Administration Said To Be Blocking Restitution Push

Lawyers Charge Bush Position Is War Payback

By Nacha Cattan

Published May 02, 2003, issue of May 02, 2003.
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Holocaust survivors, a top Clinton administration official and a veteran congressman are warning that the Bush administration is undermining the fight to win compensation for Jewish victims of Nazi Germany.

Stuart Eizenstat, the Clinton administration’s special envoy on Holocaust issues who struck global restitution deals totaling $10 billion, criticized the White House for seeking to dismiss significant restitution court cases while appearing to make no attempt to reach political agreements with European countries.

Meanwhile, lawyers and survivors who brought a class action lawsuit against Poland are claiming that the Bush administration is challenging their efforts in court in order to reward the Eastern European country for supporting the American invasion of Iraq.

The Bush administration also came under intense criticism from Rep. Henry Waxman. The California Democrat echoed survivors who fear that the Bush administration may be planning to fight all Holocaust-era legal claims, including claims not covered by previous restitution agreements.

“The Justice Department is arguing in such an overly broad way, they’re seeking to throw out as many cases as possible,” Waxman told the Forward. In particular, Waxman complained about the Bush administration’s decision to side against survivors in the Poland case and an art restitution case against Austria being appealed in a California court. The claims in both cases are not covered by previous restitution accords.

The State Department’s special envoy on Holocaust issues, Randolph Bell, denied that American positions on restitution cases were being influenced by a desire to reward Poland for deploying several hundred troops to Iraq.

“There are no foreign policy issues in play here,” Bell said. “This administration, like its predecessors, continues to support strongly those [restitution] agreements,” reached with Austria, Germany and France.

Three observers familiar with the restitution process who asked not to be identified said that the timing of the Bush administration’s recent moves in support of Poland had nothing to do with the war. Instead, they said, the administration simply followed the government’s long-time practice of waiting for the appeals process to begin before weighing in with sovereign immunity arguments. The appeals courts hearings, they said, merely happened to coincide with the Iraqi war. Foreign sovereign immunity statutes serve to limit the ability to file suit against a foreign government in American courts.

Bell said the Justice Department’s recent spate of legal arguments against restitution lawsuits were “defending established doctrine regarding U.S. law and sovereign immunity.”

Eizenstat countered that those arguments and many others could have been used by the Clinton administration to throw out earlier suits against German, Austrian and French entities. Instead, he said, the Clinton administration applied political pressure — with the threat of survivor lawsuits serving as a backdrop — to force these countries to the negotiating table.

“That’s what’s been lacking in this administration,” said Eizenstat. “They have not tried to negotiate out these cases.”

Eizenstat said that although Bell is “extremely dedicated” to restitution, he has not been granted the same power and access to the president that Eizenstat had before him. “They haven’t considered this a sufficiently important issue at the senior political level,” Eizenstat said, referring to the Bush administration.

In addition to disagreeing with the government’s handling of the Polish case and the Austrian art restitution claim, Eizenstat decried the administration’s attempt to dismiss the so-called Hungarian gold train suit that has been brought against the United States in a Miami federal court. Eizenstat said the administration should have tried to reach an agreement with claimants who are accusing World War II-era American soldiers of having stolen looted treasures aboard a train.

Despite his criticisms, Eizenstat defended the administration’s decision to side with European insurers in a case in front of the Supreme Court. The Supreme Court is expected to rule in June on the constitutionality of California’s Holocaust Registry Law, which bars European insurers and their American affiliates from doing business in the state if they refuse to publish a full list of all policy holders between 1920 and 1945. A ruling could have broad implications that may affect similar laws in several states. Restitution advocates, including Waxman, are criticizing the government’s position.

Lawyers and survivors in Garb v. Republic of Poland said that the American government’s sudden entrance in the case on behalf of Poland suggested that a deal involving the Iraq war had been in the works.

“Poland’s support of the war with Iraq pushed the government over the edge and got them to come to Poland’s side,” said Edward Klein, an attorney for survivors.

The case against Poland, which is now on appeal after being dismissed by a federal Brooklyn court, seeks to recoup private property illegally seized during and after the Holocaust. The lead plaintiff in the case, Theodore Garb, now living in Seaford, N.Y., said he was “flabbergasted” by the Justice Department’s appearance at an April 15 hearing of the appeal. “The timing was convenient,” Garb said. “The war was on when we had this hearing.”

The Bush administration also sided with Austria in efforts to dismiss a case brought by 86-year-old Maria Altmann. She sued Austria to recover six paintings by Gustav Klimt that she says were taken from her uncle by the Nazis and are now in a museum operated under the auspices of the Austrian government. Altmann won the case, which is now being appealed in the United States Court of Appeals for the 9th Circuit in California.

In reference to the American government, Altman’s lawyer, Randol Schoenberg, said: “I can understand their not lifting a finger to help us ,which has been the case since 1998. But intervening on the wrong side and working against us is simply unforgivable.”

At least one Jewish communal leader, however, defended the administration. Gideon Taylor, executive vice president of the Conference on Jewish Material Claims against Germany, said: “I believe the U.S. government remains committed to pressing Poland and other countries to enact just restitution laws. They do have certain legal positions in U.S. courts that they have expressed, but I believe on a political level, the U.S. government will continue to take a strong position. We hope that now that there have been many settlements with West European countries, the attention of the U.S. government will turn to countries of Eastern Europe.”

Taylor pointed out that unlike the cases against Poland and Austria, most of the past class action lawsuits that led to restitution deals were filed against the industries of European countries and not government entities.

Robert Swift, an attorney who helped represent plaintiffs in most of the restitution cases and pioneered the human rights class action lawsuit with his case in 1986 against Philippine dictator Ferdinand Marcos, said that the Bush administration has been even more reluctant than past administrations to side with human rights claimants — especially when military issues are at stake.

“Who are [America’s] strategic partners?” Swift said. “Poland is now a partner in NATO.”

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