The Nizkor Project: Remembering the Holocaust (Shoah)

David Michael's response


[Email header removed. The original is available for comparison.]

RESPONSE TO YALE F EDEIKEN’S DRAFT HIMMLER CHALLENGE CONTRACT
(Posted to alt.revisionism and e-mailed to Yale F Edeiken and Kenneth McVay)

1. Preliminary comments

I wish to respond to the draft contract sent to me on 9 March by Yale F Edeiken concerning the Nizkor/McVay Himmler tape challenge (http://www.nizkor.org/hweb/people/e/edeiken-yale/draft-00.html). I begin with some preliminary observations.

First, Kenneth McVay OBC has decided to publish the draft contract on his ‘Nizkor’ website together with some out-of-context quotations from my own Usenet postings and a private e-mail (http://www.nizkor.org/hweb/people/m/michael-david/). I now call upon Mr McVay to publish this response in full on the same website alongside the original draft contract so that his readers are not misled or kept in ignorance of the response.

Second, Yale F Edeiken has indicated that the ‘basic’ conditions of the original challenge should not be altered and that my response should deal with the challenge as presented. Specifically, in his email to me of 9 March (Message-Id: <199903100119.UAA25274@mail.enter.net) he stated:

The draft agreement will only restate and amplify the ambiguous terms of the original challenge.

You may, of course, misinform and mislead your counsel by failing to provide them a copy of the original offer. The basic conditions set forth in that original offer, and which have been accepted by you as you accepted the challenge without reservations, will not be altered in any way.

Again, in a Usenet posting on 5 March (Message-ID: <36e013a5.0@news3.enter.net>) Mr Edeiken has stated:


Ken McVay and Nizkor are proceeding in the manner set forth in the original challenge

Accordingly, rather than providing a response in the form of an alternative contract, which would doubtless lead to the criticism that we are changing ‘basic conditions’, I intend simply to make some comments regarding the draft contract and invite Yale F Edeiken to deal with them in what one hopes will be the final contract. My response will consist of three sections: (a) consideration of some technical matters that have not been taken into account in the formulation of either the original challenge or the draft contract, (b) some general observations concerning the way in which the draft contract has been presented, and finally (c) some comments on specific clauses.

Third, there has been speculation from pro-Nizkor posters in alt.revisionism that I would not be serious about this matter. This speculation appears to have arisen from a misunderstanding about my reasons for expressing an interest in the Himmler tapes. I am genuinely curious as to what forensic analysis of this material might yield.

I have to tell those who were anticipating a withdrawal that there are no insurmountable obstacles to proceeding with the analysis.

2. Technical considerations

In his original challenge to Mr Giwer (Message-ID: <4vl522$hv2@news.enter.net>), Yale F Edeiken indicated that he had spoken to a voiceprint analyst. Specifically, he stated:

First: Feasability: The analysis is feasible. I talked with a private voice identification firm and they would be able to make the analysis. I have never used them for analysis but they were highly recommended to me by the laboratory that I used to examine questioned documents. They have excellent credentials and have been used by the government and law enforcement bureass in New Jersey. They also have some experience with foreign language identification. In fact, they have been used to verify a speech by Kruschev. The requirements are simple. They would need a good copy of the Posnan speech (preferably done with a patch cord) and a copy of another speech by him. A known copy from a movie soundtrack would be sufficient if it was of the same quality as the Posnan speech. Transcripts of the sppech would be helpful.

For an effective identification there would have to be a minimum of twenty identical words that could be compared. Since Himmler spoke at Posnan for a considerable amount of time this should be no problem. Since the selection of the words would be at issue and the laboratory does not have a German speaker on staff, one German speaking represenative from each side could assit them..

Second: Price. The price I was quoted was $1,750.00. Which seems a reasonable fee. The document analysis lab I use has a minimum fee of $2,500.00 and goes up from there. Further the first $750.00 would be for a preliminary analysis. If they found that a complete identification could not be done that would be the total fee. The final $1,000.00 would include complete analysis and a final report.
<end quote>

On 6 April 1999 I contacted Yale F Edeiken by private email (Message-ID: <370A1B34.64D4@cableinet.co.uk>) with the following request, which was also posted in alt.revisionism:

<begin quote>
Please would you let me know the name and address and telephone number of the laboratory you propose to use for the Himmler tape challenge voiceprint analysis, together with the name of the contact person to whom you have spoken?
<end quote;>

His response, on 7 April, by private e-mail (Message-ID: <001501be810f$70e68280$d29910cf@yawen>) was:

<begin quote>
No decision has been made on the laboratory that Nizkor will propose to perform the tests. I contacted a laboratory in New Jersey for informational purposes only. When and if a contract is signed I will, with consultation with the signer attempt to find a laboratory based primarily on the following criteria:

1. Reputation and experience with foreign language analysis.

2. Price.

3. Proximity to Washington D.C. to facilitate any necessary on-site copying.

While the draft calls for the Nizkor Project to suggest a laboratory, I would have no objection to consulting with you during the process as an agreed laboratory would expedite the testing. Further I have no objection to your revising the contract to include this right of consultation. <end quote>

Accordingly I contacted Charles M Salter Associates of San Francisco (http://www.cmsalter.com/about.html). It will be observed from their website that they specialize, inter alia, in this type of forensic work and that they have provided evidence in major court cases. The contact person here is Dr John Freytag (http://www.cmsalter.com/personne.html#freytag). Dr Freytag stated that Charles M Salter Associates routinely carries out this sort of analysis, and he has expressed an interest in working with us on the analysis of the tapes.

In an e-mail to me dated 8 April (Message-Id: <3.0.32.19990408151637.00de3d00@shell10.ba.best.com>) Dr Freytag raised the following points (he subsequently gave me permission to post his words in this forum):

<begin quote>
1) The authenticity investigation should not be limited to voiceprint analyses. Physcial, chemical and electronic examination of the recording should be made to investigate the recording age, type of equipment used, tape (or wire) composition, etc. Additionally, the recording should be checked for evidence of splicing, dubbing, etc. as we routinely do for evidentiary tapes in criminal matters.

2) The reliability of any opinions regarding voiceprint matching depends upon the quality of the recordings being compared, the extent of matching contextural materials (i.e., are the two recordings saying the same thing?), speaker disposition during the two recordings, acoustical backgrounds, and non-linearities in recording equipment.

3) All voiceprint opinions which we develop carry a caveat. The best of results would be a high qualitative estimate of the liklihood of a voice match. The worst results would be inconclusive.

4) It is very difficult to perform reliable voiceprint comparisions in different contexts. Speech may not be disassembled into phonemes and then reassembled into another context for the purpose of voiceprint comparision. We must compare word sequences and phrases to develop reliable conclusions.

5) Our laboratory+engineer bills at US$200 per hour. Voiceprint analyses generally require a minimum of 10-times the recording length for analysis. The 190-minute comparision is necessary because we must sort through two recording samples to find matching context. While the 5-minute section may be of utmost interest to you, voiceprint comparison needs matching context wherever we may find it. We will also need to retain a German translator.
<end quote;gt;

Several points follow from this:

a. Access to the original tape is necessary so that tests over and above voiceprint analysis can be carried out. This is not an insurmountable problem. Yale F Edeiken has stated in a Usenet posting dated 15 March (Message-ID: <36ed3e18.0@news3.enter.net>):

<begin quote>
In fact, when originally queried the NA stated they would allow on-site analysis of the tape. Formal permission was not requested because the laboratory stated it was not possible. That the NA will not "release" the tape to some fruitloop in the U.K. with no academic affiliation is reasonable. That they will allow on-site analysis when asked to do so by a member of the House of Representatives sitting on the committee responsible for the NA is also reasonable.
<end quote>

b. Great care will be necessary in the selection of a comparison tape. If it is greatly different from the alleged Posen tapes then there is a risk of biasing the study against the hypothesis that ‘it is really Himmler’. Considerable thought needs to be given to the process to be used for the selection of a comparison tape. Such selection, however, cannot be made exlusively on the grounds of scientific convenience -- to compare a disputed Himmler tape with another disputed Himmler tape (or one likely to be disputed) would hardly give us a useful conclusion.

c. Dr Freytag’s opinion that:

<begin quote>
All voiceprint opinions which we develop carry a caveat. The best of results would be a high qualitative estimate of the liklihood of a voice match. The worst results would be inconclusive.
<end quote>

requires that great care be given to the contractualization of the interpretation of the response. As the lawyers whom I consulted pointed out, there would need to be close liaison between the drafter of the final contract and the laboratory carrying out the analysis to establish precisely the form in which the results would be produced by the laboratory (which, I should add, itself depends on the tests to be carried out) and then to translate the results into a decision as to their implications regarding the authenticity of the Himmler tape, who has won the challenge, and who pays what to whom.

d. The costs of this exercise are likely to be much, much higher than the costs cited by Yale F. Edeiken, assuming that it is necessary to work on the entire 190 minute set of tapes. Dr Freytag has given us a rough guide as to minimum costs: 190 minutes is 3.17 hours; 3.17 * 10 * 200 = $6200, plus the cost of the German translator, plus the cost of acquiring the tapes from the National Archives. We would also have the costs incurred in obtaining the comparison tapes, and bringing them to the analysts or, conversely, bringing the analysts to the tapes, plus legal costs. The costs could be less if we could restrict the analysis. I think that at a very minimum we need to analyze the tape concerning the famous ‘ausrotten’ section and one other tape.

Obviously, Mr Edeiken will need to take these points into account when drafting what we hope will be the final contract. This will require some liaison between himself and Dr Freytag or another similar individual

2. Legal drafting

The drafting of the draft contract appears to have been rather hurried. Evidence of this can be seen by examining the garbled clause 12:

<begin quote>
12. In case of the breach of this contract and would be impossible or very difficult to ascertain accurately, because the actual damages that either party would sustain if the other party breaches its obligations and duties under this agreement are uncertain the parties agree in good faith that reasonable compensatory damage for the harm done is is the party in breach of this contract shall forfeit all claim to any funds on deposit with said attorney, pay as liquidated damages the sum of Ten Thousand ($10,000.00) U.S. Dollars, and bear the incidental costs, including, inter alia, reasonable attorney's fees of the non-breaching party or the named attorney holding said funds, and the reasonable costs and fees of arbitration including costs of transcription..
<end quote>

This clause simply does not make sense.

Particular concerns regarding the draftsmanship of the document are as follows:

(a) Numerous important areas that require detailed contractualization are glossed over. This could result not only in legal disputes but disputes as to whether agreed procedure is being followed, disputes as to the interpretation of the analysis, and disputes as to who is liable for what. These need to be tightened up. Areas of weakness include, for example:

-- attribution of procedural responsibilities (who is responsible for what);

-- provision of a schedule;
-- itemizing and allocation of all potential costs and procedures for dealing with unanticipated costs;
-- analytical procedure and interpretation (how shall the analyses be conducted and interpreted, and by whom precisely shall they be interpreted);
-- translation of the interpretation of the results into a decision as to who is liable for what;
-- dispute resolution procedures and procedures for dealing with unanticipated issues that might arise;
-- legal systems to be invoked.

I elaborate on some of these areas below in discussing specific clauses.

(b) There is some vague and subjective language that needs to be tightened up as far as possible in order to reduce the scope for misunderstandings and disputes. Examples include:

-- a ‘recognized’ laboratory;
-- ‘good cause’;
-- ‘a reasonable degree of scientific certainty’;
-- a ‘known speech’ given by Heinrich Himmler.

3. Specific clauses

I will not discuss the finer points of draftsmanship here -- that is something that the lawyers can sort out towards the end of the negotiation procedure. I just wish to raise a few general points.

CLAUSE 1

<begin quote>
The Nizkor Project (hereinafter "Nizkor"), an unincorporated organization based in Canada and David Michael (hereinafter "Michael") a citizen and resident of the United Kingdom hereby agree to jointly have the recording of the speech made by Heinrich Himmler before officers gathered in the Polish city of Posen in October 1943 and entered into evidence at the trial before the IMT of major war criminals at Nuremberg and currently held by the U.S. National Archives analyzed by a recognized laboratory specializing in voice print analysis to determine whether the voice on said tape-recording is that of Heinrich Himmler.
<end quote>

We feel that the counterparty should be Kenneth McVay, not ‘Nizkor’. It has been stated that ‘Nizkor’ is ‘merely a website’. In this regard, we draw attention to a Usenet post apparently made by Mr McVay on 21 April 1998. The post has, interestingly, been cancelled from Dejanews, but I take the following citation from a post by Mr Anthony Sabatini dated 17 March 1999, Message-ID. <D4_H2.120$DH1.948@news.total.net>:

Re: Grosvenor's Millions
Author: Ken McVay <kmcvay@nanaimo.island.net>
Date: 1998/04/21
Forum: tor.general
Posted on: 1998/04/21
Message-ID: <6hj6m1$5ft$1@nanaimo.island.net>

< begin quote >
Nizkor has never paid Mr. McCarthy a cent. Nizkor is a web site, Mr. Sabatini. Mr. McCarthy received one cheque (for a rather small amount, considering the massive amount of dedication and long hours he provided, but the amount is, frankly, none of your businss) from a registered charitable society.

Of course, even if Nizkor _did_ have a bank account, and _did_ accept donations (it doesn't) and _did_ employ people using those donations, it would have absolutely no bearing on my statement, which was, need I remind you, that Nizkor is a web site, and does not - and will not - generate a profit, nor was it ever intended to do so.

< end quote >

It is clear from the above that Mr Edeiken’s draft would require me to enter into a contract with a website that has no bank accounts, does not accept donations, and doesn’t employ people, whereas I would prefer to enter into a contract with a real individual, who can be sued, who does have a bank account (preferably containing money), and who cannot simply wind himself up overnight.

Second, I should point out that the original Nizkor challenge to Mr Giwer dated 22 August 1996 (Message-ID: <4vikjj%2446u@nizkor.almanac.bc.ca>) was made in Mr McVay’s own name. It seems strange that, now that he has been called on the challenge by me, Mr McVay should wish to be replaced in the challenge by a website. Mr McVay’s words to Mr Giwer in the original challenge were ‘put up or shut up’. I am putting up. Mr McVay appears to be disappearing behind his website.

Third, Mr McClelland has raised the interesting possibility that I should set up a website (http://www.cuddleskor.co.uk) and that the website should accept the Nizkor challenge. If Mr McVay wishes his website to be the party to the contract, is there any reason why a website of mine should not be the counterparty?

Fourth, surely if Mr McVay is man enough to taunt people with ‘put up or shut up’ taunts it is not unreasonable to expect him to ‘put up’ himself when called on those taunts rather than hiding behind his website and his attorney. If I am prepared to put my own name and money to a negotiated contract, why should not Mr McVay do likewise?

In a post to alt.revisionism dated 30 March 1999 Message-ID: <7dpp1v$2oma$2@hub.org>, Mr McVay has indicated that he would ‘consider’ this option. I trust therefore that he will pluck up the courage to ‘put up’ himself in due course and that this matter will not be an obstacle.

CLAUSE 2

<begin quote>
The analysis of the said tape recording shall consist only of a voice print analysis of the tape recording at issue. Any other analysis shall be done only at the expense of the party wishing such further analysis. <end quote>

Here I simply again draw Yale F Edeiken’s attention to Dr John Freytag’s comment:

<begin quote>
The authenticity investigation should not be limited to voiceprint analyses. Physcial, chemical and electronic examination of the recording should be made to investigate the recording age, type of equipment used, tape (or wire) composition, etc. Additionally, the recording should be checked for evidence of splicing, dubbing, etc. as we routinely do for evidentiary tapes in criminal matters.
<end quote>

Anything less would bias the study towards an inconclusive result.

CLAUSE 3

<begin quote>
The voice print analysis will be performed by a recognized laboratory specializing in forensic voice print analysis to which the parties to this contract mutually agree, Nizkor shall propose which laboratory shall perform the analysis subject to the approval of Michael. Rejection of any proposed laboratory shall be only for good cause shown including, inter alia, lack of competence, a poor reputation within the profession of voice print analysis, demonstrated bias, or conflict of interest. Should the laboratory proposed be rejected for good cause, Michael will then propose a laboratory located with the continental United States, subject to the approval of Nizkor on the same basis. This process will continue until a laboratory is selected.
<end quote>

The laboratory would need to be selected before the contract is finalized so that the precise procedure to be used, the form of the results, and the interpretation of the results can be contractualized.

The selection process seems onerous and unnecessary. The vague terminology regarding the use of a ‘recognized’ laboratory, ‘good cause’, and so forth, could lead to endless disputes. Moreover, a laboratory could meet all the criteria specified above but might still be unacceptable to revisionists, for example, if it had strong political connections with Zionism.

I would propose that we use Dr Freytag’s team and that this be specified in the contract.

CLAUSE 4

<begin quote>
The voice print analysis shall be done according to the standards of the laboratory chosen and the scientific principles of voice print analysis who will then, as experts in voice print analysis, make a report as to their findings as to whether the tape recording is the voice of Heinrich Himmler to a reasonable degree of scientific certainty. Said report shall be considered in the public domain.
<end quote>

Needs tightening up as specified above.

CLAUSE 5

<begin quote>
The analysis shall compare the said tape recording to a known speech given by Heinrich Himmler. The selection of control specimen shall be determined by the laboratory performing the analysis from the archive of speeches and other public statements made by Heinrich Himmler maintained by the U.S. National Archives Either party has the right to reject any such alternate proposed specimen for good cause which, for the purpose of this agreement, consists only of a showing that the suggested speech is not suitable for analysis or of clear and convincing evidence that the speech was made by a person other than Heinrich Himmler.
<end quote>

As indicated above, selection of the tape would need careful thought. It would need to meet the scientific standards of the lab, but it would also need to be undisputed -- and not reasonably disputable -- by revisionists. It clearly needs to be selected up front and specified in the contract. Failing that, disputes could drag on interminably. I suggest Mr Edeiken give this some thought.

CLAUSE 6

<begin quote>
If the named laboratory is unable to perform a complete analysis due to the length of the tape recording, the minimum analysis shall consist of the portions of the speech dealing with the Final Solution of the "Jewish question" and two other portions selected at the discretion of the laboratory performing such analysis.
<end quote>

I would say that this ‘ausrotten’ section, which should be cited in full in an annexure to the contract so that there is no dispute about the section in question, should in any case be the absolute minimum section analysed. Moreover, at an absolute minimum, in addition to voiceprint analysis, analysis would have to be undertaken to ensure that this tape has not been spliced or dubbed, as Dr Freytag has indicated.

CLAUSES 7 AND 8

<begin quote>
7. Nizkor shall pay all fees required by the laboratory.

8. Prior to actual payment of any such fees, Michael will deposit a sum equal to those fees with an attorney licensed to practice law in Pennsylvania to be placed in an attorney's trust, escrow, or IOLTA account pending the expert report of the laboratory. Nizkor agrees to provide the names of three (3) such attorneys. Should Michael insist that another attorney holds the funds as described above, he shall bear the sole cost of any legal fees which are incurred as a result of his decision.
<end quote>

This differs from the original challenge as presented to Mr Giwer by Yale F Edeiken. I cite Message-ID: <4vl522$hv2@news.enter.net> posted in alt.revisionism by Yale F Edeiken:

<begin quote>
Third. Trust account. There is no need for any special account. Every lawyer must maintain (or have access to) a trust account for the deposit of clients funds. Withdrawals cannot be made from such an account without notice or, depending on the agreement, permission of the client or a court. If Giwer does not trust the account that I maintain or the one our firm maintains either his attorney could hold it or we could name a neutral attorney to do so.
<end quote>

Is there any reason why Yale Edeiken has backed off from the original challenge in this respect? I found the original proposal put to Mr Giwer far preferable in this regard.

CLAUSE 9

<begin quote>
Should the laboratory require additional fees, Nizkor will advance said fees to the laboratory upon deposit of a sum by Michael equal to those additional fees with the named attorney to be placed in the attorney's trust, escrow, or IOLTA account as aforesaid within thirty (30) days of being notified by mail that such additional funds will be required.
<end quote>

This creates a legal obligation for me to pay any additional fees that the laboratory might demand. I would need to have a right of refusal should I, at my sole discretion, consider the additional fees excessive, unreasonable or unnecessary.

CLAUSE 10

<begin quote>
Should either party fail to make the payments due either to the laboratory performing such analysis or to a licenced attorney for deposit in a trust, escrow, or IOLTA account, it will constitute a breach of this agreement. As liquidated damages, as set forth below, all sums already deposited in the said account shall be returned to the non-breaching party and the breaching party shall pay the sum of Ten Thousand ($10,000.00) U.S. Dollars as liquidated damages.
<end quote>

We don’t see the necessity for this. It could lead to lengthy disputes and litigation. If there is a breach of the contract it will be obvious for all to see and that will be sanction enough. Consideration should be given to deleting this clause.

CLAUSE 11

<begin quote>
Except in cases of breach of contract or as otherwise provided herein the attorney shall release and distribute the sums held in said account following and pursuant to the expert report of the laboratory chosen. Said distribution shall be made as follows:

a. If the expert report finds that voice print analysis confirms that the voice on said tape recording is that of Heinrich Himmler to a reasonable degree of scientific certainty all funds held in such account shall be released and distributed to Nizkor.

b. If the expert report finds that voice print analysis confirms that the voice on said tape recording is not that of Heinrich Himmler to a reasonable degree of scientific certainty all funds held in such account shall be released and distributed to Michael.

c. If the expert report finds that voice print analysis is inconclusive in that it is unable to confirm or deny to a reasonable degree of scientific certainty that the voice on said tape recording is or is not that of Heinrich Himmler Nizkor and Michael shall split the costs of the analysis equally. To this end all funds held in such account shall be released and distributed to equally to Michael and Nizkor. Any rebate or refund from the laboratory as a result of their failure to be able to perform the analysis shall be divided in the same manner.

The parties agree that, in all cases, the decision of the attorney holding said funds shall be final and no liability shall accrue to said attorney by reason of his acting in conformity with the report of the expert.

<end quote>

Two points.

First, I have a problem with this decision being made by ‘the attorney holding the funds’, especially since Yale F Edeiken has proposed that Yale F Edeiken (or someone nominated by him) might be the attorney holding the funds! We propose that the contract, which should be drafted in close liaison with the laboratory responsible for producing the results, should specify precisely the form in which the results should be produced by the lab. We further propose that the contract should specify precisely which results should constitute a ‘win’ for myself and precisely which results should constitute a ‘win’ for the counterparty.

Second, I draw attention to Dr Freytag’s words cited above:

<begin quote>
All voiceprint opinions which we develop carry a caveat. The best of results would be a high qualitative estimate of the liklihood of a voice match. The worst results would be inconclusive.
<end quote>

This implies that the contingency described in clause 11b of the draft contract could not arise -- it could not be proven that the speaker is not Himmler – and hence, irrespective of the outcome, I would be obliged to pay half of the costs. Indeed, it seems that the best we could hope for are varying degrees of inconclusiveness ranging from ‘a high qualitative estimate of the likelihood of a voice match’ downwards – in other words variants of the scenario described in clause 11c. I think, therefore, that there is a strong case for reconsidering the entirety of clause 11. The drafter of the final contract, working in conjunction with the laboratory chosen to carry out the test, should contractualize all possible outcomes and indicate which outcomes would constitute a ‘win’ for me, and which outcomes would constitute a ‘win’ for the counterparty. We suggest that the basic principle to be followed here would be that if, in the opinion of the laboratory, the match is of such a high standard that there can be no reasonable doubt that the voice is that of Heinrich Himmler, this would constitute a ‘win’ for the counterparty. Any other result would constitute a ‘win’ for me. If it is possible to quantify this, then such would reduce the scope for controversy.

CLAUSE 12

This is cited above and, as we have indicated, does not make sense, despite having been sent to Mr McVay and apparently approved by him.

CLAUSE 13

<begin quote>
Any dispute under this contract shall be submitted to binding arbitration by the American Arbitration Association, pursuant to their Commercial Arbitration Rules or, at the option of the party bringing such action, binding common law arbitration pursuant to the statutes, rules and practices within the Commonwealth of Pennsylvania. The loser of said arbitration shall bear any costs of arbitration, including, inter alia, fees paid to the arbitrators, incidental costs of the arbitration including, inter alia, transcription fees, and the reasonable attorney's fees of the non-breaching party. Nizkor and Michael agree that any decision of this binding arbitration may and shall be reduced to a judgment in a form valid under the laws and jurisprudence of Canada, the United Kingdom, and the Republic of South Africa. Notification of the decision to initiate the arbitration process shall be by mailing a notice of such intent to the other party or his representative.
<begin quote>

We are not happy with this. I am not familiar with Pennsylvania law, nor would it be easy for me, as a resident of Great Britain, to obtain counsel to advise on such law. The costs of travel to, and accommodation in, Pennsylvania, and the fact that I would be obliged to be away from my business for a lengthy period of time, would make this process onerous.

CLAUSE 14

<begin quote>
The parties agree that the validity and construction of this agreement and of the rights and duties of the parties shall be governed in accordance with the laws of the Commonwealth of Pennsylvania and that the jurisdiction for any such litigation not subject to binding arbitration will be the U.S. District Courts which shall be the sole jurisdiction for the resolution of any such dispute. Nizkor and Michael agree that any decision of a court of the designated jurisdiction, may and shall be reduced to a judgment in a form valid under the laws and jurisprudence of Canada, the United Kingdom, and the Republic of South Africa.
<end quote>

The above reservation concerning clause 13 applies equally to clause 14.

CLAUSE 15

<begin quote>
For the purposes of this agreement notice to a designated agent of a party shall constitute notice to a party.
<end quote>

In my case notice should be communicated directly to myself, unless this is subsequently waived in writing by myself.

CLAUSE 16

<begin quote>
This agreement shall not be assigned by either party without the written consent of the other party to the proposed assignment. Each party shall designate one person and/or firm to act as a designated agent.
<end quote>

We do not see the necessity for this clause.

CLAUSE 17

<begin quote>
This agreement is indivisible as to all of the rights, duties, and obligations stated herein. Breach of any duty or obligation constitutes a breach of the entire agreement and give rise to a cause of action for termination or breach of contract as set forth above. No partial invalidity of this agreement shall effect the validity and enforcibility of the remainder of the agreement.
<end quote>

OK, with the reservations expressed above.

CLAUSE 18

<begin quote>
This agreement constitutes the entire agreement between the parties concerning the voice print analysis of the speech made by Heinrich Himmler in Posen in October, 1943, as preserved on tape at the U.S. National Archives. This agreement supercedes any prior written or oral agreements between the parties regarding the subject matter of this agreement and contains all covenants and agreements between the parties with regard to the voice print analysis of the speech made by Heinrich Himmler in Posen in October, 1943. Each party to this agreement acknowledges that no representations, inducements, promises, or agreements, oral or written, have been made by any party or any person authorized to negotiate for any party, other than those embodied in this agreement, and that no other agreement, statement, or promise not embodied in this agreement shall be binding or valid upon the parties to this agreement.
<end quote>

First, we need to designate the speech precisely -- the one made on 4 October.

Second, as indicated above, the analysis would need to go beyond voiceprint analysis.

Third, the final sentence appears superfluous and could cause complications. Suggest delete.

4. Concluding comments

Mr Gordon McFee, a prolific pro-Nizkor poster, appears to be contemplating a career as a prophet. In a Usenet posting of 29 March 1999 (Message ID. <371349c3.17259386@news3.ibm.net>), ‘Mystic Meg’ McFee informed me that he foresaw the following response from me:

<begin quote>
it won't be a signature or the offer of a signature. It will be a long treatise, that I doubt you will post, establishing at least 10 "conditions", all of which will be impossible to meet, and all of which you will insist have to be met, or you will decline the challenge and declare it null and void. You are so predictable, David.

Remember folks: you read it here first.
<end quote>

Mr McFee would do well to stick to his civil service career, to put away his crystal ball, and to leave prophecy to the likes of Psychic Psmith. I have not laid down any conditions. I have posted the response in full in alt.revisionism and have challenged Mr McVay to do likewise on the Nizkor website. I do not insist that any conditions ‘have to be’ met – everything is open to discussion and a collaborative approach. I have not even provided an ‘alternative’ contract, thus depriving Yale F Edeiken of the opportunity to accuse me of ‘changing’ the basic terms. I hope that the suggestions that I have made will be seen as constructive, and that they will enable Yale F Edeiken to move swiftly to prepare a document that Mr McVay and I can sign on Mr McVay’s visit to England or shortly thereafter.

The money is in the bank. My pen is poised. Where are you, Mr McVay?

(Dr) David E Michael
18 April 1999

Posted in alt.revisionism
E-mailed to Yale F Edeiken and Kenneth McVay OBC


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This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.