Dr. Fredrick Töben returns to Australia

Dr. Fredrick Töben, Director of Australia's Adelaide Institute, who organized the successful 1998 revisionist conference there, was arrested in Germany on 8 April 1999, on a charge of “defaming the memory of the dead”, as I reported earlier. The revised arrest warrant of 3 May listed the following charges, based mainly on the Adelaide Institute's English language website in Australia, but also secondarily on the printed Adelaide Institute newsletter, which has a tiny circulation in Germany:

• In a way disturbing the public peace, inciting hatred against, and insulting, a portion of the population.
• Denying the truth of a factual event perpetrated under the National Socialist regime, in a manner to disturb the public peace.
• Insulting others.
• Defaming the memory of the dead.

Töben's trial opened on 8 November 1999 and only lasted two days. On the first day Töben's defense lawyer Ludwig Bock resigned in protest at the illegality of the trial, but the court ordered Bock to remain on as court appointed defense counsel. Bock and Töben both vowed to remain silent throughout the trial. Bock said prosecutor Hans Heiko Klein had threatened him with jail for having publicly stated that his client had been wrongfully arrested and imprisoned.

If I must conjecture the specific grounds for Töben's silence during the trial, I would guess that his protest is based on the impossibility of arguing the truth of any of the claims he has made, for which he is being prosecuted. I suppose in the court's eyes there is a certain amount of logic in that situation which, as so often happens, makes legal sense but not common sense. If e.g. there were a law outlawing the denial that Germany is on the planet Mars, and if I deny that Germany is on the planet Mars and am prosecuted for the claim, then the question of whether Germany is on the planet Mars is irrelevant to the question of whether I broke the law. Truth is no defense. In those circumstances I would adopt the strategy Töben adopted, silence, which for me would make both legal sense and common sense.

On the second day of the trial (10 November) the court ruled that Töben was guilty in connection with the printed newsletter, but could not be tried in a German court for the content of his web site in Australia.[1] He was sentenced to ten months imprisonment. Having already served seven months he was granted parole on payment of DM6000 ($3165) bail and released on 11 November. Prosecutor Klein vowed to appeal the court's ruling in relation to the Internet material originating in Australia. A short story on the conclusion of the trial appeared in the New York Times of 11 November. More details were reported in the Australian daily newspapers The Age (Melbourne, www.theage.com.au) and the Sydney Morning Herald (www.smh.com.au) on 11-13 November.

Immediately after his release, Töben indicated that he would either stay in, or return to, Germany when the appeal is heard, thereby risking returning to prison. I held off on posting this account until I could determine what he was going to do. As I post this he has just returned to Australia. I hope he stays there.

The most scandalous feature of this episode is not the German laws and their application but the wide tolerance and even tacit approval of this persecution among the self-proclaimed civil libertarians. The relevant civil liberties organization of international scope is Amnesty International. After Töben's arrest the Melbourne civil liberties lawyer John Bennett wrote to Amnesty International to ask the organization's help in the case. Bennett is the author of the standard reference booklet Your Rights, which is issued in yearly editions and sold in kiosks all over Australia.

Here is the text of the Amnesty International letter to John Bennett, President, Australian Civil Liberties Union, PO Box 1137, Carlton, Victoria, 3053, Australia, dated 20th July 1999, (their reference: EUR/MP) written by Matthew Pringle, researcher, Central Europe/Western CIS, from Amnesty International Secretariat, 1 Easton Street, London, WC1X 8DJ, United Kingdom. (e-mail [email protected]; web: http//www/amnesty.org.html ).

The letter is factually and logically incorrect and willfully ignorant. Töben has not “used or advocated violence” or “advocated national, racial, or religious hatred”, and the claim that “denial of the Holocaust” constitutes such ignores the meanings of words.

The gas chamber shown to tourists at Auschwitz is a well known “fraud” or, as some would describe it, a “reconstruction”, as has been noted by various writers (e.g. Pierre Vidal-Naquet, Assassins of Memory, Columbia Univ. Press, NY, 1992, p. 97; J.-C. Pressac, Auschwitz: Technique and Operation of the Gas Chambers, Beate Klarsfeld Foundation, NY, 1989, p. 123).

I don't imagine Amnesty International is interested in facts or logic, at least not in relation to Holocaust revisionism, and its letter is too hypocritical to be worth further discussion except for an ironic aspect. There was an instance of resistance to such persecution among the civil libertarians. I refer to the article by Ronald Dworkin that appeared in the May-June 1995 issue of the London magazine Index on Censorship (affiliated with Amnesty International). It is an exception to the general rule of tacit approval of this repression of freedom of expression among the professed international civil libertarians, but even Dworkin's article expresses the hysteria and mendacity that the Amnesty letter expressed.

Dworkin's point of departure was the Günter Deckert case. In 1991 Deckert, leader of a minor right wing party in Germany, arranged a lecture for Fred Leuchter, the American execution specialist who had written a report in 1988 presenting his forensic findings that the alleged gas chambers at Auschwitz could not have been used as such.[2]

Deckert was tried and convicted of incitement to racial hatred, and the ensuing legal appeals generated a major controversy. One consequence was a law, passed in 1995, declaring Holocaust denial to be a crime punishable by five years in prison.

Dworkin asked, “The German Constitution guarantees freedom of speech. What justifies this exception?” After some routine and predictable arguments for tolerating denial of the Holocaust, despite its being in his view “a monstrous insult to the memory of all the Jews and others who perished in it”, and a “neo-Nazi” thesis, Dworkin concluded his article thus:

I know how strong the case for censorship seems in Germany now; I know that decent people are impatient with abstract principles when they see hoodlums with pseudo-swastikas pretending that the most monumental, cold-blooded genocide ever was the invention of its victims. The hoodlums remind us of what we often forget: the high, sometimes nearly unbearable, cost of freedom. But freedom is important enough even for sacrifices that really hurt. People who love it should give no hostage to its enemies, like Deckert and his odious colleagues, even in the face of the violent provocations they design to tempt us.

To this I comment first that display of swastikas or “pseudo-swastikas” is not a practice of Holocaust revisionists, that revisionists are not “hoodlums”, and that they have not designed “violent provocations”. The characterization is false and obviously so. If “Deckert and his odious colleagues” (who would have to be other members of his party) had been “violent” then Dworkin would have heard of it and the Deckert trials would have had a very different character. If his party had used Nazi symbols, it would not have been able to operate. Dworkin may have had somebody in mind in writing thus, but it was not Deckert, and it was not the typical German or other Holocaust revisionist.

Now I can delineate the irony referred to above. The Dworkin article, which would grant Holocaust revisionists freedom of expression, paints essentially the same hysterical picture of us presented in the Amnesty International letter! To see the implication of that hysteria, for one who like Dworkin would argue for freedom, read his concluding paragraph again. Taken literally, it says that violence should be tolerated! Of course Dworkin intended no such meaning, but there will be those who will draw it.

Thus does controversy get hopelessly muddled, when truth is not respected.

Notes

16 December 1999. Modified 2 January 2000.

[1]

Töben clarified, or perhaps I should say confused, this for me in a telephone conversation on 1 January 2000. The court ruled that he could be prosecuted in Germany for insulting on his Australian web site, but not for inciting hatred. You can try to figure out the legal principle involved, if that is the correct term.

[2]

On Leuchter one can see the February 1990 issue of Atlantic, and the letters that followed in the May issue. Leuchter was himself arrested during a 1993 trip to Germany. The Errol Morris film “Mr. Death. The Rise and Fall of Fred A. Leuchter Jr.” was given a preliminary screening at Harvard University in 1998 and was shown at the Sundance Film Festival early in 1999. It was given wider distribution later in 1999 and reviewed twice in the New York Times (26 Dec., sec. 2, p. 9 & 29 Dec., p. E10). A review in the Jewish Journal (Los Angeles, 24 Dec. 1999; [once at http://www.jewishjournal.com/errolmorris.12.24.9.htm, but now removed; ed.]) explained that Morris greatly modified the film when it was judged that the original version was too favorable to Leuchter.