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Subject: Irving v. Penguin & Lipstadt: Judgment V-04
Organization: The Nizkor Project
Keywords: David Irving libel action Deborah Lipstadt


Archive/File: people/i/irving.david/libel.suit/judgment-05.04
Last-Modified: 2000/04/11

5.85 But Irving did not accept the rest of Evans's reconstruction of the
sequence of events on 10 November. In regard to Goebbels's account in
his diary of his meeting with Hitler at the Osteria restaurant, Irving
argued that the claim that Hitler endorsed what Goebbels had done was
false, that is, Goebbels was lying in that diary entry. Goebbels was
prone, said Irving, to claiming that Hitler had approved his actions
when in truth he had done nothing of the kind. Goebbels was being
denounced on all sides so he needed to claim he had the approval of
Hitler. Irving did, however, agree that Hitler did express the intention
that Jewish businesses should be expropriated. Irving suggested, on the
basis of information said to have been uncovered by Ingrid Wechert (to
whom I have already referred), that an instruction to halt the
demonstrations and actions was broadcast as early as 10am on 10
November. Evans doubted the timing claimed by Wechert and Irving: the
only record of the content of the broadcast gives the time of
transmission as the afternoon. It is accepted that the order calling a
halt to the violence was issued at 4pm. Evans considered it to be
unlikely that there would have been a delay of six hours between the
broadcast and the promulgation of the order.

5.86 Irving justified the doubt which he cast in Goebbels on the diary
entry in which Goebbels recorded Hitler's visit on 15 November and
claimed that Hitler had indicated that he approved totally "my and our
policy". According to Irving, it was obvious from the handwritten diary
entry that "my" was inserted by accident and Goebbels then added "and
our" as an afterthought because it would have been, as Irving put it, a
bit of a giveaway if he had crossed out "my". Evans refused to accept
that interpretation of the entry.

5.87 Similarly in relation to the message sent by Goebbels to the Nazi
party chief in Munich-Upper Bavaria that "the Fuhrer sanctions the
measure taken so far and declares that he does not disapprove of them",
Irving argued that it cannot be taken at face value. The reason,
according to Irving, is the double negative in the second part of the
sentence, which indicates that Goebbels was providing an alibi for
himself by claiming that he had Hitler's authority when in fact he did
not.

5.88 Irving did not accept that in his account in Goebbels he had
falsely given the impression that firm action was taken against those
involved in the violence on Kristallnacht. He defended his reference in
Goebbels to "turning the culprits over to the public prosecutors" by
claiming that there were a large number of prosecutions and that many
were sent to gaol. He did, however, accept that it was inappropriate to
refer to the party court as the public prosecutor. He also agreed that
there would have been many who had committed grave crimes against the
Jews who were let off. Irving sought to justify this lenient treatment
on the basis that their acts of violence had been authorised by the
state. Irving made reference to a passage in the report of the Party
Court which was in the following terms:

     "The individual perpetrators [of the acts of violence etc] had put
     into action, not merely the supposed will of the leadership, but
     the to be sure vaguely expressed but correctly recognised view of
     the leadership".

Irving took this to be saying by implication that the perpetrators knew
they were not acting on the order of Hitler. Evans claimed in reply that
that is the exact opposite of what the report says: the perpetrators
were acting in accordance with the wishes of the leadership. That is the
basis on which those who compiled the report concluded that the
perpetrators should not be punished.

5.89 Whilst Irving accepted that only two of the sixteen suspects
referred to in the report of the Party Court were handed over to the
criminal courts, he claimed that many others were prosecuted. Space
reasons prevented him from telling his readers how many escaped
virtually scot-free. He did not accept that it was the intention of the
Nazi party that all but a tiny minority should get off.

(i) Expulsion of Jews from Berlin in 1941

Introduction

5.90 In the autumn of 1941 there remained living in Germany, albeit
under increasingly restrictive conditions, some 146,000 Jews of which
76,000 or so resided in Berlin. In October 1941, following the invasion
of the Soviet Union, which was accompanied by the mass murder of Soviet
Jews by Einsatzgruppen, the compulsory deportation of Jews from Berlin
to the East and principally to Poland commenced.

5.91At 1.30pm on 30 November 1941 Himmler had a telephone conversation
with Heydrich. The relevant part of Himmler's note of that conversation
reads:

     "Judentransport aus Berlin. (Jew-transport from Berlin.)
     
     Keine liquidierung. (No liquidation.)"

Despite that instruction a trainload of Jews who arrive in Riga that day
were massacred on arrival.

The Defendants' case

5.92 The Defendants advance numerous criticisms of the manner in which
Irving has written about the deportation of the German Jews from Berlin
and in particular the role of Hitler in the affair. The Defendants are
also critical of the account given by Irving of the circumstances
surrounding the execution of the Berlin Jews on arrival in Riga (with
which I shall deal later).

5.93 The starting point for the Defendants' criticisms is the claim made
by Irving that, unlike Goebbels, Hitler was not at this time driven by
anti-semitism. In Goebbels Irving quotes from an article by Goebbels
published in Das Reich to show that he was more violently anti-semitic
than Hitler. But Evans observed that Irving omits to mention that
Goebbels started his article by quoting Hitler's celebrated 1939
prediction of the annihilation of the Jews. In his report Evans quoted
numerous utterances by Hitler at this time to show that Hitler was
expressing similar views to those of Goebbels about the Jews. A
comprehensive list of Hitler's statements about the Jews, covering the
period 1919 to 1945 has been collated by the Defendants and is include
at tab 5(i) of their written closing submissions. I shall revert to the
list hereafter.

5.94 Irving claimed in Goebbels that it was Goebbels's article in Das
Reich which inspired the killing of thousands of the Berlin Jews in Riga
in November 1941. This claim is based on the testimony of Wisliceny (one
of Eichmann's top officials who was responsible for the Final Solution
in Slovakia and elsewhere). At p379 of Goebbels, Irving wrote that
Wisliceny described the Das Reich article as "the watershed". Wisliceny
did indeed refer to that article but he also reported that "In this
period of time, after the beginning of the war with the USA, I am
convinced must fall the decision of Hitler which ordered the biological
annihilation of European Jewry". The Defendants contend that, not only
was Irving wrong to attribute to Wisliceny the view that the article in
Das Reich was in truth the watershed, but that he also deliberately
suppressed the crucial passage referring to Hitler's order for the
biological annihilation of the Jews.

5.95 At p377 of Goebbels Irving claims that Hitler was neither consulted
nor informed about the deportation of Jews from Berlin in 1941. Evans
contended that this claim is another manipulation of the historical
record. Goebbels in his diary on 19 August 1941 states that the Fuhrer
gave him his approval for the transports of the Jews out of Berlin. A
corroborative entry is to be found in entries in Goebbels's diary for 19
and 24 September 1941. Greiser, who was stationed in the Warethegau and
was answerable to Hitler, was similarly told by Himmler that the Fuhrer
wanted the Old Reich and the Protectorate to be cleared of Jews. The
evidence of Hitler's involvement is clear, say the Defendants.

5.96 Irving based his assertion of Hitler's non-involvement upon his
Table Talk of 25 October 1941. (I interpolate that the Table Talk is a
record in note form, compiled by adjutants of Bormann named Heim and
Picker, of remarks made by Hitler at informal gatherings). But, said
Evans, Irving misconstrues and mistranslates the record of what Hitler
then said, which properly understood was that he was no longer remaining
"inactive" against the Jews and had started to deal with them.

5.97 The Defendants contend that the claim made by Irving that Hitler
personally intervened in an attempt (unsuccessful as it turned out) to
prevent the Berlin Jews being liquidated is wholly unwarranted by the
evidence. In the 1977 edition of Hitler's War Irving wrote at p332 that
Himmler was "summoned" to the Wolf's Lair (Hitler's Headquarters) and
"obliged" to telephone an order to Heydrich that there was to be no
liquidation of Jews. The reader is given to understand that Hitler
procured an order which applied to all Jews. Moreover in the
introduction to Hitler's War Irving describes that note as
"incontrovertible evidence" that Hitler issued a general order
prohibiting the liquidation of Jews generally. He attaches sufficient
importance to the note to reproduce a photograph of it in the book.

5.98 The Defendants assert that Irving's interpretation of Himmler's
note (cited above in the Introduction to this section) is perverse and a
clear falsification of the document. Evans alleged, firstly, that it is
clear on the face of the note that it is referring to a single transport
of Jews out of Berlin which departed on 27 November: the German word
transport is in the singular, the plural would be transporte. Both the
language and the context make it plain that what is being referred to is
a single transport of Jews. What is more it is clear that the note is
talking only of Berliner Jews because it includes the words aus Berlin.
Moreover, say the Defendants, there is no evidence for the claim that
any order was issued by Hitler or indeed that he was involved at all.
True it is that the telephone call was made by Himmler from Hitler's
bunker. But it was made at 1.30pm and Himmler's appointment diary
suggests that Hitler and Himmler did not meet for lunch until later that
afternoon.

5.99 From about the mid-1980s Irving accepted that the note does indeed
refer to the single transport out of Berlin and not to Jews generally.
Nevertheless the error was not corrected in the 1991 edition of Hitler's
War. Irving explained this by saying that the 1991 edition went to press
in the mid-80s. It is, however, right to note that in Goebbels Irving no
longer claims that the order applied to Jews generally. However, he
continued to assert that the order emanated from Hitler. Thus at p379 of
Goebbels Irving writes that, even as the Jews were being shot in Riga,
"Hitler.was instructing Himmler that these Berlin Jews were not to be
liquidated". In May 1998 Irving accepted through his website that his
theory that Hitler told Himmler to tell Heydrich to stop the shooting
had been wrong. Despite this on 31 August 1998 Irving posted another
document in which he asserted that Hitler had demonstrably originated
the order not to kill the Jews in Riga. Evans apostrophised this
behaviour on the part of Irving as egregious and disreputable. The
Defendants cite this as an example of Irving continuing to twist the
evidence in order to portray Hitler favourably even after the error of
his ways had been pointed out to him.

5.100 Nor, according to Evans, is there any basis for Irving's claim in
the 1977 edition of Hitler's War that on 1 December 1941 Himmler
telephoned Pohl, an SS General, to tell him that Jews were to "stay
where they are" (that is, out of harm's way). Irving based this claim on
Himmler's phone log, which contained this entry:

     Verwaltungsfuhrer der SS (Administrative leaders of the SS)
     
     haben zu bleiben (have to stay)

Irving now accepts that he misread "haben" as "Juden" and that the order
was stating that administrative leaders of the SS had to stay where they
were. The Defendants do not accept that the mistranscription was due to
an innocent misreading of Himmler's manuscript. They point to other
manuscript words in the same document which should have alerted Irving
(and on the Defendants' case did alert him) to the fact that the word
Himmler actually wrote was 'haben'. Irving ignored the fact that there
is no full stop after SS and before haben. He also ignored the fact that
haben zu bleiben is indented, suggesting that it is linked to the
previous line. Irving agreed in cross-examination that to read that
entry as "Administrative officers of the SS Jews to remain" would be
meaningless because it would be saying nothing in relation to the
administrative officers. Evans considered this to be deliberately a
perverse misreading by Irving borne of his overwhelming desire to
portray Hitler as a friend of the Jews.

Irving's response

5.101 Irving argued that there is what he describes as another "chain of
documents" which impels one to the conclusion that Hitler was intent
upon protecting the Berlin Jews.

5.102 In regard to his claim in Goebbels that Hitler was neither
consulted nor informed about the expulsion of Jews from Berlin, Irving
accepted on the basis of the evidence now available that the initiative
for the expulsions came from Hitler. He denies having suppressed any
relevant material of which he was aware at the time. Irving discounted
the Wisliceny report with its reference to an order by Hitler for the
biological annihilation of the Jews because it was made in 1946 when
Wisliceny was facing the gallows. In any case Irving dismissed the
report as speculative and made by a man "at janitorial level". Irving
did not accept that in this context "vernichtung" connotes
extermination. He denied having applied double standards in his reliance
on Wisliceny, adopting those parts which suited his case and discarding
the rest.

5.103 In support of his argument that Hitler was protective towards the
Jews, Irving pointed to an entry in Himmler's telephone log for 17
November 1941, which he said imports that Himmler has had his knuckles
rapped by Hitler for wanting to get rid of the Jews in the General
Government. He also relied, as a "tiny dent" in the public perception
that the Jews were transported in cattle trucks in atrocious conditions,
on messages which indicate that the trains taking Jews from Berlin to
the East were amply provisioned and that Jews were permitted to take
with them the tools of their trade. Irving claimed that this is
inconsistent with the existence of a policy of systematic extermination.

5.104 In relation to the entry in Himmler's log for 30 November 1941
(quoted in in the introduction to this section) which included the
phrase "Judentransport aus Berlin - keine liquidierung", Irving accepted
that he has no direct evidence that Himmler was "summoned" to see Hitler
or that he was "obliged" to issue the order. But he pointed out that
Himmler had spent that morning working at Hitler's headquarters and
suggested that the probability is that Himmler would have spoken on the
telephone to Hitler before the two of them met for lunch at 2.30pm.
Irving argued that the likelihood of such a conversation having taken
place before Himmler spoke to Heydrich of the telephone, together with
the fact that Himmler was at Hitler's headquarters when the call was
made, suggest that it was Hitler who originated the order that the Jews
were not to be liquidated. He agreed that there is no evidence that
Himmler and Hitler met before the call was made to Heydrich at 1.30pm on
30 November 1941. However, he suggested that the reasonable inference
"with very strong evidence" is that they spoke on the phone before that
time. He maintained this position despite the entry on his own website
accepting that his original theory that Himmler had discussed the matter
with Hitler before phoning Heydrich had been wrong. Evans replied that
there is no evidence that Himmler spoke to Hitler that morning. There
were several bunkers at Hitler's headquarters and there was no reason
for Himmler to communicate either face to face or by telephone with
Hitler before they met for lunch.

5.105 Another reason advanced by Irving to justify his contention that
the instruction Keine Liquidierung emanated from Hitler is that it was
Himmler who telephoned Heydrich and not vice versa. This is not apparent
from Himmler's note of the call. But Irving pointed to another
instruction issued by Himmler to Heydrich made from Hitler's
headquarters months afterwards on 24 April 1942 that there was to be no
annihilation of gypsies. Irving inferred that that instruction emanated
from Hitler and argued that the same inference is to drawn in relation
to the instruction on 30 November 1941. Evans's response was that there
is no reason whatever to suppose that there was any connection between
Hitler and either of these instructions issued by Himmler.

5.106 In relation to the entry in Himmler's log for 1 December 1941,
Irving said that he misread Himmler's spidery Sutterlin handwriting: he
thought he had written Judentransporte in the plural. It was, he said, a
"silly misreading". He firmly denied any deliberate manipulation. He
denied that he was lying when he claimed to have made an innocent slip.
He was, however, constrained to admit that in a letter to Dr Kabermann
written in 1974 he had correctly transcribed the word in the singular.
On reflection he claimed that his original explanation that he though
the note referred to transports in the plural was a slip of the memory.
He explained that he believes he understood transport to mean
transportation in the generic sense. He pointed out that no definite
article comes before the noun (which Evans says is rare in the case of
Himmler's notes). He argued that dictionary definitions of the meaning
of that word bear him out but he was unable to produce a contemporaneous
(ie 1930s) dictionary which gave the meaning "transportation". He
rejected the claim made by Evans that this explanation is equally
unconvincing, not least because it omits to take account of the words
aus Berlin.

5.107 Despite his eventual acceptance that the conversation between
Himmler and Heydrich on 30 November related to a single trainload of
Jews, Irving continued to suggest in his cross-examination of Evans that
the instruction Keine Liquidierung had a wider significance and applied
to all European Jews. He relied on a message sent on 1 December 1941 to
the local SS commander in Riga, named Jeckeln, summoning him to a
meeting with Himmler in Berlin on 4 December. Irving pointed out that
this summons had followed rapidly upon a request made from Riga to
Berlin by the murderous Jeckeln for ten military pistols for
Sonderactionen (special measures). Irving interpreted Himmler's
appointments diary for 4 December 1941 as showing that he gave Jeckeln a
rap over the knuckles.

5.108 Irving relied also on the contents of a telegram sent on the same
day to Jeckeln by Himmler, which reads:

     "The Jews being outplaced to Ostland are to be dealt with only in
     accordance with the guidelines laid down by myself or the
     Reichssicherheitshauptamt on my orders. I would punish arbitrary
     and disobedient acts".

Irving described this as an incredibly important message because it
shows that at headquarters the shooting of the Jews was disapproved. He
further asserted that the absence of any reference to Hitler in the
message indicates that Hitler had nothing to do with the promulgation of
guidelines as to circumstances in which European Jews were to be killed.
Irving claims that the consequence of this sequence of events was that
the shooting of German Jews stopped for many months. Evans accepted the
killing of German Jews was halted for some months after December 1941
but pointed out that the surviving Jews in the ghetto in Riga were
murdered on 8 December presumably with the concurrence of Himmler. The
massacre of non-German Jews in the Ostland continued unabated.

5.109 Irving argued that the inference to be drawn from the
communications referred to at paragraphs 5.107-8 indicate that there
were in existence at the time guidelines which prohibited the killing of
European Jews and that the shooting of the Berlin Jews in Riga was a
transgression of those guidelines.

5.110 In reference to Himmler's telephone log for 1 December 1941

Irving testified that he innocently misread "haben" for "Juden" because
the two words appear similar in the Gothic manuscript. He said that
Himmler's handwriting at this point is very indistinct. He did not spot
that there was no full stop after Verwaltungsfuhrer SS. It was a
reasonable mistake to make and certainly not a deliberate misreading. In
any event Irving dismissed this entry in the log as totally immaterial.
The failure to correct the 1991 edition of Hitler's War was an
oversight. Evans disagreed that the misreading of the note was an
innocent mistake. He argued that no historian who was not biased could
read the words as saying anything other than haben zu bleiben.

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