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What Judge Gray made of this in his Judgment
6.32 The Defendants attach considerable importance, in connection with the issue of Hitler's knowledge of the shootings, to an instruction issued on 1 August 1941 to the Einsatzgruppen by Muller, the head of the Gestapo within Heydrich's Security Police, in which he stipulated:
"The Fuhrer is to be kept informed continually from here about the work of the Einsatzgruppen in the East"
The Defendants' case is that this document (to which I have already made reference in the preceding section) shows that the reports from the Einsatzgruppen providing information about the executions carried out by them would at least be available on a continuous basis to Hitler. The distribution lists demonstrate how widely these reports were circulated. Copies went to the Reich Chancellery. According to Longerich, there is evidence that a copy of at least one such report went to Bormann. He concluded that it is inconceivable that Hitler did not see the reports. Muller's instruction coincided with the escalation of the shootings from selected groups to indiscriminate killing of Jews including women and children. The Defendants contend that Hitler's apparent wish to be kept informed will have meant that he would have received regular reports of the shooting of the Jews over the following months.
6.33 As I have already mentioned in section V(viii), on 25 October 1941, according to his table talk Hitler said:
"This criminal race [the Jews] has the two million dead from the World War on its conscience, now again hundreds of thousands. No-one can say to me: we cannot send them in the morass! Who then cares about our people? It is good if the terror (Schrecken) we are exterminating Jewry goes before us".
The Defendants say it is to be inferred from these words that Hitler was indeed receiving reports from the Einsatzgruppen as contemplated in Muller's instruction of 1 August.
6.37 The Defendants argue that this interpretation of Himmler's note is confirmed by and consistent with a report no. 51 dated 26 December 1942 on the campaign against partisans in the Ukraine, Southern Russia and Bialystok, which was retyped three days later in larger type, in order, so the Defendants say, that Hitler with his poor eyesight could read it. In its retyped form it is headed: "Reports to the Fuhrer on combating partisans". It is endorsed on the front page "vorgelegt (laid before or submitted) 31.12.42". It reports the numbers killed over the preceding four months. The number of Jews executed is given as 363,211. Browning infers that this is but one of a series of reports which Hitler received in accordance with the instruction issued by Müller on 12 August 1941 [sic] that Hitler was to be kept well informed of the shootings being carried out by the Einsatzgruppen.
6.51 Irving devoted a considerable amount of time to casting doubt on the authenticity of the document dated 1 August 1941 claimed to evidence an instruction by Muller to furnish Hitler with reports of shootings. He pointed out that the document before the Court is no more than an Abschrift: the original is missing. It bears the modest security classification geheim (secret) which is inappropriate for a document related to the Final Solution. Irving produced a letter from the German Federal archives that the document is not to be found in the file from which it purports to come. The Defendants countered this claim by pointing out that the document has been known about and accepted as authentic for twenty years. Copies of the Abschrift are to be found in the Moscow archive as well as in the Ludwigsburg archive. They were also able to point to several documents of a similar sensitivity which were also classified geheim. The reason why no copy of the Muller document was found in the file referred to in the letter from the German archivist is that the wrong file number was quoted. Longerich is in no doubt that the document is an authentic copy of the original. Ultimately Irving accepted its authenticity, although he continued to express considerable misgivings about it.
6.52 In the end Irving took the position that he did not challenge the authenticity of the Muller document. He submitted, however, that since its existence was unknown to him until he was presented with the document in the course of cross-examination, no criticism could fairly be made of him for not taking it into account. The Defendants were unable to accept this evidence. The reasons are, firstly, that the Muller document is set out at page 86 of Fleming's work Hitler und die Endlösung. Irving's marked copy of that book appears to show that he has read the passage at page 86 (although Irving denied it). The second reason is that Fleming gives a reference to the archive where the document can be found in Munich. The third reason is that, when asked about Fleming's book in 1983, Irving answered that it was "a lie". In his evidence Irving claimed that he was basing what he said on reviews of Fleming's book.
6.53 Irving argued that the Muller document does not in any event have the significance for which the Defendants contend. It did not require the Einsatzgruppen to report shootings to Hitler. As its heading and text indicate, it related solely to the procuring of visual materials such as placards and photographs as part of the groups' intelligence-gathering operations. Despite this both Browning and Longerich persisted in their contention that the reporting requirement embraced all the activities of the Einsatzgruppen including shooting. But they agreed that this document is the only one to which he can point as evidence for the proposition that Hitler was kept informed of the shootings. Irving stressed that, apart from Event Report no 51, no report has come to light which has been retyped in the large type which Hitler's eyesight required.
[Comment, Sunday, June 16, 2002 : With respect, it has to be said that the learned Judge completely and repeatedly failed to grasp the points of my arguments about the Müller document. Unless and until we know what other documents were in that file, we cannot state with sufficient ccertainy what its purport was. The defendants stubbornly refused to identify the correct file number, having provided to the Court a totally false one, or to accept that in the absence of such surrounding documents, it was largely worthless. As for the judge's acceptance of the defendants' claim that I had, despitge my denials, read the corresponding page of Gerald Fleming's book, it was based on not the slightest evidence that was before him.]