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Subject: Irving v. Penguin & Lipstadt: Judgment V-02
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Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-05.02
Last-Modified: 2000/04/11

Response of Irving

5.35 The "conditional response", as Irving put it, to this criticism is
that due to an error on his part the footnote cites the wrong sources.
He was, however, unable to identify the correct sources because, since
he was banned from entering Germany in 1993, he no longer has access to
the material documents.

5.36 Irving was unwilling to accept that the figure which he quoted was
wrong. He claims that it was not unreasonable to rely on Daluege, who
was admittedly "a dodgy source" but was at the time the head of the
German police system making it necessary to rely on him. Irving said
that everyone would know that Daleuge was an active Nazi, so there was
no reason to include in the text or in the footnote a cautionary note
warning readers about placing reliance on Daluege as an objective and
trustworthy source. Irving added that the two other sources cited by him
do confirm the figure he quoted but, as already explained, Irving cannot
gain access to them.

(i) The events of Kristallnacht in November 1938

Introduction

5.37 The next example of alleged historical distortion by Irving relied
on by the Defendants is his account of the events in Munich and
elsewhere on the night of 9/10 November 1938 known as Kristallnacht (the
night of broken glass). This is the second link in the chain which
Irving regards as proving that Hitler defended the Jews.

5.38 9 November 1938, being the anniversary of the failed putsch of
1923, was marked by various parades and a celebratory dinner at Munich
Old Town Hall attended by Hitler. After Hitler's departure, Goebbels
made a speech in the course of which he informed his audience of anti-
Jewish demonstrations which had been taking place in Hesse and Magdeburg-
Anhalt and which had resulted in the destruction of Jewish businesses
and synagogues. These demonstrations had apparently been prompted by the
murder in Paris of a German diplomat named von Rath by a young Pole
(described by Irving as "a crazed Jew").

5.39 Goebbels said in his speech at the Old Town Hall:

     "On his briefing the Fuhrer had decided that such demonstrations
     were neither to be prepared nor organised by the party, but insofar
     as they are spontaneous in origin, they should likewise not be
     quelled".

Those present understood Goebbels to mean that the party should organise
anti-Jewish actions without being seen to do so. Accordingly during the
night of 9/10 November, 76 synagogues were destroyed and a further 191
set on fire, 7500 Jewish shops and businesses were destroyed; widespread
looting occurred and 20,000 Jews were arrested and sent to concentration
camps where they were severely mistreated. Such incidents were not
confined to Munich: it was a nationwide pogrom.

The Defendants' case

5.40 The principal account of Kristallnacht by Irving is to be found at
pp273-7 of his biography Goebbels but other references are to be found
at pp196, 281 and 612-4. There are also accounts of the events of
Kristallnacht in Hitler's War and in other articles published by Irving.
All these accounts were subjected to detailed and severe criticism by
Evans and by Longerich.

5.41 The first and main point on which the Defendants' experts take
issue with Irving's account is his claim that the nationwide pogrom was
conceived and initiated by Goebbels and that Hitler did not approve or
even know about the pogrom until it was well under way and, when
informed, was livid and tried to stop it. In order to make this claim,
the Defendants allege that Irving has resorted to systematic distortion
and suppression of data.

5.42 According to Goebbels's diary

     "Big demonstrations against the Jews in Kassell and Dessau,
     synagogues set on fire and businesses demolished .I go to the party
     reception in the Old Town Hall. Colossal activity. I brief the
     Fuhrer. He orders: let the demonstrations go on. Withdraw the
     police. The Jews must for once feel the people's fury. That is
     right".

This passage is rendered as follows by Mr Irving at pp273-4 of Goebbels:

     "..[Goebbels and Hitler].. learned that the police were intervening
     against anti-Jewish demonstrators in Munich. Hitler remarked that
     the police should not crack down too harshly under the
     circumstances. 'Colossal activity', the Goebbels diary entry
     reports, then claims: 'I brief the Fuhrer on the affair. He
     decides: allow the demonstrations to continue. Hold back the
     police. The Jews must be given a taste of the public anger for a
     change'.

5.43 Evans claims that the cumulative effect of the mistranslations and
omissions in Irving's account give the false impression that Hitler
merely ordered the police not to intervene against some unspecified anti-
Jewish demonstrators in Munich, when in truth he had given positive
orders that the demonstrations should continue not just in Munich but
also elsewhere. These orders had been given by Hitler after he had been
briefed by Goebbels about the burning of synagogues and demolition of
businesses in Kassell and Magdeburg-Anhalt. Evans alleged that Irving
has mistranslated zuruckziehen as meaning 'hold back' when it actually
means 'withdraw'. What Hitler had actually wanted was that the police
should be removed from the scenes of violence altogether. The reason,
according to Goebbels's diary, was that the Jews might feel the people's
fury (not, as Irving translates the German, be 'given a taste of the
public anger').

5.44 Evans criticises as being contrary to the evidence Irving's
suggestion that it was not until after Hitler had left the Old Town Hall
that Goebbels learned of widespread anti-Jewish violence and decided off
his own bat to unleash the pogrom. This suggestion distances Hitler from
responsibility for the violence which occurred later that night and the
following day. The Defendants contend that, in making that suggestion,
Irving ignores or suppresses the evidence that it was Hitler who
authorised the continuation of the widespread violence of which he had
been informed by Goebbels before he (Hitler) left the Old Town Hall.

5.45 Longerich expressed the view that the course of the pogrom clearly
demonstrates Hitler's personal initiative. Goebbels's diary entry for 9
November, already quoted, refers to big demonstrations against the Jews
in Kassell and Magdeburg, which had in any case been reported in the
Nazi press that morning. So the suggestion that Hitler did not know
about them when he left the Old Town Hall is unsustainable, as is the
further suggestion that Goebbels first learned of the scale of the
violence them after Hitler had departed.

5.46 At pp 275 and 281 of Goebbels, Irving refers to "Goebbels's sole
personal guilt" and to his "folly" respectively. In the following
passages Irving claims that Hitler, Himmler and Heydrich were all
opposed to the pogrom. Another person presented by Irving as an opponent
of the burning of synagogues and violence towards the Jews is the SA
leader Victor Lutze. Irving also claims that SA Gruppenfuhrer Fust
(wrongly called Lust by Irving) explicitly ordered that no synagogues
were to be burned. These claims buttress the contention advanced by
Irving that Goebbels was solely responsible for the orgy of violence
which marked Kristallnacht.

5.47 Evans dismissed these claims as being the product of a manipulation
of the evidence by Irving. According to Evans, the evidence tends to
suggest that the SA group leaders generally played an active role in
starting the violence. Evans argues that Juttner, who was the source for
Irving's claim that Lutze opposed the pogrom, is wholly unreliable: he
was himself a senior SA leader and his role in the events of that
evening make it very improbable that he disapproved the violence. As for
Irving's claim that Fust took action to prevent the burning of
synagogues, Evans concluded that it was simply invented by Irving.

5.48 On this aspect of Kristallnacht, Evans was also critical of the
omission of any reference in Irving's account of the night's events to
the report of the internal enquiry subsequently held by the Nazi Party
in February 1939. According to that report, Goebbels in his speech at
the Old Town Hall told party members that Hitler, having been briefed by
him about the burning of Jewish shops and synagogues, had decided that
in so far as they occurred spontaneously they were not to be stopped.
Evans pointed out that it would have been foolhardy in the extreme for
Goebbels to have lied to old party comrades in the context of the party
enquiry about what Hitler had said and decided about the anti-Jewish
demonstrations.

5.49 The Defendants further contend that Irving's account of events
during the night of 9/10 November seriously distorts the role played by
Hitler. In the first place the Defendants criticise Irving for his
omission to refer to a telegram sent from Berlin at 23.55 on 9 November
by Muller, head of the Security Police, to officers warning them of the
forthcoming outbreak of anti-Jewish demonstrations and ordering that
they were not to be interrupted. The Defendants contend that this is an
important document which reflects precisely what Hitler had ordered
earlier that evening. They argue that it is obvious that Muller (who was
answerable to Heydrich, who in turn was answerable through Himmler to
Hitler) was acting on instructions from the highest level. Yet no
mention of Muller's telegram is made in the text of Irving's writing
about Kristallnacht.

5.50 Evans canvassed the question whether Hitler was consulted before
the telegram from Muller was dispatched. He pointed to evidence,
consisting in the testimony at Nuremberg of one SS officer
(Schallermeier) and the witness statement of another (Wolff) and
confirmed by a contemporaneous report to the Foreign Office, which
suggests that it is very likely that Hitler and Himmler met before
Muller sent the telegram. Himmler and Hitler were seen together in
conversation earlier that evening before the dinner at the Old Town
Hall. If Hitler and Himmler did meet, argued Evans, it is inconceivable
that Muller's telegram would have been sent out in those terms without
Hitler's approval. According to Evans, it is therefore to be inferred
that, far from ordering that action against Jews be halted, Hitler in
truth ordered it to continue. The evidence relied on by Evans in support
of this inference is ignored or dismissed by Irving, unwarrantably so in
the opinion of Evans.

5.51 Criticism of Irving was made by the Defendants for his omission to
make reference to an instruction issued by the leader of SA group
Nordsee, Bohmcker, which alluded to the wish of Hitler that the police
should not interfere with the anti-Jewish demonstrations. The reason why
Irving omits this message, suggested the Defendants, is that it runs
counter to his thesis that Hitler was throughout concerned to protect
the Jews.

5.52 At pp276-7 of Goebbels Irving writes that, when Hitler learned of
the pogrom at about 1am on 10m November, he was "livid with rage" and
snapped to Goebbels by telephone to find out what was going on. Hitler
is said to have made a "terrible scene with Goebbels" who did not
anticipate Hitler's "fury". Hitler's alleged reaction supports the
thesis advanced by Irving that Hitler did not instigate the violence of
that night.

5.53 In this portrayal of Hitler's reaction, Evans accused Mr Irving of
further invention, manipulation and suppression. Irving's account of the
events of the night of 9/10 November, including in particular his
account of Hitler's reaction when apprised of the violence, depends
heavily on the interviews which he conducted long after the war with
Hitler's adjutants, that is, officers closely attached to Hitler. Evans
claimed that Irving adopted a deplorably uncritical attitude towards the
adjutants' version of events. Not only were they trying to call to mind
events which took place long ago, they were also highly likely to slant
their accounts in favour of Hitler. Another reason for scepticism about
their accounts is their wish to exculpate themselves. Moreover, argued
Evans, it is essential for an objective historian to weigh the testimony
of such witnesses against the totality of the available evidence in
order to test its reliability. The contemporaneous documents created
during the night of violence are likely to prove a far more reliable
guide than the self-serving and untested accounts of Hitler's staff.
Irving, he contended, failed lamentably to weigh that evidence in the
balance.

5.54 The principal source for the claim that Hitler was observed by
Eberstein, Chief of Police in Munich, to be "livid with rage" is said by
Irving to be Hitler's chief former personal adjutant, Wilhelm Bruckner.
Irving obtained Bruckner's papers from his son and donated them to the
Institute of History in Munich to which Irving no longer has access. He
was therefore unable to produce documentary verification of Bruckner's
account. He was able to produce a Deckblatt (cover sheet) which includes
a summary of the contents of the relevant file in Munich but that does
not indicate the presence in the file of any Kristallnacht material.

Evans's assistant searched the relevant file in Munich but was unable to
find any document there which related to Kristallnacht. So the
evidential position is unsatisfactory. Another reason put forward by
Evans for doubting Irving's account is that contemporaneous documents
establish that later that night at 2.10am Eberstein telephoned to the
Gestapo in various towns repeating the order that police were not to
interfere with actions against Jews. Eberstein would have done no such
thing, argued Evans, if indeed he had seen Hitler livid with rage about
the actions against the Jews. Irving makes no mention of Eberstein's
instruction in his book about Hitler.

5.55 Be that as it may, Bruckner was a close associate of Hitler, so
that, according to Evans his evidence needs to be treated with caution.
In any case, according to a second-hand summary made by a German
historian of a statement made by Bruckner, he was able to say no more
than that Eberstein "probably" went to see Hitler. In his evidence at
Nuremberg, Eberstein did not mention having had this meeting with
Hitler. So, according to Evans, the evidence for Hitler's reaction
having been one of anger is very thin and difficult to reconcile with
other events that evening. The violence continued virtually unabated
throughout the night; this is unlikely to have occurred if indeed Hitler
had at any stage wanted to bring it to a halt.

5.56 Another witness relied on by Irving for Hitler's reaction to the
mayhem which broke out is Julius Schaub, a long-standing Nazi party
member and senior SS officer (who after the war described Hitler as a
peace-loving man). In his papers Schaub claimed that Goebbels "ordained
Kristallnacht Sunday (sic)" and that Hitler was furious when he learned
of the outrages. Evans argued that Schaub too was close to Hitler and
his evidence on that account should be treated with scepticism. Schaub's
evidence, like that of the other witnesses relied on by Irving, is
impossible to reconcile with Hitler's attitude towards the violence in
the early evening of 9 November or with the orders (to which I shall
shortly come) which went out in the early hours of 10 November
permitting the excesses to continue.

5.57 The third witness relied on by Irving for Hitler's reaction on
hearing of the anti-Jewish outrages is von Below, who was a Colonel in
the Luftwaffe. Irving interviewed him some thirty years after the event.
He was present in the hotel where Hitler was based at the time. He
claimed to recall that Hitler's reaction, when hearing of the violence
from von Eberstein, was to ask what was going on. He said that Hitler
became angry and demanded that order in Munich be restored at once.
Evans noted that in his memoirs (as opposed to his interview by Irving)
von Below made clear that he was not present when, on learning of the
pogrom, Hitler spoke to Goebbels by phone and so could not have
overheard any part of their conversation. Evans argued that Irving's
note of his interview with von Below makes clear that, contrary to
Irving's claim in Goebbels, Hitler asked Eberstein (not Goebbels) to
find out what was going on. There is no evidence, said Evans, for
Irving's claim that Hitler "snapped" orders at Goebbels. Evans regarded
von Below as a variable witness whose account of Kristallnacht is wholly
unreliable.

5.58 Another source for Irving's contention that Hitler condemned the
pogrom is Hederich, a longstanding senior Nazi. Evans criticised Irving
for his reliance on him. Hederich based his assessment of Hitler's
attitude towards the violence upon his impression of a speech which he
claimed Hitler made at the Old Town Hall before Goebbels spoke. But the
evidence is clear, according to Evans, that Hitler made no speech at the
Old Town Hall that evening.

5.59 At p276 of Goebbels Irving gives the following account of the
message sent shortly after 1am by Heydrich (Head of German Security
Police):

     "What of Himmler and Hitler? Both were totally unaware of what
     Goebbels had done until the synagogue next to Munich's Four Seasons
     Hotel set on fire around 1am. Heydrich, Himmler's national chief of
     police, was relaxing down in the hotel bar; he hurried up to
     Himmler's room, then telexed instructions to all police authorities
     to restore law and order, protect Jews and Jewish property and halt
     any ongoing incidents".

According to Evans this is a blatant manipulation of the historical
record.

Heydrich's telex sent to police chiefs and security service officers at
1.20 am on 10 November, which emanated from Himmler, instructed them
that the demonstrations against the Jews expected during that night were
" not to be obstructed" subject to the following restrictions:

     "a) only such measures may be taken as do not involve any
     endangering of German life or property (eg synagogue fires only if
     there is no danger of the fire spreading to surrounding buildings),
     
     b) the shops and dwellings of Jews may only be destroyed not
     looted. The police are instructed to supervise the implementation
     of this order and to arrest looters.
     
     c) care is to be taken that non-Jewish shops in shopping streets
     are unconditionally secured against damage,
     
     d) foreign nationals may not be assaulted, even if they are Jews".

Evans maintained that the meaning is clear: apart from those specific,
narrow circumstances, the police were ordered not to intervene. The
Defendants contend that Heydrich's order confirms and repeats the
instruction of Himmler (which Irving accepts would have originated from
Hitler) that the demonstrations were not to be interrupted. The
restrictions only applied in identified and limited circumstances (eg
where there was risk of damage to non-Jewish property). So it is alleged
that Heydrich's telex ordered the exact opposite of what Irving claimed
in Goebbels.

5.60 Evans advanced a similar criticism of Irving's treatment at p277 of
Goebbels of a telex sent at 2.56am from the office of Rudolf Hess.
Irving writes that

     "Hess's staff began cabling, telephoning and radioing instructions
     to Gauleiters and police authorities around the nation to halt the
     madness".

In fact, according to Evans, the order read:

     "On express orders from the very highest level, acts of arson
     against Jewish shops and the like are under no circumstances and
     under no conditions whatsoever to take place".

It is common ground that the message is referring to an order from
Hitler ("the very highest level"). That order, according to Evans, had
the limited effect of preventing fire-raising in Jewish shops and the
like ('Geschaften oder dergleichen') and was not aimed at preventing
attacks on Jews and their property generally. The concern for shops
arose, said Evans, because they were in most cases owned by Germans. The
order did not purport to proscribe attacks on Jewish homes or on
synagogues. It referred only to arson and not to other forms of
violence. Its tenor is consistent with the telegrams sent out by Muller
and by Heydrich earlier that evening. There is, asserted Evans, no
warrant for the claim which was made by Irving in an article published
in 1983 that this order shows that Hitler ordered "the outrage" to stop
forthwith. If he had so ordered, why, asked Evans, did the violence
continue. Far from ordering the outrage to cease, Hitler was by
necessary inference authorising the continuation of most of the
lawlessness.


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