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Subject: Irving v. Penguin & Lipstadt: Judgment VI-02
Organization: The Nizkor Project
Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-06.02
Last-Modified: 2000/04/11

Hitler's knowledge

6.23 Was Hitler aware what was going on and did he approve of it?
Although (as I have already indicated) Irving was prepared at one stage
of the trial to agree that in broad terms the answer to this question is
in the affirmative, he later shifted his ground. In these circumstances
it is necessary for me to rehearse the rival arguments on this issue.

6.24 The Defendants' answer to this question is, firstly, that the scale
of the killing was so immense and its effect on the war effort so great,
that it is difficult to conceive that Hitler was not consulted and his
authority sought. The Defendants adopted the evidence of Sir John
Keegan, summoned to give evidence by Irving, that it was perverse to
suggest that Hitler was unaware until October 1943 what was happening to
the Jewish population: it defies common sense. But the Defendants assert
that there was what Browning described as incremental decision-making
process. Browning gave evidence that in his view Hitler had made clear
to Himmler and to Heydrich what he wanted done in terms of ethnic
cleansing and then left it to his subordinates to carry out his wishes.
I shall summarise the stages by which on the Defendants' case the
programme was set in place.

6.25 According to Himmler, Hitler commented that a memorandum which
Himmler had presented to him on 25 May 1940 was "very good and correct".
The memorandum had expressed the hope that by means of a large
emigration of all Jews to an African colony, "the concept of the Jew
will be fully extinguished". Although the memorandum described the
physical extirpation of the Jews as "un-German and impossible", Browning
pointed out that this exchange took place at a time when the ethnic
cleansing of the Jews (as he described it) had slowed down markedly at
the instigation of Goering and Frank, who were concerned to give
priority to the war effort. Browning asserted that, with a Nazi victory
in France apparently assured, the memorandum indicates that Himmler
approached Hitler to obtain his approval for the revalidation of the
programme of ethnic cleansing. He needed Hitler's approval in order to
counter any moves by Goering or Frank to block the programme.

6.26 In the spring of 1941, whilst preparations were under way for
Barbarossa (the invasion of Russia), Hitler made clear his view that a
war of destruction was about to start and called for the destruction of
the Judaeo-Bolshevik intelligentsia. This sentiment generated proposals
for the establishment of the Einsatzgruppen and the programme of mass
shootings as I have already described. That programme was not, as
Browning put it, "micro-managed" by Hitler. But he claimed that it was
Hitler whose vision and expectation created a genocidal atmosphere which
brought forth concrete proposals for its implementation. Browning argued
that Hitler wanted his generals to see the war against Russia as
embracing a very strong ideological dimension and not just a
conventional war. Having been effectively invited to do so by Hitler,
the SS together with the military planners produced concrete plans to
turn Hitler's vision into reality.

6.27 The Defendants recognise that the documentary evidence for
implicating Hitler in any policy for the systematic shooting of Jews is
sparse. There is no "smoking gun". A large number of documents were
destroyed, many of them on the orders of Heydrich, so the documentary
picture is a partial one. However, the Defendants do highlight a number
of documents which, they contend, point, albeit not unambiguously, to
Hitler's complicity.

6.28 The starting point for the documentary pointers towards Hitler's
complicity is the record of the instructions given by Hitler to General
Jodl, Chief of the Army Leadership Staff, on 3 March 1941 in relation to
revised guidelines to be followed in the areas of Russia expected to be
conquered. Hitler ordained:

"This coming campaign is more than a struggle of arms; it will also lead
to the confrontation of two world views. In order to end this war it
will not suffice merely to defeat the enemy army ... The Jewish-
Bolshevik intelligentsia, the hitherto oppressor of the people must be
eliminated (beseitigt)"

These instructions, together with other similar utterances by Hitler at
this time, evidence the central role which, according to the Defendants,
Hitler played when it came to converting Nazi ideological thought into
concrete action. According to Browning, it is discernible that Hitler
was talking not only of military, but also ideological, necessity. As
Longerich put it, Hitler was laying the ground for a racist war of
extermination.

6.29 There followed what Longerich described as a package of measures,
with which Hitler was intimately involved, for the implementation of
that war. Following on the heels of Hitler's instructions to Jodl, on 13
March 1941 Jodl issued a directive which stated:

"In the operation area of the Army, the Reichsfuhrer SS is granted
special responsibilities by order of the Fuhrer for the preparation of
the political administration; these special responsibilities arise from
the ultimate decisive struggle between two opposing political systems.
In the context of these responsibilities, the Reichsfuhrer SS will act
independently and at his own risk".

Longerich infers that the reason why Himmler was being given these
undefined special responsibilities was that the Army was not willing to
be radical enough in carrying out the policing and security operations.

6.30 Hitler made a similar statement, albeit one not explicitly directed
at the Jews, to senior army officers on 17 March 1941 when he said:

"The intelligentsia installed by Stalin must be destroyed (vernichtet).
The leadership machine of the Russian empire must be defeated. In the
Greater Russian area the use of the most brutal force is necessary"

He spoke in similar vein to a meeting of generals on 30 March 1941,
when, according to the abbreviated record of General Halder, Hitler
said:

     "Communism unbelievable danger for the future . The Communist is
     not a comrade, neither before nor after. We are talking about a war
     of extermination . We are not waging war in order to conserve the
     enemy . war against Russia: extermination of the Bolshevik
     Commissars and the Communist intelligentsia".

6.31 On 16 July 1941 a conference took place which was attended by
amongst others Hitler and Rosenberg. According to a memorandum by
Bormann, Hitler said:

     "The giant area must naturally be pacified as quickly as possible;
     this will happen at best if anyone who just looks funny" (or in an
     alternative translation preferred by Irving "anyone who looks
     askance at us") "should be shot".

Longerich asserted that Hitler was thereby demonstratively endorsing the
brutal massacres which were taking place and in effect authorising
execution on suspicion alone. As Browning put it, it was an open
shooting licence.

6.32 The Defendants attach considerable importance, in connection with
the issue of Hitler's knowledge of the shootings, to an instruction
issued on 1 August 1941 to the Einsatzgruppen by Muller, the head of the
Gestapo within Heydrich's Security Police, in which he stipulated:

     "The Fuhrer is to be kept informed continually from here about the
     work of the Einsatzgruppen in the East"

The Defendants' case is that this document (to which I have already made
refernce in the preceding section) shows that the reports from the
Einsatzgruppen providing information about the executions carried out by
them would at least be available on a continuous basis to Hitler. The
distribution lists demonstrate how widely these reports were circulated.
Copies went to the Reich Chancellery. According to Longerich, there is
evidence that a copy of at least one such report went to Bormann. He
concluded that it is inconceivable that Hitler did not see the reports.
Muller's instruction coincided with the escalation of the shootings from
selected groups to indiscriminate killing of Jews including women and
children. The Defendants contend that Hitler's apparent wish to be kept
informed will have meant that he would have received regular reports of
the shooting of the Jews over the following months.

6.33 As I have already mentioned in section V(viii), on 25 October 1941,
according to his table talk Hitler said:

     "This criminal race [the Jews] has the two million dead from the
     World War on its conscience, now again hundreds of thousands. Noone
     can say to me: we cannot send them in the morass! Who then cares
     about our people? It is good if the terror (Schrecken) we are
     exterminating Jewry goes before us".

The Defendants say it is to be inferred from these words that Hitler was
indeed receiving reports from the Einsatzgruppen as contemplated in
Muller's instruction of 1 August.

6.34 On 30 November 1941 Himmler visited the Wolf's Lair. At 13.30,
before meeting Hitler for lunch, he telephoned Heydrich in Prague about
a transport of Jews from Berlin. Himmler's note contains the entry
"Keine Liquidierung" that is in contention between the parties. I have
set out the rival arguments in section V(vI) above. On the Defendants'
interpretation of that note, the likelihood is that Himmler discussed
with Hitler the particular transport from Berlin to Riga. Although
Himmler ordered that there should be no killing of the Jews aboard that
transport, it is reasonable to infer that Hitler knew about and approved
the shooting of other Jews in the East.

6.35 At paragraphs 5.127 to 131 above I have made reference to
Goebbels's diary entry relating to his meeting with Hitler on 21
November 1941; the speech made by Hitler to the Gauleiter on 12 December
1941 and Frank's report of that speech on 16 December 1941. I shall not
repeat myself, save to say that the Defendants these are relied on by
the Defendants in support of their contention that Hitler was aware of
and approved the policy of executing Jews and others in the East by
shooting.

6.36 An entry in Himmler's appointment book for 18 December 1941
recorded that one of the proposed topics for discussion between himself
and Hitler at their forthcoming meeting was the Judenfrage (the Jewish
question). Against that entry, apparently (say the Defendants) following
the discussion with Hitler, Himmler has noted "als Partisanane
auszurotten" (to be annihilated as if partisans). According to the
Defendants this shows that Hitler, expressly consulted, approved the
killing of the Jews under cover of killing partisans as the solution to
the Jewish question.

6.37 The Defendants argue that this interpretation of Himmler's note is
confirmed by and consistent with a report no. 51 dated 26 December 1942
on the campaign against partisans in the Ukraine, Southern Russia and
Bialystok, which was retyped three days later in larger type, in order,
so the Defendants say, that Hitler with his poor eyesight could read it.
In its retyped form it is headed: "Reports to the Fuhrer on combating
partisans". It is endorsed on the front page "vorgelegt (laid before or
submitted) 31.12.42". It reports the numbers killed over the preceding
four months. The number of Jews executed is given as 363,211. Browning
infers that this is but one of a series of reports which Hitler received
in accordance with the instruction issued by Muller on 12 August 1941
that Hitler was to be kept well informed of the shootings being carried
out by the Einsatzgruppen.

6.38 Longerich was clear in his conclusion that, if one takes account of
the scale of policy of extermination and what it entailed in terms of
logistics and expense, it is wholly inconceivable that Hitler was
unaware of not only of the fact of the shootings but also of their
scale. Such contemporaneous evidence as has survived confirms, according
to the Defendants, that Hitler knew and approved. Browning rejected as
being absurd the notion that Himmler, who was always anxious to do his
master's bidding, would not have discussed regularly with Hitler the
wholesale executions of Jews and others by SS units.

Irving's response

Evidence of system and the scale of the shootings

6.39 I have already drawn attention to the number of those who, as
Irving eventually admitted, were killed in the East. Irving acknowledged
that the evidence shows that there was an appalling massacre of Jews on
the Eastern front but he argued that, at least in their initial stages,
the shootings were selective, confined to the intelligentsia and served
a military purpose. He disputed that the shootings took place on the
massive scale alleged by the Defendants. He suggested that many of the
figures cited by the Defendants' experts and in the documents on which
they relied were "fantasy figures".

6.40 Irving argued that the "ruthless, energetic and drastic measures"
against the Jews ordained in the guidelines issued on 19 May 1941 did
not mean that they should be shot but rather than they should be
arrested and imprisoned. If the guidelines had meant that the Jews were
to be killed, they would have said so. Longerich rejected this
contention.

6.41 Irving pointed out that Heydrich's instructions of 2 July 1941
strictly limited the Jews who were to be executed to those in state or
party positions. He did not accept that it was legitimate to infer that
the instructions were intended to be construed more widely simply
because the executions thereafter carried out extended far beyond these
limited categories. Irving submitted that no evidence has come to light
of any order which authorises the execution of broader categories of
Jews.

6.42 Irving devoted a considerable amount of time in his cross-
examination of Longerich to the details of the killings by
Einsatzgruppen A, B, C and D which he derived for the most part from the
reports submitted by them. Irving suggested, for example, that some of
those reports were compiled by those who, like General Bach-Zelewski,
were mass murderers and whose reporting is on that account unreliable.
Irving did not accept that the reports of the Einsatzgruppen should be
taken at face value. He argued that the leaders of the Einsatzkommandos,
which made up the Einsatzgruppen, would have been anxious to impress
their superiors with the numbers killed and so would have exaggerated
the figures. Browning and Longerich both accepted that some kommandos
may have been anxious to avoid appearing to lack zeal and so may have
exaggerated their achievements. But Browning considered the figures to
be accurate as "ballpark figures". He added (and Irving agreed) that the
numbers, even if not precisely accurate, are on any view huge. Longerich
concurred. He added that the numbers do not derive solely from the
reports of the Einsatzgruppen: there are other sources.

6.43 Irving expressed doubts about the logistical feasibility of the
Einsatzgruppen having been able to carry out executions on the reported
scale, given their limited numbers and equipment and the other tasks
which they were charged with carrying out. The Einsatzgruppen consisted
of only 3,000 men. But Browning pointed out that the army was called on
to provide support. Longerich calculated that, if allowance is made for
the auxiliary manpower available, the total number of those involved in
the shootings would have been around 30,000.

6.44 Another argument canvassed by Irving is that the reports may have
been inaccurate in their statements of the numbers of Jews shot because
the SS auxiliaries would not always have known whether or not those they
were executing were Jews. He suggested that this must have been the
reaction of British intelligence when they intercepted reports of the
numbers killed. Browning responded that the Jager report is illustrative
of the care taken to classify Jewish men, women and children. He
explained the passive British response to the intercepts probably
reflected an inability on their part to comprehend the notion that the
Nazis would devote resources sorely required for their war effort to
killing vast numbers of Jewish men, women and children whilst there was
a war on.

6.45 Irving also argued that there will have been many who, becoming
aware of the wholesale murders taking place at the hands of the SS, will
have fled eastwards into Russia (there to be met, no doubt, with the
same fate). A report dated 12 September 1941 refers to the "gratuitous
evacuation" of hundreds of thousands of Jews by inference across the
Urals representing an indirect success for the security forces.
According to Irving, in calculating the scale of the shootings,
allowance should be made for the Jews who fled eastwards to avoid being
shot. Irving also suggested that many of the murdered Jews died at the
hands of local anti-Jewish populations as opposed being executed by the
Einsatzgruppen. Browning's evidence was that such pogroms did occur but
for a limited period only in the opening days of the war.

Hitler's knowledge

6.46 As I have already said, Irving's stance on this issue fluctuated as
the trial proceeded. In course of his own evidence, having advanced a
number of reasons for doubting Hitler's knowledge of any systematic
programme for the killing of Jews in Russia or elsewhere in the eastern
territories, Irving conceded under cross-examination that it was a
legitimate conclusion that the shootings in the east were carried out
with the knowledge and approval not only of Heydrich but also of Himmler
and Hitler himself. He accepted that the reports of numbers killed were
sent by the Einsatzgruppen to Berlin on a regular basis. Irving said
that he had been unaware until the summer of 1999 of the Muller document
of August 1941, according to which Hitler asked for reports from the
Einsatzgruppen to be supplied to him. But he conceded that the evidence
now available points to there having been a coordinated and systematic
direction by Berlin of the killings on the eastern front. In particular
Irving accepted in the light of the note in Himmler's appointment book
for 18 December 1941 that the massacre of Jews in the Ostland was
carried out on the authority of Hitler. He also accepted that there had
been a systematic programme for the shooting of Jews and others of which
Hitler was aware and which he approved.

6.47 But in the course of his cross-examination of Longerich, Irving put
to him a large number of questions which appeared to suggest that it was
his case Hitler had no such knowledge and that he did not authorise any
such programme or policy. He pointed out that no document has come to
light indicating that Hitler expressly authorised the shootings. In the
course of his cross-examination Irving advanced various arguments why it
would be wrong to suppose that Hitler was complicit in the shooting of
Jews and others in the period 1941-2. Irving contended (and Longerich
agreed) that prior to the middle of 1941 there is no directive emanating
from Hitler that Jews are to be exterminated. Thus there is no
indication in the in the instructions or guidelines issued by Hitler to
General Jodl and to the High Command Operations staff on 3 March 1941
that Jews are to be executed when the Russian campaign begins. Irving
argued that these instructions, as well as the guidelines issued in
October 1941, should be seen as purely military measures. Hitler was
addressing the issue of military discipline and not authorising or
condoning ideological extermination. He was in effect saying that that
the Reich was facing a Judaeo-Bolshevik enemy which must be destroyed as
a matter of military necessity. No order was issued by Hitler which
explicitly said that the Jews must be killed systematically. Moreover,
contended Irving the initiative for the orders came from the Nazi High
Command rather than from Hitler.

6.48 As to the "special responsibilites" which Jodl directed were, in
accordance with Hitler's order, to be given to Himmler, Irving suggested
that this flowed from Himmler's wish to enlarge his area of
responibility. He claimed that Hitler's attitude was to give Himmler
carte blanche without any requirement to let him (Hitler) know what he
was doing. In any event, argued Irving, Hitler was concerned for
military as opposed to ideological reasons to ensure the security of the
area to the rear of the Nazi army as it advanced into Russia. Longerich
disagreed: the military and the ideological goals cannot be
differentiated.

6.49 In relation to Hitler's various statements in the spring of 1941 to
the forthcoming "war of destruction" and the "extermination of the
Jews", Irving pointed out that the Nazis were about to embark on
Barbarossa, so that these utterances must be seen in a military, rather
than an ideological, light. Moreover Hitler was well aware of the
ruthlessness of which the Red Army was capable and was issuing a warning
what the war would entail. The response of Browning to this proposition
is that the campaign had both a military and an ideological objective.

6.50 Irving cast doubt on the Defendants' contention that the
Einstazgruppen were set up as a consequence of the preparations laid
down by Hitler. Their existence came about, he suggested, "like an act
of spontaneous combustion".

6.51 Irving devoted a considerable amount of time to casting doubt on
the authenticity of the document dated 1 August 1941 claimed to evidence
an instruction by Muller to furnish Hitler with reports of shootings. He
pointed out that the document before the Court is no more than an
Abschrift: the original is missing. It bears the modest security
classification geheim (secret) which is inappropriate for a document
related to the Final Solution. Irving produced a letter from the German
Federal archives that the document is not to be found in the file from
which it purports to come. The Defendants countered this claim by
pointing out that the document has been known about and accepted as
authentic for twenty years. Copies of the Abschrift are to be found in
the Moscow archive as well as in the Ludswigsberg archive. They were
also able to point to several documents of a similar sensitivity which
were also classified geheim. The reason why no copy of the Muller
document was found in the file referred to in the letter from the German
archivist is that the wrong file number was quoted. Longerich is in no
doubt that the document is an authentic copy of the original. Ultimately
Irving accepted its authenticity, although he continued to express
considerable misgivings about it.

6.52 In the end Irving took the position that he did not challenge the
authenticity of the Muller document. He submitted, however, that since
its existence was unknown to him until he was presented with the
document in the course of cross-examination, no criticism could fairly
be made of him for not taking it into account. The Defendants were
unable to accept this evidence. The reasons are, firstly, that the
Muller document is set out at page 86 of Fleming's work Hitler und die
Endlosung. Irving's marked copy of that book appears to show that he has
read the passage at page 86 (although Irving denied it). The second
reason is that Fleming gives a reference to the archive where the
document can be found in Munich. The third reason is that, when asked
about Fleming's book in 1983, Irving answered that it was "a lie". In
his evidence Irving claimed that he was basing what he said on reviews
of Fleming's book.

6.53 Irving argued that the Muller document does not in any event have
the significance for which the Defendants contend. It did not require
the Einstazgruppen to report shootings to Hitler. As its heading and
text indicate, it related solely to the procuring of visual materials
such as placards and photographs as part of the groups' intelligence-
gathering operations. Despite this both Browning and Longerich persisted
in their contention that the reporting requirement embraced all the
activities of the Einsatzgruppen including shooting. But they agreed
that this document is the only one to which he can point as evidence for
the proposition that Hitler was kept informed of the shootings. Irving
stressed that, apart from Event Report no 51, no report has come to
light which has been retyped in the large type which Hitler's eyesight
required.

6.54 Further evidence relied on by Irving for Hitler's unawareness of
any systematic programme of extermination is the entry in Himmler's
telephone log for 30 November 1941 relating to a telephone call made by
him for Hitler's bunker to Heydrich in Prague. I have already referred
at paragraphs 5.97-8 and 5.104 above to the argument which Irving bases
on this entry.

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