Ten years ago today, a judge in London handed down one of the most devastatingly lopsided legal defeats ever delivered in a high-profile case. And it went to a man who deserved it quite badly.
David Irving, at one time a best-selling British pop historian of WWII, had been called a Holocaust denier in a American book on the Holocaust denial movement. In response, Irving sued the publisher, Penguin, and the book's author, Professor Deborah Lipstadt of Emory University.
But the perversity of the libel law in the UK, which tips the playing field in favor of the plaintiff to an extraordinary degree, meant that this wasn't simply a ridiculous case filed by a ridiculous man. This was a serious attempt by Irving to silence his critics -- and perhaps shake out a lucrative settlement from the book's publisher, while forcing the book out of distribution in the UK.
Here is how, ten years ago today, Irving found his own reputation destroyed instead.
But first:
Say hello to the nice men in their nice sheets.
http://upload.wikimedia.org/...
About David Irving
You may not have read anything by David Irving, but there's a good chance that you've read something that picked up one of his lies. In the mid-60s Irving wrote a best-selling pop history of the firebombing of Dresden that overstated the German death toll by a factor of four or more; Kurt Vonnegut, Jr. used that exaggerated death toll in his "Slaughterhouse Five." And an Irving-sourced map of the V-2 impact sites in London, overlaid with a grid, makes its mark in an early section of Thomas Pynchon's "Gravity's Rainbow."
Irving was solidly of the "ripping yarn" school of pop history, creating strong stories full of narrative detail. But scholars began to note a peculiarity -- Irving seemed more than ordinarily sympathetic to the German side. In the 70s Irving wrote "Hitler's War," a book which argued, among other things, that Hitler didn't order the Holocaust, that it was a rogue operation from Himmler which Hitler found out about only when it was too late. Critics began to savage him for a book that painted Hitler as a much more innocent soul that we thought, attacking the USSR because he had to, and escalating WWII only because England forced him to. Good ol' Uncle Adolf wasn't thaaaat bad a guy, now was he?
This "Hitler wasn't so bad" stance made him new friends on the far right, including the far far right -- Holocaust deniers like Ernst Zündel. By the late 80s Irving had fully joined their fold publishing the nonsense "Leuchter Report" in the UK and speaking at Holocaust denial functions.
To give an idea of what kinda guy David Irving turned into, here he is at his sniggering depth, talking to his supporters, as quoted in Lipstadt's book:
More people died on the back seat of Senator Edward Kennedy's motor car in Chappaquiddick than died in the gas chamber of Auschwitz.
(Aside: For more on the "Leuchter Report," in which a hapless dweeb does a bogus chemical study on the Auschwitz gas chambers and concludes what he was paid to conclude -- that they weren't real -- there's a truly wonderful documentary by Errol Morris called "Mr. Death: The Rise and Fall of Fred A. Leuchter." Irving and Zündel both show up in it, as does another guy I'm going to mention later.)
Deborah Lipstadt
In the early 90s, Deborah Lipstadt wrote a study of the Holocaust denial movement, leading to the 1993 book "Denying the Holocaust: The Growing Assault on Truth and Memory." In this book Lipstadt identifies the movement as not just the occasional crackpot popping up but an organized framework of ideas, one with its own history and development, for which she came up with the label "Holocaust denial."
Which calls for a sidebar.
Sidebar: What Holocaust Denial Is
This brings up a point that some people either find confusing or -- in some cases -- feign confusion about. Holocaust deniers generally don't say "there was no Holocaust," or at least they don't when (unlike the collections of Einsteins in the photo above) they're trying to reach a broader audience. Instead they say, "Well, the version of the history you're getting from Jewish scholars and their sycophants is wildly exaggerated. Sure, it wasn't fun being a Jew in Nazi Germany, but isn't it time to say goodbye to the myth of six million dead, the myth of the gas chambers, the myth of an order from Hitler saying 'kill all the Jews.' None of that is proven, despite what those Jewish scholars tell you."
Sometimes, when they know they're in polite company, they'll go for something very close to that: "Why is it that if you dare suggest that the official version of Holocaust history is less than absolutely accurate, people start calling you an antisemite?"
The core ideas of Holocaust denial go back to the early 1960s, but in the 80s and 90s antisemitic organizations like the "Institute for Historical Review" and the "Committee for Open Debate on the Holocaust," along with bugeyed wonders like Ernst Zündel (author of both "UFOs: Nazi Secret Weapons?" and "The Hitler We Loved And Why"), built an elaborate framework of lies and excuses which they presented in a pseudoscholarly format -- you'll notice the ostentatiously academic sounding names for the organizations. It is that framework which is, rightly, called Holocaust denial. One thing that's clear is that Holocaust denial is a child of the far right.
Holocaust denial as a movement has fought obsessively for undeserved respect in the mainstream, demanding to be treated as if it were an honest school of historical inquiry rather than an antisemitic conspiracy theory. It's been darkly funny, watching as two impulses fight each other -- they very badly don't want to look antisemitic, but they very badly want to say antisemitic things. And the latter impulse is the one that usually wins. Just as Judge Jones noted in the Kitzmiller v Dover case that "intelligent design" can't be separated from its origins in the creationist movement, neither can Holocaust denial be separated from its origins in antisemitism.
This is why Irving was so important to the movement. He had credibility; he wasn't, like most of that motley crew, an obvious antisemite and crackpot. He was a beefy guy with a mellifluous voice and eyebrows so bushy you could wash windows with 'em. He didn't look at all the part of the mingy little Jew-hater. He was their glamour boy.
Irving sues; UK Libel Law
Lipstadt's book specifically called out David Irving as a Holocaust denier, because by the late 1980s he undeniably was.
But there's a big problem. As I said above, libel law in the UK is ass-backward, placing the burden of proof on the accused rather than the accuser; google "libel tourism" for an indication of what a problem this is. In particular, UK libel law makes it much too easy for anyone trying to silence an opponent to sue and then shake that opponent down for a settlement. (Here's a very recent story about the resulting chilling effect in action.)
So in 1997 David Irving sued both Lipstadt and her publisher, Penguin UK, claiming that he'd been libeled. Irving was no stranger to the libel law, and had made himself a lucrative sideline in legal settlements under UK law.
Sure, the Holocaust happened, he said -- as long as by "Holocaust" you don't mean gas chambers, an order from Hitler that became a continent-wide program of genocide, or that six million Jews were murdered. Other than those little details, said Irving, sure, the Holocaust happened, and he's no Holocaust denier.
This might sound ridiculous. But so tilted are the UK libel laws that this was by no means an open-and-shut case. Lipstadt was in serious legal jeopardy.
Lawyering up
If Irving was hoping for a quick settlement, he didn't get it.
Lipstadt, a stranger to the strange UK legal system, turned to a man named Anthony Julius for help. It was a brilliant choice. Julius is primarily a libel lawyer, although he's had one famous exception. In his first divorce case -- and maybe his only one to date -- he represented Diana, Princess of Wales, against Charles, Prince of Wales. Julius is also the kind of guy who, along side his law degree, has a PhD in English lit and writes heavyweight tomes on the history of antisemitism in the UK.
Two things were unusual about this trial procedurally. First, it was decided between the two parties that it be a bench trial; that is, because the case was likely to be very detailed, too detailed for a jury to follow, the verdict would be rendered by the judge. Second, Irving would be acting as his own counsel -- partly for economic reasons, partly because he wanted to cross-examine Lipstadt personally in order to show that an International Jewish Conspiracy was trying to silence him. But that was an Irving miscalculation, because it turned out that he had no right to demand Lipstadt go into the witness seat for cross-examination, since Lipstadt's testimony was given via a written submission to the court. So the "Inherit the Wind" courtroom confrontation Irving hoped for vanished in the air.
Lipstadt's experts
The task of Lipstadt's team was to support a "justification defense." That meant that the only way to win was to show that what Lipstadt had written about him was true: he was an antisemite, he hung around with racists, he denied the Holocaust, his books were full of lies. And this in turn meant getting expert historians to examine Irving's claims in the form of reports submitted to the court, taking those claims apart piece by piece. I want to mention two of these reports in particular, because they're both available as books. One, by Professor Richard J. Evans, Professor of Modern History at Cambridge University, examined Irving's treatment of documentation regarding Hitler.
Evans' harsh conclusion:
Not one of his books, speeches or articles, not one paragraph, not one sentence in any of them, can be taken on trust as an accurate representation of its historical subject. All of them are completely worthless as history, because Irving cannot be trusted anywhere, in any of them, to give a reliable account of what he is talking or writing about. It may seem an absurd semantic dispute to deny the appellation of 'historian' to someone who has written two dozen books or more about historical subjects. But if we mean by historian someone who is concerned to discover the truth about the past, and to give as accurate a representation of it as possible, then Irving is not a historian.
The second report I wanted to mention is the single best guide I know to the detailed arguments the Holocaust deniers make, hoping to overwhelm their audience with detail. It's the report on the gas chambers at Auschwitz by Robert Jan van Pelt, a historian of architecture at the University of Waterloo at Ontario. Along with giving the history of Auschwitz, his central take is simple: since form follows function, what can we learn from the design of the crematoria themselves about their intent? In his investigation he marshals all the different threads - physical evidence, confessions, eyewitness testimony, blueprints, correspondence, other documents - to show how they combine to an inescapable conclusion. You can also see van Pelt in action in Errol Morris's "Dr. Death," demolishing Fred Leuchter's fantasy version of history.
Preparation and trial
In the UK the case isn't presented in court by the solicitor -- Julius in this case -- but a barrister. The Lipstadt team was fortunate to have Richard Rampton in this role. He's the one who had to learn the expert reports inside out, including visiting Auschwitz itself with the experts and Lipstadt, absorbing as much information as he could so it would be at his fingertips during the actual trial, when it was time for him to put on the silk robe and the powdered wig.
For nearly two months in early 2000, Rampton and Irving met daily in the courtroom, guiding the judge -- a man named Charles Gray and addressed as "Mr. Justice Gray," an appropriately somber name -- through argument and counterargument, examining and cross-examining witnesses.
Full transcripts are available here: http://www.hdot.org/...
In these transcripts you can see Irving trying out all the standard arguments -- the showers needed gas-tight doors because they were really bomb shelters, there wasn't enough coal to burn all the bodies (using numbers that assumed the bodies were burned one at a time starting from a cold oven), there were no holes in the roof of the "showers" to pour in the Zyklon-B... the whole nauseating stack of lies.
What Irving wanted to do was simple: if he could show that a reasonable person with a reasonable grip on the historical facts of the Holocaust could reasonably conclude that there really was reason to doubt that there were gas chambers at Auschwitz, or that Hitler had ordered a genocidal program against the Jews of Europe, then he would show that Holocaust denial was not a foul antisemitic conspiracy theory but a legitimate thread of historical inquiry -- one that deserved its own place in the mainstream. Not only would Irving would be exonerated, but so would people like Zündel and Leuchter.
But you can also see Rampton patiently taking each of the arguments to bits, one after the next.
Some of the exchanges were dramatized as an episode of PBS's "Nova"; although it doesn't seem to be available for streaming from the Nova site, a transcript is available here.
Irving has reason to pride himself on his rhetoric, but in his closing statement he made what must surely count among the funniest courtroom slips of all time. One of the things Lipstadt had said about him in her book was that he hung out with racists and right-wing extremists, and they brought a video proving it. Here is Irving trying to explain to the judge what he was doing being videotaped at a German meeting where people were shouting "seig heil":
When the off-screen chanting of slogans begins at 18:18:59 I am clearly seen to interrupt my speech, shake my head at them and gesticulate with my left hand to them to stop, and I am clearly heard to say, "You must not", because they are shouting the "Sieg heil" slogans, Mein Führer, and things like, "you must not always be thinking of the past". I am heard clearly to say: "You must always be thinking of the past. You must not keep coming out with the slogans of the past. We are thinking of the future of Germany. We are thinking of the future of the German people. As an Englishman I have to say ...", and so on.
The courtroom got a laugh out of that. Rhetorical tip: if you're on trial for being a Holocaust denier and Nazi apologist, never address the judge as "Mein Führer." It tends to work against you.
The Verdict
Courtroom testimony ended on March 15, 2000. Then came an agonizing wait while Mr Justice Gray put his verdict to paper. Nearly a month passed, and it's not hard to see why; when Justice Gray delivered the document -- exactly ten years ago today -- it weighed in at a mere 333 pages, spelling out in detail the arguments presented by both sides and then, time and again, coming down against Irving.
The verdict confirmed: it's not libel to call Irving a Holocaust denier, a racist, someone who hangs out with right-wing extremists -- he's all these things and more. The full text of the verdict is available on a website set up by Prof. Lipstadt and others at Emory University: www.hdot.org, which holds not only the court records of this trial but guides to the history of the Holocaust as well as specific refutation of the standard Holocaust denier lies.
This case went to trial because an American professor had refused to be silenced by an antisemite's libel action. It ended with Irving's reputation ruined in international headlines. Lipstadt wrote an award-winning book about the ordeal: "History on Trial: My Day in Court with David Irving." Several of the expert reports were later issued as books. Richard Evans' book had an uncharacteristically blunt title: "Lying about Hitler." Van Pelt, in his book about the trial -- "The Case for Auschwitz: Evidence from the Irving Trial" -- records the celebratory dinner with Lipstadt's legal team and experts. Except that it wasn't celebratory.
Dinner that evening proved an unexpectedly melancholy occasion. Throughout the afternoon [after the verdict was disclosed] Rampton had been ashen-faced, but by the time the main course arrived, he burst into tears. "It doesn't make a difference," he lamented, "the judgement doesn't bring the dead back, it doesn't bring them back. . . . For forty years I thought I knew, but I did not really want to know. Six million; it was just a number. . . I am deeply ashamed for all those years I thought I knew, and I did not."
It does not bring them back.
My next diary will describe what happened to Holocaust denial after Irving.