Archive/File: people/i/irving.david/libel.suit/transcripts/day016.04 Last-Modified: 2000/07/20 MR JUSTICE GRAY: That sounds to me entirely fair. . P-23 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 . P-24 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 ---- . P-25 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 . P-26 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 . P-27 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 . P-28 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. (PROFESSOR CHRISTOPHER ROBERT BROWNING, sworn.) ( Examined by MR RAMPTON QC.) MR RAMPTON: Professor Browning, what are your full names? A. Christopher Robert Browning. Q. Have you made an expert witness report for the purposes of this case? A. Yes, I have. Q. Do you have it with you? A. I have my own report. I do not have the pagination of the court's. Q. We must make ---- A. The reformatting of it. Q. --- 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? . P-29 A. 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. In so far as it contains expressions of opinion, are you satisfied in your own mind that those opinions are fair? A. Yes. Q. 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. Good morning. Q. 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. Yes, particularly the dates as to when certain special of Operation Reinhardt appeared. Q. Which spellings? A. 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. What is the significance of 1942, in your opinion? A. The significance of this would be if there are three . P-30 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.
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