The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts//day027.15

Archive/File: people/i/irving.david/libel.suit/transcripts/day027.15
Last-Modified: 2000/07/25

.          P-131

   Q.   Can I ask you to look at the first item in the bundle of
        documents I gave you?  It is a letter from me to The Times
        dated July 11th 1986.
   A.   Page 1.
   Q.   Am I complaining to The Times that, having reported my
        deportation from Austria, they have not reported with one
        line the fact that the deportation has been ruled illegal
        and the Minister has been ordered to pay compensation?
        You will see on the following page The Times item that
        reports this little victory.
   A.   It seems so.
   Q.   The final paragraph of page 3, The Times item, says: "The
        spokesman for the Ministry of Justice said Mr Irving will
        be bringing a case for wrongful arrest against the
        officials involved later this year".  So it is not just as
        cut and dried as you said, is it, deported from Austria?
   A.   Just it occurred and so I refer to it.
   Q.   It occurred and you refer to it.  But you then say in the
        two lines from the bottom that he is banned from entering
   MR JUSTICE GRAY:  Mr Irving, can I interrupt you again?  Do
        forgive me for doing so.  I am not remotely ----
   MR IRVING:  Interested.
   MR JUSTICE GRAY:  "Impressed" is the word I was going to use,
        or will be influenced by the fact that you have been
        banned and deported from these various countries.  It

.          P-132

        seems to me I have to make up my own mind.
   MR IRVING:  It very marginally goes to the accuracy of this witness.
   MR RAMPTON:  No.  Anyway, Mr Irving was reading from the
        pleadings and not from Professor Funke's report.  I make
        no capital out of the fact that he is banned.  Your
        Lordship is obliged as a matter of comity not to comment
        on the deportations, but I much prefer that we make up our
        own minds, or your Lordship makes up your own mind, in
        this court whether Mr Irving deserved to be banned, which
        is quite a separate question.
   MR JUSTICE GRAY:  That is entirely the way I intend to approach
        it.  I can see you resent it, but I think you can forget
        about it, or forget about them, the deportations, for the
        purposes of this case.
   MR IRVING:  I will say in one line what I would have said about
        Australia and Canada, my Lord.  Banned from Australia is
        because the labour Prime Minister said I was a bad
        character.  They changed the immigration law to make it
        possible.  Banned from Canada was because of a technical
        infringement of the Immigration Act.  It was nothing to do
        with the Holocaust denial views.  That was what I had
        hoped to elicits in this particular piece of
                  In paragraph 1.3.2, on page 9, five lines from
        the bottom, you suggest that my diaries have been

.          P-133

        sanitized for other readers.  This is quite a serious
        suggestion to make in view of the fact that the diaries
        are before the court.  What justification do you have for
        the allegation that I sanitized the diaries, 20 million
        words of them, before making them available to the court?
   A.   Of course, this is a judgment, or a value statement, an
        assessment.  There are important phases I did not see,
        I mean periods of time I did not see.  Maybe you did not
        put something in your diary, and of course, and this is
        the main point, the things we figured out by other sources
        with respect to the letter and to the events are not
        stated there as intense as private things that I am not
        interested in.  So I had to read and make up my own mind
        by other sources.  So in that sense it gives not a full
        picture of your interaction so far as they are important
        for the case that is at stake in the court.
   MR JUSTICE GRAY:  Can I see whether there is a misunderstanding
        because there may be.  Are you, by the use of the
        word "sanitized", suggesting that Mr Irving has
        manipulated or redacted, and I am not sure what the
        redacted is, the diaries?  "Redact" is a very curious word.
   A.   I would say of course all diaries are redacted in the mind
        of the people and, with respect to what is at stake here,
        they are of course, I would say, redacted.  Look at the
        Halle event, so you see a full scale different picture.

.          P-134

   Q.   I follow that.  What I am trying to get at, and I cannot
        quite think of the right term, is are you suggesting that
        Mr Irving has deliberately altered the diaries after the
        event in order to present a different picture from what
        would originally have been given?
   A.   I did not say this.
   MR JUSTICE GRAY:  I think that perhaps was a misunderstanding.
   MR IRVING:  I could not let that pass, my Lord.  I had to draw
        attention to it, and also the following phrase that I have
        to draw attention to is four lines from the bottom: "As
        will be set out below important passages in Irving's
        diaries have not been released to the defence".  What
        basis do you have for making that allegation that implies
        that I have withheld documents on discovery?
   A.   It implies that you did your diary, and all of a sudden
        interrupted your diary.  Because of this assumption, there
        are left out very interesting phases in the course of your
        activities in Germany and Austria.  In Germany.
   Q.   You do accept that the way either you have expressed
        yourself or the way it has been translated into English,
        it gives the impression that I have had these pages of
        diaries and that I have taken them out of the file.
   A.   I cannot say this.
   Q.   I have said I am not going to give them to the defence lawyers.
   A.   No, I cannot say this.  I cannot say that you did

.          P-135

        something deliberately against ----
   Q.   Because that would actually be a contempt of court and, if
        I was to do that, I would be culpable.
   MR JUSTICE GRAY:  Not suggested.
   MR IRVING:  Not suggested.  On the following page, two lines
        down, you make the same suspicion that I have not
        disclosed crucial speeches.  Are you just saying again
        that I did not transcribe them, or that I did transcribe
        them, or I did have tapes and did not make them available
        to the lawyers?  It is the same question.
   A.   Again, it is not a deliberate assumption, assumption of
        deliberativeness, that it was done deliberately.  I cannot
        say this because I have no proof of it, so I will not.
        But, of course, there are crucial speeches not there.  One
        of them we will get in the next hour or so.
   Q.   Yes, because, of course, if I had edited the diaries or
        the speeches, then I would have taken out the little
        racist ditty that Mr Rampton thinks I should be horse
        whipped for.
   MR JUSTICE GRAY:  It is not suggested you have doctored them.
   MR IRVING:  You refer in paragraph 1.3.3, which is page 10, and
        I think this is a useful place to take it on, to the
        German Office for the Protection of the Constitution,
        which has been busy monitoring extremist organizations, as
        you describe.  Now, can you explain to the court what the
        structure of the OPC is?  There is an overall Federal

.          P-136

        body, is there not?
   A.   Yes.
   Q.   And each of provinces has its own provincial OPC.  Is it a
        political body?
   A.   No, it is a state institution on the Federal level and on
        the provincial or state level the like.  They have their
        duty, according to the constitutional law and to various
        laws that were given by the parliament, to observe
        extremism of my kind, to monitor, and this is the main function.
   Q.   Yes, but it is a body that in each case, both at Federal
        level and at provincial level, is subordinated to the
        Minister of the Interior, who is a political animal, is he
        not?  He has the say?
   A.   I have to reiterate what I said.  It is not a political
        body.  They have to stick to the rules.  I do not know, it
        goes with the idea, and to a degree realized idea,
        that state officials stick to the rules, stick to the
        laws, and are not politicisable.
   MR JUSTICE GRAY:  Mr Irving, I am wondering whether this is not
        in a way a bit similar to courts in foreign countries
        making decisions that you be deported and banned and so
        on.  I do not think I am really very concerned, am I, with
        the views or activities of the OPC?
   MR IRVING:  You are, my Lord, if I may respectfully say so,
        because much of his report depends on the reports provided

.          P-137

        by the OPCs.  He quotes them extensively as though they
        are the word of God.  If I can establish to the court's
        satisfaction that the OPCs are political animals created,
        run and generated as propaganda instruments by the
        government agencies and the government ministers
        concerned, which is why they never criticise the activity
        of the established parties, even when they are
        unconstitutional, and demonstrably so, then this would
        devalue whatever these people have to say about
        unfortunate people who come under their magnifying glass.
   MR JUSTICE GRAY:  Yes.  I suppose that is right.
   MR IRVING:  Let me just put to you, Professor Funke, a decision
        of the constitutional court in Germany, that, when the OPC
        ruled that a party was right-wing radical or right-wing
        extreme, or was an enemy of freedom, and I will give you
        the German in a moment, and a danger for the liberal
        democratic basic order, then this was a value judgment
        which the Federal Minister of the Interior was uttering in
        pursuance of his constitutional duty to protect the
        liberal democratic basic order.  I will say it to you in
        German now (German read from document not provided).  In
        other words, this is a statement of the Supreme Court in
        Karlsruhe, which states that it is purely the opinion of
        the minister when he decides that a party is right-wing
        extreme or not.
   A.   Can I see it?

.          P-138

   Q.   It gives the actual source.  I have highlighted it in
        yellow for you.  The footnote is the source.
   A.   Thank you.
   Q.   The point is that such statements defining people as
        right-wing extreme are the opinion of the minister, a
        value judgment and not a statement of fact.
   A.   Things are a bit more complicated.  That is why I do
        know, this is also important for this context, I do
        know the context of what is said here.  So there are
        different levels of decision-making processes of the
        BundesVerfassungsgerichte, the highest court in
   MR JUSTICE GRAY:  I really do feel, I am sorry again to
        interrupt you, Professor Funke, this is not going to
        help.  We are getting terribly ----
   MR IRVING:  Into detail.
   MR JUSTICE GRAY:  No, on the contrary.  I think what counts is
        really what these individuals and parties have said and
        done.  I take your point, which is why I did not stop you,
        that the views expressed by the OPC probably do not count
        for a huge amount, but I do not think we want to go into a
        detailed analysis of what the German Supreme Court has
        said about the way in which the OPC performs its
        function.  That is what I am really getting at.
   MR IRVING:  I would hope that you would attach more value to
        the opinion of the German Supreme Court than to myself in
        this matter.

.          P-139

   MR JUSTICE GRAY:  I am not sure that really either in a sense
        is particularly material.  That is no criticism,
        obviously, of either of you.
   MR IRVING:  As long as your Lordship bears this in mind when we
        come to judgments on these bodies and people uttered by
        the OPCs and I may remind you of it.
   MR JUSTICE GRAY:  I am more interested in Professor Funke's own
        view rather than a reflection of somebody else's.
   MR IRVING (To the witness):  Professor Funke, lower down on
        page 10, paragraph 1.3.4, you say that some of your
        sources are what I would consider anti-fascist?
   A.   This is a very interesting point.
   Q.   Well, briefly, please?
   A.   Yes, briefly.  I had to rely for the insider report that
        was done after the Michael Schmidt film on a source that
        was given by an anti-fascist so-called, self-described
        anti-fascist group, and that is because these groups, and
        I met them personally to be sure that I get the data
        right, these groups are near to this right-wing extremist
        scenery.  So, in a given moment, for a special question,
        I had, for example, to identify one of these persons,
        I had to go to these sources, but I never, by each person
        are restrained to these sources.  So I checked them double
        or triple to make a good judgment.

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