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Subject: Irving v. Penguin & Lipstadt: Judgment V-07
Organization: The Nizkor Project
Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-05.07
Last-Modified: 2000/04/11

5.163 Regardless of its unsatisfactory features, Irving remained firm in
his view that the Schlegelberger note is vital document which provides a
clear indication of Hitler's wish expressed in the spring of 1942 to
postpone a decision on the Jewish question generally until after the end
of the war. During the evidence Irving made reference time and again to
the memorandum, which he regards as the linchpin of his case for saying
that Hitler sought to protect the Jews.

5.164 Irving dismissed the notion that the note dates back to 1941 as a
"vanishingly small probability". In support of this conclusion Irving
referred to a Staff Evidence Analysis sheet, apparently prepared by the
prosecutors at Nuremberg who assembled the file which contained the
memorandum. Irving points out that, with one exception, the documents in
the file come from the period March to April 1942. So the 1942 date
tallies with the dates of most of the documents in the file.

5.165 In support of his contention that Schlegelberger was referring to
the Jewish question generally, Irving argued firstly that the discussion
at the continuation of the Wannsee conference on 6 March 1942 was not
confined to the mischlinge problem (although he agreed that the minute
of the meeting suggests otherwise). Irving cited in support of this
contention the post-war evidence of Ficker and Boley who were both
present. (Evans dismissed their evidence as self-exculpatory). Irving
went on to point out that the file in which the memorandum was contained
is broadly entitled "Treatment of the Jews". Another document in the
file is "Overall solution of the Jewish problem". Irving maintained that
the immediately preceding document in the file supports his
interpretation of the note that it is dealing with the question of Jews
generally, not just mischlinge. In that document dated 12 March 1942
Schlegelberger referred to the meeting which had been held on 6 March as
having been concerned with the treatment of Jews and mixed races. He
expressed the wish that Lammers should consult Hitler about the
decisions which would need to be taken which he considered to be
completely impossible. Irving argues that this letter also indicates
that both the Jews generally and the mixed race issue were under
discussion. Following his receipt of that message, it appears that
Lammers offered to meet Schlegelberger on the return of the former to
Berlin at the end of March. As Evans agreed, the pair probably met in
early April. Irving argued that this chronology suggests that the date
of the memorandum would be early April by which time Lammers had spoken
to Hitler.

5.166 Irving relied on the terms of the Schlegelberger memorandum
itself. He pointed out that it refers conjunctively to Jews and mixed
marriages as if both (separate) topics were under consideration. It is
headed "The solution of the Jewish question", which suggests a broad not
a narrow subject-matter. (Were it not so headed he would have considered
Evans's interpretation a viable alternative theory). Irving argued that
there is nothing in the terms of the memorandum itself to justify the
narrow interpretation put on it by the Defendants. Irving argued that in
the spring of 1942 Hitler was preoccupied with events on the Eastern
front. In that situation his likely reaction, upon being asked about the
Jewish question, was that it should be put off until the end of the war.
Evans considered that this argument ignores Hitler's obsessive anti-
semitism which continued to dominate Hitler's thinking, even at times of
military crisis.

5.167 Irving produced what he described as an extract from the evidence
which Lammers gave at his trial when he testified that Hitler had told
him that he had given Himmler an order for the evacuation of the Jews
and that he (Hitler) did not want to hear any more about the problem
until the end of the war. Evans took the view that that Lammers was
seeking to avoid incriminating himself when he claimed that Hitler
wanted no more than the deportation of the Jews.

5.168 Irving defended his treatment of the note at p 464 of the 1991
edition of Hitler's War by pointing out that he did make mention of the
problem of the mischlinge. He explained that pressure of space prevented
him from making clear to the reader of the text of Goebbels that the 6
March 1942 conference was confined to the mischlinge issue. There was,
he said, no question of his having distorted the evidence.

5.169 Irving maintained that the Defendants are trying to devalue what
is a "high level diamond document" when they argue that it bears only on
the problem of the mischlinge.

(ix) Goebbels's diary entry for 27 March 1942

Introduction

5.170 After the successful Nazi invasion of Poland in 1939, part of the
newly acquired territory was absorbed into the Reich. In order to make
way for ethnic Germans from other parts of Eastern Europe, the Poles
from that area were deported eastwards into central Poland, which
constituted the western sector of the General Government. The Jews and
gypsies were deported into the eastern sector of the General Government
in the region of Lublin.

5.171 Initially the Jews were concentrated in ghettoes where living
conditions were atrocious. But, following the Nazi invasion of Russia in
June 1941, there was a change of policy. As I will describe in greater
detail hereafter, task forces called Einsatzgruppen set about the
systematic killing of Soviet Jews. In about the autumn of 1941 the
extermination policy was extended to Jews in the area of the General
Government. The gassing of Jews commenced in December 1941 at an
extermination centre called Chelmno in the Warthegau; the latter being
an area containing territory incorporated into the Reich after the
conquest of Poland. In November 1941 construction of another death camp
started in the General Government at Belzec which is situated south-east
of Lublin. Jews were murdered in gas chambers at this camp. Two further
camps were established the following year at Sobibor and Treblinka.

5.172 So much is common ground between the parties. What is in issue is
the manner in which Irving deals with the question of whether Hitler was
aware of the policy of exterminating Jews.

The case for the Defendants

5.173 In Hitler's War (1977 edition) Irving claims that Hitler was kept
in the dark about the policy of exterminating Jews in the East. He wrote
at p392:

     "The ghastly secrets of Auschwitz and Treblinka were well kept.
     Goebbels wrote a frank summary of them in his diary on March 27
     1942, but evidently held his tongue when he met Hitler two days
     later, for he quotes only Hitler's remark: 'The Jews must get out
     of Europe. If need be, we must resort to the most brutal methods'
     ".

Irving wrote in similar terms in the 1991 edition. After quoting the
references in Goebbels's diary to the brutal methods being employed
against the Jews, he continued:

     " 'The Jews have nothing to laugh about now', commented Goebbels.
     But he evidently never discussed these realities with Hitler. Thus
     this two-faced Minister dictated, after a further visit to Hitler
     on April 26, 'I have once again talked over the Jewish question
     with the Fuhrer. His position on this problem is merciless. He
     wants to force the Jews right out of Europe.' ".

5.174 The Defendants' case is that Irving's claim that Goebbels deceived
Hitler when (according to Irving) they met on 29 March is wrong: they
accuse Irving of manipulating the diary entry for 27 March and ignoring
other documents and sources which demonstrate that Hitler was well aware
what was happening to the Jews in the East. The full diary entry (quoted
at p400 of Evans's report) included the following passages:

     "The Jews are now being pushed out of the General Government,
     beginning near Lublin, to the East. A pretty barbaric procedure is
     being applied here, and it is not to be described in any more
     detail, and not much is left of the Jews themselves. In general one
     may conclude that 60% of them must be liquidated, while only 40%
     can be put to work. The former Gauleiter of Vienna [Globocnik], who
     is carrying out this action, is doing it pretty prudently and with
     a procedure that doesn't work too conspicuously. The Jews are being
     punished barbarically, to be sure, but they have fully deserved it.
     The prophesy that the Fuhrer issued to them on the way, for the
     eventuality that they started a new world war, is beginning to
     realise itself in the most terrible manner. One must not allow any
     sentimentalities to rule in these matters. If we did not defend
     ourselves against them, the Jews would annihilate us. It is a
     struggle for life and death between the Aryan race and the Jewish
     bacillus. No other government and no other regime could muster the
     strength for a general solution of the question. Here too the
     Fuhrer is the persistent pioneer and spokesman of a radical
     solution, which is demanded by the way things are and thus appears
     to be unavoidable. Thank God during the war we have a whole lot of
     possibilities which were barred to us in peacetime. We must exploit
     them. The ghettos which are becoming available in the General
     Government are now being filled with the Jews who are being pushed
     out of the Reich, and after a certain time the process is then to
     renew itself here. Jewry has nothing to laugh about . ".

5.175 Evans argued that the references to Globocnik and to killings to
the east of Lublin make clear that Goebbels was writing about Belzec and
not about Auschwitz or Treblinka, as Irving claimed in his text. But the
key omission in Hitler's War, according to Evans, is Goebbel's
description of Hitler as "the persistent pioneer and spokesman of a
radical solution". The radical solution cannot in the context be taken
to refer to the policy of deporting Jews to the East. It must indicate
that Hitler was aware what was going on in the extermination camps in
the East. By deliberately omitting of that reference, Evans alleges that
Irving perverts the true significance of the entry. There is absolutely
no evidence that Goebbels "held his tongue". The overwhelming likelihood
that the pair of them would have discussed enthusiastically what
treatment was being meted out to the Jews in the General Government.

5.176 The Defendants claim that, when Hitler is recorded as having
spoken at this time of the annihilation (vernichtung) or extirpation
(ausrottung) of the Jews he was indeed using the terms in a genocidal
sense. Moreover the stance attributed to Hitler by Goebbels accords with
sentiments previously expressed by Hitler, notably in his speech to the
Gauleiter on 12 December 1941 (to which I have already referred) when
Hitler spoke of the Jews "experiencing their own annihilation" if they
should once more bring about a world war. It also accords with two of
Goebbels's diary entries from this period. The entry for 20 March 1942
records Hitler as having remarked:

     "We speak in conclusion about the Jewish question. Here the Fuhrer
     remains now as before unrelenting. The Jews must get out of Europe,
     if necessary, with the application of the most brutal means".

The entry for 30 March 1942 includes the following passage:

     "Thus I plead once again for a more radical Jewish policy, whereby
     I am just pushing at an open door with the Fuhrer".

5.177 In both editions of Hitler's War, Irving asserts that Hitler was
speaking of deporting the Jews from Europe and so must be taken to have
been ignorant of the programme of extermination. But Evans, having
analysed the quotations given by Irving together with other reports of
statements made by Hitler on the topic, concluded that they show that,
when Hitler talked of pushing the Jews out of Europe to the East, he was
well aware of the genocidal fate which awaited them. Evans expressed the
opinion that this was the radical solution which Hitler was advocating,
in full knowledge of what it entailed. Hitler knew that Jews were being
systematically killed in the East. Hitler spoke frequently of the
murderous fate awaiting the Jews, using such terms as "annihilation" and
"extermination" although he took care not to go into the detail of the
programmes. Irving, so it is alleged, was at pains to suppress this body
of evidence.

5.178 Evans on behalf of the Defendants concluded that Irving's
treatment of Goebbels's diary entry for 27 March 1942 wholly
misrepresents Hitler's state of knowledge.

Irving's response

5.179 Irving suggested (and Evans agreed) that it is apparent from
Goebbels's diary entry for 27 March 1942 that he is there summarising
information which has been provided to him. There is no evidence that
Hitler was provided with that information. Irving advanced the somewhat
technical argument that Goebbels's diary entry might be evidence against
him as to his state of knowledge but could not be evidence of the state
of knowledge of Hitler because as against him it is hearsay. As Evans
pointed out, historians, including Irving, perforce use hearsay evidence
all the time. But Irving persisted in his assertion that the entry is at
worst evidence of Goebbels's knowledge of the gassing and does not touch
upon the question of Hitler's knowledge. Irving claimed that Hitler and
Goebbels did not see each other in private more than about ten times in
1942.

5.180 Moreover, according to Irving, the entry does not establish that
even Goebbels knew what was happening in the death camps: he is just
speculating when he writes that 60% of the Jews must be liquidated.
Evans pointed out that this contention is difficult to reconcile with
Irving's claim that on 27 March 1942 Goebbels was summarising in his
diary "the ghastly secrets of Auschwitz and Treblinka". Irving
criticised Evans's translation of "Im grossen kann man wohl
feststellen." as "In general one may conclude that ." because it omits
the word wohl which is indicative of the speculative nature of this part
of the diary entry.

5.181 A further argument advanced by Irving is that, in several of the
diary entries relied on by the Defendants, Goebbels falsely claims to be
acting with the knowledge and authority of Hitler so as to provide
himself with an alibi or excuse in case of later blame or criticism.

5.182 Irving claimed that there are many other contemporaneous documents
which show Hitler displaying an attitude towards the Jews which is
anything but homicidal. One example which Irving cites is Goebbels's
diary entry for 30 May 1942 on which Evans also placed reliance. Irving
drew particular attention to the following;

     "Therefore the Fuhrer does also not wish at all for the Jews to be
     evacuated to Siberia. There, under the harshest living conditions,
     they would undoubtedly for an element of vitality once more. His
     preferred solution would be to settle them in central Africa. There
     they live in a climate which would surely not render them strong
     and capable of resistance. In any case it is the Fuhrer's wish to
     make west Europe completely Jew-free. Here they will not be allowed
     to have any home anymore".

Irving argued that this passage demonstrates that Hitler was still
thinking in terms of deportation and resettlement. Hitler was "talking
tough" about the loss of life which the Jews might suffer in the course
of deportation but he was not contemplating genocide. Irving argued
that, when Hitler uses such terms as ausrotten in relation to the Jews,
he is talking of them being uprooted and transported elsewhere not of
their being liquidated. Irving cited other instances where Hitler is
recorded as having used at about this time such terms as Auswanderung
and Evakuierung. Hitler talked also of resettling the Jews in Siberia of
Lapland or even Madagascar. Evans rejected that argument. Hitler's
references to resettlement of the Jews at this time are euphemistic. It
would have been impractical, Evans suggested, to carry out a programme
of extermination by the use of coded language. Hitler's reference to
deporting the Jews to Madgascar must be camouflage because Hitler
himself had earlier in the year called a halt to that plan and ordered
that the Jews be sent to the East.

5.183 As to the entry in Goebbels's diary for 30 March 1942, it is,
according to Evans, clear from the earlier section that, in his
confidential meeting with Goebbels, Hitler told him he favoured a
radical solution of the Jewish problem. The latter part of the entry,
relied on by Irving, corresponds very closely with Hitler's Table Talk
on 29 May 1942. Evans considered that Goebbels in the latter part of the
entry was recording in his diary what he had heard Hitler say in the
course of a general discussion on 29 May rather than continuing with his
account of their private meeting. That, according to Evans, explains why
camouflage language is to be found in the latter part of the diary
entry. Evans contended that Hitler habitually resorted to camouflage
when others were present. According to Picker (one of those who recorded
Hitler's Table Talk) Hitler never spoke over the table of the
concentration camps. Evans concluded that the reference in the diary
entry to sending the Jews to central Africa is therefore not to be taken
seriously.

5.184 Similarly the record of Hitler's reference on 24 July 1942 to the
emigration of Jews to Madagascar cannot, according to the Defendants,
sensibly be taken at face value: the "Madagascar plan" had, on Hitler's
own orders, been abandoned long since. Hitler was pretending to be
ignorant about the killing of Jews.

5.185 Another reason relied on by Irving for his contention that Hitler
was unaware of deliberate extermination of Jews being carried out on a
massive scale in 1942 is that none of his adjutants or stenographers
recalls any mention being made by Hitler of anything of the kind. Irving
described the time and trouble he has devoted to tracking down and
interviewing those who remain alive and to obtain the papers of those
who have not survived. Irving claimed that none of them had any
recollection of Hitler discussing concentration camps either generally
or individually. The Holocaust was not mentioned.

5.186 Evans does not accept that the evidence of the adjutants and
secretaries is of any real value. In the first place, Hitler when in
company deliberately refrained from talking of the concentration camps
and used euphemistic language when talking of the Jews. Moreover
Hitler's personal staff had good reason to be cautious in making public
statements about what Hitler said in their presence. Moreover, claimed
Evans, several of them expressed the view that Hitler was aware of the
genocide which was being perpetrated. He named Major (later Lieutenant
General) Engel, who recorded in his diaries that Himmler reported to
Hitler about the shooting of Jews in Riga and Minsk; von Puttkamer, who
impliedly suggested that Hitler kept from his press spokesman the fact
that Jews were being exterminated; von Bruckner, who suggested that
discussion about the extermination of the Jews was kept by Hitler within
a limited circle; Krieger, one of Hitler's stenographers, who was
undecided whether Hitler issued orders to exterminate the Jews or gave
general orders to others to that effect and Buchholz, who considered
that it was possible Hitler had issued such an order and was convinced
that the matter was discussed between Himmler and Hitler. Others
mentioned by Evans as coming within this category were Linge;  rautigam;
Sonnleithner and Schroeder. Evans readily accepted that many of these
former Hitler aides are unreliable for one reason or another. The point
he sought to make was that, whatever weight is to be attached to the
evidence of the adjutants and stenographers, they do not support
Irving's claim that Hitler was ignorant of the extermination programme.

(x) Himmler minute of 22 September 1942

Introduction

5.187 Himmler prepared a handwritten agenda for a meeting he was to have
with Hitler on 22 September 1942. Its format and wording were as
follows:

1.Emigration of Jews

How to proceed further

2. Settlement Lublin Circumstances

Lorrainers Gen Gouv.

Germans from Bosnia Globus

Bessarabia

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