Institute for Historical Review

Institute for Historical Review

Declaration of Mark Edward Weber


On October 9, 1981, California Superior Court Judge Thomas. T. Johnson, took "judicial notice" of the fact that "Jews were gassed to death at Auschwitz concentration Camp in Poland during the summer of 1944." Johnson's ruling was made in response to a Motion for "Judicial Notice" that had been made by plaintiff Mel Mermelstein in his law suit against the Institute for Historical Review. (note 1) Normally, parties to a legal dispute are permitted to introduce factual evidence to support their respective claims within the guidelines of evidentiary rules, which in California have been codified by the State legislature as the California Evidence Code. However, in order to avoid wasting the time of the court in proving the "obvious," the doctrine of the "judicial notice" has been developed whereby certain matters can be assumed to be factually true by the court and, thus, do not have to be proven through the introduction of evidence. In other words, where judicial notice is taken, no evidence needs to be introduced to prove the existence of the fact in question. (note 2)

In California, the doctrine of "permissive" judicial notice is set forth in Evidence Code§452 which states that:

"Judicial notice may be taken of the following matters...:

"(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy."

As the language of Evidence Code §452(h) suggests, a fact may be judicially noticed only if it is not reasonably subject to dispute, and is capable of immediate and accurate verification by resorting to an authority of indisputable accuracy.

In an attempt to convince Judge Johnson that the contention of Mr. Mermelstein that Jews were gassed at Auschwitz is both "disputable" and is not subject to "immediate verification" by resorting to sources of reasonably indisputable accuracy, the IHR asked Mark Edward Weber, an author and historical researcher, to summarize, in the form of a declaration, the historical controversy that surrounds the alleged Jewish genocide during World War II. That declaration, which was filed in the Superior Court for consideration by Judge Johnson, is reproduced below. In spite of the efforts of Mr. Weber, Judge Johnson granted Mermelstein's motion; he was persuaded to do so, not because of any of the material which Mr. Mermelstein had submitted in support of his position, but rather due to certain unspecified "sources of reasonably indisputable fact." When asked by Richard Fusilier, the attorney representing the IHR, to name those sources, Johnson refused to do so and merely said, "Any number of sources. Many books. Sources of reasonably indisputable accuracy." This refusal of Judge Johnson to specify the source of the information upon which he based his ruling is, of itself, an abuse of judicial discretion. According to Evidence Code §455, if a judge resorts to any source of information that has not been received in open court in connection with the taking of judicial notice of any matter, that judge must, before he may take judicial notice, make such information and its source a part of the record in the action and must afford each party a reasonable opportunity to dispute such information.

A reading of Mr. Weber's declaration clearly demonstrates that the genocide claims of Mr. Mermelstein are hardly "indisputable" and are certainly not subject to "immediate and accurate verification" by resort to sources of reasonably indisputable accuracy. As a consequence, those facts cannot be judicially noticed. (note 3) In view of this conclusion, one is justified in wondering exactly what evidence influenced Judge Johnson and persuaded him to rule as he did. Mr. Fusilier speculated that his ruling was a "political" decision that had no evidentiary basis. If so, Judge Johnson's ruling is a chilling reminder of George Orwell's novel, 1984, where history is constantly rewritten to satisfy contemporary political demands. After all, here is a judge who has put historical truth into the "memory hole" and has established new history by judicial fiat.

The Publisher

Declaration of Mark Edward Weber

My name is Mark Weber. I was born in Portland, Oregon, and now reside in the Washington, D.C., area where I work as a Writer, historical researcher and translator. I studied at Portland State University, the University of Illinois at Chicago Circle, the University of Munich, and Indiana University. During the two and a half years I lived and studied in Germany, I became very familiar with the German language. In 1976, I graduated with high honors with a B.A. from Portland State University. I received a Master's degree in Central European history in 1977 from Indiana University, where I also served as an instructor.

My special field of competence is modern European history. For the past two and a half years I have been deeply involved in a careful study of the history of the Jews of Europe during the Second World War, and I am currently working on a book on this subject.

I was asked to carefully examine the material submitted by the attorney for Mr. Melvin Mermelstein in support of plaintiff's request that the court take judicial notice of the contention that Jews were killed by gassing at Auschwitz during the Second World War. On the basis of a careful examination of this material, and on the basis of my-own specialized study of the history of the Jews during the Second World War, I firmly believe that sufficient grounds do not exist to have the court take judicial notice of the contention that Jews were killed by gassing at Auschwitz.

Counsel for plaintiff attempts, by presenting an extensive collection of material taken from published sources and unpublished statements by individuals, to convince the court that the proposition that Jews were killed by gassing at Auschwitz during the Second World War is an obvious historical fact worthy of judicial notice.

A proposition cannot be proven merely by assembling an extensive collection of material in its support. The character of the evidence is decisive, not its magnitude. The evidence must be reliable, self-consistent and accurate.

For example, numerous affidavits and statements from "eye witnesses," as well as extensive published material from books could be presented in support of the proposition that "flying saucers" piloted by alien beings from other planets have landed on earth, and that humans have communicated and traveled with the aliens. But such evidence, while very extensive, would not be sufficient to have a court take judicial notice of the existence of "flying saucers."

Judicial notice may be taken of a proposition that is so universally known that it cannot reasonably be the subject of dispute. (Evid. Code Sec. 451 (h).)

Various scholars who have carefully examined the matter have concluded that no Jews were ever gassed at Auschwitz. As I will show, the evidence for gassings submitted by plaintiff in support of its proposition is unreliable, contradictory and, in some cases, demonstrably false. The contention that Jews were gassed at Auschwitz may reasonably be considered subject to dispute.

The argument over whether Jews were gassed at Auschwitz may have political implications. But the debate among scholars over this question in not political. That is, all political views are represented on both sides of the controversy. It is completely incorrect to characterize all those who dispute the gassing claims as "neo-Nazis."

In 1948, the French history teacher Paul Rassinier published the first of his six books challenging the standard view of the "holocaust." He was a pacifist and a socialist who was arrested by the Gestapo in German-occupied France for helping to smuggle Jews into neutral Switzerland. Rassinier was incarcerated for almost two years at the concentration camps of Buchenwald and Dora. After the war, he was elected to the French National Assembly and decorated for his resistance activities.

Another noted "revisionist" was the eminent American historian, Harry Elmer Barnes, a man who detested political collectivism of any kind. In France today, the most active and vocal challengers of the orthodox view of the "holocaust" are affiliated with a Marxist-libertarian literary group.

The argument about whether Jews were gassed at Auschwitz transcends political affiliations. In America as well as Europe, respected scholars have taken reasoned exception to the standard version of "holocaust" history. This is not unusual. Historians frequently disagree sharply among themselves about aspects of history. Widely accepted historical "facts" often later turn out to be rather less than that.

Down through the ages, official bodies making pronouncements about "historical facts" have forced scholars holding unorthodox views to recant.

In 1543, Nicholas Copernicus published his famous work which declared that the earth revolved around the sun. The Catholic Church suppressed the work for centuries because it contradicted the official view that the earth is the center of the universe. In 1633, Galileo was jailed after being forced by the Inquisition to abjure his declaration that the sun is the center of the planetary system. In 1925, John T. Scopes was fined by a court in Tennessee for teaching the Darwinian theory of evolution in a public school because it conflicted with the Biblical version of the origin of life. Today, in the Soviet Union, Poland, and other countries subordinate to the USSR, it is forbidden to state publicly that thousands of Polish officers were murdered by Soviet officials at Katyn in 1940.

Many countries, notably the communist states, oblige historians to conform to an official version of history. In our country, we have a long tradition of freedom of intellectual expression based on the notion that truth does not require judicial or official protection from challengers. Indeed, we Americans are proud of the fact that we tolerate and encourage diverse alternative and even controversial interpretations of history. To have a court take judicial notice of the disputed contention that Jews were gassed at Auschwitz would be an irresponsible violation of our tradition of intellectual freedom

Not just the "gas chamber" issue, but the whole question of what actually happened to the Jews of Europe during the Second World War is the subject of growing controversy and dispute. In Germany, that debate became more intense following the appearance in 1978 of a massive 768-page work entitled Geschichte der Deutschen (History of the Germans), published by the prestigious Propylaeen publishing house.

The author, Dr. Helmut Diwald, had already made a name for himself as an eminent and highly respected senior professor of history at the University of Erlangen. His earlier works had been praised as well-written products of solid, scholastic workmanship. The fact that a man of Dr. Diwald's stature would challenge the standard version of "holocaust" historiography is especially significant.

The section of his book headed "The Final Solution" is worth quoting at length. (pp l64-165 of the first edition.):

Ever since the charge was made that the SS attempted to physically annihilate the Jews of Europe, under orders from Hitler and as directed by Himmler and the Reich Security Main Office, the problem of "Auschwitz" has been completely blacked out. Since the capitulation in 1945, "Auschwitz" has also served as the main vehicle in a campaign to reduce the German people to complete moral degradation.

... Countless works have been published and claims made since 1945 which cannot be proven and which cynically add to the infamy. The most horrible events of modern times have been exploited through the use of distortions, deceptions and exaggerations for the purpose of totally disqualifying a people.

Thus, the victorious Allies claimed the existence of "extermination camps" of which there was not a single one in Germany. For years visitors to the Dachau concentration camp were shown "gas chambers" where as many as 25,000 Jews were allegedly killed daily by the SS. Actually, the rooms displayed were dummy chambers which the U.S. military had forced imprisoned SS men to build after the capitulation. A similar case involved the notorious Bergen-Belsen concentration camp, where 50,000 inmates were supposedly murdered. Actually, about 7,000 inmates died during the period when the camp existed, from 1943 to 1945. Most of them died in the last months of the war as a result of disease and malnutrition -- consequences of the bombings which had completely disrupted normal deliveries of medical supplies and food. The British commander who took control of the camp after the capitulation testified that crimes on a large scale had not taken place at Bergen-Belsen.

The deportation of the Jews took place as part of a general forced-labor program for the war industry. After the beginning of the war against Russia, the German war economy grew from month to month and reached a high point in mid-1942. All those who could work at all were inducted, including the Jews. In accordance with their special status, they were subject to especially inhumane treatment. The enormous program for their deportation by railway from all the occupied territories for use in Eastern munitions factories and work camps was justified by the military importance of their tasks and received top priority, even ahead of army transport.

Auschwitz, an old industrial town on the upper Silesian plateau, developed into a major wartime production center. The chemical industry quickly became far more important than the older zinc rolling mills and grinding works. The most significant aspect was the production of artificial rubber and petroleum from coal. On 16 February 1942, all concentration camps were incorporated into the war economy and munitions industry and accordingly came under the organizational authority of the SS Main Office for Economic Administration and its chief, General Otto Pohl.

The various camps were classified according to their importance to the war economy. Birkenau, a part of the Auschwitz complex, served as the camp for those inmates who were declared unsuited for work. Consequently, the camp had the highest death rate. On 26 July 1942, a devastating typhus epidemic broke out in Birkenau. As many as 20,000 died within three months.

That is why an especially large number of crematoria for burning the bodies were built in Birkenau. Reports of the high death rate there moved Himmler to issue an order on 28 December 1942 "to reduce the number of deaths in the concentration camps at all costs."

During the war Jewish emigration was no longer possible and the expression "total solution" or "final solution" was coined to refer to the policy whereby all Jews were to be segregated from the German population, removed from central Europe, evacuated to the East, and relocated in new ghettos. This plan was outlined by Reinhard Heydrich, chief of the Reich Security Main Office on 24 June 1940. The central questions about what actually happened in the subsequent years still remain unclear despite all of the literature. "Auschwitz" is the German stigma of this century.

At the famous Nuremberg trials of the "International Military Tribunal" (IMT), impressive evidence was presented for the existence and operation of gas chambers at the concentration camps of Dachau and Ravensbrueck. A lengthy U.S. government report was accepted as IMT document L-1 59 (also known as 222-USA) which described how inmates at the Dachau camp were killed by gassing. (Document L-1 59 can be found in the International Military Tribunal "Blue Series", Vol. XXXVII, pp605-626.)

Mme. Marie-Claude Vaillant-Couturier, a French communist, testified at the Nuremberg trials about the killing of inmates in gas chambers at the Ravensbrueck concentration camp. (This "eyewitness" testimony can be found in the IMT "Blue Series," Vol. VI, pp22s225.) These are only two examples of many others that could be cited of legally binding "eyewitness" and "official" evidence for the existence and operation of gas chambers in Germany that helped convict and hang German defendants at the Nuremberg trials.

Simon Wiesenthal, the famous "Nazi hunter" admitted in a letter to the respected British periodical Books and Bookmen (April 1975, p5) that "there were no extermination camps on German soil..." Martin Broszat, Director of the Institute for History in Munich, stated in a letter to the German weekly newspaper Die zeit (19 August 1960, pl6) that there had never been any gassings anywhere in the "old Reich," that is, Germany in its boundaries of 1937. The statements from these two men are cited here because each of them was called upon by plaintiff to provide written statements in this case. (Plaintiff Attachments Nos. 1 and 5). Similar statements could be produced from others whose sympathies are likewise entirely with the plaintiff. These admissions are important because they discredit the many "testimonies" of "eyewitnesses" which were cited for many years to "prove" that concentration camp inmates were killed in gas chambers at various camps in Germany proper, such as Dachau, Ravensbrueck, Buchenwald, Neuengamme, Oranienburg, and others.

For obvious reasons, the statements quoted above by Broszat and Wiesenthal have not been made widely known. That's because evidence for the existence of lethal gas chambers at Auschwitz is no more substantial than the evidence for gas chambers at camps where even Broszat, Wiesenthal and others now admit there were none. In the case of Auschwitz, as well as in the cases of Dachau, Ravensbrueck, and so forth, the evidence that Jews were killed by gassing consists almost exclusively of "testimony" from "eyewitnesses." How is it that we are now expected to dismiss the "proofs" of gassings at camps in Germany proper as invalid while continuing to accept equally dubious "proofs" for gassings at Auschwitz?

An objective person would be justified in dismissing the claim for gassings at Auschwitz because they are just as baseless as those for camps where we now know that no gassings took place. Clearly, the claim that Jews were gassed at Auschwitz may reasonably be considered subject to dispute. A court would even be justified in stating that the claim that Jews were gassed at Auschwitz is questionable and dubious.

Attachment No. 5 submitted by the plaintiff consists of pages from the book KL Auschwitz Seen by the SS. From the section of the book taken from the diary of Johann Paul Kremer ("Diary of Kremer") plaintiff has submitted only a single sheet consisting of pages 212 and 213. On these two pages, there is only a single entry from Dr. Kremer's diary which could at all even be construed as referring to killings. That is the four line entry of 2 September 1942.

The entry, as submitted by the plaintiff, reads as follows:

Was present for first time at a special action at 3 a.m. By comparison Dante's Inferno seems almost a comedy. Auschwitz is justly called an extermination camp.

As written in the original German, the entry reads:

Zum 1. Male draussen urn 3 Uhr frueh bei einer Sonderaktion zugegen. Im Vergleich hierzu erscheint mir das Dante'sche Inferno fast wie eine Komoedie. Umsonst wird Auschwitz nicht das Lager der Vernichtung genannt!

The correct translation of this entry should thus be:

This morning, at 3 o'clock, I was present outside for the first time at a special action. Compared to that, Dante's Inferno appears to me almost like a comedy. It is not without reason that Auschwitz is called the camp of the annihilation.

The original text is mistranslated and presented in such a way as to distort its original meaning. Dr. Kremer is not referring here to killing people by gassing. He is referring to an emergency assignment he was called to make in his capacity as a medical doctor to treat victims of disease. This becomes clear to anyone who carefully examines and studies the original diary. A detailed analysis is not possible here. However, the following quotation from a letter written by Dr. Kremer on 21 October 1942 to a Miss Glaser shows that when Kremer refers to Auschwitz as an inferno or a "hell" he means that the outbreak of disease has created hellish conditions on the camp:

I don't really know for certain, but I expect, however, that I'll be able to be in Muenster before 1 December, and thus finally turn my back on this hell of Auschwitz where, in addition to the typhoid, and so on, typhus has once again broken out strongly...

The plaintiff submits testimony by Rudolf Höss, a former Auschwitz commandant, as evidence for gassings at Auschwitz. (KL Auschwitz Seen by the SS, "Autobiography of Höss," pp132-136, Plaintiff Attachment No. 5). This testimony is probably the single most important piece of evidence for gassings at Auschwitz. It is widely quoted or cited in secondary historical books on the subject.

Actually, statements by Höss are notoriously unreliable. A good example is the Höss affidavit of 5 April 1946 (Nuremberg document 3868-PS). Höss claims that three million persons died at Auschwitz, an absurd figure that no responsible historian accepts today. He claims that mass executions by gassing began in the summer of 1941, another absolutely absurd statement. He claims that, besides Auschwitz, "Belzec," "Treblinka," and "Wolzek" were extermination camps. Actually, no camp named "Wolzek" ever existed.

In his book The Hoax of the Twentieth Century (pp100-124), Dr. Arthur Butz examines the Höss affidavit of 5 April 1946 in great detail and carefully evaluates the testimony of Höss, including the famous "Autobiography" in its relation to the gassing allegations. These pages are appended to this statement as Attachment No. 9.

The "Autobiography" cited by plaintiff was supposedly written while Höss was a prisoner in communist-ruled Poland shortly before his execution. There is no way of determining the genuineness of the "Autobiography" although communist practice should compel any objective person to view the memoir with extreme skepticism.

A careful examination of the material submitted by plaintiff reveals serious contradictions in the details of plaintiff's claim. Consider, for example, these contradictory descriptions of the condition of the bodies of Auschwitz gassing victims immediately following the opening of the gas chamber doors.

From the "Autobiography of Höss" in KL Auschwitz Seen by the SS, page 134 (Plaintiff Attachment No. 5):

The door was opened half an hour after the induction of the gas, and the ventilation switched on. Work was immediately begun on removing the corpses. There was no noticeable change in the bodies and no sign of convulsions or discoloration. Only after the bodies had been lying for some time, that is to say after several hours, did the usual death stains appear in the places where they had lain. Soiling through the opening of the bowels was also rare. There were no signs of wounding of any kind. The faces showed no distortion.

From Auschwitz: Nazi Extermination Camp, published in 1978 by Interpress, Warsaw, p114. (Plaintiff Attachment No. 9):

Most of the corpses were found near the door through which the victims had tried to escape from the spreading gas. The corpses, which covered the entire floor of the chamber, had their knees half-bent, and were often cloven together. The bodies were smeared with excrement, vomit and blood. The skin assumed a pink hue.

Attachment No. 7 submitted by plaintiff is likewise unreliable and inaccurate. This attachment consists of pages copied from the book The Crime and Punishment of I.G. Farben by Joseph Borkin. On page 126, for example, it is alleged that human fat from the corpses of Jews killed at Auschwitz was made into soap by the Germans.

The story that the Germans used Jewish corpses to make soap has been widely circulated. It was officially accepted at the Nuremberg trials where many "documents" and "testimonies" were introduced to substantiate the allegation. What was all this "evidence" really worth? Although many Jewish survivors and writers still propagate the soap story, no responsible historian accepts the allegation today.

Alarmed at the growing skepticism about the "holocaust," a Jewish historian recently warned about the dangers in repeating "holocaust" stories that have long since been proven to be lies. Deborah Lipstadt, a teacher of modern Jewish history at the University of California at Los Angeles stated in a letter to the Los Angeles Times of 16 May 1981:

The fact is that the Nazis never used the bodies of Jews, or for that matter anyone else, for the production of soap. The soap rumor was prevalent both during and after the war. It may have had its origin in the cadaver factory atrocity story that came out of World War I... The soap rumor was thoroughly investigated after the war and proved to be untrue.

Actually, Deborah Lipstadt is not quite accurate. The soap rumor has never been "thoroughly investigated." To the contrary, the story was widely circulated as part of the official "historical verdict" of the Nuremberg trials. Once again, the "evidence" for gassing at Auschwitz is just as reliable as the "evidence" for the baseless allegation that the Germans used Jewish bodies to manufacture soap.

Plaintiff's submission of published material which repeats the soap story casts doubt on the reliability of the rest of the material submitted.

The plaintiff submits, as Attachment No.11, many pages reproduced from Le Memorial de la Deportation des Juifs de France (The Memorial of the Deportation of the Jews of France) a book by Serge Klarsfeld published in Paris in 1978.

Of the pages submitted, 87 consist of lists of Jews deported from France to Eastern Europe during the Second World War. These pages list the deportees alphabetically by family name, first name, date of birth and place of birth. The impression is given that all of the many thousands of persons listed were killed according to a German policy of extermination. This impression is not accurate. The book merely provides a listing of Jews deported from France, not of Jews who died at Auschwitz or anywhere else during the Second World War.

A particularly prominent example will suffice to prove this. On page 519 of the Memorial, the following person is listed: Simone Jacob was one of 500 Jews -- male and female -- in rail convoy number 17 which left Drancy, France, on 13 April 1944.

To find out what happened to the deportees, one next consults the Hefte von Auschwitz, published by the State Museum of Auschwitz. As a Polish government institution, the State Museum of Auschwitz (Panstwowe Muzeum Oswiecim) is controlled by the Polish communist party. The plaintiff apparently has considerable confidence in this institution as a reliable authority. It published three of the books from which pages were submitted to the court by the plaintiff. [Auschwitz 1940-1945, Plaintiff Attachment No. 3; KL Auschwitz Seen by the SS, Plaintiff Attachment No. 5; and, KZ Auschwitz: Reminiscences of an SS Man, Plaintiff Attachment No.10)

According to the Hefte von Auschwitz (Nr. 7, 1964, p.88), the 165 men of the convoy were admitted to the Auschwitz camp as inmates and given registration numbers. All the others, including Simone Jacob, were allegedly gassed on 16 April 1944, the day of the convoy's arrival at the camp.

Today, Simone Jacob is well known by her married name of Simone Veil. The former French Minister of Health is now President of the European Parliament in Strasbourg. Thus, according to documentation considered reliable by the plaintiff, Simone Jacob (Veil) was another Jewish victim of the Auschwitz gas chambers. But she is very much alive today. One may ask: If the German policy was to exterminate Jews Deported from France, why wasn't 18-year-old Simon Jacob killed at Auschwitz?

The entire listing of Jews deported from France as given in the Memorial submitted by plaintiff in no way constitutes evidence of plaintiff's claim that Jews were gassed at Auschwitz. The fact that Simone Veil is alive today is another indication of the unreliability of the evidence submitted by plaintiff to support his claim. The Memorial submitted by plaintiff is not merely irrelevant to this case, it serves to discredit his argument and lend support to the notion that plaintiff's claim may reasonably be considered the subject of dispute.

The plaintiff submits as Attachment No. 12 a notarized statement dated 4 May 1981 by Simon Wiesenthal. For some 25 years, Wiesenthal has managed the "Jewish Documentation Center" in Vienna. He is well known as a "Nazi hunter" because he has been instrumental in bringing many persons to trial for allegedly committing crimes against Jews during the Second World War. Although Wiesenthal is not a historian, one would expect that a man of his reputation would be reliable and accurate in stating facts for a court case dealing with the subject to which he has dedicated his life. Such, however, is not the case.

The statement by Simon Wiesenthal submitted by the plaintiff is confused, distorted and factually incorrect. The final paragraph of the statement reads:

In a South African newspaper they maintained that Hitler didn't know about the killing of Jews and therefore it could not be reality. The Federation of Jewish Committees brought this matter before the court. Albert Speer, a former friend of Hitler and minister of his government made a statement for the court in Johannesburg. He declared under oath that Hitler often spoke about the murdering of Jews and that as far as he had known gasifications of Jews took place. Speer is a witness of Hitler's close environment. The trial against the newspaper had been won with the help of this testimony.

This is a complete distortion of fact.

In June 1976, the South African Jewish Board of Deputies (not the "Federation of Jewish Communities") began legal action to have a booklet entitled Did Six Million Really Die? effectively banned. (Not something from "a South African newspaper.") The South African government acted favorably and declared the booklet "undesirable" which had the effect of prohibiting its further dissemination.

In preparation for a hearing before the South African Publications Appeal Board, the Jewish Board of Deputies obtained an affidavit dated 15 June 1977 from Albert Speer, former confidant of Adolf Hitler and wartime Reich Minister of Armaments. Contrary to what Wiesenthal states, it is not true that Speer "declared under oath that Hitler often spoke about the murdering of Jews and that as far as he knows gasifications of Jews took place." In point of fact, Speer repeatedly maintained that he never had any first hand knowledge of any policy to kill the Jews of Europe.

Shortly after his recent death, the Jewish Journal (Brooklyn, N.Y. 11 September 1981, p4) noted in an obituary that Speer "always maintained that he did not know of the death camps in which six million Jews died." He also stated on many occasions that he never heard Hitler speak about any such plan or program. In a letter dated 6 May 1977 to Mr. Denis Diamond, Executive Director of the Jewish Board of Deputies, Speer stated specifically that "... I would give something for being able to state clearly that Hitler had ordered the killing of the Jews in my presence. Neither am I in the position to testify to the exact number of killed Jews."

Furthermore, in his memoirs, published in English under the title Inside the Third Reich, Speer nowhere states that he knew anything of any mass killing of Jews during the Second World War. This is particularly remarkable because Speer was in an excellent position to have known about such a policy if one had existed.

The inaccuracy and confusion of Simon Wisenthal's statement of 4 May 1981 is unfortunately all too typical of so much of the "evidence" for the alleged gassing of Jews during the Second World War. The Wiesenthal statement submitted by the plaintiff is demonstrably incorrect and false. It is itself evidence that plaintiff's claim of gassings at Auschwitz may reasonably be considered the subject of dispute and hence not suitable for judicial notice.

Despite the highly favorable image in the mass media, Simon Wiesenthal has proven himself unreliable even as a "Nazi hunter." A lengthy article copyrighted by the American Bar Association and published in the Washington Post (Sunday, 10 May 1981, ppB5, B8) revealed that Wiesenthal took part in a witch-hunt against Frank Walus, a man falsely accused of helping the Germans murder Jews during the Second World War. The Walus case demonstrated not only the recklessness of Simon Wiesenthal but the general unreliability of the eyewitness "testimony" which constitutes the bulk of the "Holocaust" evidence.

The following is from the Washington Post article, entitled "The Nazi Who Never Was: How a witchhunt by judge, press and investigators branded an innocent man a war criminal":

In January 1977, the United States government accused a Chicagoan named Frank Walus of having committed atrocities in Poland during World War II.

In the following four years, this retired factory worker went into debt in order to raise more than $60,000 to defend himself. He sat in a courtroom while 11 Jewish survivors of the Nazi occupation of Poland testified that they saw him murder children, an old woman, a young woman, a hunchback and others...

Overwhelming evidence shows that Walus was not a Nazi war criminal, that he was not even in Poland during World War II.

... In an atmosphere of hatred and loathing verging on hysteria, the government persecuted an innocent man.

In 1974, Simon Wiesenthal, the famous "Nazi hunter" of Vienna, denounced Walus as "a Pole in Chicago who performed duties with the Gestapo in the ghettos of Czestochowa and Kielce and handed over a number of Jews to the Gestapo."

Wiesenthal did not say on what basis he made this denunciation. He says that Michael Alper was not his source, but he will not name anyone else. Did he check on his source before he accused Walus? There is no evidence of it. No documents ever have been produced against Walus, and all of the witnesses against him were found after 1974.

The Chicago weekly newspaper Reader (23 January 1981) also reported on the case in a very extensive article headlined: "The Persecution of Frank Walus: To Catch a Nazi: The U.S. government wanted a war criminal. So, with the help of Simon Wiesenthal, the Israeli police, the local press and Judge Julius Hoffman, they invented one."

The article stated (pages 19 and 30):

. . It is logical to assume that the "reports" received by Wiesenthal (against Walus) actually were rumors and that the rumors, though they may not have come directly from Alper, were started by Alper after Walus threw him out of the house in 1973.

In other words, Simon Wiesenthal had no evidence against Walus. He denounced him anyway.

While (Judge) Hoffman had the Walus case under advisement, Holocaust aired on television. During the same period, in April 1978, Simon Wiesenthal came to Chicago, where he gave interviews taking credit for the Walus case. "How Nazi-Hunter Helped Find Walus," was the Sun-Times headline on a story by Bob Olmstead. Wiesenthal told Sun-Times writer Abe Peck that he "has never had a case of mistaken identity." "I know there are thousands of people who wait for my mistake." he said.

Plaintiff submitted a copy of an article from the Los Angeles Times of 24 February 1979 ("Aerial Photos of Auschwitz Camp," pp1, 6) with two accompanying aerial photos of portions of the Auschwitz camp complex. (Plaintiff Attachment No. 21).

The most detailed presentation of the photos is available in a 19-page booklet published by the Central Intelligence Agency and prepared by two CIA employees, Dino A. Brugiono and Robert. G. Poirier. (The Holocaust Revisited: A Retrospective Analysis of the Auschwitz-Birkenau Extermination Complex. ST 79-10001. Published in Washington, D.C. in 1979.)

The article submitted by the plaintiff does not reveal that all of the descriptive labels on the photos, including those which identify certain buildings as "gas chambers," were added to the photos more than thirty years after the end of the war by the CIA employees. The identification of buildings as "gas chambers" was not done on the basis of any evidence to be found in the photos themselves. Nothing in the photos gives any indication whatsoever that the buildings described as "gas chambers" were really such. Rather, the "identification" was made solely on the basis of post-war "evidence" or "testimony" of dubious reliability.

The aerial photos actually serve to discredit plaintiff's claim that Jews were gassed at Auschwitz. On these dates, Allied aircraft took aerial photos of the Auschwitz complex during the period when mass killing in the gas chambers was allegedly happening: 4 April, 26 July, 25 August, and 13 September, 1944,. And yet on none of the photos taken on random dates during this period can one find the slightest trace of evidence for a mass killing program. There are no large crowds of Jews destined for destruction, no smoke and flame billowing from the crematoria which were supposedly operating continuously, nor even the slightest trace of corpses and/or ashes. All of these should have been visible had any significant number of Jews been gassed and disposed of at Auschwitz. The CIA employees who first examined and presented these photos were admittedly somewhat disturbed about this fact. "Although survivors recalled that smoke and flame emanated continually from the crematoria chimneys and was visible for miles, the photography we examined gave no positive proof of this." (p11)

The aerial photos cast serious doubt on the claim that Jews were gassed at Auschwitz because what they reveal is so completely inconsistent with the "evidence" usually offered for the existence of an alleged gassing extermination process.

In conclusion, the material submitted by attorney for the plaintiff in support of the contention that Jews were killed by gassing at Auschwitz during the Second World War is unreliable, contradictory and, in some cases, demonstrably false. It is not compelling evidence. Indeed, the very evidence submitted by plaintiff casts doubt on the contention that Jews were gassed at Auschwitz. The aerial photos taken during 1944 and mentioned earlier are especially significant in this regard. Furthermore, the arguments and evidence brought forward by those who disagree with the contention that Jews were gassed at Auschwitz are reasonable and worthy of consideration. The contention that Jews were gassed at Auschwitz may reasonably be the subject of dispute.

I have appended to this statement nine attachments of material copied from various published sources.


1. The Journal of Historical Review, Vol. 1, No. 1, Spring 198t, pp5-22, "The International 'Holocaust' Controversy" by Dr. Arthur R. Butz: pp23-30, "The Mechanics of Gassing" by Prof. Robert Faurisson.

2. The Journal of Historical Review, Vol. 1, No. 2, Summer 1980. pp103-114, "The 'Problem of the Gas Chambers"' by Prof. Robert Faurisson: pp115-119: "In the Matter of Robert Faurisson" by John Bennett.

3. The Journal of Historical Review, Vol. 1, No. 4, Winter 1980, pp323-334, "The Faurisson Affair" by Dr. Arthur Butz.

4. The "Problem of the 'Gas Chambers"' or "The Rumor of Auschwitz" by Prof. Robert Faurisson. Translation of various statements by Prof. Faurisson which appeared originally in the Paris daily newspaper Le Monde.

5. Six Million Lost and Found, by "Richard Harwood" (pseudonym), published in Britain (complete text).

6. Auschwitz: A Personal Account, by Thies Christophersen, Published in the United States in 1979.

7. Vérité historique ou vérité politique, (Historical Truth or Political Truth), by Serge Thion (and Robert Faurisson) Paris, La Vielle Taupe, 1980, pp25-36, An essay by Serge Thion on the historical development of the Auschwitz and "holocaust" legends: pp310-322, Analysis of photographs from Auschwitz, with explanations: p328, Auschwitz "gassing victim" Simone Veil is alive.

8. Memoire en Defense (Memoir in Defense Against Those Who Accuse Me of Falsifying History -- The Gas Chamber Question), by Robert Faurisson (with preface by Noam Chomsky), Paris: La Vieille Taupe, 1980. ppl47-167: Documentation on the "material impossibility of the Auschwitz 'gas chambers'."

9. The Hoax of the Twentieth Century, by Arthur R. Butz, Torrance Calif, The Noontide Press. 1979, pp100-124, Examination of an affidavit of Rudolf Höss.

Notes to the Introduction

1. Mermelstein vs. Institute for Historical Review, et al. No. C35642, Superior Court of California, in and for the County of Los Angeles.

2. Generally, judicial notice is taken of technical matters such as, for example, the temperature at which water boils or the life expectancy of an individual based upon standard actuarial tables.

3. The California Supreme Court in Communist Party v. Peek (1942), 20 Cal.2d 536, a leading case on the subject of the applicability of judicial notice, said, quoting from the earlier case of Varcoe v. Lee, 180 Cal. 344, that "if there were any possibility of dispute' the Act cannot be judicially noticed; and ... 'if there is doubt whatever as the fact itself ... evidence should be required." (Pages 546-547)

Bibliographic information


Mark Weber


Declaration of Mark Edward Weber


The Journal for Historical Review (


Spring 1982


Volume 3 number 1


Page 31


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