The Eichmann Trial

INTRODUCTION
 
In the early 1990s, when serving as a consultant to the team planning the United States Holocaust Memorial Museum, I attended a meeting of the Content Committee, the group of laypeople who reviewed the plans for the museum’s permanent exhibition. It promised to be a spirited gathering. At issue was the question of displaying hair that the Germans had “harvested” from Jewish women at Auschwitz and sold to factories that produced blankets and water-absorbent socks for U-boat crews. When the Soviets liberated the camps, they found storehouses filled with hair. The Auschwitz Museum had given the USHMM a number of kilos of it. The museum designers planned to display it near a pile of victims’ shoes, which also came from the camps. When the plan was first proposed, some staff members objected, arguing that it degraded and objectified the women. Although it was appropriate to display hair at Auschwitz, they did not think it should be displayed a continent away from there. Some feared that teenagers would find it, given the particular world that this age cohort often inhabits, ghoulishly amusing. Their opposition notwithstanding, the committee voted nine to four to display it. Then a number of survivors grew wary and asked that the matter be reconsidered; hence this meeting. The project director had come equipped with scholarly, psychological, and even rabbinic arguments to counter the opponents. Scholars, including one of the most eminent Holocaust historians—committee member Raul Hilberg—argued that the hair should be displayed because it demonstrated the Final Solution’s “ultimate rationality.” The Germans considered a body part something to be transformed into an “industrial object” and a salable commodity. Psychologists believed that the display of the hair would be no more disconcerting than many other aspects of the exhibit. Leading Orthodox rabbis determined that displaying it did not constitute a nivul hamet, desecration of the dead, and transgressed no religious rulings. In an attempt to allay some of the objections, the designers proposed that a wall be built in front of the exhibit case. Visitors would have to choose to see the display and not just happen upon it.
 
But then two committee members, both of whom were survivors, rose. One argued that this would be a “violation of feminine identity.” A second spoke more personally. “That could have been my mother’s hair. She never gave you permission to display it.” When she sat down she said, in an aside, “It could have been my hair.” The conversation soon ended. There was no vote, but all those present knew that the decision had been made. As we left, a committee member mused to no one in particular: “I don’t object to the hair. But who am I to challenge survivors?” Shortly there­after, the chair of the Content Committee announced that the hair would not be included in the permanent exhibition. Today it sits in a storehouse outside of Washington. It has never been displayed. Survivors, speaking in the first person singular, had a semantic, historical, and moral authority that trumped the psychologists, designers, historians, and other experts.1
But for the Eichmann trial, this might never have happened.
 
This trial, whose main objective was bringing a Nazi who helped organize and carry out genocide to justice, transformed Jewish life and society as much as it passed judgment on a murderer. In the general world it changed our perception of the victims of genocide.
 
 
On April 11, 1961, the theater of Beit Ha’am, Jerusalem’s brand-new cultural center, was packed. Over seven hundred people filled the room for the trial of a man accused of being the chief operational officer of the Final Solution. Newspapers worldwide carried news of this event. American television networks broadcast special telecasts. This was not the first Nazi war-crimes trial. Yet there were more reporters in Jerusalem than had gone to Nuremberg. Why was this trial, coming just after the conclusion of Passover, different from the Nuremberg tribunals, where far more prominent figures in the Nazi hierarchy had been tried? Some of the differences were connected to the when of these two events. Nuremberg occurred in the immediate aftermath of the war, when many people wanted a mental respite from the horrors of the preceding five years. At Nuremberg multiple defendants had stood together in the dock. Now one man stood alone. The drama of this proceeding was further intensified by the way Eichmann had been brought to trial. Captured in Argentina, he had been spirited out of the country to Israel. Even then, a full year after his capture, there was still some mystery about precisely how he had been found. But the when and the how of his capture were eclipsed by the who: who found him and, more important, who would try him. At Nuremberg victors had sat in judgment. Now the victims’ representative would sit in judgment. Immediately after the war, most Jewish Displaced Persons, as Holocaust survivors were once known, were focused on trying to piece together a new life, not on seeking punishment. Even if they had wanted to bring those who had destroyed their world to justice, they had no mechanism to do so. In contrast, by 1961 the immediacy of the war and its consequences had passed. The survivors, whose wounds had begun to be bound up by the passage of time, now had more physical and emotional stamina to demand justice. Most significant, how­ever, now there was a sovereign entity to deliver it. The State of Israel, which was then entering its Bar Mitzvah year, exemplified the victims’ emergence from the very powerlessness that had helped make the Final Solution possible.
 
The excitement and interest surrounding the trial had little to do with questions about its outcome. Most people, both those in the courtroom and those beyond, expected Eichmann to be found guilty. What was unknown was what would happen when history, memory, and the law met in this Jerusalem theater. Would the law prove adequate to adjudicate such an unprecedented event? Would the proceedings deliver retribution or genuine justice? Would Eichmann’s defense strategy of obedience to orders hold sway? Would he try to justify the genocide? And what, if anything, would be the lesson for the future?
 
 
As 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.”5 Our victory was sweeping. History had had its day in court and emerged triumphant.
 
One other thing linked these two events. I leave it for last because it discomfited me throughout the trial and contin­ues to do so to this day. Ben-Gurion justified holding the trial in Israel because he believed that Israel, as the Jewish state, had the right to speak in the name of those who had been killed as Jews. Hausner had begun his opening state­ment by asserting that standing by his side were six million victims. When survivors heard of my coming legal battle, they sent me notes, letters, and copies of their books. All came with a similar message: “This is my story. This is what happened to me and to my family. This is what David Irving and his cohorts wish to deny. This is the history you must protect. You must stand up for us.” I had never thought of what was facing me in such global and momentous terms. I saw myself as fighting a pseudo-historian who also engaged in overt racist and anti-Semitic expression. If I represented anyone, it was historians who wished to practice their craft and were willing to fight those who would abuse it for nefari­ous ends. However, as my trial approached, I found a larger meaning thrust upon it and upon me by survivors who were worried and frightened. I tried to reassure them that, even if I did not prevail, their history would be safe. They brushed aside my assurances. One survivor told me that he had attended a session of the Eichmann trial and hoped to come to mine. “Then the Nazi was in the dock. Now it is back­wards.” Now I see, as I look back, that this perhaps was for them a moment that meant the Eichmann trial and all it rep­resented was ongoing. That the English High Court would be the venue for a Holocaust denier to spew lies and fabrica­tions about things that had happened to them and had oblit­erated their families and the life they once knew seemed surrealistic at best.
 
Ironically, at the same time that they were investing what was facing me with such personal import, I was also receiv­ing a very different message from other sources, particularly intellectuals and scholars in the field. Holocaust denial, they insisted, was the equivalent of flat-earth theory and, as such, was worthy of nothing more than utter ridicule. I should not, these skeptics insisted, take Irving’s charges seriously. I was “silly,” one leading historian opined, to invest so much time, effort, and resources into fighting them. “Just ignore it” was his sage advice. Though I agreed with these scholars about the total absurdity of denial, I explained that if I followed their advice, Irving would win by default. Because the British justice system placed the burden of proof on me, my failure to fight would result in a ruling that I was indeed guilty of libeling David Irving by calling him a denier. Irving could then legitimately interpret such a ruling as having concluded that his version of the Holocaust—no plan to kill the Jews, no gas chambers, no Hitler involvement—was legitimate. “So what?” the historian continued. “No one will believe it anyway.” From my then budding awareness of the Internet, I knew he was wrong. There were many people who, though not fully accepting deniers’ claims, might won­der if there was not some justification to Irving’s positions.
 
Many British Jews did not want me to fight and pressured me to find some way “to settle this whole matter.” Irving, they were convinced, would “win,” irrespective of the outcome. “Even if he loses,” one told me, “he will wrest so much publicity from the matter that he will end up ahead.” Anthony Julius, my solicitor, the lawyer who prepared the case, developed the forensic strategy, and then turned it over to Richard Rampton to litigate in court, asked those who counseled me to settle what they thought my bottom line should be: Two million Jews? Three million? One death camp? Two or three? (Most dropped the matter at that point.) I juxtaposed these suggestions that I ignore the matter with the messages I was receiving from survivors. I could not look them in the eye and say, “When given the chance to stand up to this complete distortion of your history, I chose not to fight.” These skeptics’ arguments notwithstanding, I became convinced that I owed the survivors a full-fledged fight against those who would assault their history.
 
If I had any lingering doubts about my decision, they were erased for me on the first day of the trial. In front of a packed courtroom, Irving had spoken for three hours. Predicting a great victory for himself, he had repeatedly denied the Holocaust. I seethed with anger as I listened to the historical distortions and the anti-Semitism I found riddling his speech. When the session ended and we emerged from the courtroom, both of us were surrounded by reporters. He happily engaged them. I, however, was stymied. Because I was not giving testimony during the trial, my lawyers had asked me not to speak to the press. They did not want to antagonize the judge and give Irving room to say to him, “Lipstadt won’t give testimony in your courtroom, but she was speaking on the BBC last night.” I turned to my lawyer, who was standing next to me, and insisted that I should “give them something.” He stood his ground: “Say nothing.” As we debated the matter back and forth, an elderly woman worked her way through the crowd, approached me, touched me on the arm, and then rolled up the sleeve of her sweater. Pointing to the number tattooed on her arm, she said: “You are our witness.” I forgot about talking to the press.
 
I never would have brought a matter of Holocaust denial to a court, but once I had been forced to enter that arena I had no choice but to respond with all my abilities. Though I did not represent the survivors, I felt their presence in that courtroom. They filled the public gallery. They gave me lists of the names of their murdered relatives. And when I prevailed, they embraced me, laughed, and cried with me. Though I’d never intended to do so, I ended up fighting for them.
 
In a larger sense, these two choruses of voices—those of the victims for whom evil is still present and the fight is still in some sense ongoing; and those who believe the battle has been won and that anti-Semitic horrors are the province of either the past or the “crazies” who are better ignored—still constitute the foundation upon which we build our understanding of Eichmann, the judgment against him, and his sentencing. Although some look back and see a trial of momentous importance because it brought to justice one of the key players in the Final Solution, others dismiss both the trial and Eichmann himself as things of little importance. They charge that Israel aggrandized the matter for political ends. They dismiss Eichmann as simply a transportation “specialist” and fault Israel for using the trial for Zionist ends. They claim he was a bureaucratic “clown,” who really did not understand what he was doing. These differences of opinion about the Eichmann trial may well be metonyms for attitudes toward and perceptions of contemporary anti-Semitism. Some find the overt anti-Semitism of Holocaust deniers the ranting of idiots who are best ignored. Others take these comments quite seriously and see a dire and exis­tential threat to Jewish well-being. They see a Holocaust-denying president of a large country, one that is poised to have nuclear weapons, occupying the podium of a world forum that was founded in the wake of the Final Solution with a mandate to stop genocide. They hear him deny the Final Solution and threaten the existence of the Jewish state. When they react strongly, they are cautioned by commentators and policy makers that they are overreacting or misunderstanding his charges. For them the issues that were adjudicated in Jerusalem are neither dead nor academic.
 
Historians often insist that they come to their research with a tabula rasa, that they judge each situation on its merits and do not let other matters shape their perceptions. In fact, no matter how much they may deny it, their personal experiences constitute facets on the prism through which their view of past events is refracted. For the sake of her readers and herself, a historian must acknowledge their pres­ence and try to ensure that they clarify, rather than cloud, her understanding. And so, with my own encounter with history, the law, the study of the Holocaust, and raw anti-Semitism as a backdrop, I began to explore what happened in Jerusalem five decades earlier.