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Why some Nazis are collecting Social Security

On October 20, 2014, AP issued its Big Story with the sensational title \"Millions in Social Security for expelled Nazis.\" The story was picked up by major news outlets in the United States and around the world.
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October 27, 2014

On October 20, 2014, AP issued its Big Story with the sensational title “Millions in Social Security for expelled Nazis.” The story was picked up by major news outlets in the United States and around the world. Written in the form of an exposé, it presents the shocking fact that the United States government has paid out millions of dollars in Social Security benefits to Nazis who immigrated to the United States after the Second World War and then became naturalized American citizens by hiding their Nazi pasts.  Upon their discovery, these geriatric former Nazis either almost immediately returned to their home countries, where they continued to collect Social Security, or struck a deal with federal prosecutors not to fight deportation and leave voluntarily, but with their Social Security benefits intact.  The impression created was that government prosecutors and other federal officials either stupidly allowed this to happen or wrongly arranged for former Nazis to continue collecting such benefits.

This impression is simply wrong. And to understand what really happened, historical context is necessary.                   

Next year will mark the 70th anniversary of the end of the Second World War and concomitantly one of the greatest criminal trials in history: the prosecution by the victorious Allies in the German city of Nuremberg of the twenty-two highest ranking surviving German Nazi leaders for war crimes, crimes against humanity, crimes against peace and conspiracy. The main Nuremberg trial came about primarily as a result of  American leadership and efforts. It was followed by twelve subsequent Nuremberg trials, where American prosecutors put on trial second-tier Nazis: German generals, industrialists, judges and politicians.

The enterprise of prosecuting Nazis, however, did not end at Nuremberg. For the last sixty-nine years, various countries have put on trial Nazis in their midst, either German perpetrators living in postwar Germany or local collaborators in countries conquered by the German war machine, such as France, Belgium, The Netherlands, Poland and other Eastern European states.

But another category of perpetrators also needed to be brought to justice: Germans, Austrians and others who fled Europe to make new lives in North America, South America, Australia and anywhere else they could hide or be immune from prosecution. Adolf Eichmann's postwar flight to Argentina is the most notorious example.  

To end such impunity, the United States, Canada and the United Kingdom in the 1970's began searching for such Nazis who immigrated to their shores after the war and  permitted entry by hiding their Nazi past.

The most successful program was conducted by the United States. Beginning in 1979, through an act of Congress passed called the Holtzman Amendment (after its chief sponsor, Rep. Elizabeth Holtzman of New York), the Office of Special Investigations (OSI) was created within the Department of Justice to ferret out these secret Nazis. Some were German, but most were Nazi collaborators from Eastern Europe who came to America as refugees after the war alongside the thousands of Jewish survivors.

Unfortunately, the Nazis found in America could not be prosecuted for their crimes in American courts. The murders and other crimes committed by these individuals occurred in Europe, and so United States courts had no jurisdiction for these crimes. And even if Congress passed a law extending such jurisdiction, the law would undoubtedly be found unconstitutional since it would cover acts that occurred prior to the passage of the law, and so would run afoul of the ex post facto prohibition of the U.S. Constitution.

Another means had to be devised. The route taken was to strip these hidden Nazis of their naturalized American citizenships and then deport them as aliens to any country that would take them. This was the 1978 Holtzman Amendment to the Immigration and Nationality Act, ordering the deportation of aliens  who had “ordered, incited, assisted or participated in persecution because of race, religion, national origin or political opinion” in connection with the Nazi regime.

To date, OSI (which in 2010 merged with another office within the Justice Department) has succeeded in denaturalizing or expelling over one-hundred such individuals. Some of these, upon their discovery, did not fight the deportation and left the country.

A recent example involved Elfriede Rinkel, an 86 year-old widow who worked as a female guard in Ravensbrück, a concentration and extermination camp in Germany primarily reserved for women (shades of the role played by Kate Winslet in the film The Reader). Rinkel came to San Francisco after the war, married a Jewish survivor and even had a plot waiting for her in a Jewish cemetery next to her husband (who apparently never knew of her Nazi past). Discovered by OSI in 2006, she did not challenge her denaturalization and quietly left the country to live out her remaining years in Germany, where she is yet to be charged for any crime.

At the other end of the spectrum was John Demjanjuk, a Ukrainian serving in the Red Army who was captured by the Germans in 1941. Demjanjuk went on to serve as an SS guard in Sobibor, one of the five extermination camps that the Germans built in occupied Poland, where arriving Jews were immediately murdered upon arrival. Demjanjuk moved to Cleveland after the war, where he worked for many years at a Ford auto plant. The legal saga to denaturalize and deport Demjanjuk and then try him for his Nazi past began in 1977 and lasted over thirty years. It was not until 2009 when he was successfully deported to Germany and tried in a Munich courtroom as an accessory to 27,900 counts of murder, one for each person who died at Sobibor while he was working there as a guard. Found guilty in 2011 and given a five-year sentence, he was freed pending appeal. Demjanjuk died in March 2012 at a retirement home in Germany at aged 91, while awaiting the fate of the appeal.

The drawn-out legal proceedings against Demjanjuk shows the difficult road that needs to be taken to get former Nazis found living in the U.S. to account for their crimes. And that is why the AP story is so unfair.

It was perfectly proper for the Justice Department to strike deals with accused Nazi war criminals discovered to be living in the United States to leave voluntarily and waive denaturalization and deportation proceedings (DDPs)– and in turn be allowed to keep their social security benefits. DDPs are lengthy and subject to appeal all the way to the US Supreme Court. There is no guarantee that they will be successful. And there is the risk that the accused — now elderly— might die restfully in his/her sleep in their home in America while the proceedings drag on.

Let us be clear: We are not defending Nazis who slipped into the US after the war. We think that they should not only be deported but also prosecuted for their wartime acts. And in a perfect world, they would be prosecuted in American courts for their crimes, rather than just being stripped of their US citizenship; but the ex post facto prohibition prevented such prosecutions. The Holtzman Amendment allowing denaturalization and then deportation was the most practical solution to the problem of finding Nazis living in America.

The AP story is a calumny, unfairly besmirching the fine work OSI and others in the Justice Department who doggedly pursued Nazis found living among us. No other country outside of Germany has prosecuted so many Nazis.

Our concern is that the AP “investigative report” story tarnishes the legacy of OSI and the entire enterprise of Nazi-hunting in the United States. In so doing, it also makes it less likely that future OSIs will be created by the federal government to go after other genocidaires who sneak into the U.S.

We hope that those organizations and individuals now calling for a change in federal law by Congress to both prospectively and retroactively deny Social Security to Nazi war criminals also make clear that they support the work done by OSI for the last thirty five years. The Simon Wiesenthal Center has awarded every year an “A” grade to the United States for its efforts to bring Nazis to justice. The “A”s are well-deserved and still stand — even after these unwarranted accusations made by the AP story.

Michael Bazyler is professor and The 1939 Society Scholar in Holocaust and Human Rights Studies at Fowler School of Law, Chapman University and co-author of the just- published book Forgotten Trials of the Holocaust (NYU Press 2014.)

Michael Berenbaum is professor of Jewish studies and director of the Sigi Ziering Center for the Study of the Holocaust and Ethics at American Jewish University.

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