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Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts/day005.20


Archive/File: people/i/irving.david/libel.suit/transcripts/day005.20
Last-Modified: 2000/08/01

   MR JUSTICE GRAY:  But I am really talking about the post
        shooting phase, one calls it the gassing phase.  It is a
        bit tendentious but it may not matter in the end.  What
        I have not at the movement got clear in my mind is how you
        put the case that this was known by and authorized by Hitler.
   MR RAMPTON:  Authorized by I do not know, the case is not that
        there is a piece of paper from Himmler to Hitler, saying
        here, Adolf, are the statistics, at least not until we get
        to December 1942 and that may concern Einsatzgruppen
        shootings rather than gassings in these places.  The case
        is simply this.  The scale of the operation is vast.  It
        involves what must have been very considerable disruption
        to military operations amongst other things.  It involves
        a lot of economic and manpower resources.  It certainly
        goes all the way up to Heydrich and Wolf who is Himmler's
        adjutant, seconded as liaison officer at some time at
        least to Hitler.  In the light of what we do know that
        Hitler did know, in the light of all the other information

.          P-179

        we have about Hitler's anti-Semitism and, as in due course
        one will see, as one of the foundations of Nazi ideology,
        it would be amazing if Hitler did not know, in broad
        terms, I am not saying he was interested in numbers or
        anything like that, what was going on.  It is as simple as
        that.
   MR JUSTICE GRAY:  It is extremely helpful to have you put it
        clearly in that way.  Thank you very much.
   MR RAMPTON:  It is an inference which any lawyer, never mind
        historian, would be willing to draw, I would suggest, on
        the balance of probabilities.
   MR JUSTICE GRAY:  May I suggest that we just invite Mr Irving,
        if he wants to, to comment on that, because that is part
        of your case.
   MR RAMPTON:  It certainly is.
   MR JUSTICE GRAY:  He is entitled to have his say.
   MR RAMPTON:  I would only add this negative sentence, I think.
        The fact that there is not a piece of paper, as the denier
        said, there is not just a single proof with Adolf's name
        on it, is neither here nor there?
   A.   Well, my Lord, let him fight his own battles.  The
        proposition that learned counsel has put is entirely
        acceptable.  It is monstrous to assume that Adolf
Hitler
        would not have known, and I have said precisely the
same,
        my Lord.  In my books I have said that after October
1943,
        which is the kind of watershed time that I put, he had
no

.          P-180



        excuse for not knowing, which is as far as I would go.
Of
        course, it is not a smoking gun.  It is not the kind
of
        balance of probabilities, or even evidence beyond all
        reasonable doubt that would be required in a criminal
        case.  But he had no excuse for not having known
because
        he then came into very close proximity with a large
number
        of people who had been briefed in the most nauseating
        detail by Himmler himself as to what he was doing.  I
have
        made no secret about that in my books.  I would be
        interested to hear how learned counsel gets round that
        particular problem when the time comes.
   MR JUSTICE GRAY:  That again is extremely helpful to have
you
        say that, but can I ask you one question arising out
of
        it?  I quite follow why you take October 1943 as the
date
        from which you accept Hitler was in the know.
   A.   Had no excuse not to know.
   Q.   Or had no excuse not to know, but what about the
period
        with I think Mr Rampton has really been dealing with
this
        afternoon between November/December 1941 and October
1943?
   A.   We are very ill-advised by the documents that are
        available even now.  We are ill informed by the
documents
        that are available even now after 55 years, my Lord,
and
        this is where you begin having to say that, I forget
what
        the legal term is, there may be a legal term for it,
but
        in any case of ambiguity then the balance of doubt has
to
        be given to the accused rather than to the
incriminated.

.          P-181



   Q.   Can that really be right when you have a situation
where
        Hitler was at any rate not objecting as from October
1943
        to what most people would regard as thoroughly
abhorrent?
   A.   Yes.
   Q.   Can you not infer from that that, assuming the
evidence
        was available for him, he would not have put up any
        objection before October 1943?
   A.   That is precisely the way that I would be inclined to
put
        it, my Lord.  I have even said on occasion that there
is
        no evidence that he would have objected even if he had
        been told the most brutal detail of what was going on.
        But we just do not have that evidence.  My literary
agent
        in America said, "For God's sake, if you have not got
the
        evidence, invent it".  I thought my ten years spent in
        researching the book were too precious for that.
   MR RAMPTON:  So it really comes to this, does it, Mr
Irving?
        If you were sitting on a jury in a criminal court,
whereas
        I might very easily convict Hitler, you would not,
but, if
        you are looking for proof positive that he did not
know,
        you are swimming very hard against the tide, are you
not?
   A.   No.  You talk about in a criminal court and in a
criminal
        court of course the standards of evidence required,
        particularly where a man's life is at stake, are much
        sterner than in a civil action.  Am I right?
   Q.   Never mind civil actions or criminal actions.  This is
a
        rotten analogy, anyway.  You are an historian.

.          P-182



   A.   Mr Rampton, you started the analogy.
   Q.   No, you did, with your references to the standard of
proof
        in a criminal court when you were answering his
Lordship.
        It is a rotten analogy.
   A.   I think it is a very useful analogy.
   Q.   What are you looking at as an historian is not a
question
        whether a man is guilty or not of law, whether he is
        liable to pay damages.  You are looking at the
evidence
        with an open and objective mind to see what is the
degree
        of probability that it suggests as to what happened.
That
        is what are you doing, is it not?
   A.   This is right, but then at this point different
historians
        operate in different ways, and it may be that I make
        myself culpable by just putting the evidence in the
pages
        and not joining up the dots and allowing the reader to
do
        the dot joining for himself.  I assume that my readers
        have a certain degree of intellectual honesty and
ability,
        that they are capable of forming their own conclusions
        provided I present the evidence to them with as much
        integrity as possible.  Other historians, like no
doubt
        some of the experts in this case, like to join up the
dots
        for you and that is where the mistakes I think creep
in.
        It is possible that my way of writing history is
wrong.
        It is possible their way of writing history is right.
        They have been taught in universities how to write, I
have
        not, but this is not Holocaust denial, Mr Rampton.

.          P-183



   Q.   Well, Mr Irving, we will come to that next week, but
your
        method of writing history, whether one approves of it
        academically or not is quite beside the point, is
        perfectly all right provided that you do not distort
and
        manipulate the evidence, is it not?
   A.   You are absolutely right.
   Q.   If we should succeed in proving that that is exactly
what
        you have done on a number of occasions, then you do
not
        deserve the name historian, do you?
   A.   I take you do not consider that you have succeeded so
far.
   Q.   What privately I should think, Mr Irving, I certainly
am
        not going to tell you.
   A.   From the way you couched the question.
   Q.   I could be standing here thinking why am I going
through
        all this, I have already cooked ----
   A.   You know why you are going through this, and I do. It
is
        connected with a very substantial fee you are paid for
        this.
   MR JUSTICE GRAY:  That is cheap.  Let us get on.
   MR RAMPTON:  It is not only cheap, it is complete rubbish.
My
        Lord, I would pass now, if I may ----
   MR JUSTICE GRAY:  I think we will probably stop now.
   MR RAMPTON:  I tell you where I am going next.  I am going
        briefly to Dr Brach in the autumn of 1941, which
relates
        to gassings in the Warthegau and possibly also in
Riga.
   JUSTICE GRAY:  Is that vans?

.          P-184



   MR RAMPTON:  Vans yes, and then I am going to go to what
        Mr Irving calls the Schlegelberger memorandum, and
then
        probably to the Roman Jews, unless your Lordship would
        prefer, which equally well we can do, to have a look
at
        Hitler's earlier utterances.
   MR JUSTICE GRAY:  No.  All I think is that sometime that is
        relevant.
   MR RAMPTON:  It is obviously important.
   MR JUSTICE GRAY:  Both to the manipulation and also to
        Auschwitz.
   MR RAMPTON:  Yes.  I am thinking that the subject of
Hitler's
        Adjutants is a long one with, I am afraid, probably
quite
        a lot of documents to look at because of the records
of
        what they said.  That may take more than one day,
which
        I do not have, so I was going to leave that until
after
        Auschwitz.
   MR JUSTICE GRAY:  Yes, that is fine.  It does occur to me
that
        sometimes there is scope for exploring before one gets
        into the detail.
   MR RAMPTON:  I know.
   MR JUSTICE GRAY:  We had an example just a moment ago.  It
is
        not remotely intended to be a reproof.
   MR RAMPTON:  It is amazing what answers one can get.  I
have
        made the assumption, perhaps wrongly, that any general
        question I ask is either going to get no answer ----
   MR JUSTICE GRAY:  I can see there may be forensic reasons
for

.          P-185



        doing it the other way too, but I just wonder in this
case
        whether the desirability of short cuts does not
suggest
        one sacrifices ----
   MR RAMPTON:  I see the attraction, but I do think it
essential,
        and the only forensic reason, apart from wanting
answers
        to my questions, is that I do want your Lordship to
have
        as full a picture as possible, because all these
things
        are contextually linked.
   MR JUSTICE GRAY:  I have the reports, remember.
   MR RAMPTON:  I know.
   MR JUSTICE GRAY:  What about the argument about Auschwitz?
It
        seems to me that we are nipping at that topic from
time to
        time, inevitably.  I think in many ways the sooner we
have
        the argument the better?
   A.   It is Tuesday now, possibly on Thursday.
   MR JUSTICE GRAY:  If would you like go for Thursday, yes?
   A.   If you would limit us both to half an hour each on
that.
   MR JUSTICE GRAY:  I am all in favour of doing that.
   MR RAMPTON:  I have said my two minutes already.
   A.   You may have more to say after you have heard me.
   MR RAMPTON:  We will let Mr Irving go first since
essentially
        I believe it to be an objection really.
   MR JUSTICE GRAY:  I do not think it matters who goes first.
        Would you like to go first, Mr Irving?
   A.   It makes no difference to me either.
   MR JUSTICE GRAY:  Good, so 10.30 tomorrow?

.          P-186



   A.   Thank you.
                      < (The witness stood down)
                  (The court adjourned until the following day)


.          P-187




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