Newsgroups: alt.revisionism Reply-to: firstname.lastname@example.org Subject: Irving v. Penguin & Lipstadt: Judgment XIII-02 Organization: The Nizkor Project Keywords: David Irving libel action Deborah Lipstadt Archive/File: people/i/irving.david/libel.suit/judgment-13.02 Last-Modified: 2000/04/11 13.30 As I have recorded at paragraphs 5.137-8 above, Irving produced another "chain of documents" in support of his contention that the attitude of Hitler to the Jewish question was sympathetic and protective. I accept that on occasion, particularly in the early years, Hitler did intervene on behalf of Jews (usually individuals or identified groups). I accept also (as I have already said) that until 1941 Hitler favoured deporting the Jews. But I note that few documents in this chain come after the autumn of 1941. Those that do are at best equivocal. It appears to me to be perverse to interpret Himmler's compromising letter to Berger of 28 July 1942 as referring to deportation. Objective consideration of that document suggests strongly that the responsibility with which Himmler said he had been entrusted by Hitler was the implementation of the policy of exterminating the Jews. I accept the conclusion of Evans that the chain of documents does little to justify or excuse Irving's portrayal of Hitler's views on the Jewish question. 13.31 It is my conclusion that the Defendants are justified in their assertion that Irving has seriously misrepresented Hitler's views on the Jewish question. He has done so in some instances by misinterpreting and mistranslating documents and in other instances by omitting documents or parts of them. In the result the picture which he provides to readers of Hitler and his attitude towards the Jews is at odds with the evidence. The timing of the "final solution" to the Jewish question: the Schlegelberger note 13.32 In my opinion Irving's treatment of the Schlegelberger note and the importance which he attaches to it shed important light on the quality of his historiography. 13.33 It is to be borne in mind that the note is undated and unsigned. It is hearsay in the sense that its author is recording what Lammers claims to have been told by Hitler. It is an Abschrift (copy) rather than an original document. It has a number of unsatisfactory features, which might give rise to doubts about its authenticity. There is no clear evidence of the context in which the note came into existence. Yet Irving has seized upon the note and regards it, to quote his own words, as a "high-level diamond document". According to Irving, the note demonstrates that it was Hitler's wish that the entire Jewish question be postponed until the end of the war. It is therefore the linchpin of his argument that Hitler was the Jews' friend. The question is whether that is a conclusion to which an objective historian might sensibly come, taking due account of the surrounding circumstances. 13.34 I shall not devote time to discussing the question whether the document dates from 1941 (in which case it would be a wholly unremarkable document since it was at that time Hitler's view that the Jews should in due course be deported) or from 1942, since Evans was disposed to accept, at least for the sake of argument, that the latter date may well be the correct one. 13.35 On the assumption that the note is a 1942 document, I consider that, in the light of all the surrounding circumstances and in the light of subsequent events, it is (to put it no higher) very doubtful if the Schlegelberger note is evidence of a wish on the part of Hitler to postpone the Jewish question until after the war, that is, to take no offensive action against them of any kind until after the cessation of hostilities. I do not believe that Irving was able to provide a satisfactory answer to the Defendants' question: why should Hitler have decided suddenly in March 1942 to call a halt to a process which had been going on with his authority on a massive scale for at least six months. I am persuaded that, for the reasons advanced by Evans, it is at least equally likely that the note is concerned with the complex problems thrown up by the question how to treat half-Jews (mischlinge). It is noteworthy that the evidence suggests that at the Wannsee conference in January 1942 (where Heydrich claimed to be speaking with the authority of Hitler) a programme for the extermination of Jews had been discussed and in broad terms agreed upon. The delegates were, however, unable to resolve the thorny question of the mischlinge. That issue caused concern within the Ministry of Justice (where both Lammers and Schlegelberger worked). A resumed session of the Wannsee conference was arranged for 6 March 1942, when the question of the mischlinge was again discussed. There is no support in the documentary evidence for Irving's contention that there was on this occasion general discussion of the Jewish question. No solution having been agreed, the balance of the evidence in my view suggests that it was decided to refer the issue of the mischlinge to Hitler for his decision. If that be right, the note simply records what Hitler decided on that limited question. If the Defendants' explanation of the note is correct (and I have held that it is at least as likely an explanation as that put forward by Irving), the note does not possess the significance which Irving attaches to it. 13.36 I do not regard the arguments advanced by Irving, which I have set out at paragraphs 5.165-7, as being without merit: they are worthy of consideration. But I do consider the Defendants' criticism to be well- founded that Irving presents the Schlegelberger note as decisive and incontrovertible evidence (see Hitler's War at p464) when, as he should have appreciated, there are powerful reasons for doubting that it has the significance which he attaches to it. Irving's perception of the importance of the note appears to take no account of the mass murder of the Jews which took place soon afterwards. Goebbels's diary entry for 27 March 1942 (paragraphs 5.170-186 above) 13.37 I have concluded without hesitation that the manner in which Irving deals in Hitler's War (both editions) with Goebbels's diary entry of 27 March 1942 is misleading and unsupported by the circumstantial evidence. A comparison between the language of the diary (see paragraph 5.174 above) and the account provided by Irving to his readers (see paragraph 5.173) reveals stark discrepancies. 13.38 I recognise that Irving is justified in his claim that Goebbels was often mendacious in his diary entries. So the entries have to be scrutinised in the light of surrounding circumstances. But I do not accept that the evidence of the circumstances as they existed in March 1942 lends support to Irving's claim that Goebbels concealed from Hitler the reality of what was happening in the death camps. I do not consider that Irving was able to point to evidence which controverted the contention of the Defendants that by March 1942 the "radical solution" favoured by Hitler was extermination and not deportation. It follows that I accept the submission that the way in which Irving deals with this diary is tendentious and unjustified. Himmler minute of 22 September 1942 (paragraphs 5.187-198 above) 13.39 I consider that the interpretation of Himmler's terse note is problematic. I recognise that there are pointers (including for example the reference to Globocnik) which might be said to render this an incriminating document. But there is force in Irving's argument that the internal evidence consisting in the language used in the note (auswanderung or emigration) is consistent with the discussion between Himmler and Hitler having been about resettlement and not extermination. 13.40 That said, I accept the validity of the criticism that there was no warrant for the claim made by Irving that at that meeting Himmler pulled the wool over Hitler's eyes. In my judgment, that claim ignores the circumstantial evidence as to the state of Hitler's knowledge by September 1942 of the use of gas chambers to kill Jews. It also runs counter to the evidence of the nature of the relationship between Hitler and Himmler, who does not appear to have been a man likely to have practised a deception of this kind on his Fuhrer. I therefore accept the contention of the Defendants that Irving's treatment of this minute is unjustifiably favourable to Hitler. Himmler's note for this meeting with Hitler on 10 December 1942 (paragraphs 5.194-198 above) 13.41 This is another document where much of the argument turned on a question of translation namely a whether abschaffen was to be translated as "to remove" or "to liquidate". I do not criticise Irving for opting for the former. However, I accept the Defendants' argument that the reference in the note to keeping the well-to-do French Jews "healthy and alive" should have alerted an objective historian to the sinister significance of the note in regard to the fate awaiting the other French Jews. To that extent I accept the criticism of Irving for the way he has dealt with this note in Hitler's War. Hitler's meetings with Antonescu and Horthy in April 1943 (paragraphs 5.199-214 above) 13.42 I regard the issue raised by the criticisms of Irving's accounts of these meetings as important in assessing Irving's historiography. It appears to me to be significant that there exist minutes of both meetings taken by officials who (as I believe Irving accepted) had no reason to obfuscate the effect of what was said. 13.43 I am satisfied that the Defendants' criticisms of Irving's treatment of the evidence relating to the meeting with Antonescu and, more particularly, with Horthy have substance. In assessing the evidence it appears to me that an objective historian would take into consideration, firstly, Hitler's apparent objective in meeting the two leaders: it was to enable the Nazis to get their hands on the Romanian and Hungarian Jews respectively. Such an historian would ponder whether the language of the minutes can be said to be consistent with a desire on the part of the Nazis to secure the deportation of the Jews and nothing more. He would also have in mind the subsequent history of the Romanian and Hungarian Jews. 13.44 It does not appear to me that, in relation to these meetings, Irving approached the evidence in an objective manner. His account of the meeting with Antonescu was partial and on that account misleading. In relation to the meeting with Horthy, Irving failed to heed what appears to me to be powerful evidence that on the second day, 17 April, both Hitler and Ribbentrop spoke in uncompromising and unequivocal terms about their genocidal intentions in regard to the Hungarian Jews. Irving was constrained to accept that the pretext which he put forward for the meeting with Horthy (the Warsaw ghetto uprising which happened afterwards) was false, as was his explanation for the harsh attitude evinced by Hitler at the meeting (recent Allied bombing raids). I was not persuaded that Irving had any satisfactory explanation for his transposition from 16 to 17 April of Hitler's comforting remark, made on 16 April, that there was no need for the murder or elimination of the Hungarian Jews. In my judgment Irving materially perverts the evidence of what passed between the Nazis and Horthy on 17 April. The deportation and murder of the Roman Jews in October 1943 (paragraphs 5.215-221 above) 13.45 I do not accept that an objective analysis of the available evidence supports Irving's claim that the effect of Hitler's intervention was to prevent Himmler's murderous plans for the Jews being brought into effect. It appears to me that it was specious for Irving to argue, as he did, that Hitler's intervention was for the benefit of the Roman Jews, when the result of that intervention was that the Roman Jews were sent to the notorious concentration camp at Mauthausen where they were at the mercy of the SS. I also take the view that it was a culpable omission on Irving's part not to inform his readers that these Jews were ultimately murdered. Himmler's speeches of 6 October 1943 and 5 and 24 May 1944 (paragaphs 5.222-230 above) 13.46 It is a common ground that in these three speeches Himmler was speaking, with remarkable frankness, about the murder of the Jews. The question is whether Irving dealt in an objective and fair manner with the evidence which those speeches afford as to Hitler's knowledge of and complicity in the murder of the Jews. I am satisfied that he did not. Two of the speeches provide powerful evidence that Hitler ordered that the extermination of the Jews should take place. Yet in the 1977 edition of Hitler's War Irving suggests that the existence of a Hitler order was an invention on the part of Himmler. It does not appear to me that the evidence supports that suggestion. I consider that Irving's deduction that the transcript of the speech of 5 May was either altered after Himmler delivered the speech or sanitised before it was shown to Hitler is fanciful. The absence of any mention of that speech in the 1991 edition of Hitler's War was in my judgment another culpable omission. Hitler's speech on 26 May 1944 (paragraph 5.235-239 above) 13.47 Irving quoted the material part of this speech in full in Hitler's War. I do not accept the Defendants' argument that his prefatory comment amounts to misrepresenting or twisting Hitler's words. The reader can judge for himself. Ribbentrop's testimony from his cell at Nuremberg (paragraphs 5.235-239 above) 13.48 I accept that historians are bound by the constraints of space to edit quotations. But there is an obligation on them not to give the reader a distorted impression by selective quotation. In my view Irving fails to observe this duty when in the 1977 edition of Hitler's War he quotes Ribbentrop's belief that Hitler did not order the destruction of the Jews but fails to quote his immediately following comment that he at least knew about it. Marie Vaillant-Couturier (paragraphs 5.240-244 above) 13.49 I have no hesitation in concluding that the Defendants' criticism of Irving in relation to the evidence of Vaillant-Couturier is justified. The evidence appears to me to be plain that the Judge's note "This I doubt" referred and referred only to her supposition (for it was no more than that) that other camps (of which she would have had no direct knowledge) had systems for selecting inmates as prostitutes for SS officers. There is no reason to suppose that the Judge had any reservations about Vaillant-Couturier's vivid, detailed and credible evidence about the womens' camp at Auschwitz. Irving's claim that Judge Biddle thought she was "a bloody liar" is a travesty of the evidence. Kurt Aumeier (paragraphs 5.245-249 above) 13.50 I find myself unconvinced by Irving's argument that Aumeier is an unreliable witness. I prefer the contention of van Pelt and Evans for the Defendants that he is an important and credible witness as to the gassing procedures in place at Auschwitz. As deputy commander at the camp, he was in a position to know. Whilst there are clearly errors in his account, for the most part his recollections are convincing. It was of course legitimate for Irving to suggest that his account was the result of brutal pressure being brought to bear by his British captors, if he had evidence for such a suggestion. But it was not clear to me what evidence Irving was relying on. I further accept that Irving minimised the significance of Aumeier's evidence (even if he did not suppress it altogether) when he confined reference to it to a footnote in Nuremberg. Findings in relation to the instances of Irving's historiography cited by the Defendants 13.51 For the reasons which I have given, I find that in most of the instances which they cite the Defendants' criticisms are justified. In those instances it is my conclusion that, judged objectively, Irving treated the historical evidence in a manner which fell far short of the standard to be expected of a conscientious historian. Irving in those respects misrepresented and distorted the evidence which was available to him. Evidence of Hitler's attitude towards the Jews and the extent, if any, of his knowledge of and responsibility for the evolving policy of extermination 13.52 Some of the findings which I have already made in relation to the Defendants' specific criticisms of Irving's historiography bear upon the broader questions of Hitler's attitude towards the Jews and his involvement, if any, in the ethnic cleansing of the Jews. I will not repeat those findings in this section of the judgment. Although the questions with which I am in this part of the judgement concerned are broad ones, they narrowed and crystallised in the course of the trial. As will be apparent from section VI above, the Defendants focused their attention upon Irving's treatment of the evidence relating to the following topics: Hitler's anti-semitism; the scale of the so-called executions of Jews in the East; the alleged use of gas chambers at the Operation Reinhard camps to kill Jews and evidence relating to the question of Hitler's knowledge of and authority for the extermination of Jews by shooting and by gassing. In relation to all of these issues save the first, Irving's stance appeared to me to alter in the course of the trial. Hitler's anti-semitism (paragraphs 6.3-9 above) 13.53 Irving having accepted that Hitler was profoundly anti-semitic until he came to power, the question is whether, as Irving claimed, he lost interest in anti-semitism from about 1933 onwards because it was no longer politically advantageous for him. 13.54 In his comprehensive and scholarly report, Longerich analysed the evidence of Hitler's anti-semitism both before and after 1933. He examined in particular Hitler's public pronouncements on the Jewish question. I have already set out in this judgment many of those statements. Ignoring for the moment the question whether Hitler was advocating the deportation of the Jews or their extermination, the argument appears to me to hopeless that after 1933 Hitler lost interest in anti-semitism or that he ceased to be anti-semitic when he came to power. Despite his increasing preoccupation with other matters, Hitler reverted time and again to the topic of the Jews and what was to be done with them. He continued to speak of them in terms which were both vitriolic and menacing. For the reasons which I have already expressed in the earlier paragraphs of this section of the judgment, I am satisfied on the evidence of his public statements that Hitler's anti- semitism continued unabated after 1933. 13.55 But account must also be taken not only of what Hitler said but also of what he did or authorised to be done or at least knew was being done in relation to the Jews. In the following paragraphs of this judgment I will summarise what appears to me to be the evidence of Hitler's involvement in the successive programmes of shooting, deporting and gassing Jews in large numbers. This evidence (which is in large part accepted by Irving) would in my view convince a dispassionate historian of Hitler's persistent anti-semitism. Even if (which I do not accept) the evidence supported the proposition that Hitler's policy towards the Jews remained throughout that they should be deported, it cannot in my view sensibly be argued that uprooting Jewish men, women and children from their homes and dumping them in often appalling conditions many miles away to the East was other than anti-semitic. I therefore reject as being contrary to the evidence Irving's claim that Hitler ceased to be anti-semitic from 1933 onwards. The scale and systematic nature of the shooting of Jews by the Einsatzgruppen (paragraphs 6.10-59 above) 13.56 I can deal quite briefly with the extensive evidence relied on by the parties in relation to this topic. The reason I can take that course is that Irving, as the case progressed, appeared to accept much of what Longerich and Browning said in their reports and in their oral evidence. In particular Irving agreed that the evidence, principally in the form of reports by the Einsatzgruppen, appears to establish that between 500,000 and 1,500,000 people (including a large proportion of Jews) were shot by those groups and by the auxiliary Wehrmacht units seconded to assist them. My understanding is that the Defendants suggest that the true figure was higher than this. But I do not see that, in the context of this case, any useful purpose would be served by my attempting to assess whether the evidence supports a higher figure. 13.57 Irving further accepted that the evidence indicates that the programme of shooting Jews in the East was systematic, in the sense that it originated in Berlin and was organised and co-ordinated from there. Furthermore Irving conceded that the evidence bears out the contention of the Defendants that Hitler sanctioned the killings. Irving testified that, if he had given audiences the impression by what he said in Australia in 1986 that the killings on the Eastern front had taken place without the knowledge and approval of Hitler and his cronies, he had been wrong to do so. His evidence was that "certainly Hitler sanctioned the killing of the Jews on the Eastern front". The evidence which prompted Irving to make these concessions consisted in the regular reports made by the Einsatzgruppen to Berlin; the preparation by the RHSA in Berlin of Ereignismeldungen (event announcements) and a report numbered 51 dated 29 December 1942 which recorded the "execution" of 363,112 Jews and which (as Irving accepted) was probably shown to Hitler. The Defendants also relied on the so-called Muller order of 1 August 1941 to which I shall have to return later. It appears to me that these concessions by Irving were rightly made. Apart form the existence of the evidence to which I have just referred the vast manpower required to carry out the programme at a critical stage in the war would surely have required the approval of Hitler.
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