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Subject: Irving v. Penguin & Lipstadt: Judgment V-09
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Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-05.09
Last-Modified: 2000/04/11

5.220 Irving, say the Defendants, having unjustifiably praised Hitler
for his intercession on behalf of the Jews, compounds the error by
suppressing the fact that the Roman Jews were murdered.

Irving's response

5.221 The nub of Irving's response is that the order handed down by
Hitler meant what it said, namely that the Jews were not to be
liquidated as the SS had apparently been intending, but rather that they
should be kept alive in Mauthausen for later use as hostages should the
need arise. Irving claimed that Hitler did indeed intercede in a manner
which was intended by him to preserve the lives of the Roman Jews. He
did not accept that Hitler foresaw, still less that he intended, that
the SS would send them to their deaths. That the Roman Jews were in the
event murdered was a violation of Hitler's express order and contrary to
his intention. Irving denied any manipulation of the evidence or
suppression in his account of this episode.

(xiv) Himmler's speeches on 6 October 1943 and 5 and 24 May 1944

Introduction

5.222 On 6 October 1943 Himmler spoke to a gathering of Reichsleiter and
Gauleiter. He said:

     "I do ask you to keep secret, to listen to what I am saying and
     never to speak about it, what I am saying in these circles. We came
     up against the question, what about the women and children, and I
     took the decision here too for a clear solution. I did not consider
     myself justified in liquidating just the men to leave alive the
     children to act as the avengers against our sons and grandchildren.
     There had to be taken the grave decision to have this people
     disappear from the face of the earth".

5.223 The following year, on 5 May 1944, Himmler spoke to the generals
of the Wehrmacht. According to the transcript of his speech he said:

     "The Jewish question has been solved within Germany itself and in
     general within the countries occupied by Germany. It was solved in
     an uncompromising fashion in accordance with the life and death
     struggle of our nation in which the existence of our blood is at
     stake. You can understand how difficult it was for me to carry out
     this soldierly order (soldatische Befehl) and which I carried out
     from obedience and from a sense of complete conviction".

5.224 Next on 24 May 1944 Himmler spoke to the generals again, saying:

     "Another question which was decisive for the inner security of the
     Reich in Europe was the Jewish question. It was uncompromisingly
     solved after orders and rational recognition. I believe gentlemen
     that you know me well enough to know that I am not a bloodthirsty
     person. I am not a man who takes pleasure or joy when something
     rough must be done. However, on the other hand I have such good
     nerves and such a developed sense of duty I could say that much for
     myself. When I recognise something as necessary, I can implement it
     without compromise. I have not considered myself entitled, this
     concerns especially the Jewish women and children, to allow the
     children to grow into the avengers who will murder our fathers and
     grandchildren. That would have been cowardly. Consequently, the
     question was uncompromisingly resolved".

Defendants' case

5.225 The Defendants contend that in all three speeches Himmler is
speaking in brutal terms of the murder of the Jews. Irving did not
dissent from this. But for present purposes, the primary significance of
this trilogy of speeches is that they shed light on the question whether
Hitler knew of the killing. As to the first of these speeches the
Defendants say that Himmler would not have spoken in such explicit terms
if Hitler was unaware of the killings. Himmler would have realised that
members of his audience would or might raise the matter with Hitler. In
relation to the speech on 5 May 1944 the Defendants contend that the
reference to a "soldierly order" must signify that Himmler had taken his
order as to the solution to the Jewish problem from Hitler since he is
only person in a position to give orders to Himmler. Similarly, in
relation to the speech of 24 May, the Defendants assert that the
"orders" must connote orders from Hitler. Read together, the Defendants
maintain that the terminology of the speeches by Himmler in May 1944
demonstrate Hitler's knowledge of and responsibility for the murders of
Jews including women and children.

5.227 The Defendants direct particular criticism at Irving for the way
in which he deals at  p630 of Hitler's War (1977 edition) with the
speech of 5 May. He there paraphrases what Himmler in such a way as to
conceal the uncompromisingly brutal language used by Himmler. After the
reference to Himmler's speech, Irving adds:

     "Never before, and never after, did Himmler hint at a Fuhrer order,
     but there is reason to doubt that he showed this passage to his
     Fuhrer".

The Defendants reply that it is pure surmise on Irving's part that the
relevant passage was not shown to Hitler but it is presented by him to
the reader as established fact. They point out that in the 1991 edition
the reference to Himmler's speech of 5 May has been omitted altogether.
The Defendants maintain that it is an important part of the narrative
because it casts light on Hitler's role in the extermination of the
Jews. The inescapable inference is that Irving was determined to avoid
compromising Hitler.

5.228 The reader is directed to a footnote in which Irving claims that
the page containing the key sentence referring to a military order was
"manifestly" retyped and inserted in the transcript at a later date.
Irving suggested that this indicates that the version of the speech
which was shown to Hitler was sanitised so as to exclude any reference
to Himmler having been ordered by Hitler to carry out a bloody solution
to the Jewish problem. It is Irving's argument that Himmler did this
because he knew very well that Hitler had given him no such order.

Irving's response

5.229 Irving accepted that with effect from October 1943 it has to be
conceded that Hitler cannot have been ignorant of the extermination
programme. But he emphasised that in his speech on 6 October 1943.
Himmler spoke of a decision which he, rather than Hitler, had taken. He
disputed the contention that the speech of 5 May points towards the
existence of a Hitler order. From the facts the transcript of the
relevant page of the speech has evidently been typed on a different
typewriter and the pagination has been altered, Irving deduced that the
document has been tampered with and is accordingly unreliable. He
rejected the mundane explanation that Himmler was simply revising what
he proposed to say in his speech. Irving further argued that it is to be
inferred that the transcript was sanitised before it was submitted to
Hitler because Himmler did not want Hitler to know that he (Himmler) was
claiming falsely to have been acting on the order of Hitler. As to the
speech of 24 May (which Irving suspects has also been tampered with) he
argued that the orders referred to could just as well be taken to mean
orders given by Himmler to his subordinates.

5.230 Irving defended the treatment of these speeches in Hitler's War by
saying that he quoted them and left the reader to draw his or her own
conclusions. He pointed out that at the meetings between Hitler and
Himmler which took place during the summer of 1944 Hitler is reported to
be referring still to the expulsion (rather than the extermination) of
the Jews. These statements cannot be airily dismissed as camouflage
since Hitler had no need to use euphemisms when speaking to Himmler.

(xv) Hitler's speech on 26 May 1944

Introduction

5.231 Hitler addressed senior officers of the Wehrmacht on 26 May 1944
in the following terms:

     "By removing the Jew, I abolished in Germany the possibility to
     build up a revolutionary core or nucleus. One could naturally say
     to me: Yes, couldn't you have solved this more simply - or not
     simply since all other mans would have been more complicated - but
     more humanely? My dear officers, we are engaged in a life or death
     struggle. If our opponents win in this struggle, then the German
     people would be extirpated".

The case for the Defendants

5.232 The Defendants maintain that this amounts to an admission by
Hitler that had used inhumane means to remove (that is, to kill) the
Jews. They contend that Irving obfuscates the true sense of what Hitler
was saying at p631 of Hitler's War (1977 edition). Irving there prefaces
his quotation from Hitler's speech with the comment that Hitler was
speaking "in terms that were both philosophical and less ambiguous". He
writes that Hitler was speaking of the reasons why he had "expelled" the
Jews. The Defendants argue that by these devices Irving sought to blunt
the significance of the reference by Hitler to the "extirpation" of the
Jews.

Irving's response

5.234 Irving pointed out that it was he who first discovered the text of
this speech. He claimed that he quoted it accurately. He agreed that the
less humane method of which Hitler spoke may well have been killing. But
again he said that he left it to his readers to draw their own
conclusions.

(i) Ribbentrop's testimony from his cell at Nuremberg

Introduction

5.235 In a footnote at p851 of the 1977 edition of Hitler's War Irving
quoted a passage extracted from notes made by Ribbentrop when
incarcerated in the prison at Nuremberg:

     ".. that [Hitler] ordered [the destruction of the Jews] I refuse to
     believe, because such an act would be wholly incompatible with the
     picture I always had of him".

The case for the Defendants

5.236 The Defendants make no complaint of what Irving did quote from
Ribbentrop's notes. But they do criticise him severely for his omission
to quote the immediately following passage which reads:

     "On the other hand, judging from [Hitler's] Last Will, one must
     suppose that he at least knew about it, if, in his fanaticism
     against the Jews, he didn't also order [it]".

The Defendants say that this editing of Ribbentrop's notes is
indefensible. They further criticise Irving for not questioning the
reliability of Ribbentrop as a source, given his unwavering loyalty to
Hitler and his own demonstrably false claim to have been unaware of the
fate awaiting the Jews after their deportation.

5.237 Further the Defendants allege that Irving has unjustifiably
ignored the account by the prison psychologist at Nuremberg, Dr Gilbert,
of his conversation with Ribbentrop in which the latter appears to
concede that Hitler may have ordered the extermination of the Jews in
1941. Evans asserted that Irving has also ignored the transcript of a
conversation in which Ribbentrop tells a British officer how in 1944 he
discussed with Hitler the atrocities taking place in the camps.

5.238 The consequence of Irving's carefully selected quotation together
with his omission of other quotations is that the reader is given a
wholly distorted impression of Ribbentrop's view of the knowledge of the
Holocaust possessed by Hitler.

Irving's response

5.239 Irving agreed that he left out from his citation of Ribbentrop's
prison notes the passage which is cited above. He did so because writers
have to be selective and avoid writing "pages of sludge". The omitted
passage cried out to be cut. It was mere supposition on Ribbentrop's
part. Irving disagreed with the suggestion that his account gave a false
and unbalanced picture of Ribbentrop's assessment of Hitler's
responsibility for the extermination of the Jews. Irving justified his
omission of the other statements made by Ribbentrop about Hitler's
knowledge of the extermination of the Jews by saying that none of them
is reliable.

(xvii) Marie Vaillant-Couturier

Introduction

5.240 Marie Vaillant-Couturier, a gentile and member of the resistance
in France, was a prisoner in the womens' camp at Auschwitz from 1942
until the end of the war. In 1946 she gave vivid and detailed evidence
to the International Military Tribunal at Nuremberg about the atrocious
conditions in the camp, the sterilisation of women, the killing of
babies born to women who arrived pregnant and so on. One of the
presiding was judges was an American, Judge Biddle.

Case for the Defendants

5.241 In relation to Mme Vaillant-Couturier the criticism directed at
Irving by van Pelt relates, not to his published work, but to his claim,
made on occasions, including a press conference in 1989 to celebrate the
English publication of the Leuchter report (with which I shall deal in
the section VII relating to Auschwitz), that:

     "she gave a heart-breaking testimony about what she had survived
     and in his diary at the end of the day, Judge Biddle privately
     wrote 'I don't believe a word of what she is saying, I think she is
     a bloody liar' ".

Irving made a similar statement earlier, on 13 August 1988, at Toronto,
when he claimed that the Judge had written "All this I doubt" (emphasis
added).

5.242 The Defendants contend that these statements wholly misrepresent
the view which the Judge took of Vaillant-Couturier's evidence. The
Judge's contemporaneous note of her evidence reveal that he inserted in
parentheses the words "This I doubt" at the end of a paragraph in which
he noted her claim that all camps had a system of selecting prostitutes
for SS officers. That does not appear to have been a claim that she made
of her own knowledge. There is no reason whatever, say the Defendants,
for supposing that Judge Biddle disbelieved any other aspect of her
testimony. The statement made by Irving at the press conference was a
disreputable attempt by him to discredit the witness on a basis which,
as he must have appreciated, was utterly untenable. The addition of the
word "all" in the Toronto speech was, say the Defendants, deliberate
distortion.

Irving's response

5.243 Irving did not accept that Judge Biddle's note was referring
merely to the passage which I summarised above. He asserted in his
closing submission that, when cross-examining her, defence counsel had
suggested that she had not even been in Auschwitz. This was not a
proposition which Irving put to Evans in cross-examination (and he
directed no questions on this topic to van Pelt). Irving argued that Mme
Vaillant-Couturier had made some absurd claims in her testimony (for
example that there was a man-beating machine at the camp). Irving
persisted in his claim that, from what he had read of the Judge's
private papers on the testimony given by the various witnesses, he was
able to assert that Judge Biddle was making a general comment on her
evidence. Irving did not produce whatever papers he was basing this
claim upon.

5.244 In his evidence he asserted that Judge Biddle "became so fed up
with this woman's testimony that he can finally stand it no longer and
he dictates in parenthesis into his report - he says 'this I doubt'".
But he did agree that what he had said at the launch of the Leuchter
report was a "gloss" on the Judge's comment. He excused it by saying,
incorrectly, that it was years since he had read the judge's notes. By
way of explanation for the fact that he had quoted the Judge as saying
'All this I doubt" when he spoke in Toronto, Irving claimed, firstly,
that he added the word 'all' to make it more literate for his audience
and later that the Judge had altered the words "This I doubt" to "All
this I doubt". He produced no evidence for the latter claim.

(xviii) Kurt Aumeier

Introduction

5.245 Kurt Aumeier was for a while Hoss's deputy at Auschwitz. Shortly
after the war he was captured and interned by the British. Whilst in
captivity he wrote two hundred pages of hand written memoirs about his
experiences at the camp. He went into great detail about the manner in
which the gas chambers were operated. He described the gassing
procedures and referred to the construction of crematorium 3. He was
subsequently extradited to Poland, where he was tried, found guilty and
hanged. His memoirs did not become available to historians until 1992,
when they were read by Irving shortly after their release by the Public
Record Office in London.

The Defendants' case

5.245 The Defendants contend that, despite the existence of a number of
inaccuracies in his account, Aumeier is an important and credible
witness whose detailed description of Bunkers I and II and the way the
gas chambers in crematoria 2 and 4 were operated powerfully supports
their case for saying that gas chambers were used on a massive scale at
Auschwitz. Through van Pelt and Evans the Defendants allege that Irving
recognised the problem Aumeier's memoirs posed for revisionists in
relation to the existence gas chambers at Auschwitz. He wrote to
Marcellus of the Institute for Historical Research ("the IHR") on 4 June
1942 that "these MSS are going to be a problem for revisionists, and
need analysing now in advance of our enemies and answering".

5.246 In order to meet the "problem" posed by Aumeier's account, Irving
first surmised, without any evidential basis for doing so, that his
account had been extracted by brute force on the part of his
interrogators. Thereafter, Defendants allege that Irving suppressed the
Aumeier material because it powerfully undermined his thesis that there
were no gas chambers at Auschwitz. He continued to make speeches denying
the Holocaust without mentioning Aumeier's account. Although Irving had
read the memoirs in 1992, it was not until May 1996 that Irving informed
van Pelt by writing to tell of their existence. Van Pelt observed that
the private disclosure of the memoirs to him is a far cry from placing
them in the public domain, which is what a reputable and objective
historian should and would have done.

Irving's response

5.247 Irving agreed that he wrote to Marcellus of the IHR saying that
the Aumeier manuscripts were going to be a problem for revisionists and
that they needed to be analysed in advance of "our enemies" and
answered. What Irving claimed he meant by this was that the memoirs were
damaging to the revisionist position. He said that the "enemies"
referred to were irresponsible historians who will leap onto any
document and inflate it.

5.248 Despite what he wrote to the IHR, Irving argued that Aumeier is an
unreliable witness. Amongst the errors in his account to which Irving
pointed was his claim that during his tenure of office at Auschwitz
(which lasted for most of 1942) 15,000 people were killed by gas at
Auschwitz. That estimate does not accord with other evidence. In
addition many of his dates are confused. Irving maintained his claim
that Auemier had been subjected to maltreatment by his British captors.
He identified a British officer who, he claimed, used brute force to
compel Aumeier to provide a more detailed and exaggerated account of
what he had seen. These were the reasons why Irving confined his
reference to Aumeier's evidence in his writings about Auschwitz to a
footnote in his book Nuremberg. When it was pointed out to him that he
had there referred to Aumeier's testimony as "compelling", Irving
explained that he meant it was compelling evidence which needed to be
examined. Irving pointed out that the footnote did also make reference
to the pressure brought to bear upon Aumeier during his interrogation.

5.249 Irving denied the charge of suppression. He said that he drew the
attention of various historians to Aumeier's account. In May 1997 he
wrote to van Pelt, the acknowledged world expert, telling him of the
memoirs but received no reply. (Van Pelt gave evidence that he had not
received the letter). He agreed that it was not until the publication of
Nuremberg in the same year that he first made public the memoirs. Irving
(correctly) dismissed the suggestion made at one stage by the Defendants
that this disclosure was made only because their legal advisers had been
alerted to the existence of the memoirs because Irving disclosed them in
this action.


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