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Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day016.04

Archive/File: people/i/irving.david/libel.suit/transcripts/day016.04
Last-Modified: 2000/07/20

   MR JUSTICE GRAY:  That sounds to me entirely fair.

.          P-23

   MR IRVING:  --- continuous form because the problem was in that
        particular fragment of conversation, Errol Morris, the
        producer, asked me to role play, so to speak.  "Imagine
        yourself in that position and state what your motives would be".
   MR JUSTICE GRAY:  Sorry, I have already said whenever you feel
        that the context puts a different spin on the part that
        the Defendants are relying on, you are perfectly entitled
        to draw my attention to the context.
   MR IRVING:  It was not actually a piece used in the film.  It
        was a piece that they picked up, the Defendants picked up,
        off the cutting room floor, so to speak, and then
        wiped off and produced for your Lordship's delectation.
   MR JUSTICE GRAY:  I cannot at the moment claim to remember
        which bit it is.
   MR RAMPTON:  I will tell your Lordship where to find it.  It
        has been in the files since goodness knows.  It was a late
        arrival in the sense that it was not in the original
        file.  It is at tab 9 of the bundle K4, and a complete
        transcript of the whole untransmitted or pretransmission
        interview is in that tab transcribed by the court
        transcribers.  Mr Irving has had the tape as well.
   MR IRVING:  Do we not have the film of it?
   MR JUSTICE GRAY:  What is the film going to add which is not in
        the transcript, Mr Irving?
   MR IRVING:  Unfortunately, this tape is, I believe I am right

.          P-24

        in saying, very fragmentary.  It jumps and stops and
        starts in the way that things do that are taken off a
        cutting room floor.
   MR JUSTICE GRAY:  Well, it looks to me like a complete transcript.
   MR RAMPTON:  I am told it is a complete transcript.
   MR JUSTICE GRAY:  There we are.  You have it there.  You can
        ask the Defendants if they will provide you with the tape
        or you can read it into the transcript, Mr Irving, but
        I do not think I can do anything about it, can I?
   MR IRVING:  Reverting to the witness statement of Professor van
        Pelt, my Lord, again a general question:  we covered parts
        of that in the cross-examination and I think your Lordship
        welcomed the fact that I did not intend to go through it
        paragraph by paragraph.  How much attention is your
        Lordship going to pay to the paragraphs that we did not
        test under cross-examination?
   MR JUSTICE GRAY:  I am a little troubled by this, but the way
        I think it is right to deal with the parts that you were
        not cross-examined on, that is to say, those parts of
        Professor van Pelt's expert report which did not form any
        part of Mr Rampton's cross-examination of you, I am
        treating as not being part of the Defence of
        Justification, unless and until they crop up in the
        evidence of other witnesses ----
   MR IRVING:  For example ----

.          P-25

   MR JUSTICE GRAY:  --- as a result of their being cross-examined by you.
   MR IRVING:  --- the testimony of the Commandant of Auschwitz,
        Rudolf Hoess, was hardly tested, I believe -- and Mr Rampton?
   MR JUSTICE GRAY:  No, we have had enough on Rudolf Hoess to
        make him part of the Defence of Justification.  He is --
        you have been cross-examined about this -- one of the camp
        officials, or the camp official, on whom the Defendants
        place really most reliance, I think it is fair to say.
   MR RAMPTON:  My Lord, the position at Auschwitz is quite
        different from the rest of the case.  Van Pelt contains
        the evidence that a responsible historian would have
        looked at as a minimum.  Mr Irving has made it perfectly
        clear that until this case came along he has never looked
        at it.  It is the convergence of all the evidence in van
        Pelt that makes the case that Mr Irving should have known
        about before he jumped on the Leuchter bandwagon.  So the
        whole of that is before your Lordship.  Evans is quite
        different.  If I do not cross-examine on parts of Evans,
        your Lordship can probably assume that I do not pursue
        them, but not so with van Pelt.
   MR JUSTICE GRAY:  I think that in a way that is a correction of
        what I have just said.  I think you will find that already
        reflected on the transcript is the proposition that the
        Defendants do not have to go through each individual

.          P-26

        eyewitness, for example, or each individual document
        relating to the construction of Auschwitz, although we
        have had quite a lot of it, because they say that is the
        totality of the evidence you ought to have looked at.
                  The distinction Mr Rampton draws is between
        that, on the one hand, and, on the other hand, criticisms
        of you for perverting the historical record, mostly in
        'Hitler's War', which they are only entitled to rely on
        if they put it to you fair and square in
        cross-examination, and that is a fair correction - ---
   MR IRVING:  I am startled by this distinction between the two
   MR JUSTICE GRAY:  Well, it relates really to the nature of the
        criticism that is made.  In relation to perversion of the
        historical record, a positive case is made against you,
        you have deliberately done this, you have deliberately
        manipulated the data, and Mr Rampton has put that, he has
        not put the whole of Evans' report, but he has put a lot
        of it.  So that is the kind criticism made there.
                  But in relation to Auschwitz, as I understand
        it, it is really a rather different criticism.  It is that
        you have taken a perverse view which ignores and flies in
        the face of the totality of evidence that there was
        gassing at Auschwitz.  So do you follow why it is a
        different kind of case?
   MR IRVING:  I appreciate what Mr Rampton and your Lordship are

.          P-27

        trying to say, but your Lordship will remember quite
        clearly that on more than one occasion I asked the
        witness, "Are these the eyewitnesses that you are relying
        on?  Are there any more?"  We had dealt, I think, by that
        time with five and he quite clearly said, no, there are no
        more that he was relying on at that point.
   MR JUSTICE GRAY:  Not quite.
   MR IRVING:  And I think it is perverse now for Mr Rampton to
        say, yes, but what about Hoess or what about Aumeier or
        what about the others who are in the written report, but
        who the witness was inviting me not to cross-examine him
        on, shall I put it that way?
   MR JUSTICE GRAY:  I think, I hope, I accurately reflect
        Professor van Pelt's evidence when I say this, that in
        relation to inmates' eyewitness evidence, he was inclined
        to rely only on the very early reports, because he
        accepted the possibility of cross-pollination and
        contamination, or whatever you would like to call it, with
        the later ones.  But in relation to camp officials, I do
        not think he ever said that he was discarding any of them,
        as it were, as some support for the proposition that there
        was gassing there.  That is my broad recollection of his
   MR IRVING:  Well, in my closing speech I may have to remind
        your Lordship of the actual words.  Your Lordship will
        probably remember that I also said to him, "How many

.          P-28

        survivors were there?" and we came to several thousand.
        I said, "Why have you always then picked on just those
        five?  Why haven't you ever questioned any of the other 10,000?"
   MR JUSTICE GRAY:  That is a point you are perfectly entitled to make.
   MR IRVING:  My Lord, that is all I wish now to...
   MR JUSTICE GRAY:  It is not a bad thing to have those points
        ventilated.  Now I think it is Professor Browning?
   MR RAMPTON:  He is here, my Lord.  Yes.


                     ( Examined by MR RAMPTON QC.)

   MR RAMPTON:  Professor Browning, what are your full names?
   A.   Christopher Robert Browning.
   Q.   Have you made an expert witness report for the purposes of
        this case?
   A.   Yes, I have.
   Q.   Do you have it with you?
   A.   I have my own report.  I do not have the pagination of the court's.
   Q.   We must make ----
   A.   The reformatting of it.
   Q.    --- sure you have the same version as we do.  I ask you
        only this, in so far as that report contains statements of
        fact, are you satisfied so far as you can be that they are

.          P-29

   A.   There are some things that I have become aware since the
        report that I would have added if I had known of them as
        of mid July 1999, but it only affirms what I have already
        written, except it changes some dates but, in general,
        I would say, yes, that the report still stands.
   Q.   In so far as it contains expressions of opinion, are you
        satisfied in your own mind that those opinions are fair?
   A.   Yes.
   Q.   Will you please remain there to be cross-examined by
        Mr Irving?

                  ( Cross-Examined by MR IRVING.)

   MR JUSTICE GRAY:  Mr Irving?
   MR IRVING:  Good morning, Professor Browning.
   A.   Good morning.
   Q.   You say you have made a number of fresh determinations on
        dates and things recently, since July 1999, that you would
        have written certain dates differently?
   A.   Yes, particularly the
dates as to when certain special of Operation Reinhardt appeared.
   Q.   Which spellings?
   A.   I would say now that we have not two but three different
        spellings, one with a T, one with a DT and one with a D,
        and that those all appear as of 1942 when earlier the
        first DT spelling I had found had been of 1943.
   Q.   What is the significance of 1942, in your opinion?
   A.   The significance of this would be if there are three

.          P-30

        different spellings, that it was made in honour of any
        particular individual because one would know how the
        spelling was.  Well, obviously, this was phonetic and they
        spelled it in any way that it occurred to them, and, of
        course, in 1942 is the height of the clearing of the
        gettoes and the killing of the Jews in Poland.

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