals of the Berlin Document Centre, so I presume they have both the microfilm and the originals in their possession. Q. [Mr Irving]: Shooting off on one brief side excursion, have you found German archives sometimes rather secretive about recently acquired collections?

A. [Professor Christopher Robert Browning]: The area where I have had difficulty is getting court

access to see pretrial interrogations because of the increased emphasis on privacy law in Germany. That is, I would say, the greatest difficulty that I have encountered. Q. [Mr Irving]: I am surprised by this. In other words, what you are saying is the pretrial interrogations of suspected war criminals or of witnesses conducted in the 1940s and 1950s? A. [Professor Christopher Robert Browning]: Mostly 1960s and ’70s. Q. [Mr Irving]: Have now been closed again, have they?

A. [Professor Christopher Robert Browning]: Not closed, but there simply is more paper work to get them. In the 1970s I could ask to see them and I would be granted immediate access by the local person. Now it has to go to somebody higher up to approve it. MR JUSTICE GRAY: Does it make any difference if they are dead?

A. [Professor Christopher Robert Browning]: No, generally it applies to whether you can see the records of this particular case, and they make no distinction as to whether people there are living or dead because the family members, children, would still be living too. I believe that there was concern, or at least that is what is cited, the family is still sensitive to the issues.

MR IRVING: Would it be right to say that if an historian went to Moscow and came back with the Goebbels diaries and gave them to German archives, they would then vanish for several years?

A. [Professor Christopher Robert Browning]: It is a possibility that they would say, “We need to classify these” and do whatever else and it would temporarily not be available. Q. [Mr Irving]: Are you familiar with the Goebbels diaries in any respect? A. [Professor Christopher Robert Browning]: Only in the publications of the various — the Frohich publication from Munich and previous publications. I have not worked in an original Goebbels.

Q. [Mr Irving]: Have you any sense of how long the period elapses between the arrival of the original diaries in the hands of those, shall we say, processors and the publication in generally accessible form? Is it a matter of months or weeks or years? A. [Professor Christopher Robert Browning]: I do not know. Q. [Mr Irving]: Professor Browning, do you have any particular problems as a non-Jewish historian writing about the Holocaust?

A. [Professor Christopher Robert Browning]: Could you tell me a little more — can you give me a little more direction as to what you are looking at? In terms of do I have a psychological problem or personal problem? Have I encountered —- Q. [Mr Irving]: Professional problems? A. [Professor Christopher Robert Browning]: — professional problems?

Occasionally, one might say that it has been — I can say in one or two cases I think it affected the opinions of some people concerning my publications. Q. [Mr Irving]: I do not want to explore this in any great depth, but would I be right in suggesting that the Jewish historians

regard the Holocaust as their patch? A. [Professor Christopher Robert Browning]: No, I would not. I think, in fact, many of them were very accepting of my coming into the field because it, in fact, indicated that this was not their patch, if I can use your phrase, but something that was not just important to Jewish history but important to world history, and that the fact that a non-Jewish historian would look at this would be seen as a validation of the universal importance of the topic, not

just that it was a parochial ethnic history of a particular people and that no one else, this was not important to anyone else. So I would say I have had for more re-affirmation of supports from Jewish historians than the very few cases in which I felt my work would have been seen in a negative way because I was not Jewish. Q. [Mr Irving]: So you have not been disadvantaged in any way by being a non-Jewish historian?

A. [Professor Christopher Robert Browning]: There are one or two instances where that may have been the case, but far more prominent — far more often that has not been the case. Q. [Mr Irving]: You used to be Professor of History at Pacific State Luther University? A. [Professor Christopher Robert Browning]: Pacific Luther University. Q. [Mr Irving]: In Tacoma in Washington State? A. [Professor Christopher Robert Browning]: Tacoma, Washington.

Q. [Mr Irving]: You are now currently a Professor of History at?

A. [Professor Christopher Robert Browning]: University of North California at Chapel Hill. Q. [Mr Irving]: At Chapel Hill. One of the most prestigious universities to have held tenure at would have been Harvard, would it not? A. [Professor Christopher Robert Browning]: Harvard would be a very prestigious university. Q. [Mr Irving]: So if a chair in Holocaust studies had been appointed in Harvard, it is a position you would have applied for or hoped to obtain?

A. [Professor Christopher Robert Browning]: I was considered for a position there. Q. [Mr Irving]: What militated against you, do you think? A. [Professor Christopher Robert Browning]: No one received the position, Jewish or non-Jewish historians. At least one person on the Search Committee made a statement to the press that they felt that only someone deeply grounded in Jewish culture should be eligible. Q. [Mr Irving]: What did he mean by that, do you think?

A. [Professor Christopher Robert Browning]: Well, in fact it was a she and the statement was applied to me and the other candidates because they were mainly working in German history, not in Jewish history, and I think this was meant that she did not like any of the candidates. MR JUSTICE GRAY: No. So no one was appointed, is that what you say? A. [Professor Christopher Robert Browning]: No one was appointed.

MR IRVING: In fact, the man who had put up money for this new chair then starting raising obstacles, is this not right?