Irving v Lipstadt and Penguin Books Ltd

Scene Setting.. Skip this if you know the Law Courts*

What's Going On?—Some Facts and Puzzles about the Case*

Cast of Characters*

What Lipstadt's Book says about Irving

My Guesses as to Courtroom Battles, and their Outcomes*

Will it Become, or is it Already, a Political Trial?*

The first day. Tuesday 11th January 2000

Fourth and fifth days*
* = new material since last time

IRVING v LIPSTADT and PENGUIN BOOKS LTD.
Irving Irving website		Lipstadt Penguin website*
Rae West's Unofficial Guide to this Case. Part 2. To be updated about once a week. [ Part 1 archive* \| [ Home Page ] Day 1 (Mon Jan 11 2000) transcript (146K) \| Day 2 (12th) (261K) \| Day 3 (13th) (272K) \| Day 4 (Mon 17th) (274K) \| Day 5 (18th) (252K) \| Day 6 (19th) (263K) \| Day 7 (20th) (270K) \| Day 8 (Mon 24th) (259K) \| Day 9 (25th) (264K)

Scene Setting... Skip this if you know the Law Courts
[Back to start]

The 'New Law Courts' are (see pictures above—none very recent) late Gothic revival, and have a huge entrance hall which is only partly-decorated, because funding from unclaimed estates and other assets, held by lawyers, ran out. The buildings were opened about thirty years after the better-known Parliament buildings (which, it isn't usually appreciated, were lit by candles or gaslight when new, and must have been visually astonishing).
As always, vague smears surround Irving: a BBC breakfast programme on the first morning showed the first of three pieces about the Internet and extremism. The man at the Law Courts reception desk told me it would be an unpleasant case. And added that the public were excluded. This in fact wasn't true. He directed me to Court 37, in West Green building, over to the left. The courtrooms all seem to be grouped in fours, with common waiting areas outside which are rather bare, with padded benches and a few hard tables, usually strewn with newspapers. There's standardised dress for officials and lawyers, with the public often looking rather shabby by contrast. The legal system is, or was, stratified by class, with barristers (who do the talking) wearing wigs in more or less exuberant style from the upper classes- having attended public school at 'eaten lunches' at the Inns of Court, solicitors (who do the legal spadework) from the middle classes-having done law degrees or worked at legal firms, and the ushers and police and so on firmly from the lower orders. At least, as a first approximation, all this is true enough. Court 37 is modern 1970s or 80s: false and rather low ceiling, fluorescent light, eroded aluminium-framed windows, microphones suspended from the ceiling. I suspect there's no air conditioning, and the room can and does get stuffy. At present, it's winter, and gloom descends at about 4 pm.
The battleground, or field of play, is:— judge at the back, raised up, visible over a long bench. He's flanked by two people who seem to do nothing. In front are several benches taken up by stenographers, and other people who also seem to do nothing. There's a witness box. Facing all this is, on the left, Irving. And on the right, Mr Rampton, wearing a grey horsehair wig. He's the barrister, or QC, or Queen's Counsel, and is surrounded by a squad of people, mostly I imagine from Mishcon de Reya, a law firm, one of the partners of which is Anthony Julius, Lipstadt's lawyer. Mr Rampton is something like a Queen bee licensed to talk, and he receives whispers, scribbled messages, and so on. There are several benches of these legal persons, about ten in all, with others, mostly well-dressed young women, whose role seemed to be to sit near the back and 'observe'. Then we have a few rows of seats, some with PRESS signs pinned on. The sides of the room have red lever-arch files of evidence arranged in cardboard shelves.
An important difference from many courts is the computer technology: a skilled operator working an odd-looking unmarked keyboard enters syllables (I think) directly, and the software does some sort of conversion into English, so the court transcript can be produced almost instantly. There are at least six or eight lap-top computers linked to display the transcript, so the participants can read it, and scroll back to check what's been said. (There are mistakes—especially when several people talk at once—but on the whole the transcripts are reliable. Presumably successful comparisons have been made with results from conventional court shorthand).
The general crush (I estimate about fifty 'lay' people) included a man who'd written on the Palestinians, an ex-Guardian journalist, six or eight women who seemed to be reporters, or amateur reporters, (they had yellow writing-pads!), and who seemed to know nothing of libel law or of Irving's work. There were several elderly women from somewhere like Los Angeles, a small shabby man in a pullover with the furtive air I've come to associate with ignorant hack writers, a couple of men who struck me as physically unwholesome, and sundry others. Outside were at least two TV crews (cameraman, someone to hold a mike, someone with back wired up—not inappropriately resembling an electrically-controlled ventriloquist's dummy).
I can't resist a comparison with McDonald's 'McLibel' case, in which the two defendants (not plaintiff, as Irving is) represented themselves, over a long period, also against Rampton, with no jury, in a courtroom in the same building, also lined with files of documents, with, I believe, the first use of the new system of transcription, which allowed the McSpotlight site to have a new transcript every day. However, Irving so far as I know has no legal help, unlike the two McDonalds defendants. (I contacted Dan Mills, one of their solicitors, but had no reply). The McLibel trial probably had no influence on McDonalds new 'restaurants'; it remains to be seen whether this trial will have as little influence.

* ADDED: Since then the case has been moved to the larger court 73 in the east part of the building. The audience seems to have settled at around fifty people at most times, with small groups of people entering or leaving occasionally. They are remarkably silent, apart from an occasional fidgety person; it's impossible to guess what they're thinking, and responses to atrocities or jokes or banter are rare. I'd guess about half, or perhaps fewer, regard themselves as Jews. As usual, the press seems to subtly misdescribe things: I read a newspaper account of a young man dressed all in black with a black baseball cap who apparently would find it natural to believe in a Jewish conspiracy. In fact, there was no such person, at least not that I saw. (I found, by the way, there seems to be no official term for the 'audience', the people who watch: 'members of the public' seems usual. Perhaps the legal profession has its own unofficial expression!)
Some Poles made a comment which I hadn't thought of, namely that there are hardly any Germans in the audience. Their Polish view was that Irving was helping revive their honour and the least a few of them could do was to attend.
I've discovered that the row of eight or so young persons, about half female and half female, behind Mr Rampton and his female barrister colleague, who must be Heather Rogers, are researchers for Professor Evans. Their role seems to be to mark passages in highlighter, find documents in the files, and so on. They dress well, presumably to suggest some weight which they might otherwise not possess. (One faintly visualises the endless laboured essays they must have produced between them). I've also found the imposing microphones are record-only; by the end of the day both Mr Rampton and Mr Irving, each of whom has been standing for six hours or so, show some vocal fatigue—though, under the circumstances, surprisingly little.

What's Going On?—Some Facts and Puzzles about this Case
[Back to start]

You may like to see some of the official, full-length documents, from Irving's website. (Close the new window to return here):—
The Statement of Claim with Writ alleging Libel
Defence by Deborah Lipstadt's counsel (page 1; 4 pages in total)
Reply by David Irving (page 1; 5 pages in total)

Libel law in America appears to be influenced by New York Times vs Sullivan. Or something like that; the actual case perhaps hardly matters. This trial would be thrown out in the US, because nobody in the public eye can take action for defamation: if you were to start a libel case, you thereby put yourself into the public eye, and therefore have no case. My guess is that such a ruling, presented as a liberal reform (e.g. presumably you can say 'McNamara is a war criminal' without being sued) in fact allows the American mass media to broadcast or print any rubbish without any possibility of redress.
Legal Aid. It's important to stress that legal aid, in Britain, is not payable for libel cases. Also it has to take place in the more technically skilled, and expensive, courts. And, if legal action costs a fortune, most libel ('visible defamation') actions will be taken by people with fortunes, or, in the case of people like Robert Maxwell, other peoples' fortunes. If, therefore, Irving considered himself libelled by (for example) newspaper articles, but took no legal action, this could be explained by the cost. However, if he wrote letters of complaint to the editor, these will exist in the evidence supplied to the court. So, if someone says, "Well, Irving didn't sue anybody before", it's necessary to examine his actions as reflected in letters to get a fuller picture. (In fact, Irving has been involved in several cases, some settled out of court).
Representing oneself seems to be not possible, or anyway very difficult, in the US. In Britain, it's not liked, but judges tolerate it provided the persons involved do their best to follow the rules, and the case isn't too political. The usual reason for this course of action is, presumably, financial, applying to cases where there's no legal aid. (Another motive occurs when a person regards the legal professions as conspiratorial or incompetent).
Damages. In libel cases, the plaintiff, reasonably enough, has to prove that what he/she said was true; and the truth is not regarded as 'libel' in normal circumstances. (The proof can be difficult, of course; and I'm not attempting to discuss cases involving, say, the Monarchy or the military). However, damages, if awarded, depend on such matters as (in effect) the perceived status of the person and losses in income. Someone regarded as negligible or poor gets small damages even with exactly the same libel as someone regarded as more important. This makes it necessary to establish such things as the size of earnings, and damage to status, if damages are to be assessed. (There's also a social aspect: some time ago, it was defamatory to describe a man as a homosexual, or woman a non-virgin.)
Importance of Costs. It costs money to pay for rooms full of people. A rough calculation suggests such costs can be large. And in fact, they often dwarf the damages. And one party or other, or both, pays them. There's therefore a gambling or actuarial calculation element. Irving estimates his opponents have spent about five million dollars so far. Clearly, there's a possibility of costs escalating out of the control of the nominal parties.
Evidence. Both sides are supposed to produce their evidence. I confess I haven't been able to find out why Irving was required to copy forty years (or so) of his diaries, and piles of book reviews and letters—on the face of it, the defendants ought to have been required to produce evidence of the truth of their statements, if they had any, for example that Irving was involved with Farrakhan. Why were they entitled to get this material?
Balance of Proof. Or whatever the official phrase is. It seems prima facie true that the weaker parties seem to be more burdened; in the McDonalds trial, the defendants (accused of libel) had to go to enormous lengths to prove e.g. that McDonalds used quite new rainforest land. But in this case, the defendants don't seem to be required to do anything analogous. But this of course may be a wrong impression, caused by the trial being only about one-eighth through. (*ADDED)
The judge (as I understand it) controls the court; if he decides to stop a line of inquiry, or to permit a new one, he can do so. Presumably, a prudent judge tries to avoid decisions which cause uproar and consternation. This case has no jury, possibly because it was deemed too complex; so far as I know, all sides agreed to this arrangement.

Cast of Characters
[Back to start]
(A FEW THINGS ADDED)

Lipstadt. Although the author (or nominal author) of Denying the Holocaust (see below for specifically Irving references), some legal quirk—I think the jurisdiction—permits her to say nothing; I gather she will not speak at any time in this trial. On the face of it this indicates less than complete faith in her work. She's often quoted as saying such things as "I won't lower myself to debate with revisionists" but, of course, a debate is something in which both sides present their views and reasoning; a cross-examination is different. It sounds much less impressive to say "I won't answer questions on the subject in which I'm a paid expert."
In my view it's unnecessary to have the slightest sympathy with Lipstadt; she represents a ridiculous racist and supremacist superstition and has no objection to genocide of anyone who isn't Jewish, insofar as she bothers to inform herself of such events. Why she was selected as author of this book I simply have no idea; I'd imagine she has the intellect of a housewife, though of course, since she won't speak, this is necessarily a guess. It seems fair to speak of her as 'selected': the introduction lists something approaching fifty assistants and organisations, and, as we'll see, the work is thin; presumably almost any of them could have assembled much the same volume. She has the misfortune not to be photogenic; she seems to be experimenting with coloured silk scarves; and I'm told she's lost weight.
Rampton. The position (I think) is that Rampton is hired by Anthony Julius, on behalf of Mischcon de Reya, themselves hired by Viking-Penguin at an hourly rate (so far as is known), with the hours largely under their own control. (There were other defendants, who have settled out of court, presumably giving Irving some income). All the talking, from the defendants' side, comes from Rampton.
Perhaps I can tell an anecdote from the McLibel trial: the point at issue was somebody who'd died, electrocuted while doing something with 'french fries'. There was a statistical point at issue; Rampton jumped in, saying he'd already prepared the material, my Lord, and would be pleased to help out by reading his figures. These turned out to omit the relevant point, like a child changing the subject hoping to be undetected. Other typical activities included deliberate delays of documents, certainly for more than a year, and blacking-out of bits of documents which might prove embarrassing. Another useful technique is to send a submerging snowstorm of massed documents. True to form, the Irving case has already had concealed evidence—a video which the defendants claimed not to have, but which they sent, inadvertently, to Irving. (This may be Mischcon de Reya's fault, not Rampton's—I don't know). Why the pre-trial people, and the trial judges, allow this sort of thing is beyond me. However, clearly Rampton must know about all this—it's his stock-in-trade and his strength.
I was interested to watch his modified persona for this trial: in McLibel, he was scornful of youthful environmentalists, openly huffing and snorting, and parading his dog Latin. Here he appears to be going for the persona of the grave citizen, with what I take to be synthetic indignation against Irving.
One notes (for example) that tens of thousands of children are killed yearly in South East Asia by unexploded American bombs. Has Rampton represented them? You must be joking! So my working hypothesis is that he's mainly motivated by money. Nobody can deny the power of such a motive. But it has the drawback of bringing with it a lack of disinterested curiosity. Irving, though of course not knowing everything, has unrivalled knowledge of documents of the Second World War. Rampton hasn't.
It's worth commenting on the ethical position of legal representatives: in my view, the shaky nature of the evidence on Auschwitz must be known by Mischcon de Reya—they've had years to work on it. If this information is communicated to Rampton, what is his ethical position? This of course is a silly question—obviously he must continue to take the money and represent his clients. There is therefore no way in which outsiders can tell whether he means what he says. (There's another possibility, that Rampton is being misled by his hirers). So a number of morasses lie in wait, into which the ungainly form of Richard Rampton may sink.
Another image occurred to me, in addition to the depressing skilled hireling view, namely that of a conjuror, suggested by the patter, the smiling dressed-up silent assistants handing props, the servantes with concealed materials, and the ambience which prevents audience involvement. Luckily there are no coloured lights and smoke.
Irving said his sole member of staff, a young woman barrister with a northern accent, left his employment recently, leaving him alone to do all his preparation. He has spent years on preparation, and one wonders whether anyone's vitality can be equal to such a task. If he loses, he will be asked to pay a lot of money—six figures. He's polite—I watched him explain to a clutch of young woman journalists that the New York Times is a very good newspaper, with very well written articles which people want to read. He likes CNN, though perhaps this attitude may have changed since an interview—which took all day to film—was first pulled and broadcast a week late (the text, and sound, is on his site) which mostly consisted of other people talking and included a promotion for a hack writer. I suspect Irving likes to tease a little, and exploit his reputation: I watched him say that, when young, he had a collection of news clippings about murderers.
Watch for another thing: Irving knows his material, and his opponents don't. In simple language, he knows his subject, they are frauds. The media have some difficulty with this: you find paragraphs almost side by side which say that he's a meticulous and unparalleled researcher, but also that he's discredited and generally no good. Obviously these statements are inconsistent; so a typical technique is to say something like 'Irving has a phenomenal memory' as though the point is what Americans would no doubt call a memory freakshow.
His opening statement plays interestingly on the ideas of English fair play; I have to say his scepticism doesn't seem to extend outside his documents. In his opening speech he said he could think of only the Gestapo which behaved like the ADL. (One of his phrases is 'the traditional enemies of the truth', by which he means Jews, or, perhaps, just activist Jews. It may signify something that this phrase does not appear anywhere in Lipstadt's book). But in fact, to take Britain, there's a very new MI6 building with activities kept completely secret; people aren't allowed to look at the records kept by many government organisations; the Special Branch taps phone calls; and (for example) there's a shady commercial outfit which advises big corporations on people to avoid employing, which keeps uncheckable information on card-indexes to avoid computer data legislation. And Irving said that conditions in Russian archives, with people eating sandwiches surrounded by a litter of documents, couldn't happen anywhere else, whereas (for example) it appears to be the case the CIA regularly shred documents on sensitive issues like their phoney research, and war crimes.
He also displays touching faith in British law, which seems odd when addressed to a courtroom; these are the people actually responsible for, who administered, frauds like the Saunders 'senility' trial and Maxwell's years of fraud. Perhaps this was a recheché joke by Irving? Or possibly it reflects his far more unpleasant experiences in Germany, Canada and other foreign parts.
Irving's whole outlook is somewhat different from the defendants, and this promises a great deal of mutual incomprehension—and the possibility of revealing slips of the tongue. He asserts flatly that he isn't a 'holocaust denier' since he's always insisted that mass killings of Jews took place, and that there's no doubt whatever that he insisted; and so he has no place in a book entitled Denying the Holocaust . He insists he found no evidence for gas chambers or a general order from Hitler, or anyone else, and says so. Whether he's right can only be established by cross-examination, and if this happens he will have to demonstrate his grasp of documentary sources. In fact it is essential for him to do so, assuming that he can; and, similarly, if the defendants can fault him, they will gain a probably complete victory. However, Irving must have some strategy if they fail; he would have to prevent them changing the subject quietly.
Another difference is that he has managed to retain moral indignation, something which is very unusual, for example in such issues as bombing civilians, even in Iraq.
He seems to have paid much less attention to the minor aspects of the case; I happen to know he knew nothing about Farrakhan, and was investigating the twentieth century usage of word 'Holocaust' quite recently.
Viking-Penguin. Penguin developed (in Britain) before the Second World War and fed the market for cheap and quite intellectual books. Many of these were reprints of out-of-print hardbacks. After the Second World War more titles were written specifically for paperback publication; and many, in retrospect, can be seen to be not-very-readable special pleading for money for academic interests—nuclear power, philosophy, physics, psychology, or whatever. Much more recently their list has been dominated by modern pseudo-science. They publish a few good books. For example, the first book by Chomsky in a couple of decades to be published by a big publisher was theirs. Or, to put it another way, for decades they would publish nothing by authors like Chomsky. From the rationalist point of view, therefore, it seems to be no great tragedy if this company loses millions of dollars.

(ADDED*:) The Penguin website (so far as I can find, the case is only to be found on the UK part of www.penguin.com) has this statement, a few advertising pictures but nothing else on the case. Connoisseurs of hypocrisy might be amused at the remark on 'academic channels' and on Penguin's claim on freedom of speech.
PENGUIN DEFENDS DAVID IRVING LIBEL ACTION AGAINST PUBLICATION OF HOLOCAUST BOOK
The case opened on 11th Jan and continues in the Royal Courts of Justice in London, Penguin Books will commence its defence of the libel action brought by David Irving in connection with Penguin's publication in the UK of a book entitled DENYING THE HOLOCAUST by Deborah Lipstadt.
DENYING THE HOLOCAUST was published by Penguin in 1995. The author, a co-defendant in the action, is a highly respected American academic who occupies the Dorot Chair in Modern Jewish and Holocaust Studies at Emory University in Atlanta.
The book is a scholarly work which presents a thorough examination of the Holocaust denial phenomenon and the methods used by deniers to publicise their message. It names David Irving as such a denier who distorts history and this is the basis for his libel action.
Penguin very much regrets that Mr Irving has chosen to pursue his arguments through the courts rather than through academic channels. Penguin is, however, confident that Mr Irving's claim for libel will fail in the light of the weighty evidence gathered from eminent academics who will appear for the defence.
Anthony Forbes Watson, Managing Director of Penguin books Ltd said "Penguin has a history of upholding freedom of speech for itself and its authors. We will vigorously defend David Irving's claim and look forward to the courts vindicating our right to publish this important work"
For further information please contact: Joanna Prior, Penguin Publicity Director on 0171 416 3250 or Helena Peacock, Head of Legal on 0171 416 3017
Possibly , though I have no evidence for this, Penguin may be a victim of its own legal department: the thought stuck me that a law department might make up its mind to take a risk, even if the company would have avoided it if they'd known. Perhaps this is a variation on the theme that lawyers don't care if the parties lose a fortune, provided they get something out of it. If I were Anthony Forbes Watson, I think I might make a few enquiries.
The judge , Mr Justice Gray (who's been involved mainly with libel cases, I think) seemed quite good as far as I could tell from his few sentences. He's homed in on the relevant detail and seems likely to be able to corral things. He has a difficult and unenviable task. Or, at least, I suppose he has: perhaps someone of great intellect can unravel the strands and make a Solomonic decision.
An emailer who wants anonymity says: 'I conclude that the judge is simply keeping a score card with four or five columns: (1) Agreement or stipulations (2) Points conceded by Plaintiff (3) Points conceded by Defendants (4) Points to be decided by Judge's own panel of researchers (5) Points that seem to be deliberate falsifications in Defendant's published material (6) Points that seem to be deliberate falsifications in Plaintiff's writings. The Judge probably has a point system, with the greatest weights going to falsifications; and then he will have to decide if a pattern of 'innocent' errors amount to a pattern on one side or the other. He, as all judges, hopes one of the parties will decide the case for him by admissions one way or the other.'

What Lipstadt's Book says about Irving
[Back to start]

Note: it's important to understand that this legal action could only take place because the book was published for a time in Britain, I think in 1994. If publication had been confined to the US, Irving, had he started a case, would have got nowhere. Irving insists that Viking-Penguin merely had to phone him to check the contents, but didn't. From his point of view, the book appears to have been something like the last straw.
My own guess is that Viking-Penguin in effect dumped the book; they have thousands of titles, and the standard way to issue ones printed in America is to send a few thousand spare copies to Britain, a few hundred to Australia, a thousand to Canada, a few hundred to South Africa, and so on, in their shipments. I've seen a figure of 2,000 copies distributed in Britain, though I forget where I found this; and I suspect most copies ended in libraries, either bought or donated. There is a theory that the publishers cunningly engineered this situation, hoping to provoke a law case; but my guess is that the trial was not foreseen by the publishers—the title probably wasn't seen as anything special, just another low-selling title which wasn't worth editing for the local market.

Irving states that Lipstadt's book had passages about him inserted at a late stage, suggesting she hadn't even heard of him. This seems likely, as the references to Irving, which are few, are inserted into chapters on other subjects. The 'research' seems to be of extraordinarily low quality—or perhaps it's just ordinarily low. There's little evidence and Lipstadt seems to have no facility for separating hearsay, testimony, and evidence.
Anyway, below I attempt to extract the main points she makes about Irving, ignoring the rest of the book. (My edition, available in Britain, was published by 'The Free Press', which has some connection with Maxwell, the well-known fraud, and Macmillan; Viking-Penguin isn't listed, and is perhaps involved through a merger or buyout—I don't know. It's dated 1993 and already seems careless—for example, she takes Pressac seriously, and is casual in her treatment of pre-World War II Judaism. My copy, judging by spelling, is identical to the US edition, so I'll assume its page numbering applies generally.)
The only four passages found for me about Irving are on pages 8 (1 paragraph), 111 (part para only), 161-162 (3 paras), and 179-181 (8 paras). There are about 40 statements made about Irving, then exact depending on how they're counted. Of these, about half are referenced—they have endnote numbers. The remainder are, of course, unreferenced. This gives a manageable set, which I'll now examine at not too great a length:—

Referenced Statements.
About twenty: Page 8: denier, gas chambers a "propaganda exercise" (n22), regular participant at Deutsche Volks Union (n23), women built to "produce men" and be subservient (n24), not a credible figure to German deniers (n25). Page 111: David Irving quoted by Nolte re prewar Nazi persecution of Jews (n33). Pages 161-2: Scholars have accused him of distortion (n16), scholars have dismissed the idea that Hitler did not know about the Final Solution (n17), has been accused of skewing and misrepresentation (n18), spiritual experience at Hitler's retreat (n19), Hitler helped Jews (n20), self-described "moderate fascist" (n21), Hess should have received Nobel Peace prize (n22), marriage a detour and being born in 1938 (n23). Pages 179-181: converted by Leuchter to Holocaust denial (n105), swindle of 90 Bn deutsche marks over Auschwitz (n106), Auschwitz monument a "tourist attraction" (n107), British Psychological Warfare 1942 story of killing millions (n108), Sunday Times in 1992 may have revived his reputation (n110), ludicrous to refer to Irving as transcribing technician (n111), TV rarely addresses neofascist or denial connections (n113), double standard of absolute proof for Germans, circumstantial to condemn allies. (n114). Page 180 has a footnote relating to the glass plates on which the Goebbels diaries are microphotographed. The reference is dated January 1993, (Lipstadt's foreword is dated Jan 14th 1993), so one guesses it was shoehorned in after the main text had been assembled. This is important as regards Irving's competence, and much of Irving's opening speech dealt with the claims as regards archival material. In full, this is:
The Russian archives granted Irving permission to copy two microfiche plates, each of which held about forty-five pages of the diaries. Irving immediately violated his agreement, took many plates, transported them abroad, and had them copied without archival permission. There is serious concern in archival circles that he may have significantly damaged the plates when he did so, rendering them of limited use to subsequent researchers.
Irving believes Jews are "very foolish not to abandon the gas chamber theory while they still have time." He "Foresees [a] new wave of antisemitism" due to Jews' exploitation of the Holocaust "myth". C.C. Aronsfeld, "Holocaust 'Revisionists' are Busy in Britain," Midstream , Jan. 1993, p. 29.
Comments: It's possible all the above points will be examined in the trial. Irving's behaviour at the Russian archives certainly will, as we've seen. I'll point out here that the endnotes refer mostly to newspapers and small magazines which are probably unobtainable for most people in the USA. We've just seen, above, a magazine called Midstream treated as a serious source, with no information about the article's author; I wonder how many people have heard of either? Other sources include Daily Telegraph , a book by Robert Harris [Note that 'Robert Harris' may be a ghostwriter, Andrew Crofts-RW 15 01 2020. See big-lies.org/reviews/robert-harris.jpg] called Selling Hitler , and a magazine called Searchlight .
Unwary readers may get the impression that there's some form of scholarship behind Lipstadt's footnotes, rather than a paperchase which mostly leads nowhere. To take the quotations on page 8 , we find they are from the Daily Telegraph , which is a vicious and grubby rag, the sort of thing read by vicars and retired persons who lovingly recall running over blacks in tanks in Africa. For years it supported apartheid, and other things—but I won't weary you with this. We find, consulting the relevant CD ROM, an article by Mick Brown, in which we find: 'The ‘legend’ of gas chambers, he says, was ‘a propaganda exercise’'—a phrase repeated by Lipstadt. That's all. The reader might imagine that the intrepid reporter would enquire of Irving what he meant, whether he was serious, or what evidence he had. But Brown, no doubt accurately assessing his readership, prefers to discuss Himmler in the east, Irving's daughter, his school beatings, and his lack of homosexuality. Thus, Lipstadt's quotation is simply quoting someone else, without supporting evidence. If this is research, anyone quoting something they've seen on TV or read in any newspaper is a 'researcher', or 'scholar'.
The next claim made on page 8 is that Irving 'regularly participated in the annual meetings of the extremist German political party Deutsche Volks Union.' What we actually find in the Sunday Telegraph article of 19th Jan 1992 is: 'In March he is due to speak at the annual conference of the neo-fascist Deutsche Volks Union in Passau. He expects 10,000 people to be there—if the Germans let him in. He has been banned before.' In other words, Lipstadt has lied—one projected talk has been represented as 'regular meetings'. The Deutsche Volks Union, whatever it is, is not described; on the face of it, it seems unlikely to be neo-fascist, since one gathers there are German laws banning this. However, the Telegraph , like Lipstadt, prefers not to worry over small matters like evidence.
Page 161 has bits taken from Selling Hitler (1991) by Robert Harris, about the 'Hitler Diaries' fraud. Unfortunately, again we find that Lipstadt has simply quoted someone else's unsourced quotation. Harris says, for example, 'Irving admitted that in writing Hitler's War he had identified with the Führer. Looking down upon him.. was a self-portrait of Hitler.. He did not smoke or touch alcohol. .. He shared Hitler's views on women.. In 1981.. he had founded his own right-wing political group, built around his own belief in his 'destiny' as a future British leader. ..' This may be true, but there's no background and an irritating lack of detail: what was the 'right-wing political group'? This book repeats the 'moderate fascist' comment, but I haven't been able to identify the source—forgive my laziness. Incidentally, I noted Hitler's War was, says Harris, 'savaged by Walter Laqueur in the New York Review of Books and boycotted by the major US paperback publishers.' (Without commenting on Laqueur, Lipstadt seems to think the New York Review of Books , which is of course an ordinary commercial/state rag which routinely censors material its advertisers or owners doesn't like, gives some sort of imprimatur—she mentions a review of Churchill's War , though, perhaps wisely, hiding the reviewer's name in the endnotes).
Page 179 has a "one-man intifada" quotation attributed to Searchlight , a shady publication, which I think is subscription only, and so far as I've found, essentially an anonymously-funded one-man operation; my specimen copies are full of intelligence jargon.
I suspect therefore that Irving will be able to make a good case here, more especially as he is accustomed to dealing with the intricacies of documents, and following threads from one to another. However, we shall see.
Unreferenced Statements.
These of course tend to be vague. Page 8 includes: 'long considered a guru of the extreme right', and 'extremist-sponsored rallies', 'an ultra-nationalist'. No evidence is adduced. (It might be amusing to hear Lipstadt try to explain exactly what she means by 'the extreme right'. Trevor-Roper wrote that to describe Hitler's takeover as 'far right' was part of the 'sterile vocabulary of the left.')
An important issue could be Irving as a revisionist of Second World War historiography. Several times Lipstadt says this sort of thing: '[Irving is] The writer of popular historical works attempting to show that Britain made a tactical error in going to war against Germany and that the Allies and the Nazis were equally at fault for the war and its atrocities' ( p. 8 ) and '[Irving is] convinced that Britain's great decline was accelerated by its decision to go to war with Germany...' ( p. 181 ). One gets the impression that anyone examining the Second World War—which after all was quite an important event—and its conventional presentation—which was almost entirely shaped by thoroughly-controlled wartime propaganda— would be automatically condemned by Lipstadt.
Another little trick is worth pointing out, namely the ascribing of a point of view to an entire well-known organisation, when in fact it's the viewpoint of one person or group. Thus ( p. 180 ) Lipstadt's book says the 'British House of Commons denounced the former [Irving] as a "Nazi propagandist and longtime Hitler apologist"..' And 'Condemned in The Times of London in 1989 as a "man for who Hitler is something of a hero.." ..'

My Guesses as to Courtroom Battles, and their Outcomes:—
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Things which I think will happen:
- Witnesses: I'm all but certain these will include an architectural expert on the plans of Auschwitz, sociological evidence on Judaism, evidence of ground-penetrating radar used at Treblinka, and John Keegan subpoenaed to talk on the Second World War, on which he's regarded as a military historian.
Things which I think may happen:
- Jewish conspiracy against Irving I think probably has to be raised, since Irving's damages depend (I think) on his showing that there were plots to prevent his books being published, distributed, reviewed and so on, and so damage his income. If he can show action was taken to damage him, presumably he'd be in a strong position. But this raises difficult questions—is such action in fact illegal; can private organisations legally do it? And what surveillance in fact actually goes on? (Also, if a conspiracy were investiagted and proven, and damages decided, should Penguin pay all damages, or others too?*)
  The question also may arise as to what is a 'conspiracy'; everyone laughs at conspiracy theories, but, when there are problems, they start to see them everywhere. All this is a can containing many unpleasant and varied worms.
- Gas chamber controversy seems likely, but not certain, to surface. This is because the conventional definition of 'the Holocaust' includes gas chambers, but Irving's definition doesn't. So presumably either side, depending on how it views the evidence available to it, might decide not to investigate the issue, and it might not arise.
- Follower or admirer of Hitler is an accusation often made about Irving. Close examination of his books may incline the defendants against, or for, this view; I can't guess. I'm not sure what is needed to make such an accusation libellous. But clearly the issue is likely to surface.
- Part played by Jews in the Soviet Union and for example Hungary. Irving claimed that all the worst Hungarian torturers were Jews. If the disputes start to rage about eastern Europe, as they presumably must, issues of this sort will probably come up.
- International Law , such as it is, and Hitler and Jews before the Second World War, might be investigated. It would be interesting to have light shed on this, and, on the face of it, it's a topic which ought to be investigated, but, one guesses, probably won't.
Things which I think won't happen:
- Khazars as Jews. The Khazaria theory has existed for most of the 20th century, although it's been suppressed for various reasons. Despite its importance, I doubt it will surface here. This is because (1) the plaintiff, Irving, accepts many or all Christian beliefs, and seems to feel obliged to believe modern Jews originated in ancient Israel; (2) Lipstadt and her supporters can't consider it, since it's incompatible with their system of pretences; (3) Rampton probably won't have heard of it.
- Christian forgery as a comparative money-making scheme to what may be Holocaust forgery. This, or indeed any other established fraud, and there are many, from AIDS and NASA to physics and weapons, could make an instructive parallel. The reasons I don't expect this to happen are similar to those relating to the previous idea, plus the extra effort needed to reorient thought in several fields. I expect, analogously, links between Catholicism and Fascism will probably be avoided.
- WW2 War crimes against (say) Germans, Indians, Chinese. Again, despite the obvious importance of these comparisons, I doubt they'll be made. Nor will such issues as the non-bombing of Ford factories in Germany be raised. The taboos are probably too strong.
- What is fascism? This seems a fair question, especially as the press and many statements use the word rather freely. I predict however that discussion will be discouraged, on grounds familiar to readers of (for example) Chomsky. Any of the possible characteristics—killings of civilians, cruelty on a large scale, forced movements of populations, racist discrimination, for example—took place and take place in the 'post-War' world.
  There may however be some interesting footwork as the defendants in particular talk about themselves—but not of course others. An example might be Irving's audiences, which Rampton in his opening speech said 'often consist of radical right wing, neo-fascist, neo-Nazi groups of people.' A video of Irving in the US shows him speaking to what appeared to be Billy-Graham-like fundamentalists, no doubt with an admixture of US war criminals. Will they be pleased to be described as likely neo-fascists? Another example might be some groups, described as campaigning for repatriation and the like. Will the comparison be made with Israel, campaigning to remove Palestinians?
- What is genocide? This is unlikely to be brought up, for reasons similar to those applying to the previous category. But again there may be some interesting footwork.
- Once-important publicists and potential witnesses such as Vrba, Fleming, Hilbert, Elie Weisel, et al. will refuse to appear, because the Zundel trials in Canada have shown such people what happens on cross-examination. (I now note that Professor Browning will appear*).
- Theology: Why didn't God prevent killings of his chosen people? Lipstadt is supposed to be a professor of this sort of thing. However, long-established convention dictates that, even if she were required to speak, such questions would almost certainly not be put.
  Another possibility might have been that Irving may have pointed out that she presumably takes the Kol Nidre seriously, which explicitly pledges her testimony in a non-Jewish court to be deceptive. Conceivably the decision not to use her as a witness may have been to prevent Irving accomplishing this coup de théâtre .

Will it Become, or is it Already, a Political Trial?
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I consulted several books on the political aspects of law (for example, Peter Hain's Political Trials in Britain ) and some historical works, but none seem very satisfactory: few people seem able to separate the power structures from the coccooning verbiage of law. We find accounts of Socrates, Bruno, Joan of Arc; blasphemy trials; and people variously described as racists and fascists; and descriptions of judges as conservatives who are appointed in secret ways. I doubt whether military law (with peremptory removal of dissidents) is much of a guide. Possibly there may be analogies from trials of the sort that occurred and occur in what was the Empire; these of course were and are normally kept secret. My only conclusion is that law is generally on the side of the powers-that-be, as one would expect—lawyers have supported slavery, exploitation, and so on, but, then, what else would they do? Change doesn't usually take place as a result of a verdict—changes in the law are more important.

It's possible this case will be decided politically; perhaps it's already been decided Irving must lose. Looking at a mixed bag of cases, it seems clear enough that the British government's recent treatment of Pinochet was political, not legal. The Birdwood case perhaps is a precedent: her prosecution petered out in what I take to be a trumped-up medical let-out, and the copyright status of her booklet was left in suspension. John Pilger was forced to make an obviously unconvinced apology as regards atrocity allegations he made. I haven't made much attempt to follow the 'denial' law in France; but clearly there must be pressure for a similar law in Britain, and if European Union law spreads this may be applied across all Europe.
Unfortunately, Prime Minister Blair seems to be the sort of politician who sees his role as counterbalancing existing groups; not as encouraging some groups and discouraging others. For example, the billion-dollar 'dome' looks like a submission to vested interests; so does his, to my taste, rather contemptible deferring to religious superstitions, and his deferring to NATO. The medical system is in the balance. He has been reported as accepting money from Monsanto. Such a person, under pressure, seems likely to adjust laws to reflect pressures being applied, rather than aim at worthwhile but difficult goals.
Another aspect is the effect on the future; no doubt scare stories will be manufactured, as happens all the time on many subjects. Is it the case that the risk of exposure of myth will cause people to adopt strange ideologies, vote for people with little moustaches, and invade foreign countries? May there be trade threats, or pressure to prevent media people, teachers and historians look foolish? Does it in fact such a trial make any difference?—if Irving won, there would still be countless films, novels, and books in circulation, huge funds to continue the tradition, endless actors and hacks willing to turn out anything paid for. Some revisionists think the newspaper reporting of this trial is a breakthrough; in my view this simply isn't true (see for example the cuttings which Irving put in his website) since the basic assumptions aren't challenged. The effect may be as transitory as the Pentagon Papers .

The first day. Tuesday 11th January 2000
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Note: Unless otherwise stated, my descriptions apply only to hearings I've attended in person.

The first day was mainly taken up by the reading out of opening statements: Irving's was first, and it was rather long, partly for some technical reason about the following day which I didn't fathom.
Irving appears to be going for the basis of the libel being that he manipulated and falsified history, i.e. he wasn't lazy or careless, but deliberately lied. His statement began with his account of his life and his histories, and continued with a long passage on the Goebbels diary glass plates, I think to establish his credentials as a serious obtainer, decipherer, and preserver of otherwise-endangered documents. He also mentioned Jews as opponents of the truth (he intends to call a sociologist from America on this subject) and of himself.
Rampton, representing the defendants (Lipstadt et al) seems to follow rather closely the claims made in Denying the Holocaust , putting for example emphasis on Leuchter (perhaps Rampton doesn't know that other forensic investigations of Auschwitz have been made since 1993), and repeating the claim about the DVU (perhaps he can't operate CD ROMs). There's some suggestion that he will treat Irving's lawsuit as a 'campaign'; at any rate, that word surfaced in The Times report. Rampton read out what he regarded as an example, or perhaps the only example, of Irving's lies and fakery: a case in Riga involving orders about liquidation. Irving's account in Hitler's War was supposed not to correspond with the facts. And two editions of Hitler's War were very different.
After this, Irving wished to show a video, but the equipment was not available(!). So it was agreed to adjourn.

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Fourth and Fifth Days. Monday 17th, Tuesday 18th January 2000
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Note: Unless otherwise stated, my descriptions apply only to hearings I've attended in person.

Mr Rampton's strategy seems to be this: his aim is to establish a number of what he calls bricks, from which, presumably, to complete his structure. (1) One such brick is 'system': he intends to show the Germans had a system. (2) Next, I think, he intends to establish that Hitler knew of and originated the system. (3) And then he intends to establish extermination. (4) Then he must show Mr Irving is a 'Holocaust denier'. (I'm uncertain how the rest of the case is to be treated).
Mr Irving's counter as to these points is, I think, as follows: (1) He states the Germans unquestionably had a system for moving Jews from the parts of Europe under their control to areas which seem to have been as far east as possible. This was definitely a 'system' (involving e.g. the Gestapo, late-night evictions of families, and train journeys.) But, says Irving, the system ended there; when they arrived, they were expected to build camps (or in some cases moved), and there appears to have been chaos, including murders, which, Irving says, show no signs of having been authorised by Hitler. (2) As to whether Hitler knew what was happening, Irving stated he is "absolutely certain" (his exact words) that the defendants cannot find a single document that shows Hitler was informed of killings or approved of them. (3) Irving states that mass killings certainly occurred; his figure for all shootings of Jews was from 500,000 to 1,500,000. He never denied this and all his books include it where relevant. (4) On 'Holocaust denial', Irving simply states that, in fact, his books describe it perfectly clearly, I think from the documents.
My personal impression was, frankly, that Irving wiped the floor with the opposition. His replies are, or seem, so assured that any statement he makes on dates, German translations, documents, the reading habits of Hitler and Churchill and so on, is simply assumed to be true; I suspect that, if he chose to deliberately manufacture a fake statement (e.g. "Sigmund Freudssohn became temporary adjutant of 2nd August 1942 when Martin Bormann's usual adjutant was ill, and composed a note to.." etc. This example is made up! ) nobody would or could query it. This is rather extraordinary. I can't think of any other witness who could retain credibility after announcing "I never read books." At one point, he pointed out the word 'geheim' (secret) in the middle of a document, which Mr Rampton hadn't noticed, and clearly didn't understand, despite being concerned at the document's security classification. Again, Justice Gray asked Irving whether the 'fragmentary' nature of the documents wasn't a difficulty; Irving replied that the Washington archives have so many documents that they're still unsorted now, more than fifty years later; and that the entire archives of Auschwitz and Maidanek had been captured by the Russians. Justice Gray, who of course seems fairly impassive, looked rather astounded—and it's perhaps significant that it was Irving who had to make that point. (And Mr Rampton seemed a little nonplussed when Irving stated that most of the concentration camp commandants were lawyers). Again, very often Mr Rampton in effect complained that an original document could not be found; on numerous occasions Irving replied that the same document was in his 'discovery' (i.e. copies disclosed before the trial, and now stored in files in the same courtroom). When faced with documents new to him, Irving's practised eye immediately makes deductions: the typewriter keyboard lacked the SS rune, the language has a suspiciously illiterate ring to it; he's just noticed the box has 'AR' in it—probably the German abbreviation for Operation Reinhard, or Operation Reinhardt—the correct spelling is disputed. Again, Mr Rampton seems often to be wrong-footed: he makes a very good observation, but is then floored by a better observation: for example, the questioning turned to Hitler on sending Jews to Madagascar, and (e.g.) Professor Evans (whose report on Irving is frequently mentioned) says something like: Irving is being totally misleading in saying Hitler intended to send the Jews to Madagascar. This was by then firmly in British hands, as of course Hitler knew. So Hitler couldn't possibly have meant this. Clearly, it was a nonsense, a euphemism. One thinks: oh, that's a good point. And Irving replies: the remark makes perfect sense: Hitler was an optimist—he hoped to win the war (and presumably then control Madagascar). In the same way the defendants hope to win the case.
At this time, I concluded that Mr Rampton must have started the case, a few months earlier, all but certain that he'd have a walkover on his hands. He has several professors and numerous helpers on his side—although an observer could be pardoned for feeling that the helpers might more accurately be described as a hindrance. I think this must account for what I take to be his somewhat lacklustre performance, the long pauses, and occasional snaps. In fact it wouldn't surprise me if there's a certain tenseness, some harsh words, behind the scenes in the defendants' camp. It even occurred to me that they may seek an out-of-court settlement (you may recall an offer was made in the McDonalds trial, which however broke down because, I think, McDonalds would not accede to the McLibel Two's request that McDonalds stop suing activists).
What does Justice Gray think of this? One sees him making notes, and putting documents in his own files. Possibly he makes some mark or indication at each point claimed and made, or lost, or left uncertain, by the parties.
One begins to see one reason, at least, while Irving is unrepresented. The replies he makes simply could not be made by someone unfamiliar with the material; questioning would take twice the time as Irving whispered comments or passed notes to his counsel.
Another unsuspected advantage accrues to Irving: since he's a claimant in person, the judge allows him more leeway than ordinary counsel is allowed. In this way he can put in his remarks (you have the document—it was in my disclosure/ Mr Rampton; you have teams of researchers/ the intention is producing a more readable book/ there is an embarrassing superabundance of German material) which might perhaps never be made effectively.

Next week is to be (as I understand it) inquiries into Auschwitz and perhaps other concentration camps. Expert witnesses are to be called, starting, I believe, with Professor van Pelt. I'm not sure whether forensic evidence in the popular sense—actual objects and artefacts—will be examined; I suspect maps, plans, films and photographs will be the extent of the evidence. There may well be some considerable upsets. Irving has already stated, I think as an established fact, that the first references to gas chambers were in British intelligence broadcasts to Germany, which, he said, predate the claims made by some historians as to the starting date of gas chambers.

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Key words, subject terms: Allies Anthony Julius Auschwitz Britain Christianity Churchill David Irving Deborah Lipstadt Denying the Holocaust Fascism France Germany Goebbels Heydrich Himmler Hitler Holocaust revisionism Holocaust denial Holocaust Judaism Khazaria libel Mischon de Reya Nazism Nuremberg Trials Nuremburg Trials Palestine Penguin Second World War Soviet Union Treblinka USA Vietnam War Viking Penguin Viking-Penguin visible defamation War Crimes

© Rae West 24 Jan 2000. This piece doesn't represent legal opinion. It's my personal interpretation of the event. I believe the content to be essentially correct, but of course the situation is complex, and unfortunately I can't guarantee that I haven't missed the point of some events, or the significance of other non-events. In fact, I probably have, since the courtroom situation has evolved in an opaque way—out-of-court settlements, for example, often being secret. The relevant pages of Denying the Holocaust were found by a friend of mine and may be incomplete. I'll archive my pieces for future reference; I don't want to be misrepresented. The court transcripts are completely unedited; I've left even very obvious mistakes, in case I might be accused of altering the sense. This means that keyword computer searches with the correct spelling will not work.

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