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Jewish Journal

U.S. Opposes Court Reparations Rulings

by David A. Lash

January 30, 2003 | 7:00 pm

Last week, the U.S. Department of Justice took a stand against the best interests of the most aged, infirm and vulnerable of Holocaust survivors.

Seemingly without shame, the federal government filed briefs arguing that significant court victories for long-forgotten survivors should be overturned.

In July, the Ninth Circuit Court of Appeals held that California's Holocaust Victims Insurance Registry Act was constitutionally permissible and could be enforced by the state's insurance commissioner. The law requires any insurer doing business in the state to disclose the names of all lapsed policyholders attached to policies sold in Europe between 1920 and 1945. In other words, the statute, authored by former Assemblyman Wally Knox, mandates that companies reveal the names of those who died in Nazi death camps for whom legitimate policy benefits were never paid.

This wartime thievery helped finance the Nazi regime and its murderous plundering. Yet, the Department of Justice, under the leadership of Attorney General John Ashcroft, opposes this simple search for truthful information.

In December, another panel of the Ninth Circuit Court of Appeals ruled that a suit brought by an aged Holocaust survivor could be prosecuted in the United States against the government of Austria for that government's refusal to return valuable artwork in its possession.

The paintings, by the renowned artist Gustav Klimt, were stolen during World War II by the Nazi regime. The Department of Justice has asked that this first attempt to hold a foreign government responsible for its actions against a U.S. citizen in a U.S. court be overturned.

In each instance, the federal government has intervened with similar purposes. Holocaust reparations scholar Michael Bazyler, a professor of law at Whittier Law School, summed up the situation succinctly. "The U.S. is going against U.S. citizens in U.S. courts on behalf of a foreign country or a foreign company," he said.

Making the actions of the federal government all the more perplexing is the simple fact that the government could simply have stayed out of each matter, letting the parties and the courts decide the issues on their merits.

And, in truth, the government did just that, staying on the judicial sidelines while the cases wound their way through the court system. Curiously, it was not until each case was decided in favor of the survivors that the government acted. It is difficult to fathom the decisions of the Department of Justice.

In the Holocaust Victims Insurance Registry Act, the statute in question seeks only to uncover long-denied truths. The families who died in the German death camps did not have papers and documents with them. Survivors left Europe after the war, broken and grief-stricken, with only anecdotal evidence of their parents' attempts to provide for them and their futures.

Many tried to make claims to the major European insurance companies with whom their parents had surely done business. Without documentary evidence of the existence of the policies, however, their claims were repeatedly and summarily denied. Most of the companies ignored them, refused to turn over records and successfully hid the histories and truths of these many families for more than a generation.

 Today, surviving family members are still trying to find the truth. The insurance companies have the records that would reveal what happened. Outraged, the state of California decided to exercise its regulatory authority and prohibit companies from doing further business in the state if they do not act responsibly and register truthful information in their possession or in the possession of their foreign subsidiaries.

California has the unquestioned authority to regulate the behavior of insurance companies in order to assure that its residents are protected from unfair business practices. And what could be more unfair than denying access to truthful information to aging survivors who have waited a generation for honesty that seemingly will never come? Nonetheless, the Department of Justice has asked the U.S. Supreme Court to hear an appeal of the case and overturn the decision.

 The Austrian stolen art case is equally perplexing. The United States has taken the position that at the time the valuable art works were stolen from the family of a West Los Angeles survivor, the law would have prohibited the prosecution of such a claim in an American court.

Today, a more enlightened law (specifically the so-called "expropriation exception" to the Foreign Sovereign Immunities Act), born of a different political and historical time, would provide this elderly American full access to the most admired judicial system in all of history. Nonetheless, the Department of Justice argues that the law should not be retroactive, and that the laws in place during the time of the Nazis should be followed today.

 For more than 50 years, the rights of Holocaust survivors have been largely ignored. Today, however, a community of brave survivors and their attorneys are pursuing all possible avenues to secure small, perhaps only symbolic but clearly long overdue, reparations and damages for the horrors of long ago.

The United States system of justice, the finest in the world -- the antithesis of World War II Germany -- the bastion of democracy that is our best protection against future atrocities, is now the avenue by which some measure of justice is being sought. For the United States government to stand in the way of its own democratic processes for redress is a quagmire of tragic proportions.  

David A. Lash is the executive director of Bet Tzedek Legal Services in Los Angeles. Bet Tzedek appeared as amicus curiae in support of the California Department of Insurance and in support of the plaintiff Maria Altmann in both of the cases discussed above.

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