Document:The Empire Strikes Back
- 1 The Empire Strikes Back
- 1.1 A Fleeting Acquaintance
- 1.2 Freedom to Witness
- 1.3 May one publish expert opinions?
- 1.4 Waiting for the Doctor
- 1.5 Various Distribution Activities
- 1.6 Remer Acts
- 1.7 The Bull in the China Shop
- 1.8 Between a Rock and a Hard Place
- 1.9 The Industrious Additions
- 1.10 The Hot Potato
- 1.11 Thousands of Dollars – for Nothing
- 1.12 In the Talons of Justice
- 1.13 The End of Illusions
- 1.14 In Exile
- 1.15 Hindsight is Insight
- 1.16 Pseudo-legal Contortions
- 1.17 The Consequences
- 2 References
The Empire Strikes Back
A Fleeting Acquaintance
In February 1991, I attended a seminar in Bad Kissingen put on by a Sudeten-German youth organization – I was not a member but had been invited. Toward the end of the seminar, I got to know another participant of about my age. He suggested that before we departed we pay a visit to Wehrmacht Generalmajor Otto Ernst Remer, who lived in that town.
Remer, I was told, was the person who had suppressed the Putsch of July 20, 1944, against Hitler, and I was told he held fast to his views of that time. Our intended visit would be a little bit like a visit to a museum containing a living political fossil. I was curious, so I agreed and off we went.
To a young man from a bourgeois home who had been fed a steady diet of anti-fascism, the living room of General and Frau Remer was creepy – Hitler busts, military decorations and all kinds of propaganda hand-outs caused a shiver to run down my back. We were given a tour of the house by Frau Remer and then treated to a showing of a video-film that portrayed the events of July 20, 1944, from Remer’s viewpoint. Thus “enlightened,” after an hour we left for home.
Freedom to Witness
In summer 1991, when I was requested by Remer’s attorney to prepare an expert opinion on the “gas chambers” of Auschwitz for a criminal trial against his client, I well knew the client for whom I would be acting. It was clear to me that there was a danger that Remer’s political opinions and activities could rub off on “his expert witness,” if the witness came to a “politically incorrect” conclusion. Why I nevertheless decided to proceed is as follows.
In a state under the rule of law, a witness, including an expert witness, cannot be punished for what he says before the court or for what he presents in writing to the court, in good conscience and to his best understanding.
Also, in civil law an expert witness is only liable if it can be proven that he violated the rules and accepted practices of his profession in producing his report and in so doing caused someone bodily or mental harm.
Therefore, when an expert witness through painstaking effort evaluates all available sources and interprets them in a technically sound manner, in good conscience and to his best understanding, then even if the conclusions of the expert report were wrong he could not be made liable for any gross negligence.
Consequently, he could defend himself at law against any civil disadvantages that resulted from the presentation of a possibly politically incorrect expert report because a witness – here an expert witness – may not be made to suffer for having testified in good conscience and to his best understanding.
Although I could see there were storms threatening to come my way, I looked on them placidly since I believed that having the law on my side gave me the upper hand.
May one publish expert opinions?
It was intended from the beginning that the expert report arising from this request of Remer’s attorney would be published. It is unusual to publish expert reports from judicial proceedings, but it does happen when the subject is of public interest. Expert reports drawn up for several trials against supposed National Socialist war criminals, for example, were later made available to a wide public for educational purposes. The Frankfurt Auschwitz Trial is a prime example of this. The expert reports produced during this trial by scientists at the Institut für Zeitgeschichte were later published as a collection.
My report was ready for publication in spring 1992. The original document prepared for the court was enlarged by numerous substantial additions and the layout was improved. In summer 1992, the German publishing houses Ullstein-Langen Müller and von Hase & Köhler showed active interest in the project. Dr. Fleißner, head of the Ullstein-Langen Müller publishers, quickly got cold feet due to the controversial nature of the theme, despite initial agreement, but von Hase & Köhler wasted no time presenting me with a signed contract. The problem with this contract was that it did not contain any specification as to when the book should appear. This meant publication could have been put off indefinitely while my hands were tied by my contractual agreement. When I pressed them to fix this they lost interest.
Waiting for the Doctor
Social and legal repression was a hint that the theme was a hot one, even when it was handled in a dry, scientific manner. On the advice of various people, I decided to postpone the publication of the document by a politically right-leaning publisher until after I had received my PhD degree.
In the European right-wing scene, the appearance of my report was awaited with increasing impatience throughout 1992; it was expected that my report would contribute decisively to a breakthrough of historical revisionism.
Various people began to prepare openly for the coming publication. I regarded these activities with mixed feelings and often needed to point out that my doctorate would not be properly completed until many months hence.
At the beginning of 1992, I reckoned that I could be in possession of the much-desired degree in the fall. Because of the workload of my doctoral supervisor Prof. von Schnering, however, I extended this period several times. I ended waiting five more months to February, 1993, until Prof. von Schnering began to proofread my dissertation.
Various Distribution Activities
I came into conflict with German-Canadian revisionist Ernst Zündel in this time, because in summer 1992, without my knowledge, he gave out copies of the report as prepared for the court in February, 1992. In November, again without my knowledge, he went so far as to translate this outdated version of my report into English. Later he let it be known that he would like to be reimbursed for his translation costs to the amount of $10,000.
I had a more pleasant experience with an attorney in Austria, Dr. Herbert Schaller. In February, 1993, he asked me if he could have 100 copies of the report to distribute discreetly in Austrian high society. Up to that point, I had made a total of 50 copies of the report by photocopier and glued in color photos by hand, which was an enormous labor. I told the attorney that since my doctoral supervisor had begun to work on my dissertation, I had no time to make 100 copies for him. However, I agreed that he could make copies from the copy he had and could distribute those – on the condition that he do so as discreetly as I myself had done already without accompanying commentary and without publicity propaganda.
As far as I know, Dr. Schaller did make and distribute 100 copies in February or March, 1993. To this day, there has been no public report of his action.
As fate would have it, the Austrian attorney Dr. Schaller was also one of Otto Ernst Remer’s defense attorneys. Remer must have heard about the distribution of my report in Austria. Shortly thereafter, I was informed by one of Remer’s friends, and without Remer’s knowledge, as I found out later, concerning Remer’s intention to do in Germany what his lawyer had done in Austria. According to what I was told, Remer intended to do exactly as the Austrian had done. But because Germany is more than ten times larger than Austria, Remer and his friends intended to do their distribution activity more professionally by having my expert report printed instead of photocopied. Though I knew this could put my PhD degree in jeopardy, I saw no reason to intervene. Naively I thought that Remer would stick to the rules the Austrian had followed, which were perhaps too natural to me to be pointed out specifically: the report must remain unaltered, no additional text, no publicity propaganda is to be made. As we shall see, these rules were not considered natural by Remer and his friends.
The Bull in the China Shop
In March, 1993, with a furious publicity campaign, Remer announced as a measure of self-defense that he was going to publish and distribute that piece of exculpatory evidence that he was not permitted to present to the court, because the Holocaust is assumed to be self-evident. Thereby Remer broke the first unconditional rule for the protection of my doctoral title, namely that there be no accompanying publicity propaganda. Thinking that this writing would only circulate in Remer’s circle of supporters, I paid little attention. When I received a phone call from a journalist of a west German radio station, informing me that some of those advertising sheets had surfaced at the University of Cologne, the situation changed. Soon the management of the Fresenius Institute was on the telephone asking me what was in the report – the Fresenius Institute had analyzed the masonry samples from Auschwitz for me. They hinted that they might consider joining me in taking legal action against Remer. An hour later the institute’s attorney was threatening me with legal action. Remer had become a bull in the china shop.
Between a Rock and a Hard Place
My situation was precarious. At the request of an attorney, I had prepared an expert opinion to be used in the defense of his client. The conclusion of the report was potentially capable of reducing the culpability of said client with respect to the criminality of some of his factual assertions. I intended to publish the report a few months after completing my doctoral work anyway. Now the client took the step of publishing the report at a time that was uncomfortably early and, what was worse and unexpected, with an unhealthy press campaign. Should I now take him to court after having helped him in court? Should I take him to court for doing what I intended to do myself in a few months, though with a smaller or different press campaign? After all, I had been informed in advance and did not intervene then. The only thing that had changed was Remer’s public relation activities.
The Industrious Additions
As if Remer’s industrious publicity campaign were not enough, in April 1993, as my expert report was handed out for the first time, I learned that a one-page foreword and a five-page appendix consisting of a description of Remer’s criminal trial had been added to my report. I was not the least bit interested in whether or not the added commentary was criminally relevant. I only glanced at the foreword and took no notice of the trial description added after the end of my report. I was aggravated in that Remer had expanded and thus altered the text without authorization. Never mind what was in the commentary – it did not have my approval and that was aggravating enough. But now that this report of mine had been printed, what could I do about it? I thought that it was obvious that I could not be held responsible for something whose addition to my report I had had no knowledge of, not to mention that I had neither given my agreement to it nor had I participated in its preparation. So why should I care whether the content of Remer’s commentary was criminal? As a matter of fact, I basically ignored Remer’s comments. So it happened that I perused Remer’s commentary for the first time at the end of 1994, fully one and three quarters of a year afterward, after my own criminal indictment because of that commentary.
The Hot Potato
In any case, in early 1993, I was concerned only about my doctoral work. This also was due to a passage in Remer’s appendix, which my doctoral supervisor held under my nose shortly after he – as all professors of chemistry in Germany – had received his copy. In the above-mentioned report on Remer’s criminal trial, I had been mentioned in connection with the Max Planck Institute for Solid State Research in Stuttgart. Though I was preparing my PhD thesis in theoretical crystallography at this institute, my research about the “gas chambers” of Auschwitz and my subsequent activities as an expert witness had nothing to do with this governmental research institute. It was my private activity. However, the fact that I was referred to in Remer’s appendix as an “expert from the Max Planck Institute” had the consequence that the German news media and scientific, legal, and political circles unleashed a storm over the Max Planck Institute and demanded to have my head. At the insistence of the institute, I consulted an attorney specializing in copyright law. He, however, made it clear to me that no “serious” attorney would touch such a hot potato, both from conviction and for the sake of his reputation. Also, it was not clear whether I had any ground of action against Remer, since the copyright had probably gone to him because he had ordered and paid for the report as I had admitted, although I was only paid expenses.
The question of the copyright to the report has never been cleared up. The Remers always held the position that they have the copyright to the report because they paid for it, and that they can do with it as they please. There was a contractual agreement set to paper, but unfortunately I lost my copy as a result of house searches and changes of abode, and the Remers could not find their copy after their flight to Spain, so that the actual contents of the document cannot be determined. I remember only that I was promised to be reimbursed for expenses that I incurred through the production of the report, and that in turn I was supposed to publish my expert report, but no time limit was given for that. The copyright was not discussed.
Also, the Remers have silently accepted that since June 1993, without consulting them, I have on my own determined where, when, and how my report is to appear in each of several languages – German, English, French and Dutch.
Thousands of Dollars – for Nothing
Left out in the rain, as it were, in mid-April 1993, I tried to divert Herr Remer. At the start of May, I finally succeeded in persuading him to curtail his distribution activities because of the reprisals I was experiencing.
Aside from any legal aspect of Remer’s commentary, I would like to make a few observations. First, Remer’s remarks were composed in a style that would insult any average anti-fascist citizen – and that would be about 95% of the population. One could well assume for that reason alone that most recipients of this version of the report would toss it into the wastebasket unread.
Not only that, but Remer had done something that would cause nearly all his recipients who possessed a spark of pride to consign the piece to the fire. In his foreword on the inside front cover, he attacked our leading politicians, media people, and jurists with the words, “These liars need to be driven from their sinecure fortresses.”
At the same time, Remer sent this version of my report to exactly these leading politicians, media people, and jurists, and apparently believed he could achieve some success thereby. It is certain that to send a piece of writing to someone in which he is criticized and threatened is a useless exercise. Remer’s defense action must have cost him thousands of dollars – all for nothing.
In the Talons of Justice
After I had stopped Remer’s defense action, the legal process ran its course. It was my thinking that no one could touch me for something I had not done. But the State’s Attorney had to investigate, since many of those to whom Remer had sent his copies had filed criminal complaints against him and against me: the German Society of Chemists, many state attorneys and chief state attorneys, judges and presidents of district courts and federal courts, left-wing party representatives from various parliaments, professors of various disciplines from universities throughout Germany, and on and on and on. Not to mention that there were continual inquiries from Tel Aviv that persist even today.
Strangely, the state attorneys were active only against me. They made inquiries about Remer, but saw no need to search his house. With respect to Remer, they were satisfied to push papers around. With respect to me, over the following years they searched my house three times and took away everything that was not nailed down. Apparently, German justice did not consider Remer to be dangerous. The Remer problem, they probably thought, would solve itself biologically. My case, however, they decided, needed extra effort.
The End of Illusions
The trial, which lasted from the end of 1994 to the middle of 1995, destroyed what remained of my illusions about the rule of law in Germany. I have described this in the essay “Flaws of the State Under the Rule of Law.” On January 19, 1996, the Federal General Attorney determined that I was to spend 14 months behind bars, not for my report but for Remer’s commentary. The Federal Supreme Court concurred with this sentence in a decision on March 7, 1996 (Ref. 1 StR 18/96). On Remer’s commentary, the District Court of Stuttgart stated in passing sentence (Ref. 17 KLs 83/94, S. 115):
“Although the preface and epilogue did not explicitly accuse the Jews of fabricating the descriptions of the Holocaust for political and material benefits, in the view of the court the Remer version of the report had the purpose of suggesting this and thereby arousing hostility toward the Jews. This follows from the fact that the reader, believing the claims of the report to be correct and influenced by the tendentious comments and rhetoric, would come to the conclusion that the surviving Jews as the most important witnesses of events, surviving relatives as directly affected and Jewish researchers must have intentionally concocted false reports on the Holocaust.”
According to the court, then, Remer’s remarks were not punishable by themselves; only together with my report a reader so inclined could “read between the lines” and would supposedly be led to hostility toward the Jews, and that is morally indefensible because it must be clear that everyone ought to be “a friend of the Jews.”
Therefore, not only was I punished for a crime I had not committed, but for one which no one had committed.
This would have made some sense, at least, if Remer had foregone his commentary and I had been sentenced for my report and not for somebody else’s commentary, but that was not the case.
On May 7, 1996, the criminal trial against me and others for the publication of the book Grundlagen zur Zeitgeschichte began before the County Court of Tübingen. The sentence that could be imposed by such a court was one to four years imprisonment. Since I had already been sentenced to 14 months of imprisonment without probation, the sentence for me this time would probably not be less than two years – also without probation. Also, the public prosecutor of Tübingen was answerable to the General Prosecutor’s Office in Stuttgart, and who knows to whom they are answerable. From the beginning, the following dicta overshadowed the trial:
In its sentence, the Tübingen County Court decided the book Grundlagen zur Zeitgeschichte should be withdrawn from circulation, effectively annihilated and that the author and publisher should be punished. This, after prominent German historians had submitted to the court expert opinions to the effect that the book held to scientific standards and that therefore the authors, editor, publisher, sellers, printer and purchasers were owed the right of freedom of science and the right of freedom of expression. It did not help:
- “The Non-Jew Must Burn!”
Since I was the editor of the book Grundlagen zur Zeitgeschichte, a warrant for my arrest was issued and I fled the country. In view of all this I hope one may forgive and understand my reasons that I took my family and went into exile: After a brief stay in southern Spain in spring 1996, we moved to England a few months later. A busy young father had better things to do than breathe jail-house air.
Hindsight is Insight
Today, nine years after these events, I know that it is precisely the serious, scientific revisionist work that the establishment considers threatening, since one cannot fight a professionally written work with cat-calls and jeers. Unlike shallow pamphlets, it must be taken seriously. Patrick Bahners stated the establishment view in the highly respected German daily Frankfurter Allgemeine Zeitung:
“The state protects the freedom of science. It recognizes the scientist not by the result, but by correct form. [...] But it can be seen that the intention to agitate can be recognized not only by errors of form that separate beer hall talk from scientific undertaking. On the contrary agitation that is perfect in form is the most perfidious. [...] But for those who survived Auschwitz it can hardly be a slighting insult when an expert using phony reasoning tells him there never was a mortal danger.
Also the state is mocked here. If Deckert’s [a German revisionist] ‘Views about the Holocaust’ were correct, the Federal Republic was founded on a lie. Every presidential address, every minute of silence, every history book would be a lie. When he denies the murder of Jews, he repudiates the legitimacy of the Federal Republic.”
However, Bahners proceeds from false premises.
First, Bahners does not make clear how an intention to agitate can be recognized, if not by errors of form. It is stated in the German constitution that science is free without restriction. Decisions of the German Federal Constitutional Court have stated that science is defined by formal rules alone and not by content. These decisions are in agreement with fundamental theoretical works on the nature of scientific knowledge. If Bahners thinks differently, he is anti-constitutional, anti-scientific, and anti-human rights.
Secondly, there are no experts who assert that the survivors of Auschwitz were “never in mortal danger.” Bahners warms up the calculated lie that revisionists would present Auschwitz as a vacation resort without danger to life or limb and generally characterize the National Socialist persecution of the Jews as harmless to the Jews. Either Bahners doesn’t know what he’s talking about – in which case he should stay away from the keyboard – or he himself is agitating against others with different opinions, in which case the Frankfurter Allgemeine Zeitung should not allow Bahners to soil its reputation.
Thirdly, Bahners’ conception that the legitimacy of the Federal Republic of Germany is based on the unconditional recognition of the established version of the National Socialist persecution and extermination of the Jews is absurd and utterly false. If the Federal Republic of Germany were actually founded on this historical detail, it would be a dire weakness, because every state that bases its existence on a version of history enforced under pains and penalties must sooner or later come to grief.
Certainly, the formal foundations of the legitimacy of the German Republic are very different – human rights, civil right, acceptance by the people of the state, international recognition, political, historical and cultural identity and continuity with preceding German states – and there is no need to accept the harsh judgment of Bahners and some of his colleagues.
However, it was made clear in 1996 by the Ministry of Justice of Baden-Württemberg that in the future, Germany’s judicial system will adopt Bahners’ viewpoint, namely that revisionist works of a scientific nature constitute incitement to hatred and must therefore be burned. In its answer to a question relating to the seizure of scientific revisionist books of Grabert Verlag it stated:
“Legal intervention is not constitutionally excluded even when it is clear that the case involves a work of science or research. Article 5, Para. 3, Cl. 1 of the Fundamental Law contains no expressed prohibition of limits. In constitutional law it is recognized that even freedoms that are granted without expressed conditions have limits. Such limits might come from the fundamental rights of third parties or from other constitutionally-protected goods. In these cases there must be a comparison of the competing claims of the equally constitutionally protected interests with the purpose of optimizing these claims. There must be a particular examination of the case making use of the method of proportionality. (Decisions of the Federal Constitutional Court (BVerfGE) 67, 213, 228; 77, 240, 253; 81, 278, 292ff.; 83, 130, 143) When these constitutional requirements are met, in special cases use of appropriate measures is consistent with freedom of science or of research”
The assertion of the minister of justice that even a scientific work can be seized when the fundamental rights of others are involved is completely false, and the decisions of the German Federal Constitutional Court cited here are misleading. It is true that no fundamental right can be guaranteed unconditionally, and when there is a conflict with other fundamental rights that an optimal compromise of interests must be found by means of the principle of proportionality. However, this limitation of fundamental rights pertaining to the freedom of science can never extend to the determination of what theses may be studied and to which conclusions one may come.
Only the means by which research is conducted is subject to limitations, since research may not employ methods that compromise the rights of others – such as experiments on humans or endangering the environment. If it is forbidden to science to formulate new theses or to attempt to refute existing theories, however controversial these attempts and their conclusions might be, or if it is forbidden to science to use certain arguments or to come to certain conclusions, or to publish scientific conclusions in order to subject them to indispensable public scrutiny and scientific criticism, then one throws the fundamental right to freedom of scientific research entirely out the window. The critical examination of standing theories and paradigms through serious attempts to refute them, and the publication thereof, is the heart of science, or even of human knowledge in general.
The declaration of the Ministry of Justice given above is clearly unconstitutional, and one may hope that the German Federal Constitutional Court will say so at some point in the case of Grundlagen zur Zeitgeschichte. Of course, it is not likely to do so under present conditions, since in a similar case of Federal book-burning in the early 1980s, the German Federal Constitutional Court itself made a statement in accord with the Ministry of Justice’s statement above.
Therefore one cannot avoid the conclusion that the present situation in Germany is as follows:
- With respect to the core of the Holocaust claim-gas chambers, the National Socialists’ intention to annihilate the Jews, and the carrying out of such a program – there can be only one predetermined conclusion under penalty of law.
- The most important condition to the free pursuit of science would then be suspended, that which states: Every thesis must be subjected to the strictest attempts at refutation and must be refutable in theory and in practice. Neither may any conclusion of scientific research be prescribed nor proscribed (cf. Article 3(3) of German Basic Law).
- The fundamental dignity of humans that sets us apart from animals lies in the fact that we do not take our sensory impressions as being identical to objective reality, but that we doubt and can resolve our doubts through intellectual activity – research. This factor of human dignity is suspended in Germany in this particular field. (cf. Article 1, of German Basic Law).
It remains an open question what one is to do with Article 20(4) of the German Basic Law which states:
“All Germans have the right of resistance to anyone who attempts to overthrow this provision if no other means avail.”
- ^ . Moreover, the Remer couple could remember as little from this chance meeting as from the two subsequent occasions on which I met them, when I appeared as an unknown, unimportant person among a crowd. (Summer 1991: On the return from my first Auschwitz trip, I accompanied Karl Philipp on a brief visit during a reception on Remer’s 80th birthday. Philipp was Remer’s friend who had initially contacted me, who had driven me to Auschwitz and helped me there, and who later helped me with all kinds of technical and infrastructural/logistical support. Autumn 1992: Dinner of the defense team during the trial against Remer, after the court had refused to accept me as an expert witness.) The Remers came to know me personally only in January 1995, when the Stuttgart District Court went to Spain to interrogate the Remer couple as part of the trial against me on account of the commentary that Remer had added to the report without asking me. Even then in Spain they needed to ask who I was. They got to know me fairly well only after I had fled to Spain in early 1996, where I resided for four months some 50 miles west of Remer’s residence in exile.
- ^ . H. Buchheim et.al., Anatomie des SS-Staates, Walter, Freiburg 1964.
- ^ . Chapter 244 of the German Criminal Code provides that the court may reject evidence on the grounds of “common knowledge” or complete unsuitability. This happens mostly in “Holocaust” cases, and, indeed, without examination of the submitted evidence, to determine whether it is actually unsuitable or whether it may be able to defeat “common knowledge,” which it might do if it were superior to evidence previously submitted. In trials against revisionists and also against supposed “National Socialist criminals,” exculpatory evidence is de facto verboten, a classic indication of a show trial.
- ^ . My hesitation in taking legal measures against Remer was later used by the court as an indication of my complicity with him.
- ^ . See chapter 11.4.1. for the text Remer had added. Reprinted in German in: Herbert Verbeke (ed.), op. cit. (note 54), pp. 109-115 (online: www.vho.org/D/Kardinal/Remer.html).
- ^ . Published in German in Herbert Verbeke (ed.), op. cit. (note 54), pp. 59-63 (online: www.vho.org/D/Kardinal/Webfehler.html).
- ^ . See the English translation Dissecting the Holocaust, op. cit. (note 22).
- ^ . Die Zeit, Dec. 31, 1993, p. 51.
- ^ . German Federal Foreign Minister Joschka Fischer in Süddeutschen Zeitung, acc. to Rheinischer Merkur, April 16, 1999.
- ^ . Ref. 4 Ls 15 Js 1535/95.
- ^ . Unfortunately, my wife took my two children and left my in January 1999, initiating divorce proceedings in early 2000.
- ^ . “Objektive Selbstzerstörung“, Frankfurter Allgemeine Zeitung, August 15, 1994, p. 21.
- ^ . Dr. Ulrich Goll, ref. 4104-III/185, Sept. 23, 1996; cf. IDN, “‘Appell der 500' vor Landtag“, DGG 44(4) (1996), pp. 9f. (online: www.vho.org/D/DGG/ IDN44_4.html); VHO, “Zur Wissenschaftsfreiheit in Deutschland“, VffG 1(1) (1997), pp. 34-37 (online: www.vho.org/VffG/1997/1/ VHOWiss1.html).
- ^ . Cf. Karl R. Popper, Objektive Erkenntnis, Hoffmann & Campe, Hamburg 41984.
- ^ . On Wilhelm Stäglich, op. cit. (note 41): German Federal Constitutional Court, ref., ref. 1 BvR 408f./83, reprinted in Wigbert Grabert, Geschichtsbetrachtung als Wagnis, Grabert, Tübingen 1984, pp. 287ff.