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Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts/day008.21


Archive/File: people/i/irving.david/libel.suit/transcripts/day008.21
Last-Modified: 2000/07/20

   MR RAMPTON:  I am sorry if Professor Evans irritates you so
        much.  You can take your feelings out on him when he is in
        the witness box.  The position was this, was it not, at
        this time, Mr Irving, and this is my last but one thing
        for you to think about if you ever come to reconsider your
        position on this document.  There was at this time a

.          P-189

        squabble going on, and I am paraphrasing, I am using
        colloquialisms, so please forgive me, the hour is late,
        between the SS on the one hand who wanted the Mischlinge
        carted off and the mixed marriages split up, and on the
        other hand the Ministry of Justice who probably for
        entirely practical reasons since they would have to make
        all sorts of laws and decisions, wanted the question left
        on one side?
   A.   That is absolutely right.
   Q.   Thank you.  It is quite natural that Lammers, having
        thought about it, should say:  "Well, I think if I asked
        Adolf Hitler he would probably say, well, forget the
        Mischlinge question", and thought to himself:  "Well, we
        all know that in the past Hitler said he wants to postpone
        the entlosung until after the war.  I will just tell
        Schlegelberger to write that down"?
   A.   But that is not what this document says, Mr Rampton, if
        I can ----
   Q.   It says: "The Fuhrer has repeatedly said" or "The Fuhrer
        had repeatedly said".  We all know that the Fuhrer had
        repeatedly said that way back in 1940 and 41.
   A.   Well, if you attach importance to the tense there I will
        take expert advice overnight and ask exactly what the
        English translation of that tense should be.
   Q.   Even if it has, a senior Civil Servant will be well aware
        of the fact that the Fuhrer has in the past repeatedly

.          P-190



        said that he wants the thing postponed.  What the document
        does not say is that Herr Lammers went into Hitler's
        office and said:  "Look, Mein Fuhrer, there is this
        squabble going on", and that Hitler said on that
        occasion:  "But you know perfectly well this can't
        happen.  I am not having the Jewish question solved at
        this stage.  It has got to be postponed until the end of
        the war."
                  Now that last fanciful example is what you have
        deduced from this document, is it not?
   A.   Mr Rampton, I am going to ask his Lordship's permission to
        come in tomorrow with a little bundle say of, say, four or
        five documents on this particular point, which I would ask
        his Lordship's permission to put before the Court.
   Q.   If you would rather leave it now, I will leave it now.  I
        am just going to propose, you can think about it
        overnight, one other possibility to you.
   A.   It is just that I would like the chance to bring in the
        documents which will support my position rather than
        yours.
   MR JUSTICE GRAY:  Yes, by all means.
   MR RAMPTON:  I think that is perfectly reasonable.
   A.   It will be a very small clip, and not one of my usual
        bundles.
   Q.   I may need time to consult them with my expert team.
I am
        not an expert.  Mr Irving, there is one other
possibility,

.          P-191



        is there not, that if this represents, this note, a
        contemporaneous statement by Hitler about his
intentions
        for the Jews in general ----
   A.   Yes.
   Q.   --- then it is quite possible that it is not a 1942
        document at all for this reason, that up to September
        1941, the beginning of the entlosung on Hitler's order
had
        not happened?
   A.   Yes.
   Q.   So it is logically consistent with Hitler's known
        intentions and statements in the earlier part of 1941
or
        in 1940, that this document might emanate at that
date, is
        it not?
   A.   A vanishingly small probability that that was
possible.
        To suggest that this 1942 file of documents could
contain
        a stray document out of 1941, flies in the face of the
        German mentality.
   Q.   Before we stop tonight, Mr Irving, and you collect
your
        thoughts on the things I have been putting to you,
does
        the file which you are talking about, is it an
original
        Justice Ministry file in full integrity, or has it
been
        mucked around with by the Allies?
   A.   I can establish what condition it was in when it came
into
        Allied possession because we have the staff evidence
        analysis sheet of the contents of that file, listing
the
        contents.

.          P-192



   Q.   But the thing you have seen is not, therefore, an
original
        pristine, untouched Reichs Justice Ministry file?
   A.   No.  I would just comment, I do not intend just to
collect
        my thoughts tonight.  I know precisely where my
thoughts
        are, but I think it would be more useful if I can
buttress
        them with the actual paperwork which establishes that
        these are not stray thoughts.
   Q.   Is your Lordship content with that?
   MR JUSTICE GRAY:  Yes.  That is a convenient moment, are
you
        saying, Mr Rampton?
   MR RAMPTON:  No, I meant is it convenient for me to stop
now?
   MR JUSTICE GRAY:  Yes, that is what I thought you mind.
Can
        I just mention one or two things?
                     (Administrative Discussion).
   MR JUSTICE GRAY:  Finally, Mr Rampton, can I just ask this.
        I thought I said something, but I may have forgotten,
in
        which case it is my fault, about maybe having half a
page
        of argument, just so I know what the issue is in
advance
        of tomorrow on this question of Auschwitz.
   MR RAMPTON:  It may only just be a question of my copying
out
        what I said from the transcript in that case.  I have
        nothing more to say.
   MR JUSTICE GRAY:  Even that or the reference.  Could you
fax
        through the reference?
   MR RAMPTON:  Yes.  The short point is this.  It seems to
        unarguable that on the pleadings, and whether you talk

.          P-193



        about the old pleadings or the new Statement of Case,
and
        on the discovery and everything else besides our case
is
        perfectly clear.  It is I hope accurately stated by me
        I think it was yesterday.  I cannot do any better then
        that.
   MR JUSTICE GRAY:  It is the convergence of evidence point,
is
        it?
   MR RAMPTON:  Yes.  There are two separate things about it.
Let
        me take it stages.  I am not here to prove that
Auschwitz
        had gas chambers, homicidal gas chambers.  I do not
need
        to do that.  If you again you have an open mind and
you
        look at the convergence of evidence, eyewitness
testimony
        from victims.
   MR JUSTICE GRAY:  Yes, I remember what you said.
   MR RAMPTON:  All of that, perpetrators, and the
contemporaneous
        documentary evidence and the archeological remains,
you
        are drink to conclude, as a matter of probability at
the
        very least, that indeed what the eyewitnesses tell us
is
        true.  I am not here to persuade your Lordship of
that,
        save as a preliminary first step to two things.  Mr
Irving
        on the back of a piece of so-called research which is
not
        worth the paper it is written on jumped up and said he
was
        perfectly certain that there were never any gas
chambers
        at Auschwitz, and he has said that statement, made
that
        statement repeatedly in circumstances where it is apt
to
        excite the hostility towards Jews of people who are
likely

.          P-194



        to be anti-Semitic, which is the political side of
this
        case which we will get to later on.  As an insight
into
        Mr Irving's credentials as a so-called historian, it
is
        extremely illuminating, and that is the whole of my
        argument.
   MR JUSTICE GRAY:  The question which may be capable of
being
        narrowed is the extent to which Mr Irving contests the
        possible validity of the eyewitnesses' evidence, the
        survivor's evidence, the camp officials' evidence and
so
        on?
   MR RAMPTON:  Mr Irving, I do not know what his case is.
His
        case could be twofold: No, Liechter is not rubbish, it
is
        jolly good and what is more there is a whole lot of
other
        stuff besides relating, for example, to coke
consumption
        and incineration capacity and goodness what else,
which
        converges towards the conclusion that everybody has
been
        wrong all this time, that leads me to the conclusion
that
        the eyewitnesses are mistaken or lying.  It could be
his
        case.  I just do not know.
   MR JUSTICE GRAY:  I think that may be sufficient.  We can
        debate that tomorrow.  10.30 tomorrow.
                  < (The witness stood down)
                  (The court adjourned until the following
day)




.          P-195



   IN THE HIGH COURT OF JUSTICE            1996 I. No. 113
QUEEN'S BENCH DIVISION

Royal Courts of Justice
                                           Strand, London
                                      Monday, 24th January
2000

                                Before:
                            MR JUSTICE GRAY

        B E T W E E N:
DAVID JOHN CAWDELL IRVING
                                                Claimant
-and-

(1) PENGUIN BOOKS LIMITED
                  (2) DEBORAH E. LIPSTADT
                                                Defendants
   The Claimant appeared in person
   MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport
Lyons
and Mishcon de Reya) appeared on behalf of the First and
        Second Defendants
   MISS HEATHER ROGERS (instructed by Davenport Lyons)
appeared on
behalf of the First Defendant Penguin Books Limited

MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
        the Second Defendant Deborah Lipstadt

        (Transcribed from the stenographic notes of Harry
Counsell
& Company, Clifford's Inn, Fetter Lane, London EC4
                       Telephone: 020-7242-9346)

PROCEEDINGS - DAY EIGHT

* Transcript not to be reproduced without the written
                  permission of Harry Counsell & Company


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