The Eichmann Trial (2 page)

A
s I complete this book, the fiftieth anniversary of the Eichmann trial nears. It is an event that is a vivid part of my childhood memories. During that period, dinner in our home was timed so that we could watch the televised news clips from Jerusalem. I remember the picture of Eichmann in the glass booth that appeared on the front page of
The New York Times
on the opening day. On the second day of the trial, if the Soviets had not launched Yuri Gagarin into space and safely retrieved him, the news of the trial would have been
the
lead story. As a thirteen-year-old, I was intrigued that something so profoundly connected with Jews had been featured so prominently. At this point in time, my world was pretty much divided into Jews and non-Jews. Virtually everyone in my immediate circle—-classmates, neighbors, and friends—was Jewish. If you had asked me to recall those years, I would have told you about the thriving Jewish community in which I lived. And I would have insisted that I never encountered even a hint of anti-Semitism. I would have said so despite knowing that there were neighborhoods in which Jews could not live and firms that would not employ Jews. I had heard my friends’ older siblings say that, despite their outstanding grades and academic records, they would not get into a particular Ivy League school because its Jewish quota was filled. Already in the eighth grade we knew not to consider certain colleges because it was exceptionally difficult for a Jewish student who lived in a Jewish neighborhood and attended a Jewish school to gain admittance. Rather than being shocked by this, we accepted it, I am embarrassed to say, as a fact of life. This was how things were. In 1961, John Kennedy had just become president. I remember how perplexed I was during his fight for the Democratic presidential nomination by the media debate over whether a Catholic “could” be president. My twelve-year-old reasoning was straightforward: Everyone in America was either Christian or Jewish. It was a given that the presidency was off limits to Jews. White Christians, particularly those of privilege such as Kennedy, faced no such barriers. Why, then, should there be any question about his nomination? As I look back on those years, I am bemused, not by my failure to understand the difference between Protestantism and Catholicism, but by my acceptance that certain avenues were closed off to Jews. (My parents were far more incensed about it than I. In contrast, I was well aware and deeply troubled by the fact that African Americans faced terrible and violent discrimination.)

Into this simplistic and rather naïve world came the Eichmann trial and the Holocaust. It would take me a number of years to understand fully that the horrors for which Eichmann was being tried had sprung from the selfsame anti-Semitic soil that kept Jewish kids from top-notch schools, and Jewish graduates from jobs in many prestigious firms. Eventually I came to understand the interconnectivity of these phenomena. However, I never dreamed that from this soil would also come a movement that would have a dramatic impact on the course of my own life and would entrap me in a complex legal battle. My personal encounter with the Jew hatred which is at the root of Holocaust denial began with a few pages in my book
Denying the Holocaust: The Growing Assault on Truth and Memory
. I described David Irving, a British writer, as the world’s leading Holocaust denier. Irving was a prolific author whose books were reviewed in
The New York Times, Times Literary Supplement
, and other prestigious publications. One of his books contended that Hitler did not know of the Holocaust and when he learned of it tried to stop it. After hovering at the edges of the denial movement for over a decade, Irving testified in 1988 at the trial of denier Ernst Zündel and declared that there was no “overall Reich policy to kill the Jews,” that “no documents whatsoever show that a Holocaust had ever happened,” and that gas chambers were “an impossibility.”
²
He subsequently continued on that path in an unequivocal fashion. Explaining to a reporter why he had eliminated all references to the Holocaust from a new edition of his book on Hitler, he said: “If something didn’t happen, then you don’t even dignify it with a footnote.” He denied the use of gas chambers to kill Jews systematically, argued that there was no officially sanctioned Third Reich plan to annihilate European Jewry, and contended that Hitler was “probably the biggest friend the Jews had in the Third Reich. He was the one doing everything he could to prevent nasty things happening to them.”
³
Given his comments, I never imagined that I was doing anything potentially controversial when I described him in my book as a “Hitler partisan wearing blinkers” who “has been accused of skewing documents and misrepresenting data in order to reach historically untenable conclusions.” I wrote that “on some level Irving seems to conceive himself as carrying on Hitler’s legacy.”
⁴
My comments were harsh but, given what he said, seemed quite legitimate.

In 1995, my book was bought by Penguin UK and published in the United Kingdom. Not long thereafter, I received a letter from Penguin’s lawyers informing me that David Irving intended to bring a libel suit against me. I initially dismissed this as a groundless threat designed to frighten me. Even if his suit made it to court, which I doubted it ever would, I was certain the British justice system would see the absurdity of Irving’s claims and dismiss the matter. I did not then realize that the United Kingdom’s libel laws, which were the mirror image of American law, favored the claimant/plaintiff by putting the burden of proof on the defendant. The onus was on me to prove the truth of what I wrote, rather than on Irving to prove the falsehood. Another unique American safeguard was denied me. The public-figure defense is rooted in a United States Supreme Court ruling that a public figure, such as an author or a politician, can sue for libel only if he or she can prove malicious intent—i.e., that the author of the words knew or had good reason to know that they were false but wrote them anyway. This, too, would have prevented Irving from taking action against me in the United States. No such protections existed in the United Kingdom, and the matter came to court in 2000. After a trial lasting twelve weeks, the judge issued a three-hundred-page judgment which excoriated Irving and validated my defense team’s claim that he was an unrepentant denier, falsifier of history, and someone who expressed overt racist and anti-Semitic views. Among the hundreds of people who made contact with me during this period were many survivors, who said that not since the Eichmann trial had they been so tied to a court proceeding. One older woman said: “I was shocked during the Eichmann proceedings by ‘seeing’ a mass murder. Now I am shocked, not just by the absurdity of a man with such a record dragging an established historian into court, but that the British courts are taking his claims seriously.”

The British press paid careful attention to the case and the verdict. A number drew parallels with the Eichmann trial.
The Daily Telegraph
declared in its lead editorial, “This trial has done for the new century what the Nuremberg tribunals or the Eichmann trial did for earlier generations.” Newspaper hyperbole aside, there was something else binding the two events. A few weeks earlier, the trials had been linked in a more overt fashion. During his trial, Eichmann wrote a memoir. After Eichmann’s execution, Prime Minister David Ben-Gurion agreed, at the suggestion of prosecutor Gideon Hausner, to seal the manuscript in Israel’s National Archives. Hausner contended that Eichmann had been given extensive opportunity to present his case, and therefore Israel had no further obligation to publicize his version of events. In the late 1990s, one of Eichmann’s sons requested the release of the manuscript. A debate ensued as to what should be done. Some Israeli historians wanted a German research institute to annotate Eichmann’s false assertions prior to publication. Other historians contended that Israel should just release the manuscript and allow the normal scholarly process to take its course. In the spirit of much else in the Middle East, nothing happened. During my trial, one of my former students suggested I look at the manuscript to determine if it contained anything that might be useful to my defense team. Our objective was to prove that Irving’s claims about the Holocaust were lies. It was
not
to prove that the Holocaust happened. However, we thought that a direct statement from Eichmann’s manuscript about the mass murders would, at the least, demonstrate that Irving denied the very things that those who had engaged in the killings freely admitted. Though it was a long shot, I asked my lawyer to request that Israel release the memoir. A few weeks later, I received a call from retired Israeli High Court Justice Gabriel Bach, who had served as Hausner’s first assistant during the Eichmann trial. Bach told me that the current attorney general had consulted with a high-ranking group of jurists and historians and they had unanimously agreed that my request be honored. Even the prime minister had weighed in on the matter. The next day, my barrister, Richard Rampton, arrived in court carrying a small yellow computer disk with an electronic version of Eichmann’s manuscript, which had just been downloaded to him. When Rampton, who as barrister had the task of pleading or litigating the case in court, introduced the contents of the disk as evidence, it was the first time the memoir was in the public’s hand since Eichmann wrote it.

When I returned to my hotel that night, a hard copy of the manuscript was waiting for me. As I looked through it, I found myself comparing what I was experiencing to what had happened in Jerusalem in 1961. The importance of the Eichmann trial dwarfed mine. Irving cannot be compared to Eichmann in terms of either historical significance or the damage he caused to the Jewish people. Yet there were certain parallels between the two events. One of these men helped wiped out one-third of world Jewry. The second had dedicated himself to denying the truth of this. Neither man started his career expressing overt anti-Semitism. Both men seemed to me to have either conveniently adopted that ignominious mantle or let it emerge from where it had always been when it served their purposes. In the newly released memoir, Eichmann expressed himself as an inveterate Nazi and anti-Semite. In contrast to claims that would be made by Hannah Arendt that he did not really understand the enterprise in which he was involved, the memoir reveals a man who considered his Nazi leaders to be his “idols” and who was fully committed to their goals.

Most important, both
The State of Israel v. Adolf Eichmann
and
David Irving v. Penguin UK and Deborah Lipstadt
addressed phenomena that had a common source: anti-Semitism. Without centuries of this persistent hatred, the Third Reich would have found it impossible to mobilize hundreds of thousands of people to despise, scapegoat, and ultimately participate in the murder of European Jewry. (Could they have convinced countless people to take similar action against bicycle riders or redheads?) Holocaust denial would be impossible but for centuries of anti-Semitism. Deniers build their pseudo-arguments on traditional anti-Semitic stereotypes and imagery. They contend that Jews created the myth of the Holocaust in order to bilk the Germans out of billions of dollars and ensure the establishment of Israel. Once again the devious Jews have harmed innocent multitudes—Germans and Palestinians in particular—for the sake of their own financial and political ends. To someone nurtured by the soil of anti-Semitism, this makes perfect sense.

Yet, in a number of important ways, these two trials were diametric opposites. The most obvious contrast, of course, is that in Jerusalem the Nazi was the defendant. In London it was the Holocaust historian who was on trial. There is, however, an even more striking contrast. In Jerusalem testimony by the victims constituted the central element of the prosecution’s case. Attorney General Hausner was determined that their voices should be heard in all their intensity. It was this decision by him, however questionable from a legal perspective, that gave survivors, such as the women I encountered at the meeting about displaying the hair in the Holocaust Museum, an iconic, almost mythic authority. In contrast, at my trial, we did not use survivors as witnesses. Though they inundated us with offers to testify, we eschewed their testimony for strategic reasons. Survivors would have constituted “witnesses of fact,” attesting to the facts of what had happened. Because the Holocaust has the dubious distinction of being the best-documented genocide in history, we considered such testimony unnecessary. We did not want to suggest to the court that we needed witnesses of fact in order to “prove” the event. From the outset, one of my greatest fears was that my trial might become a “Did the Holocaust happen?” exchange. This is what had occurred during the trial of Holocaust denier Zündel. The court was transformed into a site for a debate over whether the Holocaust had happened. Zündel’s lawyer challenged Holocaust survivors on the most minute details of their assertions. Holocaust historians found themselves having to defend the most basic fact. Historical nuance was mangled. Deniers testified for the defense and made all sorts of outlandish and historically unsubstantiated claims about the Final Solution. The newspapers and other media outlets reported the courtroom debates over whether there were gas chambers, whether Auschwitz had recreational facilities for the inmates, and other such historical absurdities. They treated deniers’ claims as fact. Matters became so chaotic that the jury could not reach a decision and the case had to be retried. (At the retrial, the judge took “judicial notice” of the Holocaust, and this nightmare was avoided.) Had this occurred at my trial, I would have considered any victory I might have achieved to be Pyrrhic in nature. I knew we could demonstrate that every one of Irving’s claims was bogus. We could show that Irving and, by extension, all deniers built their cases on inventions, distortions, and outright lies, and that the so-called evidence that they offered to prove their claims failed to do so. I worried, however, about a Zündel trial redux. Would labyrinthine courtroom exchanges with Irving about gas chambers and mass killings suggest to the general public that the existence of the Holocaust was something to be debated? I had read the transcript of Zündel’s first trial. Distressed at how poorly both the Holocaust and history had fared in that courtroom, I lost sleep trying to imagine how the judge—there was no jury—would rule in mine. I feared that the miasma of denial might lead him to render a “split” decision. He might find for me but would use an “on the one hand, yet on the other hand” approach. I feared he might be befuddled by Irving’s authoritative demeanor. I wanted an unequivocal and precise judgment. I believed the public had to be shown that denial was not an “other side,” an “opinion,” or a “view.” My object was to demonstrate that it was a tissue of lies with no historical standing at all. My fears were for naught. The judge used the following terms to describe Irving’s claims about the Holocaust: “perverts,” “distorts,” “misleading,” “unjustified,” “travesty,” “reprehensible,” and “unreal.” Furthermore, the judge found that Irving’s “falsification of the historical record was deliberate and … motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence.”
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Our victory was sweeping. History had had its day in court and emerged triumphant.