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Shofar FTP Archive File: people/i/irving.david/libel.suit/judgment-05.03


Newsgroups: alt.revisionism
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Subject: Irving v. Penguin & Lipstadt: Judgment V-03
Organization: The Nizkor Project
Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-05.03
Last-Modified: 2000/04/11

5.61 Evans alleged that Irving is guilty of further manipulation of
evidence in relation to the account given by Hitler's adjutant,
Wiedemann, which Irving uses to support his thesis that Hitler ordered
Goebbels to stop the attacks when he heard about them. In Goebbels
Irving writes:

     "Fritz Wiedemann, another of Hitler's adjutants, saw Goebbels
     spending much of that night, 9th/10th, telephoning . to halt the
     most violent excesses".

Evans claimed that there are good reasons to doubt the reliability of
Wiedemann and that in any event Irving has distorted or at least
exaggerated his evidence. What in fact Wiedemann wrote was that "it is
reliably reported that" Goebbels had been seen making these telephone
calls. There was therefore no justification for Irving's claim that
Wiedemann "saw" Goebbels making these calls. It was mere hearsay. In any
event, said Evans, the picture conveyed by Irving is wholly inconsistent
with other evidence of what Goebbels was doing that night.

5. 62 Irving is further criticised by the Defendants for ignoring
evidence, which according to Evans is inherently more reliable, namely
the evidence contained in the report of the Supreme Party Tribunal
report of 13 February 1939. That report includes a finding that when, at
about 2am on 10 November, Goebbels was informed of the first death of
the Jew in the progrom, he reacted by saying it would be the first of
many. This reaction accords, say the Defendants, with the diary entry
made by Goebbels that morning rejoicing in the violence ("Bravo!").

5.63 Lastly in relation to the events of Kristallnacht, Irving at p281
of Goebbels quotes from the diary of a diplomat named van Hassell
recording the reaction of Rudolf Hess to the violent actions directed at
the Jews. It reads:

     "[Hess] had left [the Bruckmanns] in no doubt that he completely
     disapproved the action against the Jews; he had also reported his
     views in an energetic manner to the Fuhrer and begged him to drop
     the matter, but unfortunately completely in vain. Hess pointed to
     Goebbels as the actual 'originator' ".

In Goebbels Irving refers only to Hess's view that Goebbels was the
originator of Kristallnacht. Whilst no objection was taken by him to the
use of that part of the quotation, Evans did criticise Irving' for his
failure to refer to what Evans regarded as the far more significant
aspect of Hess's account, namely that Hitler had ignored his plea to
halt the progrom. That omission amounts, according to Evans, to a
blatant misrepresentation of the diary entry. Evans also criticised
Irving for his failure to mention the immediately following passage from
the same diary which recounts a conversation Hassell had with the
Prussian Finance Minister, Popitz, who is recorded as having said that
Goering considered Hitler responsible for the events of Kristallnacht.

5.64 Evans concluded that Irving's claim that during the night of 9/10
November Hitler did everything he could to prevent violence towards the
Jews and their property is based upon a tissue of inventions,
manipulations, suppressions and omissions.

Irving's response

5.65 Irving denied that in his account of the events of Kristallnacht he
had misrepresented the attitude Hitler adopted towards the violence
directed at the Jews and their property. He maintained that the violence
was initiated and promoted by Goebbels, who was acting without the
authority of Hitler. He argued that, once Hitler became aware of the
scale of the anti-Jewish rioting, he did his best to limit the violence.

5.66 Irving justified his translation of the account given by Goebbels
in his diary of the remarks made by Hitler when he was told about the
demonstrations as an attempt on his part to convey to his readers in the
vernacular the flavour of Goebbels's style of writing in his diary. He
denied that his version contains any mistranslation of the entry. As to
the significance of what Hitler ordered at that early stage of the
evening's events, Irving at one stage in his evidence suggested that
what Goebbels had reported to Hitler was the death of van Rath rather
than that demonstrations against Jews had broken out. But he later
conceded that Hitler would have been told about the demonstrations
against Jews. He emphasised that, at the point when Hitler gave his
order for the police to be pulled back, the scale of the anti-Jewish
demonstrations was modest. So it could not be said, claimed Irving, that
Hitler was sanctioning excessive violence. It was not until later that
night, towards midnight, that the demonstrations got out of hand and
turned into a full-scale pogrom against the Jews.

5.67 Irving accepted that his account of Hitler's reaction on hearing in
the early hours of the morning of 10 November about the outrages which
were taking place is heavily reliant on the testimony of Hitler's
adjutants provided many years after the event. Irving said that he was
scrupulously careful not to put words into the mouths of those whom he
interviewed. Irving testified that he spoke to von Below on no less than
ten occasions. He claimed that what von Below then said is more worthy
of belief than what he wrote in his memoirs. Irving pointed out there is
no evidence which directly contradicts the accounts of the adjutants on
which he has placed reliance. Their accounts converge and so may be said
to corroborate one another. Irving did not accept that, in accepting the
evidence of the adjutants about Kristallnacht but rejecting for example
the evidence of survivors about events at Auschwitz, he has been guilty
of applying double standards.

5.68 As to Muller's telegram, Irving agreed that he was aware of it but
made no mention of it in Goebbels. He testified that he did not regard
it as adding much. Moreover Irving did not accept that the evidence
shows that Hitler authorised or even knew of Muller's order. Muller was
in Berlin whereas Hitler was in Munich. Nor, said Irving, does
Bohmcker's message add anything to what is already known from other
sources. He pointed out that he did refer to Bohmcker in a footnote.

5.69 Irving denied having misrepresented Heydrich's telex of 1.26am. The
reference given in the footnote in Goebbels for this message is ND:3052-
PS. In cross-examination the message with reference number ND:3051-PS,
which the Defendants claim is Heydrich's 1.20am message, was put to
Irving. He said that he was quoting from a different message sent by
Heydrich, namely ND:3052-PS, which is the reference given in Goebbels.
He disagreed with the suggestion that it was unlikely that Heydrich
would have sent another telex at about the same time. His answer to the
Defendants' accusation of misrepresentation was therefore that he was
summarising the content of a different message sent by Heydrich at about
the same time (which he was unfortunately unable to produce). However,
when confronted with the text of message ND:3052-PS which the Defendants
had obtained overnight, Irving accepted that it cannot have been the
source for what he wrote. When reminded that on his own website he had
admitted muddling 3051 and 3052, Irving conceded that there had been no
other source for what he wrote about Heydrich's telex. In the end, as I
understood him, Irving answered the criticism made by the Defendants of
his account in Goebbels of Heydrich's telex by saying that, if he
misinterpreted it, it was an innocent error or glitch which occurred in
the redrafting process. He maintained that the error is in the context
of the book as a whole a trivial one. In any event Irving reiterated
that at this stage in the evening (1.20am), the full-scale pogrom had
still not developed.

5.70 As regards Eberstein's telephone message at 2.10am, Irving gave
various reasons why he attached no importance to it. He claimed that the
original message would have gone out earlier. It is, he argued, a mere
repetition of the instruction to the police not to interfere. Irving put
to Evans various suggestions about the message: that Eberstein might not
have been present when it was sent; that Eberstein might have been with
Hitler when it went out; that it was an "igniting" document. In any
event, said Irving, the message was overtaken by events.

For these reasons Irving said that he saw no need to refer to it in
Hitler's War. Evans accepted none of these suggestions. Whether or not
it is likely that Eberstein would have sent that message after seeing
Hitler's reaction to the news of the night's events, Irving stated that
two eye-witnesses, namely adjutants von Below and Futkammer, had
confirmed Hitler's angry reaction to the news. In regard to Hederich,
Irving justified his reliance upon his evidence. He contended that there
was no reason for doubting what Hederich was quoted as having said.
Despite having written in Goebbels that what Goebbels said "conflicted
with the tenor of Hitler's speech", Irving denied that Hederich had
meant that Hitler made a speech at the Old Town Hall: he was referring
to what he understood Hitler to have been saying about the violence.
Irving did not accept the criticisms advanced by Evans of his reliance
on these witnesses (summarised above).

5.71 Irving disagreed totally with the interpretation placed by the
Defendants upon Rudolf Hess's message sent at 2.56am. He pointed out
that it was he who had discovered the message and first brought it to
the notice of historians. Whilst he accepted that there might have been
reasons for singling out Jewish businesses for protection, such as the
danger of damage being done to adjacent non-Jewish property or the
likelihood that the Jewish property was insured with non-Jewish
insurance companies, he was adamant that the order was intended to
confer blanket protection on all Jewish property. He read the words und
dergleichen as qualifying acts of arson, so that his interpretation of
the message is that it covers acts of arson and all other forms of
violence. He did not accept that the order of words in the message
indicates that und dergleichen qualifies shops, so extending the order
to shops and the like. It was Irving's case that the order sent at
2.56am emanated from Hitler and it was a direction that all actions
against the Jews must stop forthwith. Accordingly his description of the
message as conveying an order from Hitler "to halt the madness" was
appropriate and justified. Furthermore, in his response to the
Defendants' closing submission, Irving also drew attention to a telegram
sent out at 3.45am by Gestapo Section II signed "p.p. Bartz" which
required the immediate execution of Heydrich's order that all kinds of
arson were to be hindered.

5.72 Given the passage of time since he had tried to decipher the
handwriting of Wiedemann, Irving felt unable to respond the criticism
that he had misrepresented his account. He did agree that he may have
made a mistake. Irving agreed that at the time when he was writing
Goebbels he was aware of the diary entry of Hassell recording the
comments made about Kristallnacht by Rudolf Hess. Irving argued that,
when Hess said he had reported his views in an energetic manner to
Hitler and begged him to drop "the matter", Hess was obviously referring
to the action subsequently taken by the Nazi party to fine the Jews.
Hess was not begging Hitler to drop the anti-Jewish actions when they
were in progress that night. Evans dismissed that as a blatant
misconstruction of the diary entry which was plainly referring to the
violence. Irving commented that he did not in any event consider that
the entry adds much to what is already known.

(i) The aftermath of Kristallnacht

Introduction

5.73 Once the killing, rape and wholesale destruction of property which
marked Kristallnacht came to an end, questions arose how these actions
against the Jews had come about and what should be done with the
perpetrators. Discussions took place between Hitler and Goebbels. In due
course the Oberste Parteigericht, a party court which formed no part of
the criminal justice system, conducted an investigation and compiled a
report about the affair.

The Defendants' case

5.74 In relation to Irving's portrayal of the events immediately
following Kristallnacht, Evans again made criticisms of the manner in
which he manipulated, misquoted and discounted reliable evidence. Evans
contended that, contrary to the impression conveyed by passages in
Goebbels at pp277-8, the diary entries made by Goebbels, as well as
statements made by him at the time, provide convincing proof that Hitler
wholeheartedly approved the pogrom and himself afterwards proposed
economic measures to be taken against Jews.

5.75 Page 277 of Goebbels includes the following paraphrase of
Goebbels's diary entry:

     "As more ugly bulletins rained down on him the next morning, 10
     November 1938, Goebbels went to see Hitler to discuss 'what to do
     next' - there is surely an involuntary hint of apprehension in the
     phrase".

The vice which the Defendants perceive is that Irving's account suggests
that Goebbels knew he was to blame for the pogrom and was apprehensive
that Hitler would be angry with him. The Defendants contend that Irving
had no basis whatever for adding the gloss that Goebbels was
apprehensive since there is no such indication to be found in the diary.
Far from being apprehensive, Goebbels's diary entry for 11 November
shows how delighted he was at the success of the pogrom. Irving claimed
that this entry is mendacious.

5.76 Goebbels's diary entry continues:

     'I report to the Fuhrer in the Osteria. He agrees with everything.
     His views are totally radical and aggressive. The action itself has
     taken place without any problems. 17 dead. But no German property
     damaged. The Fuhrer approves my decree concerning the ending of the
     actions with small amendments. I announce it via the press and
     radio. The Fuhrer wants to take very sharp measures against the
     Jews. They must themselves put their businesses in order again. The
     insurance will not pay them a thing. Then the Fuhrer wants a
     gradual expropriation  of Jewish businesses'.

The Defendants contend that this passage from Goebbels's diary makes
crystal clear that, far from condemning Goebbels for what had occurred
during Kristallnacht, Hitler in fact approved what had happened. The
Defendants add that this is borne out by the fact that Goebbels that
same afternoon told the local party chief that the Fuhrer had sanctioned
the measures taken thus far and had declared that he did not disapprove
of them.

5.77 Yet at page 278 of Goebbels Irving described the meeting at the
Osteria in the following terms:

     "[Goebbels] made his report [on 'what to do next'] to Hitler in the
     Osteria . and was careful to record this - perhaps slanted - note
     in his diary which stands alone, and in direct contradiction to the
     evidence of Hitler's entire immediate entourage. 'He is in
     agreement with everything. His views are quite aggressive and
     radical. The action itself went off without a hitch. 100 dead. But
     no German property damaged. Each of these five sentences was untrue
     as will be seen".

The Defendants cite this as an instance of Irving perverting what
Goebbels recorded in his diary and distorting what actually happened in
order to exculpate Hitler.

5.78 Evans deduced that the probable sequence of events was that during
the morning of 10 November Hitler and Goebbels discussed what to do
next. Hitler told Goebbels to draft an order calling a halt to the
violence because, in effect, the objective had by that stage been
achieved. They then met for lunch at the Osteria and Hitler approved the
order Goebbels had drafted. The terms of the order were broadcast at
some stage during the afternoon and the order was formally promulgated
at 4pm. The significance of the timing, according to Evans, is that the
violence was in effect permitted to continue for most of 10 November.
(In Vienna the violence against the Jews did not begin until 10 o'clock
that morning).

5.78 At a meeting held on 12 November, attended by amongst others
Goering and Goebbels, the decision was taken that the Jews should,
irrespective of any insurance cover, bear the cost of the pogrom; that
Jewish property should be "aryanised" and that Jews should be forbidden
to run shops or businesses. Evans criticised Irving for omitting to
mention, in his account of this meeting at p281 of Goebbels, that these
decisions reflected the wishes expressed by Hitler on 10 November and,
according to Goering, were taken in response to Hitler's express
request. Nor does Irving mention that, according again to Goering and to
an official of the Four Year Plan named Kehrl, Hitler had expressly
endorsed the action taken against the Jews.

5.79 At p281 of Goebbels, Irving writes:

     "Hess ordered the Gestapo and the party's courts to delve into the
     origins of the night's violence and turn the culprits over to the
     public prosecutors".

The Defendants assert that, since the court in question was a party and
not a criminal court, there was no warrant for Irving to write that the
culprits were to be handed over to the public prosecutors. Further Evans
pointed out that the document cited in support of this passage, an order
of 19 December 1938, made clear that referrals to the prosecution
service were to take place only in cases arising out of "personal and
base motives". The Ministry of Justice had already ordained that no
action was to be taken in those cases where Jewish property was set on
fire or blown up. None of this is mentioned by Irving. On the
Defendants' case, the intent and effect of Hess's order is thus
completely misrepresented by Irving, whose wording suggested to his
readers that the Nazis determined to take firm disciplinary action
against party members who had been guilty of unlawful violence during
Kristallnacht and that anyone guilty of any misdemeanour would be handed
over to be dealt with in the criminal courts.

5.80 In the event, according to the Defendants, the proceedings of the
Party Court were a farce. According to its report of 13 February 1939,
it investigated only sixteen cases of alleged unlawful activity. In only
two of those cases were the suspects handed over to the criminal courts.
Those two cases involved sexual offences against Jewish women: the
reason for their referral was that the offences involved 'racial
defilement'. In the other fourteen cases (which included allegations
that twenty-one Jews had been murdered), the punishments were trivial,
apparently because the Party Court took the view that the culprits were
carrying out Hitler's orders. Hitler was asked to quash the proceedings
against those fourteen. The criticism of Irving is that he makes no
reference to what the Defendants describe as a scandalous manipulation
of the justice system. The disciplinary action instituted by the Nazi
party was virtually non-existent.

5.81 Irving suggested in Goebbels that following Kristallnacht Hitler
distanced himself from Goebbels because he disapproved what he had done.
But Evans contended that the record, including Goebbels's diary,
suggests otherwise. For instance Goebbels reported in his diary that,
when Hitler visited him on 15 November , Hitler "was in a good mood.
Sharply against the Jews. Approves my and our policy totally". Evans
asserted that there is no justification whatever for supposing that, as
Irving implies at p282 of his book, that that was an invention on the
part of Goebbels.

5.82 Evans also disputed Irving's claim that the memoirs of Ribbentrop
are further evidence that of Hitler's disapprobation of Goebbels.
According to Evans, the documents cited by Irving do not upon
examination support his claim that Goebbels was a pariah in Berlin and
even less popular than Ribbentrop and Himmler. Evans noted Irving makes
several references to an author named I Weckert, without giving the
reader any indication that she is a well-known anti-semitic Nazi
sympathiser, who in Evans's opinion is discredited as an historian.

5.83 The final criticism made by Evans is that at p276 of Goebbels and
elsewhere Irving seriously understates the suffering inflicted upon the
Jews in the pogrom. The number of synagogues destroyed far exceeded
Irving's figure of 191. The extent of the damage to Jewish shops is also
downplayed by Irving. The number of Jews killed was many more than the
thirty-six claimed by Irving, even if those who died en route to
concentration camps are left out of account.

Irving's response

5.84 By way of explanation of his reference to Goebbels having felt
apprehensive when he went to see Hitler on 10am November 1938, Irving
stressed that his paraphrase "what to do next" is an accurate rendition
of the German :

     "Ich uberlege mit dem Fuhrer unsere nunmehrigen Massnahmen".

According to Irving, those words mean that Goebbels discussed with
Hitler the measures which need to be taken "now more than ever". The
reason why he wrote that Goebbels was apprehensive was that he had been
summoned to see Hitler at a time when Germany was going up in flames.
Goebbels had believed that he had acted in accordance with Hitler's
wishes but to his consternation he had discovered that he had been doing
the exact opposite of what Hitler wished. Irving did, however, agree
that Goebbels's diary entry indicates that he was discussing with Hitler
whether to let the actions against the Jews continue or to call a halt.
He claimed (and Evans agreed) that the probability is that in the course
of a telephone conversation on the morning of 10 November Hitler
instructed Goebbels to draw up an order calling a halt to the violence.


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