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Subject: Irving v. Penguin & Lipstadt: Judgment V-06
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Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-05.06
Last-Modified: 2000/04/11

Irving's response

5.137 In the course of his cross-examination, Irving produced another
"chain of documents" by way of positive rebuttal of the contention of
the Defendants, that his portrayal of the attitude of Hitler to the
Jewish question was fundamentally false. It consisted of a selection of
documents which, he said, support his contention that Hitler was a
friend of the Jews. Included amongst those documents were, firstly, an
order dating back to 1935 that isolated actions against Jews were not to
take place and would be severely punished; a directive issued in 1936
that there were to be no excesses against the Jews following the
assassination of a Swiss named Gustlov; another directive of July 1937
by which Hitler permitted selected non-Aryans to remain in the Nazi
party and a 1939 document in which the Czech Foreign Minister reports
Hitler saying the Jews were being economically annihilated and talking
of deporting them to Madagascar.

5.138 Later documents in Irving's "chain" include a note made by the
Nazi ambassador to France in August 1940 recording Hitler's wish to
include in peace treaties with nations defeated by the Nazis a condition
that they should deport their Jews out of Europe. Another document
relied on by Irving is a query raised in November 1941 by the
Reichskommssar for the Ostland asking whether all Jews in his area are
to be liquidating since he can find no directive to that effect. Irving
claimed that this indicates that there was no such directive. Irving
also relied on the instruction given by Himmler in November 1941 (which
is considered above) that there is to be no liquidation of Jews from
Berlin. Next in the "chain" relied on by Irving is a note by Rosenberg
of a conversation he had with Hitler in December 1941 (shortly after war
was declared on America) which records Hitler as having approved
Rosenberg's policy of not talking about the extirpation of Jewry.
According to the note, Hitler had said that Jews had brought about the
war and had thereby brought about their own destruction. Rosenberg did
not record Hitler as favouring a policy of exterminating the Jews.

5.139 As to Himmler's note of his discussion with Hitler on 18 December
1941 about the Jewish question, which records that the decision that
Jews were to be extirpated as partisans (auszurotten als Partisane),
Irving interpreted this note as meaning that the Jews were to be
executed as partisans because that is what they were. Irving made
reference to the recollection over twenty years afterwards of one of the
authors of Hitler's Table Talk that Hitler had in December 1941 said
that all he was asking of the Jews was that they should perform hard
labour somewhere. In the same vein Irving referred to a document dated 6
July 1942 recording Hitler's decision that Jews in specific occupations
should be protected from persecution. Then Irving cited Hitler's Table
Talk for 24 July 1942 for Hitler's comment about getting rid of the Jews
to Madagascar.

5.140 The last documents in Irving's "chain" is the letter from Himmler
to General Berger dated 28 July 1942 in which he writes that the Fuhrer
has placed on his shoulders the burdensome task of rendering the eastern
territories free of Jews. Irving interpreted this to mean that Hitler
has ordered Himmler to remove the Jews from those territories (whereas
Evans said it plainly means they were to be killed).

5.141 Irving relies also upon extracts from the agenda for two
discussions between Hitler and Himmler on 17 or 22 July and 10 December
1942 respectively. The former includes the words "Judenauswanderung
(Jewish emigration) - how to proceed further". The latter has the word
abschaffen (abolished) written beside a reference to 600-700,00 Jews
supposedly in France. It is followed by a memorandum from Himmler that
these Jews are to be abtransportiert (deported). Irving maintains that
the terms used in these documents all suggest that deportation was the
policy towards Jews.

Irving's chain ends there because, with effect from October 1943, he
accepts Hitler knew of the policy of exterminating the Jews.

5.142 Evans's response to the series of documents was that they do not
amount to much. He did not accept that they justified or excused the way
Irving portrays Hitler's position on the Jewish question. Evans agreed
that Hitler undoubtedly in specific occasions did intervene on behalf of
identified Jews or groups of Jews. He accepted that until the latter
part of 1941 Hitler's preferred solution to the Jewish problem was
deportation. Thereafter Evans contended that Hitler approved their
extermination even though he did not say so in terms. That is the
interpretation which he puts on Rosenberg's note of December 1941. The
reference to deportation to Madagascar in Hitler's Table Talk for 24
July 1942 is camouflage, according to Evans, since the Madagascar plan
had been abandoned in February 1942. Bearing in mind what was going on
in mid-July 1942 Evans takes the view that Judenauswanderung and
abtraansportiert are plainly euphemisms for extermination. Evans
asserted that Irving's selection of documents ignores the vastly greater
number of documents which evidence Hitler's murderous intentions towards
Jews of all nationalities.

5.143 Dealing with the specific passages in his books which the
Defendants highlighted, Irving excused the inaccuracies in his version
of Hitler's reported comments made in October 1941 about parking Jews in
the marshier parts of Russia by saying, correctly, that at the time in
the 1970s when he wrote the first edition of Hitler's War the only
version which was available to him was the English translation of those
comments made for Weidenfeld & Nicolson in 1953. Irving followed that
translation. Irving conceded, however, that even after the German
original became available to him, he repeated the translation errors in
the second edition of Hitler's War and retained some of them in
Goebbels. This he excused on the basis that the Weidenfeld's translation
is not a serious deviation from the original and has the virtue that it
is not a "wooden" version. Irving totally disagreed with the suggestion
put to him that he was deliberately using a mistranslation in order to
exculpate Hitler.

5.144 Irving rejected the criticism of his account of Goebbels's diary
entry for 22 November 1991 which gives an account of his meeting with
Hitler the previous day. He admitted that he omitted the word
"energetic" but contended that it was legitimate to leave the matter
"neutral" because the account had been filtered through the evil brain
of Goebbels who was given to claiming falsely to have the Fuhrer's
authority for what he had done.

5.145 In regard to Hitler's speech to the Gauleiter on 12 December 1941,
Irving claimed that the account given by Goebbels of what Hitler said
was mendacious. He argued that the extermination (vernichtung) of Jews
was not a quotation of what Hitler had said (although Hitler had used
that word in relation to the Jews in his famous speech to the Reichstag
in 1939) but rather Goebbels expressing his own view and intention. If
he had been quoting Hitler, said Irving, Goebbels would have used the
subjunctive tense. He did, however, agree that it is impossible to say
which part of the diary is recording Goebbels's own thoughts and which
parts are recording what Hitler said. Irving was reluctant to accept the
translation of vernichtung as extermination. He claimed that what the
reference was to the annihilation of Judaism as opposed to the
extermination of Jewry.

5.146 Irving agreed that there is no reference in his biography Goebbels
to this part of Hitler's speech to the Gauleiter on 12 December 1941.
The reason, according to Irving, is that at the time of publication he
had not seen the microfiche containing those words. Irving offered the
explanation that, when he went to Moscow to inspect the microfiches of
the Goebbels diaries there, he was looking for entries relating to Pearl
Harbour. He claimed that, when he came to the entry for 13 December 1941
(in which entry Hitler's remarks of the previous day are recorded) he
did not read as far as the passage relating to what Hitler said to the
Gauleiter about the Jews. The Defendants do not accept the veracity of
Irving's answer: they assert that Irving, when in Moscow, started
reading the entry for 13 December. The Defendants refuse to accept that
Irving would have stopped reading the entry mid-way through and before
the highly significant passage relating to the Jews which is contained
in Goebbels's account of Hitler's speech to the Gauleiter. Irving
responded that he was under pressure of time when in Moscow. He firmly
denied having read that passage, adding that, even if he had read it, he
would not have regarded Hitler's remarks it as significant since it is
"the old Adolph Hitler gramophone record".

5.147 As to General Governor Frank's account on 16 December 1941 of what
he had been told in Berlin, Irving claimed in cross-examination that the
logical interpretation was that he (Frank) had told the authorities in
Berlin to liquidate the Jews themselves and not the other way round. It
was put to Irving that this was not how he had interpreted Frank's words
at p427 of Hitler's War (1991 edition). Irving refused to accept that
the "large scale measures" of which Frank spoke in his diary meant that
Jews were to be exterminated. Asked why, in that passage in Hitler's
War, he had taken pains to claim out that Hitler was not in Berlin at
the time, Irving conceded that he was indicating to readers that Hitler
had not been in Berlin when Heydrich's agencies were giving the
instruction to liquidate the Jews. Irving accepted that there was no
indication in Goebbels's diary or in Frank's account that it was
Heydrich or his agencies which had issued that instruction.

5.148 Irving gave evidence that did not see the note of Hitler's
conversation with Himmler on 16 December 1941 until the summer of 1999
and so could not be criticised for not referring to it in the 1991
edition of Hitler's War. But he accepted, with some reluctance, that it
does establish that Hitler authorised the liquidation of Jews in the
East as if they were partisans.

5.149 In answer to the criticism that he omitted from his account of
Hitler's Table Talk for 25 January 1942 Hitler's reference to
exterminating the Jews, Irving responds that he gave the reader "the
meat" of what Hitler said by recording that he repeated the prophecy
made in the Reichstag in 1939. Irving dismissed the criticism of his
account of Hitler's attitude towards the Jewish problem in March 1942.
Nowhere is there any sheet of paper recording Hitler as having said
"liquidate the Jews". Irving asserted that he has faithfully reflected
what Goebbels reported. Hitler was still talking of deportation. Even in
the reports Hitler's Table Talk (when Hitler was amongst friends and so,
according to Irving likely to be candid and unlikely to resort to
camouflage), he is recorded as speaking of the plan to deport the Jews
to Madagascar at the end of the war. Irving repudiated the suggestion
that this was a euphemism. When asked how he reconciled the notion that
Hitler was thinking in terms of deportation with his acceptance that
Hitler knew about and approved the mass shootings of Jews on the Eastern
front, Irving responded that he believes Hitler drew a distinction
between European Jews (for whom he planned deportation) and the Jews in
the East (whom he regarded as vermin fit only to be shot).

5.150 Irving regarded Goebbels's diary entry for 30 May 1942 as
constituting "acres of sludge" not worth including in his book. He
maintained that he is right to treat the reference to Madagascar in
Hitler's Table Talk of 24 July 1942 as Hitler talking of resuming the
Madagascar plan after the war. Irving insisted that his portrayal of
Hitler's views about the Jews over this period was fair, objective and
warranted by the available evidence.

(viii) The timing of the "final solution" to the Jewish problem: the
'Schlegelberger note'

Introduction

5.151 One central document cited by Irving in support of his case that
Hitler consistently intervened to mitigate the harm sought to be done to
the Jews is a note said to have been dictated by an official in the
Reich Ministry of Justice, namely Schlegelberger, which is undated but
which is claimed to have come into existence in the spring of 1942,
which records what he has been told by Lammers, a senior civil servant
at the Reichskanzlerei:

     "Reichsminister informed me that the Fuhrer has repeatedly declared
     to him that he wants to hear that the solution to the Jewish
     question has been postponed until after the war is over".

That note, says Irving, is incompatible with the notion that Hitler
authorised or condoned the wholesale extermination of Jewry during the
war.

The Defendants' case

5.152 Evans identified several curious features about this note and its
provenance: it is undated; it bears no signature; the addressees are not
listed in the conventional manner; it appears to come from a file
containing miscellaneous documents about Jews which was put together
after 1945 by the prosecutors at Nuremberg. Not all the documents in the
file deal with the same subject-matter. Despite these unsatisfactory
features Evans accepted that the memorandum is an authentic copy or
Abschrift of an original document which has gone missing. He does,
however, add that it is no more than speculation that Schlegelberger is
the author of the memorandum.

5.153 Evans canvassed the possibility that the note dates back to 1941,
in which case the view attributed to Hitler would be consistent with the
attitude towards the Jewish question which he was advocating at that
time, namely to postpone dealing with it until after the war was over.
In support of this theory Evans drew attention to figures appearing on
the document "17.7". If the document is dated 17 July 1941, that would
be the day after an important meeting at which arrangements were set in
place for the administration of the Eastern territories.

5.154 Another possibility recognised by Evans is that document did come
into existence in early 1942 in the wake of the Wannsee conference, at
which the Defendants (basing themselves largely on the admissions which
were made by Eichmann in the course of his interrogation by the
Israelis) contend the extermination of the Jews was discussed and the
means of achieving that end were in broad terms agreed upon. Evans
accepted that on balance it is more likely that the date of the
memorandum is 1942 rather than 1941.

5.155 He expressed the opinion that the subject matter of the note was
probably not the Jewish question generally but rather the narrower issue
of mixed marriages between Jews and gentiles and the children of such
marriages (mischlinge). This contentious question had been discussed at
the Wannsee conference in January 1942, at which time no decision was
arrived at how mischlinge should be treated, although the policy of
deportation of 'full Jews" to the East had already been agreed upon.

There is, according to Evans, evidence that active discussions
thereafter took place within the Ministry of Justice as to what policy
and classification should adopted in relation to the mischlinge. A
further conference was called for 6 March 1942 with a view to hammering
out a solution. It is an important component of the Defendants' argument
that, as the minute of the meeting on 6 March shows and as
Schlegelberger testified at his trial, it was devoted exclusively to a
discussion of the mischlinge problem.

5.156 Various proposals were canvassed, including suggestions that
sterilisation should be undertaken and that mixed marriages should be
annulled by law. But the meeting was inconclusive. At the meeting on 6
March it was decided that the issue should be referred to Hitler for his
decision. Evans stressed that, odd though it may seem with the Nazi army
in dire straits in Russia, the problem of mischlinge was taken extremely
seriously. Contemporaneous documents reveal Shlegelberger to have been
seriously concerned at the ramifications of one of the proposed courses
of action, namely deciding on a case by case basis what should be done
with individual mischlinge Jews. Suggestions such as sterilisation and
the annulment of mixed marriages were also a cause for concern within
the Ministry which would have the responsibility for the supervision of
whatever policy was decided upon.

5.157 Accordingly Schlegelberger wanted to raise the matter with Lammers
and did so on 10 March 1942. It is not clear whether Lammers did in fact
consult Hitler on the issue. The language of the memorandum does not
suggest that Lammers went to Hitler and obtained a fresh ruling from him
on the specific question of the mischlinge. In any case the likely
reaction of Hitler to the complex issues raised by the many problems
surrounding the question of half and quarter Jews would have been to
postpone their consideration. Whether or not Hitler was consulted, the
natural inference, according to Evans, is that the memorandum is
confined to the question of mischlinge. The description in the
memorandum of the discussions as "theoretical" is also suggestive of the
fact that the subject matter is confined to Mischlinge. Hitler would not
have agreed to the postponement of the Jewish question in its entirety,
argued Evans, so soon after the Wannsee conference. Moreover, added
Evans, it was Hitler who had set in train the policy of deporting the
Jews to the Eastern territories. That policy had been implemented over
the previous months. In those circumstances Hitler is unlikely to have
ordered that the whole Jewish question be postponed until the end of the
war.

5.158 Evans concluded that it is very likely that the Schlegelberger
note should be interpreted as addressing the limited question of the
solution to the problem of half Jews. Longerich concurred with this
opinion.

5.159 Evans was critical of Irving for the way in which he describes the
memorandum in Goebbels:

     "Hitler wearily told Lammers that he wanted the solution of the
     Jewish problem postponed until after the war was over, a ruling
     that remarkably few historians now seem disposed to quote".

Evans regarded that passage as a complete misrepresentation of the
memorandum. There was no ruling by Hitler. In any case the deportations
and killings continued unabated, which would scarcely have happened if
Hitler had ordered their suspension.

5.160 But Evans reserved the main thrust of his criticism for the
account of the memorandum in Hitler's War, where the reader is clearly
given to understand by the passage at p464 that the note is "highly
significant" because it shows Hitler to be wanting to put off the entire
Jewish question until the end of the war. Irving regards the note as so
important that he includes the following reference to it in the
introduction:

     "Whatever way one looks at it, this document is incompatible with
     the notion that Hitler had ordered an urgent liquidation
     programme".

Evans maintained that evidence of actions taken within the Ministry of
Justice and elsewhere belie Irving's claim. Moreover, if Hitler had
indeed given an instruction to postpone the final solution of the Jewish
question until after the war, how, asked Evans, is it that the
extermination programme pressed ahead in the remaining months of 1942
and thereafter.

5.161 The Defendants argue that no reputable and objective historian
would nail his colours to the mast in the way that Irving has done by
admitting only one possible interpretation of the note. The nub of their
criticism is that Irving treats the Schlegelberger memorandum as if it
permitted of only construction, namely that it evidences Hitler
ordaining the postponement of the Jewish question until the end of the
war. Irving glosses over the many doubts which exist about the document.
He ignores the alternative construction of which the memorandum is
equally susceptible (to put it no higher), namely that it is confined to
the problem of the mischlinge. An unbiassed historian would have placed
squarely before his readers the problems and doubts about the document.
It is, say the Defendants, another instance of deliberate distortion.

Irving's response

5.162 Irving acknowledged that the Schlegelberger memorandum is an
unsatisfactory document. But he is satisfied that it is authentic. He
pointed out reference was made to a complete copy of the memorandum
(typed out in full with initials) as early as 1945 in a list compiled by
the British Foreign Office of documents found in the files of the Nazi
Ministry of Justice. That copy subsequently went missing. Irving has
attempted, without success, to obtain the top copy from the US National
Archives. He speculated that the copy in the file which was assembled by
the prosecutors at Nuremberg file may have been removed by them because
they did not want Lammers to be able to use it to exculpate himself. At
all events Irving has no doubts about the genuineness of the memorandum.
(Evans agreed that the Abschrift is a record of an authentic memorandum,
adding the rider that Irving's eagerness to treat this document as
genuine contrasts starkly with his scepticism about the integrity of
documents which do not fit in with his thesis).


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