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Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day032.13


Archive/File: people/i/irving.david/libel.suit/transcripts/day032.13
Last-Modified: 2000/07/25

                  I mention the forensic evidence and that brings
.          P-151

        us seamlessly to the Leuchter report.

                  I am criticised by the Defendants for having
        relied initially on what is called the Leuchter report,
        1988.  At the time they levelled their criticism at me the
        Defendants appeared to have been unaware that subsequent
        and more able investigations were conducted by both
        American and Polish researchers.  The tests were in other
        words replicated.

                  First, the Leuchter report.  In 1988 I was
        introduced by defence counsel at the Canadian trial of
        Ernst Zundel to the findings made by a reputable firm of
        American forensic analysts of samples extracted from the
        fabric of various buildings at Auschwitz and Birkenau by
        Fred Leuchter, who was at that time a professional
        American execution technology consultant.  These and his
        investigations at the Maidanek site formed the backbone of
        his engineering report.  Since there have been tendentious
        statements about why the Leuchter report was not admitted
        in evidence at that trial in Canada I have studied the
        transcripts of that trial.  It emerges that engineering
        reports are not generally admissible under Canadian rules
        of evidence unless both parties consent.  In this case the
        Crown did not consent.  As Mr Justice Thomas explained,
        "I get engineering reports all the time (that is in civil
        cases).  That does not make them admissible, because they
        have prepared reports.  They (the witnesses) go in the

.          P-152

        box, they are qualified experts and they testify".  So the
        non-admission of the report by Mr Justice Thomas was no
        reflection on the worth of the report or on the
        qualifications of the witness.

                  My Lord, I have to go in some detail into the
        Leuchter report because of the criticisms levelled at me
        for having been swayed by it.

   MR JUSTICE GRAY:  Yes.  I do not disagree with that.

   MR IRVING:  Mr Leuchter testified on April 20th and 21st 1988
        as an expert in gas chamber technology.  He had inspected
        the three sites (Auschwitz/Birkenau and Maidanek) in
        February 1988 and he had taken samples which were
        subsequent sent for analysis by a qualified analytical
        chemist in the United States, a Dr James Roth of Cornell
        University, who was not told where the samples had come
        from.  His firm Alpha Laboratories, were told on the test
        certificates only that the samples were from brickwork.
        Mr Justice Thomas ruled that Leuchter would give oral
        evidence but that the report itself should not be filed.
        He held further that Mr Leuchter was not a chemist or a
        toxicologist, which are findings, of course, that he is
        quite entitled to make, but he agreed that Mr Leuchter was
        an engineer because he had made himself an engineer in a
        very limited field.

                  A summary of the rest of the judge's findings
        was that Leuchter was not capable in law of giving the

.          P-153

        expert opinion that there were never any gassings or
        exterminations carried on in the facilities from which he
        took the samples.  For the same reasons he was not capable
        of testifying regarding the results of the analysis,
        because he was not a toxicologist in other words.  He was
        restricted to testifying as to the actual extraction of
        the samples from the buildings and his own observations on
        the feasibility of the buildings that he had examined
        being used as gas chambers.

                  So the Defendant was wrong to write on page 164
        of her book, "The judge ruled that Leuchter could not
        serve as an expert witness on the construction and
        function of the gas chambers".  To give evidence in a
        criminal trial Mr Leuchter must have been accepted as an
        expert witness.  Further, Professor Lipstadt stated on
        pages 164 of her book, and 165, "The judge's finding as to
        Leuchter's suitability to comment on questions of
        engineering was unequivocal".  In fact, the judge's
        findings referred only to his lack of qualifications to
        testify on the results of the laboratory tests for cyanide
        and iron, because that was Dr Roth's area, and he himself
        (Roth) gave testimony on those matters.  On page 169
        Professor Lipstadt insists: "The exposure to the elements
        lessen the presence of the hydrogen cyanide ...  Nor did
        Leuchter seem to consider that the building had been
        exposed to the elements for more than 40 years so that

.          P-154

        cyanide gas residue could have been obliterated.  He also
        took samples from a floor that had been washed regularly
        by museum staff". Dr Roth however testified under oath
        that the formation of Prussian blue, which is a cyanide
        compound, was an accumulative reaction, that it augmented
        with each exposure to the gas, and that it did not
        normally disappear -- in other words, could not be just
        washed away -- unless physically removed by sand blasting
        or grinding down.

                  Roth seems then to have changed his mind, to
        judge by the television film "MR DEATH" which I believe is
        shortly to be shown on Channel 4, and upon which film both
        I and learned counsel in the current action partially
        rely.  Zundel's counsel comments, "He (Roth) obviously is
        frightened now", and no wonder, considering what
        subsequently was inflicted on Mr Leuchter.  Your Lordship
        will remember that, in order to destroy Roth's absurd
        argument, which was quoted to the court by Mr Rampton,
        learned counsel, that the Prussian blue stain would have
        penetrated only a few microns into the brickwork.
        I showed a photograph of the stain penetrating right
        through the brick work to the outside face of one of the
        cyanide fumigation chambers, where it has been exposed to
        sun, wind and rain for over 50 years, and where it is
        still visible, as deep and blue as ever today.
        Crematorium II has been protected from these outside

.          P-155

        elements.  It is possible to crawl beneath the famous
        roof, the one we were hearing about, the one with the no
        holes.  You can crawl beneath it even now -- about which
        roof I shall have more to say -- but neither Jan Sehn,
        nor Fred Leuchter, nor James Roth nor Germar Rudolf, nor
        any of the subsequent investigations have found any
        significant traces of cyanide compounds present in the
        fabric of this building, despite the eyewitness accounts
        of that same chamber having been used for the gassing of
        half a million people with cyanide.  Moreover, the wood
        grain of the original wooden formwork (or moulds) can
        still be seen on the face of the concrete, which is
        evidence that it has not been sandblasted or grounded down.

                  Now, my Lord, this takes us to the famous roof
        of Leichenkeller No. 1 of crematorium No. II at Auschwitz.

                  I referred earlier to the expert witness on
        Auschwitz and Birkenau in this case, Professor Robert van
        Pelt.  He has made unequivocal statements both here and
        elsewhere about crematorium II at Birkenau.  To him it was
        the factory of death, the mass gassing chamber of
        Birkenau.  He did not mince his language.  In the new
        television film MR DEATH we saw him and we heard him, as
        the film camera showed Fred Leuchter descending into the
        hole which was broken post-war through the collapsed

.          P-156

        concrete roof slab and reinforcing bars of Leichenkeller I
        (morgue No. 1) of crematorium II and we heard him uttering
        these words, quoting off the sound track:

                  "Crematorium II is the most lethal building of
        Auschwitz.  In the 2,500 square feet of this one room,
        more people lost their lives than any other place on this
        planet.  500,000 people were killed.  If you would draw a
        map of human suffering, if you created a geography of
        atrocity, this would be the absolute centre."

                  The court will recall that on ninth day of this
        action I cross-examined this witness most closely about
        this statement and I offered him a chance to change his
        mind about the pivotal importance of crematorium II and
        its underground Leichenkeller No. I (morgue No. 1) the
        chamber which van Pelt alleged had been a mass gassing
        chamber.

                  IRVING:  Very well.  You say:  This is quoting
        him from his report ----

   MR JUSTICE GRAY:  You need not read the whole of it.  He
        confirms that it is Leichenkeller I at crematorium II
        where he says the 500,000 were killed.

   MR IRVING:  Thank you, my Lord.  The expert witness could
        hardly have been clearer in his answer.

                  At page 53, I then asked him to identify the
        buildings referred to on the aerial photographs of
        Birkenau and crematorium II, so that there could later be

.          P-157

        no doubt as to which precise building he had just agreed
        was the factory of death at Auschwitz, Auschwitz/Birkenau.

                  The great problem about accepting that this
        building was an instrument for mass murder is that the
        evidence produced by Professor van Pelt relies on three
        "legs", if I can borrow Mr Rampton's word, a handful of
        eyewitnesses, a few architectural drawings, and a slim
        file of documents.

                  The eyewitnesses, in my submission, have turned out ----

   MR RAMPTON:  No, I am sorry, that is one error that cannot be
        allowed to pass.  There is a fourth leg, forensic chemical
        analysis both in 1945, 1988 and 1994.

   MR JUSTICE GRAY:  Just to elaborate that, of Leichenkeller I
        and crematorium II?

   MR RAMPTON:  Yes, Leichenkeller I at crematorium II by the
        Krakov forensic laboratory in December 1945, which found
        traces of cyanide on the ventilation covers by
        Mr Leuchter's analysts.

   MR JUSTICE GRAY:  Ventilation covers from where?

   MR RAMPTON:  From Leichenkeller I in crematorium II.  If one
        looks at the report, it is as clear as anything.  Leuchter
        himself, of course, in 1988, and Professor Markowitz at
        Krakov in 1994.

   MR JUSTICE GRAY:  Thank you.

.          P-158

   MR RAMPTON:  They are all in the evidence.

   MR IRVING:  My Lord, I will ask your Lordship when the time
        comes to look at that forensic evidence and to ask
        yourself the obvious question, what is the proof that
        these items came from that building?

   MR RAMPTON:  Leuchter is certainly proof, because Mr Irving relies on him.

   MR IRVING:  Then we have to look at the actual figures and the
        concentrations.  If I can now continue with my three legs,
        my three-legged argument?

   MR JUSTICE GRAY:  Yes, do.  Eyewitnesses?

   MR IRVING:  The eyewitnesses have turned out to be liars,
        particularly those who testified to the SS guards opening
        manhole covers on top of the flat roof of Leichenkeller
        No. I (mortuary No. 1), and tipping tins of Zyklon B
        pellets in through the holes.  One witness was David
        Olere, an artist who drew sketches years later in Paris,
        to which Mr Rampton has also referred, obviously intending
        to sell them.  His sketches show flames and smoke belching
        from the crematorium chimney of crematorium No.  II, which
        goes purely to the credibility of the witness, which was
        quite impossible.  He portrays the victims.  Your Lordship
        will remember that I asked Professor van Pelt to calculate
        the length, the path, from the furnace doors to the top of
        the chimney, and how long that flame would have had to
        be.  He portrays the victims of the Nazi killers mostly as

.          P-159

        nubile young females, all naked and sketched in a
        pornographic way, often clutching naked teenaged children
        to their breasts.  It was Olere I invite the court to
        remember, who told Jean-Claude Pressac that the SS made
        sausage in the crematoria out of human flesh (a passage
        which Mr Van Pelt did not inform us of in his expert
        report).  Another witness is Ada Bimko, who proved at the
        Belsen trial that she too had lied.  Entering another gas
        chamber building at Auschwitz she said she had "noticed
        two pipes which I was told contained the gas.  There were
        two huge metal containers containing gas".  She evidently
        did not know that the "gas" supposed to have been used,
        Zyklon-B, was actually in pellet form, not cylinders.
        Distorting her account too, van Pelt omitted also this
        part of her testimony.  Dr Bendel, another of van Pelt's
        eyewitnesses, stated that at crematorium IV the people
        crowded into the gas chamber found the ceilings so low
        that the impression was given that the roof was falling on
        their heads.  This too was untrue, as the court has seen
        how high these ceilings were in the computer-generated
        "walk through".  The court will find that in my
        cross-examination of van Pelt I destroyed the worth of
        each supposed eyewitness after eyewitness in the same way,
        if I can summarize it like that.

                  Let us first look for those holes that they
        talked about.  My Lord, your Lordship will remember that

.          P-160

        I had the big photograph of that roof photographed from a
        helicopter quite recently, standing here for some days or
        weeks.  The roof pillars beneath the roof were blown up in
        1945, and the reinforced concrete slab pancaked downwards
        into the morgue basement, starred but otherwise intact.
        By the word "starred" I mean what happens to a pane of
        reinforced glass that has been hit by a stone.

                  Van Pelt suggested that the Zyklon-B
        introduction holes in the roof of Leichenkeller I were not
        much larger in diameter than tennis balls, but the
        evidence of his eyewitnesses, Henry Tauber and Michal
        Kula, was that they were closer to the size of manholes --
        "70 centimetres square".  Kula testified that the wire
        mesh columns that he had made were of that cross section
        and three metres (ten feet) tall.  One witness said that
        the concrete covers on top of the roof above these holes
        had to be lifted off "with both hands," with two hands.
        As the ceiling height in Leichenkeller I was 2.40 metres,
        60 centimetres of each column, which is 3 metres tall,
        would have had to extend through the holes in the concrete
        ceiling with about six inches poking up outside.  As
        Professor van Pelt admits in his report, the part I was
        about to read out when your Lordship stopped me, there is
        no trace of those holes in the roof today.  I am sorry, I
        was wrong.  He did say that.  He says it later on.

   MR JUSTICE GRAY:  What did I stop you reading?

.          P-161

   MR IRVING:  You did not.  I made a mistake, my Lord.  As he
        admits in his report, there is no trace of those holes in
        the roof today.  The underside of that roof, which can be
        inspected and photographed from beneath even today, is
        intact.  Even if one could lose sight of the much smaller
        three inch diameter holes in the pancaked concrete roof of
        which van Pelt spoke, and I do not accept that they were
        that small, one could not possibly have lost sight of four
        holes as large as manholes.  Those holes would be
        perfectly obvious today on the ground that Auschwitz to
        any observer using the naked eye, without the slightest
        possible doubt as to their location, because, of course,
        Professor van Pelt told us where each hole was supposed to
        be.  It was right next to the supporting columns.

                  Professor van Pelt accepts that those holes are
        not in that roof slab now.

   MR JUSTICE GRAY:  I am not sure that is right, is it?  I think
        what he says was that the state of the collapsed roof is
        so poor now that you simply cannot see where those holes
        would have been if they were there, which is a slightly
        different thing.

   MR RAMPTON:  Not only that, my Lord.  I sit here, I listen to,
        quite frankly, a continuous misrepresentation of the
        evidence of my witness.

   MR JUSTICE GRAY:  Let us concentrate on this one.

   MR RAMPTON:  I will, but this is serious.  Van Pelt said a

.          P-162

        number of things.  He said, first of all, the fragmentary
        condition of the roof prevents any kind of assessment one
        way or the other.  Then he says, anyway, even if it did
        not, it is the wrong part of the roof.  The third, of
        course, is that there is no evidence on Mr Irving's side
        of the court one way or the other.  Mr Irving has not been there.

   MR IRVING:  May I now continue with preferably fewer interruptions?

   MR JUSTICE GRAY:  No, I think that is not fair.  Mr Rampton
        I think has been restrained.

   MR IRVING:  My Lord, restraint is what I showed.

   MR JUSTICE GRAY:  There are the odd things which I have noticed
        which I do not think are quite borne out.  I think the
        best thing is not to interrupt you, but that is quite an
        important misstatement of van Pelt's evidence.

   MR IRVING:  I will come to the alleged misstatement in a
        moment.  Of course, I sat with the utmost restraint this morning ----

   MR JUSTICE GRAY:  You did.

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