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Justice Dept. Takes Heat Over Survivors’ Lawsuit

A bipartisan group of 17 senators, including Hillary Clinton, a New York Democrat, and Trent Lott, a Mississippi Republican, came together last week to chastise the Department of Justice for its handling of the so-called “Gold Train” case.

The Justice Department has fought at every turn against the federal lawsuit brought by Hungarian Holocaust survivors, a rare case in which the United States — rather than Germany or Switzerland — is being asked to pay reparations for behavior during World War II.

The plaintiffs in the case are seeking restitution for valuables on the storied Gold Train, which contained the goods of countless Hungarian Jews, stolen by the Nazis. The United States took possession of the train in 1945, and few of the priceless objects on board ever made it back into the hands of Hungarian Jews.

As the lawyers in the case are set to enter mediation later this month, the senators joined a growing group of prominent lawmakers who have backed the survivors. But a few notable organizations and names have gone missing from the plaintiffs’ list of supporters. The World Jewish Congress, which helped spearhead the fight to secure restitution payments from the Swiss banks, has stayed on the sidelines in the Gold Train case. Elan Steinberg, executive vice president of the organization, told the Forward that the case is not as clear cut as media reports and politicians would suggest. The point man on restitution issues for the Clinton administration, former deputy secretary of the treasury Stuart Eizenstat, also voiced skepticism about the lawsuit.

In instances where so many Holocaust victims lost property, Steinberg said, it is not proper for only a select group of plaintiffs to qualify for compensation — particularly when it is difficult for any of them to establish a direct, verifiable claim to any objects that were on the Gold Train.

“On the face of it, this sounds like a case of survivors against a cruel bureaucratic machinery, and I support the intentions of the lawmakers,” Steinberg said. “But while I am sympathetic to the defendants, I am skeptical of class-action suits in this kind of situation.”

The court case came about after the publication of a U.S. presidential commission report in 1999, which found that American Army officers had looted and pilfered a number of paintings, oriental rugs and other valuables from the Gold Train after it was recovered in Austria.

Much of the rest of the jewelry and gold on the train was melted down and auctioned off after American officials called its provenance “unidentifiable.” The proceeds were used primarily to support programs for Jewish refugees.

Eizenstat, one of the leading members of that commission, said the United States does owe some payment to the Jewish community for its failure to safeguard the Gold Train. However, Eizenstat said, “before we rush to pay immediate compensation, we should get a firmer factual foundation of what happened.”

He argued that only greater historical research — not additional rounds of legal bickering — could uncover answers to the larger moral questions regarding American culpability in the Gold Train incident.

The survivors’ lawsuit, which was organized by the Seattle law firm of Berman and Hagen, alleges that the American government wrongly identified the Gold Train as enemy property and systematically prevented Hungarian Jews from identifying stolen cargo before it was auctioned. Plaintiffs are asking the American government to provide an official apology and up to $10,000 in compensation to each of the 3,500 plaintiffs.

Steinberg said that every effort should be made to recover the lost objects that can be traced back to a specific owner. In addition to the looted items, the 1999 report stated that the U.S. government turned over 1,100 paintings on the train to the Austrian government.

Steinberg added, though, that the plaintiffs in the Gold Train case are not looking for the restitution of specific property, but instead are seeking compensation for losses that cannot be traced back to the American government.

The case is approaching a critical juncture after a series of favorable decisions for the plaintiffs. In 2002, the U.S. District Court Judge in Miami, Patricia Seitz, ruled against the Justice Department’s motion to dismiss the case. Then, in March of this year, Seitz ordered the lawyers for the Justice Department to enter mediation with the plaintiffs. Talks are expected to start this month, but Justice Department lawyers are objecting to the candidate for mediator put forth by the plaintiffs.

If the mediation does not bring any results, it may be a long time before the court does. The court appearances that are set to begin in September will only consider the preliminary question of whether the case can even be considered under the jurisdiction of the court. The Justice Department has argued that the statute of limitations in the case has passed, and that actions taken during wartime cannot be tried in court.

Many of the plaintiffs seeking compensation are growing increasingly doubtful that the case will be settled in their lifetime.

“Unfortunately I don’t have too much hope,” said one of the named plaintiffs, Zoltan Weiss, a resident of Queens. “The lawyers have hope that I can get some compensation, but it’s 60 years already.”

In April 1944, before Weiss’s family was deported to Auschwitz from the Hungarian town of Nyiregyahaza, the local government inventoried everything in his family’s home, providing detailed receipts for every object. Weiss, who is now 85, still has those original receipts. The difficulty in the case arises because the American military never did a similar inventory on the other end, when it intercepted the Gold Train in 1945, making it impossible to know if the Weiss’s valuables ever ended up on the train and in American possession.

The plaintiffs in the case have complained that the Justice Department has attempted to discourage would-be claimants by forcing them to sit through lengthy depositions, like the one Weiss took part in last month.

In response to such complaints, 14 congressmen sent a letter to the Justice Department last year, criticizing it for using “hardball litigation tactics to seek to frustrate the claims of these elderly survivors.”

With so much emotional and public sentiment unified against the Justice Department, the department’s reluctance to acquiesce to the demands of the plaintiffs has appeared almost mysterious at times. Unlike the plaintiffs, the department has provided no public explanation for its case. It has not even submitted an official response to the claims of the plaintiffs.

But on March 31, the justice department submitted the expert testimony of Ronald Zweig, the chairman of the department of Jewish history at Tel Aviv University, and the author of “The Gold Train: The Destruction of the Jews and the Looting of Hungary.”

Zweig’s 62-page report provides a rather different telling of the U.S. handling of the Gold Train, and his testimony makes it clear that what is truly at stake in this case is history itself.

Aside from the anomalous instances of pilfering, Zweig writes, most of the goods were “saved for the benefit of Holocaust survivors.” This, he writes, “was a remarkable achievement for American policy.”

The plaintiffs submitted their own 116-page history to the court, and argue that the United States clearly knew the provenance of the valuables before they were sold and has, since then, “concealed its wrongful conduct from plaintiffs and the class.”

During a March hearing, the judge in the case recognized that the American handling of the Gold Train was not a shining moment in American history.

“The allegations in the complaint are ones that I don’t think any American would be proud of,” Seitz said, according to the Associated Press. “The practical question is, ‘What do you do now, 60 years later, and what would be a fair resolution?’”

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