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Judge’s Memo Displays Heat Of the Debate On Restitution

In a sign of the growing personal and emotional dimensions of the Swiss bank settlement, the federal judge overseeing the case, Edward Korman, fired off an unexpected attack at a prominent lawyer who has had little to do with the case, and who, even the judge called a “latecomer to the proceedings.”

Korman filed a legal memorandum June 17, claiming that Thane Rosenbaum “promoted a campaign of misinformation” during his testimony at a public hearing in April on how funds from the settlement should be distributed among Holocaust survivors. Korman criticized Rosenbaum for failing to disclose his personal relationship with Sam Dubbin, the lawyer for the main group representing American survivors, the Holocaust Survivors Foundation USA.

The foundation has been the main critic of Korman’s past decisions to distribute a majority of any unclaimed money from the Swiss bank settlement to survivors in the former Soviet Union rather than the United States, and Rosenbaum implicitly supported their position in his testimony.

But Rosenbaum, a law professor at Fordham University, has written numerous books and essays on the Holocaust and the reparations process, and he vigorously disputed Korman’s contention that his friendship with Dubbin compromised his ability to speak as an independent observer.

“I was practically the only one in that courtroom who didn’t stand to gain from the judge’s decision, and I am the one he attacked,” Rosenbaum said. “The judge has a vision, and he didn’t want anyone standing in his way.”

The memorandum, however, pointed to a debate that goes beyond Rosenbaum’s testimony. Korman appeared to use Rosenbaum as a foil of sorts to lay out his views on some central debates that have plagued the Swiss case, such as sensitive questions about who should be considered a survivor and what role suffering during the Holocaust should play in decisions about allocations.

The testimony at the April hearing, during which Rosenbaum put forward his own views on these subjects, was one of the most powerful moments in a day filled with drama, as the judge reckoned with dozens of requests from survivors for financial support. During his impassioned speech, Rosenbaum called Korman’s past decisions in the case “morally misguided” and the two took part in a volley of carefully worded criticisms.

Afterward, Rosenbaum swept out of the room, receiving hugs and kisses from survivors and their representatives, including Dubbin.

In last week’s memorandum, Korman wrote that he came upon the personal relationship between Dubbin and Rosenbaum in the acknowledgements section of one of Rosenbaum’s novels, in which Rosenbaum thanks Dubbin and calls him a part of his “extended family.”

The lawful memorandum should have no legal repercussions for Rosenbaum or the progress of the case, but Rosenbaum said he plans to file an affidavit with the court in the near future, objecting to Korman’s failure to mention all Rosenbaum’s other friendships with restitution figures, including ones who have opposed Dubbin’s positions.

This is not the first time that Korman has used a memorandum to chastise participants in the case. Perhaps not coincidentally, the last such memo, in March, was directed at Dubbin, whose work Korman called “worthless” and “irrelevant.” But while Dubbin has been a presence in the case from the beginning, Rosenbaum has had little involvement before his voluntary testimony in April. Rosenbaum saw more than a few similarities between the two memos.

“The tone has a hysterical quality to it,” Rosenbaum said. “The memos don’t feel dignified to me. They seem hysterical and personal and mean.”

The larger question at stake in the case, even beyond the dispersal of restitution funds, is the historical record itself.

During his testimony, Rosenbaum, who is the child of concentration camp survivors, questioned whether aging Jews who fled to the Soviet Union during the Holocaust deserve the title of survivor.

“While it is true that many of these Russians experienced terrible hardships after the Holocaust,” Rosenbaum said, “they were fortunate to be in the Soviet Union during the Holocaust.”

This view is relatively common among many American survivors, but it rarely has been spoken in public. That changed at April’s hearing. At a protest outside the courthouse, sponsored by Dubbin’s organization, arguments broke out between survivors about who among them had suffered enough to deserve the remaining funds not claimed by Holocaust-era bank account holders.

Korman was visibly disturbed by the disputes, and he heatedly asked Rosenbaum during his testimony: “How many months in a concentration camp? How many months in a ghetto? And how are we going to sit down and calculate this?”

In his memorandum, Korman provided a more historical perspective on the question and challenged the notion that survivors who fled east suffered any less. Korman pointed to research by Joshua Rubinstein, a professor at Harvard University, who has found that up to “one-half of all the Jews killed in the Holocaust were killed in Soviet or Soviet occupied territory.”

From the beginning of the Swiss bank settlement, Korman has attempted to avoid such historical debates by basing all allocation decisions in the case on current need rather than on past suffering. As a result, Korman wrote that Rosenbaum’s current call to use suffering as a benchmark makes Rosenbaum’s argument “legally irrelevant and reflects either his lack of familiarity with or his disregard for the terms of the settlement agreement in this case.”

In a preface to his speech, Rosenbaum said he had come to “restore dignity to the process,” by attempting to “speak for the dead.” In the memorandum, Korman said that “comments like this strip the process of dignity, not the opposite.”

It is evident, however, that Rosenbaum has come to represent more than just himself. In an article the day after the hearing, the New York Times said that Rosenbaum’s words were successful in “capturing the mood in the crowded courtroom.” After Rosenbaum’s speech, many survivors stood before Korman to tell of their own painful tales of suffering in the Nazi concentration camps, and asked why they did not deserve some recompense.

Korman delivered his memorandum as dissent against his allocation decisions is growing. Two top officials from the Conference on Jewish Material Claims Against Germany recently wrote a letter calling for “more equitable” distribution of funds.

Some American survivor groups have used Rosenbaum’s line of reasoning to argue that more funds from the Swiss bank settlement should come to the United States, where more survivors from Central Europe live. But in his memorandum, Korman pointed out that much of the funding requested by American groups ends up supporting immigrants from the former Soviet Union, who are among the neediest survivors in America.

Korman wrote that “Professor Rosenbaum is apparently willing to count such survivors when asserting a claim for funds if not when deciding who should receive the funds.”

Speaking to the Forward, Rosenbaum did not sound convinced by Korman’s arguments, but he expressed a certain sympathy with the vehemence of the debate.

“The context of the Holocaust makes everyone weak at the knees,” Rosenbaum said. “Given its level of enormity, everyone is rendered different.”

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