[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                 THE HOLOCAUST INSURANCE ACCOUNTABILITY 
                 ACT OF 2007 (H.R. 1746): HOLOCAUST ERA 
                INSURANCE RESTITUTION AFTER ICHEIC, THE 
                 INTERNATIONAL COMMISSION ON HOLOCAUST 
                          ERA INSURANCE CLAIMS 

=======================================================================

                                HEARING

                               BEFORE THE

                    COMMITTEE ON FINANCIAL SERVICES

                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 7, 2008

                               __________

       Printed for the use of the Committee on Financial Services

                           Serial No. 110-85

                     U.S. GOVERNMENT PRINTING OFFICE

41-176 PDF                 WASHINGTON DC:  2008
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                 HOUSE COMMITTEE ON FINANCIAL SERVICES

                 BARNEY FRANK, Massachusetts, Chairman

PAUL E. KANJORSKI, Pennsylvania      SPENCER BACHUS, Alabama
MAXINE WATERS, California            DEBORAH PRYCE, Ohio
CAROLYN B. MALONEY, New York         MICHAEL N. CASTLE, Delaware
LUIS V. GUTIERREZ, Illinois          PETER T. KING, New York
NYDIA M. VELAZQUEZ, New York         EDWARD R. ROYCE, California
MELVIN L. WATT, North Carolina       FRANK D. LUCAS, Oklahoma
GARY L. ACKERMAN, New York           RON PAUL, Texas
BRAD SHERMAN, California             STEVEN C. LaTOURETTE, Ohio
GREGORY W. MEEKS, New York           DONALD A. MANZULLO, Illinois
DENNIS MOORE, Kansas                 WALTER B. JONES, Jr., North 
MICHAEL E. CAPUANO, Massachusetts        Carolina
RUBEN HINOJOSA, Texas                JUDY BIGGERT, Illinois
WM. LACY CLAY, Missouri              CHRISTOPHER SHAYS, Connecticut
CAROLYN McCARTHY, New York           GARY G. MILLER, California
JOE BACA, California                 SHELLEY MOORE CAPITO, West 
STEPHEN F. LYNCH, Massachusetts          Virginia
BRAD MILLER, North Carolina          TOM FEENEY, Florida
DAVID SCOTT, Georgia                 JEB HENSARLING, Texas
AL GREEN, Texas                      SCOTT GARRETT, New Jersey
EMANUEL CLEAVER, Missouri            GINNY BROWN-WAITE, Florida
MELISSA L. BEAN, Illinois            J. GRESHAM BARRETT, South Carolina
GWEN MOORE, Wisconsin,               JIM GERLACH, Pennsylvania
LINCOLN DAVIS, Tennessee             STEVAN PEARCE, New Mexico
PAUL W. HODES, New Hampshire         RANDY NEUGEBAUER, Texas
KEITH ELLISON, Minnesota             TOM PRICE, Georgia
RON KLEIN, Florida                   GEOFF DAVIS, Kentucky
TIM MAHONEY, Florida                 PATRICK T. McHENRY, North Carolina
CHARLES WILSON, Ohio                 JOHN CAMPBELL, California
ED PERLMUTTER, Colorado              ADAM PUTNAM, Florida
CHRISTOPHER S. MURPHY, Connecticut   MICHELE BACHMANN, Minnesota
JOE DONNELLY, Indiana                PETER J. ROSKAM, Illinois
ROBERT WEXLER, Florida               KENNY MARCHANT, Texas
JIM MARSHALL, Georgia                THADDEUS G. McCOTTER, Michigan
DAN BOREN, Oklahoma                  KEVIN McCARTHY, California
                                     DEAN HELLER, Nevada

        Jeanne M. Roslanowick, Staff Director and Chief Counsel














































                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on:
    February 7, 2008.............................................     1
Appendix:
    February 7, 2009.............................................    59

                               WITNESSES
                       Thursday, February 7, 2008

Arbeiter, Israel, President, American Association of Jewish 
  Holocaust Survivors of Greater Boston..........................    28
Dubbin, Sam, Esq., Attorney, Miami, Florida......................    36
Eizenstat, Stuart, Former Special Representative of the President 
  & Secretary of State on Holocaust-Era Issues...................    31
Kennedy, Ambassador J. Christian, Special Envoy for Holocaust 
  Issues, U.S. Department of State...............................    10
Kent, Roman, Chairman, American Gathering of Jewish Holocaust 
  Survivors......................................................    39
Koken, Diane, Former Vice-Chairman, ICHEIC, and Former 
  Pennsylvania Insurance Commissioner............................    34
Kurtz, Dr. Michael, Assistant Archivist for Records Services, 
  National Archives and Records Administration...................    12
Zabludoff, Sidney, Former Consultant, Conference on Jewish 
  Material Claims Against Germany, Inc...........................    41

                                APPENDIX

Prepared statements:
    Ros-Lehtinen, Hon. Ileana....................................    60
    Arbeiter, Israel.............................................    63
    Dubbin, Sam..................................................    66
    Eizenstat, Stuart............................................   102
    Kennedy, Ambassador J. Christian.............................   111
    Kent, Roman..................................................   119
    Koken, Diane.................................................   128
    Kurtz, Dr. Michael...........................................   142
    Zabludoff, Sidney............................................   148

              Additional Material Submitted for the Record

Frank, Hon. Barney:
    Letter from the American Jewish Committee, dated February 4, 
      2008.......................................................   153
    Letter from the Anti-Defamation League, dated February 4, 
      2008.......................................................   155
    Letter from B'Nai B'Rith International, dated February 6, 
      2008.......................................................   156
    Letter from the Association of Insurers in the Netherlands, 
      dated February 1, 2008.....................................   157
    Letter from the World Jewish Congress, dated January 31, 2008   159
Ros-Lehtinen, Hon. Ileana:
    Dear Colleague letter from Representative Ros-Lehtinen and 
      Representative Robert Wexler, dated February 5, 2008.......   161
    Collection of letters from Holocaust survivors...............   162
Koken, Diane:
    Letter from AXA Group, dated January 31, 2008................   179
    Letter from Generali, dated February 4, 2008.................   180
    Letter from Zurich Insurance Company, dated December 4, 2007.   181


                        THE HOLOCAUST INSURANCE 
                       ACCOUNTABILITY ACT OF 2007 
                       (H.R. 1746): HOLOCAUST ERA 
                      INSURANCE RESTITUTION AFTER 
                       ICHEIC, THE INTERNATIONAL 
                        COMMISSION ON HOLOCAUST 
                          ERA INSURANCE CLAIMS 

                              ----------                              


                       Thursday, February 7, 2008

             U.S. House of Representatives,
                   Committee on Financial Services,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 9:33 a.m., in 
room 2128, Rayburn House Office Building, Hon. Barney Frank, 
[chairman of the committee] presiding.
    Members present: Representatives Frank, Waters, Maloney, 
Ackerman, Sherman, Moore of Kansas, Capuano, Clay, Baca, Scott, 
Green, Klein, Mahoney, Wexler; Castle, and Shays.
    Also present: Representative Ros-Lehtinen.
    The Chairman. The hearing will come to order. To begin, the 
representative of the minority--one of the members of the 
minority is on the way up, but as soon as he gets here, I am 
going to ask unanimous consent that our colleague from the 
Foreign Affairs Committee, a major author of the bill, the 
gentlewoman from Florida, Ms. Ros-Lehtinen, be given by 
unanimous consent the right to participate as a member of the 
hearing. Is there any objection?
    [No response]
    The Chairman. There being none, the gentlewoman from 
Florida will participate as if she were a member of the 
committee. This is a very important hearing. It's particularly 
relevant for us to be doing this, because I think it's fair to 
say that this whole effort has been a result of congressional 
involvement. We are often told that we should stay out of 
foreign policy. That is in fact up to the Executive, and we may 
from time to time send them notes expressing our opinion, but 
we should not anticipate any significant weight being given to 
those expressions of opinion.
    This is an example of why it is a mistake to pay attention 
to that argument. If it had not been for work that began in 
this particular committee under the chairmanship of our former 
member from Ohio, Jim Leach, things would not be nearly as far 
along as they are. Now they're not where they should be in the 
opinion of many, but they are somewhere, and they would not 
have been had there not been this intervention. I was grateful 
to one of the advocates, and my constituent, Mr. Arbeiter, who 
mentioned in his statement that this began, I think it was 
about 10 years ago, with hearings that Mr. Leach convened. And 
we will continue that.
    So this is a subject of particular interest to this 
Congress and to this committee. I cannot think of an issue, to 
touch briefly on the substance, that is more important than 
doing justice to the victims of the greatest crime in recent 
times, perhaps in all of history. And people should not be 
surprised when that insistence that justice be done as fully as 
possible motivates members of this body to the extent that it 
does and that it will.
    There are obviously other considerations that come into 
play. But even considerations that have some impact in the 
normal course of events in my judgment shrink in their 
importance when measured against the need to provide justice to 
victims of the Holocaust. Obviously, the great majority of 
victims are beyond any recompense. They're beyond anything we 
can do. And that is a terrible and tragic fact. But it makes us 
all the more eager to make sure that those who are still here, 
those who did survive, that we do everything possible for them, 
that we not compound in even the most minor of ways the past 
tragedy by letting remain undone that which should be done.
    I'm going to start now, because there is a great deal of 
interest in this, and a number of my colleagues want to make 
statements. We have a number of witnesses. I will ask people to 
be cognizant of the time, and I will begin with the gentlewoman 
from New York, the chairwoman of the Financial Institutions 
Subcommittee, Mrs. Maloney.
    Mrs. Maloney. Thank you, Mr. Chairman, and I'd like to be 
associated with your remarks. This is a very complicated and 
highly sensitive issue, and I hope that today's hearing will 
shed more light on how we can resolve the problems that still 
exist.
    The International Commission on Holocaust Era Insurance 
Claims was established in 1998 to give Holocaust victims and 
survivors a way to settle their insurance claims. The agreement 
did not charge claimants to file a claim, and included relaxed 
standards of proof, recognizing that for many people, papers 
and documents were understandably destroyed by the Nazis. Over 
the years, I have participated in a number of Oversight and 
Government Reform Committee hearings on this issue, and have 
learned about the successes and the shortcomings of this 
program.
    It has become clear that it was a positive step towards 
addressing Holocaust insurance restitution, but that much, much 
more is needed. Over a period of about 9 years, over $306 
million was paid out to roughly 48,000 of about 90,000 
claimants; 34,000 of those received $1,000 humanitarian awards. 
Though I firmly believe that intentions were good with this 
program, it has not achieved the goal of processing claims 
quickly and fairly for the survivors, the very people who are 
now running out of time.
    I am a co-sponsor of H.R. 1746 because I believe 
transparency and justice are our primary obligations, which we 
should give to the survivors. When something doesn't function 
properly, we need to find a better solution. In this case, this 
bill offers a better solution. The bill would require insurers 
to disclose Holocaust era policies, and without an exhaustive 
list of policyholders, we will not be able to reach everyone 
affected.
    The bill also establishes a Federal cause of action 
allowing individuals to pursue claims in U.S. courts. Survivors 
must not be denied the sole class of people who--they should 
have their day in court, and they should not be denied their 
ability to go into court. Too much has been taken away from 
them. This must not be another thing that is taken away from 
them. And I understand that there is some opposition. I look 
forward to hearing the testimony, but in the end, I believe 
strongly that we must not let obstacles get in the way of doing 
the right thing and helping the Holocaust survivors.
    I yield back the balance of my time.
    The Chairman. The gentlewoman from Florida.
    Ms. Ros-Lehtinen. Thank you so much, Mr. Chairman. First of 
all, thank you for your kindness in allowing me to participate 
in the committee's hearing today. Certainly the Holocaust 
stands as one of the darkest chapters in human history.
    Over half-a-century has passed since the world witnessed 
the atrocities committed by Hitler's regime, yet many 
Holocaust-related issues remain unresolved. One of these is the 
continued failure of insurance companies to pay Holocaust 
survivors or families of Holocaust victims for policies they 
purchased before or during World War II.
    These insurance companies have for over 60 years refused to 
provide compensation under the insurance policies to Holocaust 
survivors or families of Holocaust victims. These companies 
argued that Holocaust survivors and their families do not have 
the documentation, such as a death certificate and insurance 
records. Concentration camps in which many of these Holocaust 
victims perished did not issue death certificates, and all 
assets and documents were confiscated from the Jews during that 
time by the Nazis.
    For years, I have worked on the issues related to 
Holocaust-era compensation, and to address the issue of 
insurance policies specifically, my colleague, Robert Wexler, 
and I introduced H.R. 1746 in March of last year. Among other 
provisions, the bill requires insurance companies that do 
business in the United States to disclose the names of 
Holocaust-era insurance policyholders. Furthermore, the measure 
will allow Holocaust survivors or their heirs to sue the 
insurance companies in U.S. courts.
    People often ask us why we introduced this bill and why we 
feel so strongly about this issue. Well, let me answer by 
reading one of the many letters that I received from Holocaust 
survivors, and this one is from Elizabeth Lefkowicz of Florida:
    ``Dear Congresswoman Ros-Lehtinen: My name is Elizabeth 
Unger Lefkowicz, and I am a U.S. citizen and a Florida 
resident. I was sent to the Auschwitz concentration camp in 
1944 when I was 20 years old. During the Holocaust, I lost both 
of my parents, my grandparents, my two sisters, and a 2-year-
old nephew. After the war, I found a document that was hidden 
by my father, Ignatz Ungar. This document contained his life 
insurance policy for 25,000 gold dollars. In 1945 when I 
presented the insurance claim to the insurance company, they 
requested a death certificate as a prerequisite to pay the 
claim. Without the death certificate, they said the policy was 
invalid. A few years ago, the International Commission on 
Holocaust Era Insurance Claims revived our hope for justice 
with the insurance companies, and I filed the claim, Claim 
Number 77452, reference Ignatz Ungar Life Insurance. 
Unfortunately, this effort produced no results. I'm very glad 
that the Holocaust Claims Insurance Accountability Act, H.R. 
1746 legislation has been introduced in Congress and if passed, 
the insurance companies doing business in the United States 
that profited from the Holocaust will be held accountable for 
their actions.''
    So Mr. Chairman, it is because of Ms. Lefkowicz and 
countless others who share her history and her tragedy, her 
circumstances, that Mr. Wexler and I introduced our bill. 
Unfortunately, today, obviously, we cannot bring back those who 
perished in the Holocaust, nor can we erase the pain and 
suffering from the memories of those who suffered these 
atrocities. However, we can work to bring about long-awaited 
justice to Holocaust survivors and their families. Because the 
number of Holocaust survivors who are alive decreases 
drastically every year, it is critical that Congress move 
expeditiously to pass H.R. 1746 and offer a level of closure to 
those who suffered immensely under Hitler's regime and then 
were shamelessly mistreated for decades by the insurance 
companies that sought unjust enrichment at the expense of 
Holocaust victims.
    Thank you again, Mr. Chairman, for the opportunity to 
participate in the hearing.
    The Chairman. The gentlewoman is welcome. And you never 
know when I'm going to show up at Foreign Affairs and make a 
speech, so I'm sure you'll remember that.
    The gentleman from New York, Mr. Ackerman, who has been a 
strong advocate of justice in this area is now recognized.
    Mr. Ackerman. Thank you very much. First let me thank you, 
Mr. Chairman, for holding this what I consider essential 
hearing before our committee and of course you're always 
welcome at our International Relations Committee as well. 
Special thanks to Ms. Ros-Lehtinen and Mr. Wexler for being the 
authors and initiators of this important piece of legislation 
that would finally bring some justice to so many people for 
whom justice has been denied.
    The issues surrounding the question of Holocaust era 
insurance restitution are both immensely sensitive and highly 
complex. More examination yields less certainty, more 
questions, finer distinctions and unabating concern that not 
only has justice not been done, but that it may never be done.
    While the principal of restitution is stark and clear and 
definitive, there are significant differences in the policies 
and behavior of the relevant European insurance companies, and 
among the countries in which they are based. There are 
differences based on the type of assets that were 
systematically stripped from Holocaust victims. There are 
differences in the scope of records, in the history of 
different firms, in the limits of privacy laws, and there are 
differences among the survivors, plaintiffs, and heirs.
    And there are questions. There are questions about the 
scope of assets deserving restitution. There are questions 
about the transparency and the efficacy of the ICHEIC process. 
There are foreign policy questions. There are constitutional 
questions about the proper role for America's foreign policy 
interests in the context of private civil litigation.
    There are public policy questions about the role of the 
States and the Federal Government when it comes to insurance, 
moral questions about the rights of communities to speak for 
individuals, and philosophical questions about what justice 
means in so singular a catastrophe.
    In this case, Mr. Chairman, the more that I learn, the less 
I seem to know. Accordingly, Mr. Chairman, I want to suggest 
that this hearing should be the first of a series. While we 
must recognize that many survivors are entering their last 
years, I believe the issue is too important and too complex for 
us to fall short in our due diligence. We need to act both 
quickly and correctly. We need to get this right.
    Mr. Chairman, thank you again for bringing the matter 
before the committee, and I yield back the balance of my time.
    The Chairman. The gentleman from Delaware.
    Mr. Castle. Thank you, Mr. Chairman. I appreciate the 
opportunity to learn something about this issue. This is very 
complex for those of us who are coming in from scratch on this, 
and I have no particular opinion as to the legislation at this 
point.
    But I do think the issue is of substantial importance, and 
I agree with Ileana and others as to the need to look at this 
to make a determination of what, if anything, we should be 
doing from a legislative point of view to try to help, 
particularly with the survivors of the Holocaust.
    On the other hand, the complications of how to do that also 
presents some interesting questions, and that's why it is very 
hard to say that this legislation is absolutely the right 
course of action. I believe the hearing we are having today, 
which unfortunately I won't be able to take full part in 
because of other scheduling issues, is of vital significance in 
terms of developing exactly what our course of action should 
be.
    I appreciate all of the witnesses who are here today and 
all of those who are participating, and I think we have a 
responsibility to try to learn all that we can in making a fair 
and good evaluation of where we are and what we should be 
doing. I realize that even among the witnesses there are some 
differences, and for that reason, we have a responsibility to 
try to sort this out and make sure we're going in the correct 
direction to try to alleviate a problem which we all agree is 
there.
    So I appreciate, Mr. Chairman, the opportunity of 
participating and learning and hopefully arriving at a final 
resolution which will be in the best interests, particularly to 
the survivors of the Holocaust.
    I yield back the balance of my time.
    The Chairman. The gentleman from Florida, Mr. Mahoney.
    Mr. Mahoney. Thank you, Mr. Chairman. I appreciate you 
holding this important hearing today. I would also like to 
thank my colleagues from Florida, Mr. Wexler and Ms. Ros-
Lehtinen, for their leadership on this important issue.
    Mr. Chairman, I believe this hearing is of the utmost 
importance because we as a society owe survivors of the 
Holocaust the opportunity to have their voices heard. There is 
no greater way to honor the victims of the Holocaust than to 
let their stories be told.
    This issue was first brought to my attention by one of my 
constituents, Mr. Alex Moskovic. Mr. Moskovic, who lives today 
in Hope Sound, Florida, as a constituent, is a Holocaust 
survivor from Zibronsk, Slovakia. In 1944, Mr. Moskovic, his 
parents, Joseph and Gittel Moskovic, and two brothers were 
deported to the Auschwitz Birkenau concentration camp. Mr. 
Moskovic was the only one of 41 family members to survive the 
Holocaust and during a torturous march through freezing 
weather, nearly 2 weeks on a cramped train where thousands died 
of hunger and the horrors of Auschwitz.
    Upon his return to Zebronsk after the war, he found that 
his family's house had been destroyed. In 1947, Mr. Moskovic 
came to the United States where he established a successful 
career as an editor for ABC Sports. In fact, Mr. Moskovic was 
awarded numerous Emmys for his 30-year career.
    After moving to Florida, Mr. Moskovic volunteered to work 
on the advisory committee of the Ruth Rales Jewish Family 
Services Board in Boca Raton, a nonprofit organization that 
provides members of the Palm Beach County community with 
counseling and an educational program. In addition, he is a 
member of the board of directors and executive committee of the 
Holocaust Survivors Foundation, where he has worked tirelessly 
on this issue.
    I wanted to spend a few moments today talking about Mr. 
Moskovic's story because I believe it's important for the 
members of this committee to hear the stories of those fighting 
for restitution, whether it be through the International 
Commission on Holocaust Era Insurance Claims or other 
agreements.
    Mr. Chairman, I hope that as a result of today's hearings, 
we have a better understanding of how the ICHEIC process 
worked, the promises that were made by the insurance industry, 
and the agreements reached by the U.S. Government. I am also 
interested in hearing what each witness thinks the impact of 
H.R. 1746, the Holocaust Insurance Accountability Act, will be 
on the process moving forward.
    In the final analysis, gentlemen, right is right. In this 
case, this body needs to make sure that these claims are paid. 
To deny these benefits to Holocaust survivors on the basis of 
politics or administrative snafus only serves to trivialize the 
Holocaust itself. These unpaid premiums do not belong to the 
insurance companies. They belong to the survivors.
    Again, thank you, Mr. Chairman, and I yield back the 
balance of my time.
    The Chairman. Does the gentleman from Connecticut wish to 
make a statement?
    Mr. Shays. It will be a short one just to say that I agree 
and want to align myself with all of the speakers, particularly 
Ileana Ros-Lehtinen, and to say that as a Peace Corps 
volunteer, we had a lot of time to read, and I read all of Leon 
Uris's books. You can't read Exodus, Mila 18, particularly Mila 
18 or Armageddon without realizing there is nothing to compare 
to the Holocaust. There is nothing. Nothing comes to the level 
of the Holocaust, this premeditated, factory system of 
annihilating people. And I just really believe that this is one 
of many hearings we have had so far in Congress. I really hope 
we're able to push a little harder and to see some action, 
overseas in particular. Thank you.
    The Chairman. The gentleman from Florida, Mr. Klein.
    Mr. Klein. Thank you, Mr. Chairman. Mr. Chairman, I come to 
this hearing with mixed feelings. On the one hand, I'm 
profoundly disappointed that it has taken so long for survivors 
to get an inkling of hope that their claims will be settled. 
And although there has been a lot of representations over the 
years and some action, we stand here today, 63 years after the 
end of World War II, and there are families and survivors who 
have never had any type of compensation for an insurance policy 
that was purchased during or prior to World War II.
    I appreciate the fact that Chairman Frank, Congresswoman 
Ros-Lehtinen, and Congressman Wexler have brought this forward. 
I personally have been involved in Florida in Holocaust 
education and awareness and working with a lot of people in our 
community, who have needs, great needs because of their 
economic situation. The survivors who are here today appreciate 
your coming forward and bringing your stories forward.
    But this is not just about stories. This is about what's 
right and what's moral. And as far as I'm concerned, we don't 
have to have long hearings, we don't have to have multiple 
hearings to get this issue resolved. This has been discussed; 
it has been debated; and it has been analyzed. And with the 
number of people remaining today, and the age of many of the 
survivors, the time is now to finish and do the right thing.
    Thank you very much, Mr. Chairman.
    The Chairman. The gentleman from Georgia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. First I want to thank 
you, Mr. Chairman, for holding this hearing on this long-
overdue issue. It is very important that we continue to address 
this decades-long movement for fair and just equality for 
survivors of the Holocaust as it relates to thousands of still 
uncompensated insurance policyholders.
    And even as the International Commission on Holocaust Era 
Insurance Claims was set up to address various issues involved 
and settle outstanding Holocaust-era policies, there are still 
today delays in participation of these insurance companies. 
Companies failed to provide the comprehensive lists of the 
policyholders' names, and as we know, these individuals' names 
are essential as Holocaust survivors and heirs often recall, 
that their families held these policies. However, they do not 
know the name of the companies that issued the specific 
policies.
    These insurance issues facing Holocaust victims and their 
survivors are extremely complex, and efforts to provide 
restitution are certainly challenging at best. However, it is 
very, very important that we look into other ways to help speed 
up this process and maybe curb some of the frustrations being 
experienced by all involved. And that's why, Mr. Chairman, I'm 
very proud to support H.R. 1746, which would do some essential 
and very important things.
    First, it would create a publicly available registry of 
insurance policies issued between January 30, 1933, and 
December 31, 1945, to persons who were domiciled in an area 
controlled by Nazi Germany, and require insurers to file 
information on these policies with the Secretary of Commerce 
within 90 days of the bill's enactment. This is very, very 
important. And second, this bill would create a Federal civil 
cause of action for any claim arising out of such a policy.
    This is a very, very important piece of legislation. It 
moves to correct one of the great omissions and one of the 
greatest sins of mankind's inhumanity against their fellow 
mankind.
    Thank you, Mr. Chairman.
    The Chairman. The gentleman from Texas, Mr. Green.
    Mr. Green. Thank you, Mr. Chairman, and I associate myself 
with the remarks of the chair. I have had the opportunity to 
travel to Israel, and I visited the Holocaust Museum. And I 
assure anyone who questions why we are so concerned that if you 
have an opportunity to just visit one of the museums--we also 
have one in Houston, Texas--you will understand. Tears 
literally welled in my eyes as I saw the pictorial 
representations of the horrors and the atrocities that were 
committed.
    We are truly embracing a circumstance where we cannot do 
enough. We really cannot. However, whenever you cannot do 
enough, you do have a duty to do all that you can. We must do 
all that we can to bring justice to the victims of the most 
horrific atrocity perpetrated upon humankind.
    I yield back the balance of my time.
    The Chairman. The gentleman from Florida, Mr. Wexler, is 
recognized, the sponsor of the bill and a major mover in having 
this hearing and in trying to get action.
    Mr. Wexler. Thank you very much, Mr. Chairman. I am deeply 
grateful to you for your seriousness of purpose in allowing us 
to have this hearing. I am also deeply grateful to my colleague 
and friend from Florida, Mrs. Ros-Lehtinen, for being a 
champion.
    The two of us have worked very, very hard in bringing this 
issue forth, and there is opposition. What I would like to do, 
Mr. Chairman, is to talk about the specific facts relating to 
this bill, what the bill actually does, what the opposition is, 
and why, in my view, that opposition is not meritorious.
    First of all, this bill essentially does two things. It 
mandates that insurance companies who do business in the United 
States publicly disclose all Holocaust era insurance policies. 
Why that should be debatable, why there should be controversy 
about whether or not insurance companies who have profited from 
the Holocaust should disclose their insurance policies in the 
United States sixty-some-odd years afterwards to me is not 
debatable. It should be disclosed, period. There should be no 
legitimate debate.
    The second part of the bill is that those people who claim 
to have insurance policies are given an opportunity to go into 
Federal court and prove their claim. There are a couple of 
misnomers here. If we passed this bill today, Mr. Chairman, not 
a single Holocaust survivor would receive a penny. Not a single 
one, because they would all have to go into Federal court and 
prove their claim. Do they have a lower standard that they have 
to prove in Federal court than anybody else who walked into 
Federal court? No. They would have to prove the same insurance-
related evidentiary matters as everybody else. So what is the 
issue?
    The issue is this: previously, we entered, the United 
States of America, into an ICHEIC process. And that ICHEIC 
process, to sum it up, has divvied out, according to Secretary 
Eagleburger, who is in fairness an opponent of this 
legislation, $306 million to the survivors of the Holocaust. If 
you add in the amounts of money that were given to the claims 
conference and other related organizations, $450 million has 
been distributed through that process. Now was that a fair 
amount? That should be the question everyone is asking.
    If you use the amount of money estimated by the proponents 
of the bill, the assets available; in other words, the amount 
of the insurance policies that these companies hold, are 
probably about $17 billion. But even if you use the estimate of 
the opponents of the bill, if you use the estimate of 
Ambassador Kennedy, whom I have enormous respect for--he is a 
terrific man--the estimate is roughly $3 billion. So the 
opponents of the bill essentially are saying that even though 
$3 billion is rightfully owed to survivors of the Holocaust, 
$450 million has been paid, and that's it. Fifteen percent.
    In other words, what the Administration is saying, what the 
opponents of the bill are saying is that 85 percent of the 
value of the insurance policies held by survivors during the 
Holocaust should remain with the insurance companies, period. 
And what they will argue is that legal peace was made, and that 
it's not fair, it's not equitable today to undo that legal 
peace. Well, there is a big problem with the argument of legal 
peace. How is it that insurance companies who have not fully 
disclosed their policyowners can take advantage of the 
agreement that was made by not having to pay out that which is 
rightfully owed, and those that are rightfully owed are 
penalized by the agreement? This can't possibly be an equitable 
conclusion.
    So the question isn't whether or not we are abrogating the 
word of the United States Government. The question is, there 
are insurance companies who hold billions of dollars of assets 
rightfully held by the survivors of the Holocaust. And is this 
Congress in the last moments of these survivors' lives going to 
give them an opportunity to use our Federal judicial system to 
gain some measure of justice? If this bill does not pass, game 
over. Game over. Insurance companies keep 85 percent of the 
assets even using the insurance company numbers, the 
Administration numbers. They keep 85 percent of the assets that 
are rightfully owed to the survivors of the Holocaust and they 
don't--they are not required to disclose those policyowners 
that rightfully have a right to know who they are.
    Thank you, Mr. Chairman.
    [Applause]
    The Chairman. There will be no demonstrations. None. Zero. 
We will now begin the hearing, and I am pleased to welcome the 
representative of the Department of State. I'm especially 
pleased to welcome the representative of the Department of 
State today, because I won't be able to do that tomorrow when 
we have a very important hearing on the signing statement 
issued by the President that would undercut the effect of our 
bill to strengthen the divestment from Sudan, and the State 
Department has refused to show up.
    But we are glad to have Mr. Kennedy. We will take what we 
can get from this Administration, and we won't ask you to 
defend that. We will ask you instead to discuss this position. 
So, Ambassador J. Christian Kennedy, who is a Special Envoy for 
Holocaust Issues at the Department of State, you are now 
recognized.

STATEMENT OF AMBASSADOR J. CHRISTIAN KENNEDY, SPECIAL ENVOY FOR 
           HOLOCAUST ISSUES, U.S. DEPARTMENT OF STATE

    Ambassador Kennedy. Thank you very much, Mr. Chairman, and 
thank you to you and your colleagues for the invitation to be 
here today.
    Thank you for holding this important hearing about issues 
concerning my office's main constituency, Holocaust survivors. 
We all agree that those who spent the Nazi era in concentration 
camps and ghettos or in hiding deserve not only our sympathy 
and moral support, but also a measure of justice in their 
lifetimes. Our office therefore supports the continuing general 
effort to obtain compensation for their suffering and 
restitution or compensation for their material losses.
    Your hearing today deals with insurance purchased by 
Holocaust victims and the International Commission on Holocaust 
Era Insurance Claims, known as ICHEIC. Let me say that the 
State Department believes ICHEIC was very successful in dealing 
with the most difficult life insurance claims arising from the 
Holocaust; cases where the claimants had no documentation or 
only the scantiest of records.
    Earlier claims payments programs starting in 1953 had 
already dealt with other life insurance claims. ICHEIC created 
a process that included archives, appeals, audits, payments to 
individuals totaling more than $300 million, and nearly $200 
million to humanitarian programs administered by the claims 
conference. It is a signal achievement, and I know that you 
will hear much more detail from the next panel.
    Since 1969, State Department negotiations with governments, 
companies, and nongovernmental organizations have made over $8 
billion in new money available to Holocaust survivors and other 
victims of the Nazis. Because negotiation and conversation have 
been so successful in getting Holocaust victims and victims' 
heirs a measure of compensation, the Administration opposes 
H.R. 1746, which would make litigation the main vehicle for 
claiming unpaid life insurance proceeds. Litigation always 
bears great uncertainty for the litigants, and it takes time. 
Negotiation is faster, especially with well-meaning partners.
    Holocaust reparations are part of our very strong 
relationship, bilateral relationship with Germany, for example. 
Thanks to ongoing negotiations and the strength of this 
relationship, Germany has made available 350 million euros in 
new pensions and one-time payments to survivors since March of 
2007. March 2007 was the date when ICHEIC closed its doors 
after completing, successfully we believe, its very important 
task of processing the most difficult life insurance claims 
arising from the Holocaust.
    ICHEIC succeeded because of voluntary cooperation between 
insurers, governments, American State insurance regulators, and 
Holocaust survivors organizations. It did not charge claimants 
for its work, and nearly 48,000 people received payments. 
ICHEIC compiled a list of 519,000 names of people likely caught 
up in the Holocaust who also probably had life insurance 
policies. This database was the result of careful research and 
cross-checking with Israel's Yad Vashem Museum.
    The completeness of this database was driven home for me 
very recently. We received a few days ago a Gestapo document 
that included two names of Holocaust victims who were listed as 
owning life insurance policies in 1942. A quick check with 
ICHEIC's 519,000 name list showed that the names of both people 
were on that list.
    Returning to the broader issue, ICHEIC undertook research 
across company archives and even international boundaries to 
complete its database. Its research also studied insurance 
markets extensively, for example, the number of policies per 
capita in given countries.
    Most important, perhaps, is that dialogue and negotiation 
allowed ICHEIC to establish relaxed standards of proof in order 
to pay claims. And insurance companies cooperating in the 
ICHEIC process have agreed to continue using relaxed standards 
of proof to process new claims that might appear even after the 
extensive outreach that ICHEIC did.
    The Administration is concerned that because H.R. 1746 
favors an adversarial relationship of litigants over 
negotiation, the bill would undermine the many positive working 
relationships we have built over the years and discourage 
countries that haven't met their obligations to survivors.
    Lastly, let me touch on ongoing business. Germany has paid 
Holocaust reparations totaling nearly $100 billion in current 
value, but we still have many pending issues there involving 
elderly survivors. My office is involved in conversations and 
negotiations with other countries, too, especially the new 
democracies in Europe, where much remains to be done.
    In negotiating the bilateral executive agreements that 
supported the creation of ICHEIC, we promised legal peace if 
participating companies were sued in U.S. courts about matters 
relating to the Holocaust. This legal peace does not prevent 
U.S. citizens from bringing suit, but it does obligate the 
government to seek dismissals. Our partners expect us to uphold 
our word and see H.R. 1746 as a grave threat to legal peace. If 
we cannot keep our given word--our word given in negotiations 
that have borne so many positive results, future negotiations 
will be much more difficult.
    The perceived inability to keep our word would undermine 
our capacity to continue helping survivors of the Holocaust and 
the heirs of victims.
    Chairman Frank, members of the committee, thank you very 
much for your invitation to be here today. I will be happy to 
answer your questions.
    [The prepared statement of Ambassador Kennedy can be found 
on page 111 of the appendix.]
    The Chairman. Thank you.
    Next, we will hear from the Assistant Archivist for Records 
Services of the National Archives and Records Administration, 
Dr. Michael Kurtz.

STATEMENT OF DR. MICHAEL KURTZ, ASSISTANT ARCHIVIST FOR RECORDS 
     SERVICES, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

    Mr. Kurtz. Thank you, Mr. Chairman. I'm honored to be here 
today, and thank you for the invitation to testify.
    For the record, I would like to note that in the holdings 
of the National Archives, we have tens of millions of pages 
relating to all aspects of the Holocaust, and we have worked 
assiduously over many decades to make these records available. 
I was honored to serve as the first chair of the Interagency 
Working Group on Nazi War Crimes and I worked very closely with 
Congresswoman Maloney, who was the legislative leader of this 
effort.
    Our concerns with the bill are of a practical nature, as 
the National Archives would be responsible for the creating and 
servicing of the registry, and we also have concerns about the 
funding. So, we tackle these issues from a practical point of 
view and ask the committee's consideration of these concerns.
    First, the size and scope of the registry is unclear. And 
there is no firm number for the size of the registry. We 
estimate that there are potentially millions of names of 
individuals who could file claims, and submitting claims in a 
variety of different formats and styles and so forth, so it has 
been very difficult to estimate exactly what resources would be 
required. Our information technology experts roughly estimate 
the cost to be at about $28 million.
    One of the major concerns that we have is that the National 
Archives is a small agency, and we are fully taxed at this 
point trying to implement an electronic records archives for 
the first time. So almost our entire IT staff is devoted to 
this, and so we would need a stable and secure source of 
funding. We estimate it would cost about $28 million to develop 
and maintain the registry over the life of the legislation.
    Our concern for the funding is that we are unclear from the 
bill as drafted if the penalty fees charged against 
noncompliant insurance companies would be the main or sole 
source of the funding for the registry. If that's the case, if 
insurance companies do comply with the law, we would have 
responsibility for Web access to a potentially huge name 
registry, but we would not receive any direct monies to 
establish and maintain the registry.
    So we strongly state the need for a stable, appropriated 
source of funding that would enable us to get the 
infrastructure created necessary to properly create and service 
the registry, and to hire the expertise, both information 
technology and archival expertise. There are a number of issues 
related to privacy and information security and things of that 
nature where we really would need experts to work with us.
    This would be a new and separate line of business for the 
National Archives, and we would need the support of Congress 
with a clear, stable source of funding to be able to do this.
    Mr. Chairman, thank you again for the opportunity to 
testify on this bill.
    [The prepared statement of Dr. Kurtz can be found on page 
142 of the appendix.]
    The Chairman. Thank you. Let me begin my questioning. 
Ambassador Kennedy, I understand the State Department's concern 
with bilateral relations with Germany. Indeed, the German 
ambassador came in to see me. Does anyone think that the 
outcome of congressional deliberations on this bill will have 
any significant effect on overall American-German relations?
    I must tell you, I'm of the opinion that the nature of the 
ties that bind us, the issues that might arise, really are of 
such magnitude that it's hard for me to see that the fate of 
this bill one way or the other would have any significant 
effect on our relations. Is there a serious concern about 
American-German relations if this bill passes?
    Ambassador Kennedy. Thank you for that very important 
question, Mr. Chairman. Let me answer in two parts if I may, 
one personal, and one broader. I have been very surprised at 
the depth of feeling from my German interlocutors on the 
subject of this bill both in the private sector as well as the 
official sector. This is something which they take with great 
umbrage.
    In the second area, or more broadly, I think it's hard to 
envision a change in a relationship that has been 
collaborative, that has been based on negotiation, that has 
produced substantial results. I don't claim they're enough, 
that they're sufficient, but substantial results. It's hard to 
see how that would not have a negative impact on the 
relationship. In the broadest sense--
    The Chairman. What kind of negative impact? I mean, what 
would you foresee?
    Ambassador Kennedy. Well, as I said in my statement, sir, 
we still have a number of issues to resolve involving Holocaust 
survivors, and that's of course the area that I worry about the 
most.
    The Chairman. Well, would you see any--you are testifying 
on behalf of the Department of State.
    Ambassador Kennedy. I'm sorry?
    The Chairman. Would there be any--there were suggestions 
from some that there might be a spillover into broader issues 
because the American-German relationship is a very important 
one in terms of Europe, NATO, and the economy. Do you see any 
broader negative implications?
    Ambassador Kennedy. Well, I think that would be speculative 
at this point. I know that the--in the area of Holocaust 
reparations, I think I can say clearly that there might very 
well be some very negative repercussions.
    The Chairman. You mean they might stop cooperating in some 
areas where they're now cooperating?
    Ambassador Kennedy. Well, the--
    The Chairman. I'd like to be kind of specific.
    Ambassador Kennedy. The companies certainly would not want 
to, I think, deal with an issue in the courts and also deal 
with it in negotiation. They would have to choose a venue.
    The Chairman. So there are ongoing negotiations that would 
be broken off, you think? Or might be?
    Ambassador Kennedy. I think there is that risk, yes, sir.
    The Chairman. And Dr. Kurtz, your issue went to two, as I 
read, one was the absence of an end date in maintenance of the 
record, and also the money. If we could meet--just one 
question. You mentioned $28 million. Is that an annual cost or 
a total cost?
    Mr. Kurtz. That would be a total cost.
    The Chairman. Total cost--$28 million?
    Mr. Kurtz. $22 million for the creation and servicing of 
the registry, and about $2 or $3 million a year for ongoing 
maintenance.
    The Chairman. All right. So we're not talking about huge 
sums. That is, it would be within the capacity of this 
Congress, if we were to pass the bill, to appropriate $28 
million to take care of this. If we were, in fact, to accompany 
passage of the bill in some form with the $28 million, and give 
you enough time to hire, would that then be disruptive of your 
operations?
    Mr. Kurtz. No. I don't think it would be disruptive.
    The Chairman. Thank you. The gentlewoman from Florida.
    Ms. Ros-Lehtinen. Thank you, Mr. Chairman. Thank you, Mr. 
Ambassador. I wanted to ask you a few questions about the 
ICHEIC process and proper compensation for the victims and 
their descendants.
    ICHEIC has been criticized for failing to review hundreds 
of thousands of relevant files. For example, ICHIEC's final 
report of external research indicates that when looking at the 
Central Property Office files of Slovakia, ``more than 700 
boxes or records dealing with the Ayrianization of Jewish firms 
in Slovakia were found.'' Over 700 boxes of records. And these 
files contained information about the assets of the firms or 
their Jewish owners. However, the researchers searched only 
what they call, ``a small amount,'' of those 700 boxes, which 
provided information about 18 policies--18 policies. Would it 
be accurate to say to either of our witnesses actually that 
there were many files that ICHIEC did not examine containing 
information about Holocaust era insurance policies? And 
shouldn't the beneficiaries of these policies have a right to 
be compensated for their insurance policies?
    Ambassador Kennedy. Thank you very much, Congresswoman. I 
think that the point I'd like to focus on in replying is that 
if insurance policy documents come to light, and there will be 
a few, the members of the ICHIEC participating companies have 
all agreed to continue to use the relaxed standards of proof 
that characterize the ICHIEC process to process those claims.
    So while ICHIEC has closed its doors, the committees--I'm 
sorry--the companies have said that they will continue to use 
those standards as they process the claims. And that's what I 
think is important from our point of view, that the people who 
have claims can still file them.
    Ms. Ros-Lehtinen. Thank you. That in no way answers the 
question, but on that issue that there will be a few insurance 
companies that have participated in the ICHIEC process have 
agreed, as you say, to continue to consider claims and use the 
ICHIEC's lower standard of proof. However, there are no 
oversight mechanisms. There is no way to appeal the decisions 
of the insurance company. And it seems as though the insurance 
companies will again be in full control of deciding who will or 
will not be compensated, as well as determining the amount of 
that compensation. And considering that ICHIEC was established 
because the insurance companies failed--failed to act on their 
own--how would this voluntary process that you talked about 
offered by the insurance company, which lacks an appeals 
mechanism, which lacks oversight, will be at all effective in 
fairly resolving what you consider a few of these unpaid 
claims?
    Ambassador Kennedy. Well, in my conversations with people 
from the insurance associations, they have welcomed the idea of 
some oversight. I imagine that people here in the United States 
who have an issue, if their claim is not resolved, would still 
be able to go to the State insurance commissioners and to other 
entities that have real expertise in these matters.
    Ms. Ros-Lehtinen. Thank you. Your responses--well, it has 
often been argued that the court's proof requirements would be 
a lot more stringent than those used by ICHIEC's and that it is 
unlikely that many claims will turn out to be successful. And 
if that's the case, then I ask myself, why are the insurance 
companies so worried about litigation if there is not enough 
proof and the case will be quickly dismissed because of lack of 
evidence? So why not let the survivors have their day in court, 
have a judge or a jury decide rather than have an insurance 
company, again with no oversight, although they say that they 
would welcome it? That's a real stretch of the imagination. 
They have not done so yet. But what would be wrong with having 
the survivors have their day in court rather than have this 
insurance company or that insurance company whose interests lie 
in not paying, in having to pay as few policies as possible? 
That's how they make their money.
    Ambassador Kennedy. Thank you, Congresswoman. The bilateral 
executive agreement that we have, for example, with Germany, in 
no way infringes on the ability of someone to go into court and 
seek redress right now.
    Ms. Ros-Lehtinen. Well, yes, the U.S. Federal Government 
cannot forbid U.S. citizens from pursuing legal action against 
the insurance companies. However, it did commit to filing 
statements of interest encouraging dismissals of any legal 
action against European companies in the United States, and 
these statements have prevented lawsuits against European 
insurance companies brought by Holocaust survivors. And after 
seeing that only a fraction of the policies have actually been 
paid out by the insurance companies, and that the ICHIEC 
process ended without adequately addressing the issue of 
Holocaust era insurance policies, shouldn't the U.S. 
Government's statement of policy change in order to allow those 
who have been denied a fair opportunity to recover their 
insurance policy? To be able to bring their claims to court? I 
think that would be the fair thing to do.
    Thank you so much for your time and generosity, Madam 
Chairwoman.
    Ms. Waters. [presiding] You're welcome. And you may answer 
the question.
    Ambassador Kennedy. Thank you very much, Madam Chairwoman. 
Let me take the two parts of your question separately, if I 
may. The government negotiated an agreement, and it has been 
the policy since those agreements were entered into that we 
would favor negotiation and dialogue to resolve Holocaust era 
claims because they are--negotiations has produced results 
rapidly. I think that is the point I would like to underline 
there.
    And secondly, as I said in my testimony, in my written 
statement, we need to be able to continue to negotiate credibly 
with countries where there are still many, many issues to be 
resolved, hopefully in favor of Holocaust survivors and the 
heirs of the victims.
    Thank you.
    Ms. Waters. Thank you very much. I will recognize myself 
for 5 minutes. Let me welcome our witnesses and just raise some 
very basic questions of you. I do not know all of the details 
of the establishment of the International Commission on 
Holocaust Era Insurance, so I'd like to ask you when this 
Commission was established, were you specifically given the 
ability to negotiate this legal peace deal that you negotiated?
    Ambassador Kennedy. The State Insurance Commissioners here 
in the United States in the mid- and late 1990's noticed a 
serious number of holocaust era claims that were not being 
resolved. They themselves started to talk about a mechanism 
that might deal with this, and this mechanism ultimately led to 
ICHIEC. At the same time, the U.S. Government, represented very 
ably by Stuart Eizenstat, began negotiations with the various 
countries involved, especially Germany.
    Ms. Waters. I understand that, generally. I want to know 
about the specificity of the authorization. Were you 
authorized? Was the Commission authorized to negotiate legal 
peace?
    Ambassador Kennedy. Well, the kind of legal peace that is 
offered, the commitment of the government to seek dismissals, 
is something that the negotiators felt was inherent in the 
executive's powers to reach.
    Ms. Waters. This was born out of the negotiations, but 
there was nothing specific in the establishment of the 
Commission that gave authority to negotiate and settle on the 
so-called legal peace. Is that correct? Would you accept that 
as correctly identifying what power you have or did not have 
relative to establishing this legal peace agreement?
    Ambassador Kennedy. Well, the agreement covered a number of 
things.
    Ms. Waters. Did it give you the authority to negotiate a 
legal peace agreement? Yes or no.
    Ambassador Kennedy. Well, first, I was not present in those 
negotiations.
    Ms. Waters. So you don't know whether or not that 
authorizes this?
    Ambassador Kennedy. The authority, I believe, is inherent 
in the executive ability, but not foreign relations.
    Ms. Waters. You think it's implied, but not specific. Is 
that correct?
    Ambassador Kennedy. I'd be happy to take that question, 
Madam Chairwoman.
    Ms. Waters. Do you know if anyone sought the opinion or 
support of Congress in the negotiation of that legal peace 
agreement?
    Ambassador Kennedy. Again, I'd like a chance to go back and 
review the record and get back to you Madam Chairwoman.
    Ms. Waters. Is it safe to say that Congress was not 
involved in that agreement? Do you know of any bill or 
resolution that was sought or passed in Congress that would 
support that agreement?
    Ambassador Kennedy. I know of no bill that was sought prior 
to the education, ma'am. I'm sorry--to the conclusion of the 
negotiation.
    Ms. Waters. So then this bill that's before the Congress 
today would be the first time that we have been engaged on that 
so-called legal peace agreement and we were not asked before to 
give an opinion to support to question that agreement that was 
made, even though the significance of this peace agreement is 
such that it would deny the opportunity for survivors to even 
address the issue. So given that it was that important, the 
Congress of the United States was not engaged on it at all.
    Ambassador Kennedy,. Well, Madam Chairwoman, I don't think 
the statement that we deny Americans the right to sue in court 
is quite accurate. The ability to deny Americans to go into 
court, the opportunity to go into court would be something very 
serious. Americans can go into court. Nothing in the executive 
agreement prohibits or prevents people. It simply states that 
the executive, that the government will seek dismissal on all 
valid, legal grounds.
    Ms. Waters. Okay, thank you. I think that's very clear, and 
I will now recognize, for 5 minutes, Ms. Maloney.
    Mrs. Maloney. Thank you very much and thank you for your 
testimony today.
    Ambassador Kennedy, between 1933 and 1938, the Jews of 
Germany were obligated by law to deliver to the Nazi government 
declarations specifying all their property and assets. The duty 
to file such declarations was imposed on all the Jews of 
Germany with the clear intention being to use these 
declarations in order to confiscate all Jewish property and 
assets in Germany. This documentation is highly detailed, 
including real estate, money, insurance policies, tangibles, 
intangible rights and other assets held by German Jews prior to 
the holocaust.
    However, this information will not be made public until 
2018, and my question is, why not? Even the KGB has opened up 
the files of World War II. We in the U.S. Government, our most 
secretive agency, the CIA, has opened up its files, the Nazi 
War Crimes Bill that Dr. Kurtz and I worked so hard on, to 
learn and to go forward.
    Why not? Why are they not opening up these files? This is 
quite a long, long time. These should be opened, and what are 
we doing as Americans and as the U.S. Government to ensure that 
Holocaust survivors get access to this very important 
information. There's absolutely no reason to keep this 
confidential. These people are entitled to this information and 
I'd like to know what steps have we taken to open up these 
files, to provide this information and transparency, and what 
should we do in the future?
    Ambassador Kennedy. Thank you very much for that important 
question, Congresswoman. There are a number of archival issues 
that have gotten alot of serious work over the last few years. 
We have managed, thanks to the leadership of the United States 
Holocaust Memorial Museum and my office, to get the 
International Tracing Service files located in Bad Arolsen 
transferred electronically to the United States where we 
believe survivors will have a friendly environment to work with 
at the museum.
    There are archival issues in other countries, such as 
Hungary, where we have been dealing with our Hungarian 
colleagues asking them for specific files as well. My 
understanding is that the asset declarations which you 
mentioned, which were just one more inhumane and criminal tool 
that the Nazi's used in their depredations on Germany's Jewish 
population, are in the Bundesgard keep in the various German 
states and that parties who under European privacy law have a 
right to access can get at those, a specific file for say their 
family.
    One of the frustrations in dealing with file issues, 
archival issues, for us in Europe is that our legislation is 
much, much more liberal, and European privacy legislation, I 
found out in my negotiations on the tracing service, is 
actually going in the opposite direction, and it's much more 
restrictive the lengths of time are frankly, excessively long, 
in this American's opinion.
    I would be happy to raise this issue with my German 
counterparts and get back to you after my next trip to Germany.
    Mrs. Maloney. Well, we would appreciate you raising this 
issue in writing. To hide behind a privacy protection, when 
citizens, American citizens or citizens of the world, are 
trying to get information on their insurance policy that could 
help them, so this to me seems like a stonewall, a really 
unresponsive step.
    You and I know how difficult it is to work through a 
bureaucracy. So to tell someone, ``Oh, go to Germany and you'll 
get your file,'' that is like saying, ``We're not going to help 
you at all.'' And I for one think that we should, as a 
government, request that this information be made available and 
public. And if they won't do it, then I think our country 
should do it along with other like-minded countries that feel 
strongly about justice.
    These asset declarations, to hide behind a shield of we're 
protecting privacy laws, I think is ludicrous and comical. And 
I for one would like to join my colleagues in a congressional 
letter or possibly a congressional resolution that these files 
should be made public.
    As I said, our government has opened our files. Argentina, 
even the former Soviet Union, has opened up the files of the 
war. And to keep private insurance information hidden until 
2018 is just, I think, scandalous, absolutely scandalous.
    My time has expired. I have a number of other questions, 
but I'll put them in writing. Dr. Kurtz, I do want to thank you 
for your hard work on the Nazi War Crimes Disclosure Act, the 
really brilliant work that you did with these archives, and I 
hope you get the opportunity to work on the asset disclosure 
declarations and other important archives for our country and 
the world. Thank you for your testimony.
    Ms. Waters. Thank you very much.
    The gentleman from New York, Mr. Ackerman?
    Mr. Ackerman. Thank you, Madam Chairwoman. I thank the 
panel for the good work that they have done to-date, the 
progress that they have made.
    I sit here somewhat in disbelief, because it is very hard 
for me to process some of the things that I'm hearing, although 
I've heard them many times. It seems to me that there is an 
inherent conflict between life and time. Time always wins, but 
justice should not fall victim in that contest.
    In the closing days of World War II, Hitler put on a 
maddening rush, not to defend Germany, because that was all 
over, but to kill as many Jews as he could, to rev up the 
action in his murder machinery and put more people in the gas 
chambers and the furnaces just to destroy people--to run the 
clock on them. This is all about running the clock.
    The insurance companies are in no way part of Hitler's 
machinery. They're a commercial industry motivated by making a 
profit. We should not confuse profit with greed. The people who 
were fortunate enough to be among the very, very few who 
escaped temporarily from that contest with time, should not 
fall victim today to our participation in helping with what 
motivated Hitler. These people are in a very close race. I 
don't have to tell you what their ages are; some of them are in 
this audience today. There are others too frail to come.
    In international relations, it is very, very important that 
we keep our word, and sometimes we give our word in order to 
make progress. But there are higher issues and more important 
values that are really at stake here. What we have done, 
inadvertently I'm sure, in signing important agreements even in 
order to get compliance in issues where there should have been 
compliance out of a sense of morality, rather than negotiation, 
is to put an expiration date on justice.
    That should not be allowed to stand, although arrived at 
honorably. There is no justice in our government going to court 
against U.S. citizens, seeking restitution for horrendous 
things that were done against them personally, against the 
people, against humanity. And to be able to prove their day in 
court without their government standing on the other side of 
the bar and saying we have to object because we signed a 
document at one point in time, I am not impressed that Germany 
has paid out a hundred billion dollars or a trillion, billion 
dollars. It is not what is paid. It is what is owed.
    I think an awful lot is owed to these people, and it has 
nothing to do with money. It has to do with the dignity that so 
many were stripped of, the hope to get it restored to which 
they cling, and those principles, and those values, that we 
have to look at, that we have to fight for.
    How do we go to court and stand up against those who seek 
restitutions before a court of law to be able to make their 
case and to say that they should be denied that opportunity 
because we signed a document. We gave away their rights and put 
our government in between them and the justice that they seek. 
I suppose that's the only question that I have.
    Ambassador Kennedy. Thank you very much for your remarks, 
and for your question, Congressman.
    I think it is important to recognize that in the area of 
insurance, which we're discussing today, that ICHIEC basically 
took the hardest cases; and those were the ones that were left 
after the reparations and compensation programs started in 1953 
that dealt with other insurance issues. Getting to that very 
difficult mechanism was the product of arduous negotiation that 
was undertaken by the government and it included the slave 
labor foundation. ICHIEC was eventually joined to that.
    So I can certainly share your frustration that we are 
probably going to have some people with claims that were not 
resolved, but I do honestly believe that those are very, very 
few and that the ICHIEC negotiation and the ICHIEC process was 
successful in answering those claims that had not been resolved 
in the earlier programs in the 1950s', 1960's, and 1970's.
    Mr. Ackerman. If I may continue, Madam Chairwoman?
    Ms. Waters. Yes, you may, for one more minute.
    Mr. Ackerman. I appreciate the progress made by the ICHIEC 
process, and it was important. It was extremely helpful. It's 
laudatory. But to say that because there was progress made with 
some, that others can be denied, is not really an acceptable 
argument.
    I don't understand how our President would veto this bill. 
Those of us who are on both this committee and on the 
International Relations Committee, some of us have a hard time 
understanding how this would be disruptive to our relations 
with Germany--painful, yes--but not disruptive. There are too 
many other things at stake, and the people.
    If I had to name a country that was more anti-Nazi than any 
other country in the world today, it would be Germany, because 
they know what the Nazis did. This is not about anything other 
than greed. Greed is the answer to the questions that my 
friends Mr. Wexler and Ms. Ros-Lehtinen and others on this 
committee have raised.
    Why would somebody object to publishing the list? I mean, a 
lot of people are the heirs to things that are owed to them 
that don't know that their uncle or great grandmother, or 
grandmother or father had a policy unless they see it written 
down somewhere. This is about greed. This is about denial. This 
is another aspect of Holocaust denial, not that the Holocaust 
took place, but that people paid for policies. And because of 
greed, as a result of the Holocaust, had no way of knowing 
policies existed, assets were in place, that they were 
entitled. That is the answer to, why not? It is greed.
    Ms. Waters. Thank you very much.
    Mr. Green, for 5 minutes.
    Somebody gave me a list. You're next, Mr. Scott. Thank you. 
Mr. Scott, for 5 minutes.
    Mr. Scott. Thank you very much, Madam Chairwoman.
    This is a fascinating hearing dealing with one of the epoch 
parts of our history, world history. I think it's important to 
recall at this point a correspondence between Heidrich and his 
superior at the time, Himmler, just prior to Heidrich being 
assassinated in Prague.
    And in that communication Heidrich, who was the henchman, 
the architect of this for Himmler, said this: ``that it is not 
just the human worth that comes from this holocaust, or final 
solution, it is the wealth. It is the economic.'' And this is 
illustrated right down to the very taking of Jewish people's 
teeth during the holocaust. So we're dealing with a monstrous 
situation here.
    Now, I want to ask about Bad Arolsen. I believe I'm 
pronouncing that right. Can you tell me about Bad Arolsen?
    Ambassador Kennedy. Thank you, Congressman. I'd be happy to 
talk about Bad Arolsen a little bit.
    When the Western allies were storming into Europe at the 
end of the Second World War, they began finding, in addition to 
these horrific death camps and other places of mass murder, a 
lot of documentation and files that dealt with this issue. They 
were kept in the individual occupation zones for awhile. And 
then in the early 1950's, there was an agreement among the 
Western allies that we needed to put all this in one place, and 
find a way to help families use it for family reunification 
purposes, primarily.
    There are three major groups of files at Bad Arolsen: one 
which is called the detention records, which is largely, well, 
it can be characterized by any contact with any of the police 
organizations, not the Gestapo, the Crepo and also deportations 
to concentration camps. It covers the whole apparatus of the 
death machine, shall we say.
    Mr. Scott. Let me ask you: I only have a few minutes to 
follow this. But, in addition to all of that, is it not true 
that also with Bad Arolsen, there has been revealed evidence of 
corporate complicity, unrevealed insurance company involvement, 
pervasive IBM punch-cards among the papers, and the secret Bad 
Arolsen repository, and that this has reignited the grassroot 
survivor campaign to recover the rightful Nazi-era insurance 
claims against this huge Italian company and insurance company 
Generali. And is there evidence of Generali's complicity in 
this?
    Ambassador Kennedy. Congressman, I have been asking 
questions like that of the archivists who know the Bad 
Arolsen's collections best on both sides of the Atlantic for 
over a year now. And I'm told that there is no systematic 
archive related to insurance.
    I think it's possible, and in fact the case I talked about, 
the Gestapo document we received just recently, we will 
occasionally find traces of insurance-related information that 
comes out. But at this point, what's in Bad Arolsen, in 
addition to detention records, are slave labor and forced labor 
records, and then finally the displaced persons records.
    And in those it's possible that there will be some, 
occasionally appearing document that deals with insurance, but 
no one who knows the collection well has been able to identify 
anything that would systematically reveal life insurance 
documents. There are some documents relating to medical and 
retirement insurance, which was another scam that the SS 
operated to build companies and then use that money for their 
own purposes.
    But, when it comes to life insurance, casualty insurance, 
other than the random appearance of a document once in a while, 
there hasn't been anything yet. But it's something that we ask 
about constantly.
    Mr. Scott. This Bad Arolsen, I don't think, has been 
examined thoroughly enough. I mean, if you look at it, they--or 
the repository of nearly 18 million, as a matter of fact, 17.5 
million Jews, and non-Jews. Wouldn't you think that this alone 
gives renewed justification for this legislation?
    Ambassador Kennedy. Well, Congressman, as I say, I don't 
think that the collection at Bad Arolsen is going to be very 
useful for insurance recovery matters. It is just the nature of 
the files doesn't lend itself to that. There will be the 
occasional document that is helpful to a particular person, but 
it's not systemic.
    The Chairman. No. Your time has expired. You can't ask 
another question.
    Mr. Scott. Oh, okay.
    The Chairman. We're over time. Did you want to finish 
answering? Are you finished?
    Ambassador Kennedy. Well, I think I finished, Mr. Chairman. 
Thank you.
    The Chairman. Mr. Green?
    Mr. Green. Thank you, Mr. Chairman, and I thank both of the 
members of the panel for appearing.
    Mr. Ambassador, you have indicated that there is nothing 
that will prohibit victims from suing. Is this correct?
    Ambassador Kennedy. Yes, sir. That's my understanding.
    Mr. Green. Let us please examine this statement, because in 
the United States, we have a concept known as open courts, 
which literally means that anyone can sue anybody for any thing 
at any time for any amount of money. It does not, however, mean 
that you will prevail. It literally means, if you want to sue, 
you may.
    So to say that you may sue is not enough to give people a 
proper understanding of what will happen after the lawsuit has 
been filed. Is it a fair statement that the government would 
file pleadings indicating that there is a limitations problem?
    Ambassador Kennedy. Sir, our pleadings, generally speaking, 
have asked the court to dismiss on valid, legal grounds.
    Mr. Green. Yes, sir. What--
    Ambassador Kennedy. On valid legal grounds. I'd be happy to 
check whether we have specifically cited in a particular case a 
specific reason like the one you know.
    Mr. Green. Well, generally speaking, requests for 
dismissals that broad are not granted, because you have to be 
specific as to why general, legal grounds. And you're saying, 
``Judge, you become my lawyer and determine what my legal 
rights are and my legal grounds are.'' So generally speaking, 
that would not be sufficient.
    And if you plead limitations, what you in essence are 
saying is this: The companies that we are suing, that to some 
extent created the problem, now get the benefit from the 
problem that they have created. They have put us in the 
position where we could not bring the action and now they're 
saying it's too late for me to bring the action.
    That is in and of itself an injustice. It appears to me, 
and by the way, I think honorable people can have honorable 
disagreements, and I perceive you to be an honorable person. 
But it appears to me that this really is about more than money. 
It is about due process. It is about a desire to have an 
opportunity to know for myself what happened. It is about the 
desire to have discovery, to find out for myself what is in the 
record.
    What's in the files? Has there been something secretive 
that someone, even my government, may know about and not tell 
me?
    That's what due process gives you when you go to court, the 
ability to have your day and to understand what happened to the 
life that has been so horribly interrupted and so dastardly 
dealt with. It's just about that, and people in this country 
seem to cherish that right to have a day in court. So I would 
say to you as you make that comment, this is just about the 
comment that people have the right to sue. If you would, I 
think it leaves something terribly necessary--missing--when you 
don't explain that right doesn't necessarily mean that it will 
be anything more than filing a lawsuit.
    A final comment, because my time is about up: There was 
nothing that prohibited the Administration from working with 
Congress so that we could have in the final analysis an 
agreement that Congress was a part of, that the Administration 
was a part of, and that would have brought in all of the 
victims so that they could be a part of it in some way, because 
that's what's missing.
    I think people live in this world where it is not enough 
for things to be right, they must also look right, and it 
doesn't look right to victims to have someone decide their fate 
without their input. I think that we should do more to dialogue 
before we get to this point.
    I yield back the balance of my time, Mr. Chairman.
    The Chairman. Do either of the witnesses wish to respond?
    Ambassador Kennedy. No. I thank the Congressman for his 
time.
    The Chairman. The gentleman from Florida?
    Mr. Mahoney. Thank you, Mr. Chairman.
    And let me start out by thanking Dr. Kurtz for his 
testimony and the fact that the National Archives is up to the 
task as long as Congress is up to the money, and I'm glad to 
hear that.
    Some quick questions for Ambassador Kennedy. Thank you very 
much for your testimony and representing the Administration's 
position here.
    Now, my understanding is that $300 million in claims that 
have been paid out, roughly, represents about 15 percent of 
what the Administration thought was the potential pool. Is that 
correct?
    Ambassador Kennedy. Well, the current market value of the 
policies involved is something that economists have been 
struggling with since the end of the Second World War. It's 
very, very hard to do. I would say that for example if you pick 
your point in time and you can make calculations, now whether 
those calculations have any bearing on what finally happens to 
people, if I can give you an example.
    Mr. Mahoney. Well, you're using up some time. I mean, the 
point I'm just trying to make here is that, you know, I've seen 
estimates of 17 billion that you guys are saying is something 
significantly less, but whether it's the Administration's 
estimate or what other folks are saying is the total amount, 
it's a small percentage that paid off.
    Ambassador Kennedy. Well, I think if you look at ICHIEC 
dealing with the most difficult cases that were not resolvable 
in other fora, ICHIEC dealt with those cases. There were 
considerable other fora, starting in 1953 in Germany, that 
dealt with insurance reparations.
    Mr. Mahoney. Okay. Let me ask you a question. Do you know 
how much we spent on all the administrative costs to have 
ICHIEC operate for this period of time? How much money did we 
spend administering the program?
    Ambassador Kennedy. Well, the U.S. Government was not the 
funder of ICHIEC, the German insurance companies, the German 
businesses, and the German government.
    Mr. Mahoney. So the answer is, you don't know how much was 
spent?
    Ambassador Kennedy. You'd have to ask ICHIEC, sir.
    Mr. Mahoney. Well, the number I have heard is around $80 
million.
    Ambassador Kennedy. Well, I think--
    Mr. Mahoney. I understand. The next question I have for you 
sir is that you made an argument earlier that you thought that 
it was better to use diplomacy, because diplomacy in this 
particular case will get a better result than by going to 
court.
    Do I understand that to be one of your main points?
    Ambassador Kennedy. Generally speaking, yes, sir.
    Mr. Mahoney. So, given Mr. Wexler's point that only 15 
percent of the claims had been paid, does the Administration 
consider diplomacy to be working?
    Ambassador Kennedy. Well, no amount of money that's 
recovered is ever going to make people whole for this horrific 
experience that they suffered losing their loved ones, the 
material depredations they suffered. We're not asserting that. 
I would just go back.
    Mr. Mahoney. So you're saying diplomacy didn't work in this 
particular situation?
    Ambassador Kennedy. No, I'm saying it does work, because 
ICHIEC dealt with those difficult cases that previous 
administrative processes had not been able to resolve.
    Mr. Mahoney. Okay, now let me ask you a question. I don't 
think you were back there in 1998 when they put this together, 
so it puts you at a disadvantage. I understand. But, you know, 
given all of your experiences of diplomat and everything, you 
know. And I'm just new to Congress so I'm just trying to figure 
this all out.
    But it would seem to me that if you had a crystal ball back 
in 1998, that if you only thought that 15 percent of these 
potential claims would get paid out, would we have entered into 
an agreement in your estimation to spend hundreds of millions 
of dollars to get such a small result back in 1998?
    Is that something that diplomats do in the Administration--
I think it was the Clinton Administration--would have entered 
into if they thought that was going to be the result here?
    Ambassador Kennedy. Well, when the ICHIEC process was 
claims-driven, people had to file a claim for there to be a 
payment. I don't think anyone at the beginning of the process 
knew exactly how many claimants there could be. They knew that 
there was a large number of people who held, were victims, or 
caught up in the Holocaust and who held insurance policies.
    But it was the excellent research that ICHIEC did after the 
process started, once it was established, that got us the 
results we have today. And I'd also note, as Chairman 
Eagleburger did in earlier testimony, that in every case, 
ICHIEC's estimates of what it needed were very much on the 
marker.
    The Chairman. One last quick question.
    Mr. Mahoney. Okay. The only point that I'm trying to make 
here is that common sense tells you that a 15 percent result 
doesn't make sense. And your argument is that we entered into 
an agreement, okay? And that we should honor an agreement for a 
flawed process.
    It's clear to me that the process that ICHIEC processed did 
not deliver the result. And if it didn't deliver the result, 
and it's not delivering the justice that these Holocaust 
survivors deserve, why would we then continue to want to 
support this failed policy? Why not do what's right for the 
Holocaust survivors and get these people paid?
    The Chairman. Any response, Ambassador Kennedy?
    Ambassador Kennedy. Yes. I think the earlier compensation 
programs took care of probably the vast bulk of the unpaid 
insurance claims that were out there, so ICHIEC is dealing with 
what couldn't be handled easily without the research, without 
the very dedicated work that the staff at ICHIEC did.
    Thank you, sir.
    The Chairman. The gentleman from Florida, Mr. Wexler?
    Has the gentleman from Missouri asked his questions yet?
    Mr. Clay. I have not.
    The Chairman. All right, well, let me go to the gentleman 
from Missouri first, then the gentleman from Florida.
    Mr. Clay. The microphone isn't working over here.
    Ms. Waters. Could you move to the next one? Perhaps that 
would be better, Mr. Clay.
    Mr. Clay. That is better. Thank you so much.
    Ambassador, with ICHEIC having finished their process, what 
assurances do you have that companies will continue to process 
Holocaust era claims?
    Have you gotten any word back from insurance entities that 
tell you we will continue this process until it is complete?
    Ambassador Kennedy. Thank you for that very important 
question. I am in very frequent contact with insurance 
companies, with insurance associates in foreign countries, and 
we have received assurances from the companies that 
participated in ICHIEC that they will continue to process 
claims with the relaxed standards of proof that are similar to 
the ones ICHIEC used.
    Mr. Clay. Would you have a running tally of how many have 
come through since the end of 2004 or since the corporation 
shut down?
    Ambassador Kennedy. The German Insurance Association 
groups, I believe, 77 companies, we have a letter from the 
Association, a copy of the letter from the Association that it 
sent to this committee saying that they will continue to use 
relaxed standards of proof. I have similar assurances from 
Generali, which has a very significant company archive in 
Trieste.
    We have received similar assurances from Austria is, I'd 
say, yes. We do have the basis to be optimistic.
    Mr. Clay. But no hard numbers of how many remain out there?
    Ambassador Kennedy. It's very difficult to estimate, 
Congressman. I will say that the German Insurance Association 
shared with me that between March 31st of last year, and the 
1st of December of last year, they had received a total of, I 
believe, 72 new claims--less than 10 a month.
    Mr. Clay. For those claimants who have had their claims 
satisfied, what kind of reaction do you get from the Holocaust 
era survivors or their families?
    Ambassador Kennedy. Well, I think those that effected a 
substantial recovery are happy they did. Those who received 
smaller payments that they considered insufficient were 
probably happy they got the money they did, but wish they'd 
gotten more--normal human reactions.
    Mr. Clay. How about you, Dr. Kurtz? Any reaction to that?
    Mr. Kurtz. I think the only thing I would say, Congressman, 
is that from the point of view of the National Archives, any 
access to records, any access to information related to the 
Holocaust or any of these other areas, is extremely significant 
and important, and our emphasis is always on access.
    Mr. Clay. Do you think it brings closure to the chapter for 
some of the survivors and their families?
    Mr. Kurtz. To get these payments?
    Mr. Clay. Yes.
    Mr. Kurtz. I think it brings partial closure. I think also 
from the point of view of closure, this comes also from 
historical accountability, and that is why I said what I said 
about access. Because the more of this information that is out, 
and people really understand not only what happened, but the 
whole effort to try to rectify what happened, this really 
provides closure, I think, in a broader sense.
    Mr. Clay. Well, thank you both for your response, and I 
yield back, Mr. Chairman.
    The Chairman. The gentleman from Florida, Mr. Wexler.
    Mr. Wexler. Thank you, again, Mr. Chairman.
    I just want to say at the outset, I did not file this 
legislation with Mrs. Ros-Lehtinen to in any way minimize the 
achievements and the accomplishments of Ambassador Eizenstat 
and Secretary Eagleburger, which have been extraordinary. I 
stand in admiration and respect for what they have done. But I 
filed this legislation because what we are presented with today 
is the ultimate injustice, having proceeded through the ICHIEC 
process, which has expired.
    And Ambassador Kennedy, I appreciate that you say insurance 
companies have voluntarily agreed to participate, even though 
there's no appellate process, there's no auditing process. I 
appreciate that they have voluntarily agreed to continue in 
some respects, but the process has expired, and we are 
presented with the ultimate injustice because what we have is a 
situation we're using the Administration's estimates and the 
estimates of the insurance companies, roughly 85 percent of the 
assets, the value of the assets of insurance policies from the 
holocaust era remain unpaid.
    So the question is, do we let it lie? That's it? Game over? 
Or does this Congress participate in a remedy which allows yet 
one last chance? This is it--one last chance. This legislation 
is the last chance for those survivors who have not received an 
equitable result to get it. And what the position of the 
Administration is, is ``no.'' They will not get it. The 
position of the opponents of the bill is ``no.'' The Holocaust 
survivors are done. They will not get their last chance. Now, 
what's the inequity?
    The inequity is because the victims of the Holocaust do not 
have their records. They burned. They were exterminated. 
They're in ravines. They don't have records. We talked about 
that often. Yes, there may or may not be something in Bad 
Arolsen, but there's one place where there are records. The 
insurance companies have the records.
    And yet, the insurance companies are not mandated. They 
have not provided all the records so that they can be viewed by 
everyone. If the insurance companies would provide the records, 
this issue would be largely over, but they haven't provided the 
records. So the next question is why is the United States 
Government putting itself in the position of protecting 
insurance companies who refuse to disclose records from the 
Holocaust era?
    And with all due respect to a few of the leaders in the 
American-Jewish community who have called me and said, 
``Wexler, you're upsetting the apple cart. Stop doing it,'' 
they should also ask themselves how it is that they can sleep 
at night when they know that the effort here is simply to 
provide that insurance companies should disclose their efforts 
to give people a reasonable opportunity in Federal court. Let's 
see, Ambassador Kennedy, if we can agree on certain facts.
    I think we agree that 90,000 claims were made in the ICHIEC 
process, correct?
    Ambassador Kennedy. That would be approximately right. Yes, 
sir.
    Mr. Wexler. Approximately 43,000 of those 90,000 claims 
received were rejected outright. Correct?
    Ambassador Kennedy. You'd have to ask ICHIEC about their 
process.
    Mr. Wexler. That's what their records indicate; 43,000 of 
the 90,000 were rejected outright. What their records indicate, 
maybe you can concur, is that 34,000 people received a 
humanitarian award of $1,000.
    Would you agree?
    Ambassador Kennedy. That's right.
    Mr. Wexler. So that's 77,000 of the 90,000. The remaining 
13,000 received an average of $16,000 in compensation.
    Ambassador Kennedy. I believe that's also right.
    Mr. Wexler. That's it. That's it. Six million people died 
in the holocaust. Thirteen thousand people have received 
compensation of more than a humanitarian token payment. That's 
the process we're defending here. That's the process that we're 
saying prohibits American citizens from going into court and 
having to fight their own government to get past the first I'm 
here to make a claim.
    And I think it was Mr. Green and Mr. Cleaver who both 
brought out an extraordinary point, which is that it is a bit 
duplicitous to say we're not stopping people from suing. You're 
right. You can't stop them from suing, but the Administration 
is saying the moment you get into court, the forum of the 
American government is going to say we underwrote your ability 
to sue because we made an agreement with Germany. We made an 
agreement with other countries.
    Could we also agree that all of the companies that hold 
Holocaust era insurance policies have not been before the 
ICHIEC process and their subsidiaries? Have they all been 
before that process?
    Ambassador Kennedy. I think all of the companies that 
probably were involved in European insurance markets or their 
successors, because many of these companies existed, the vast 
majority took part in the ICHIEC process.
    Mr. Wexler. Vast majority--so there are some insurance 
companies and/or their subsidiaries who have not participated?
    Ambassador Kennedy. I'd be happy to try and get a list for 
you, sir, but I would assert that basically they participated.
    Mr. Wexler. Okay, well that is a legitimate difference of 
opinion then, because--
    The Chairman. Finish up.
    Mr. Wexler. Because there are claims, I think, legitimate 
credible ones, that there are insurance companies and/or their 
subsidiaries who have not participated. But they, too, now are 
benefiting from this legal peace argument, which is then even a 
double, compounded, legal inequity.
    Ambassador Kennedy. Well, the legal peace argument applies 
primarily to Germany and Austria. Those are the two countries 
with which these agreements were negotiated.
    Mr. Wexler. Thank you. Thank you, Mr. Chairman.
    The Chairman. I thank the witnesses, and we will now hear 
from the next panel.
    All right, I need the room cleared, we have another panel 
coming up. So, please let's move quickly, let's get everybody 
seated quickly. Let's not block the aisles there. Would the 
witnesses please take their seats. I want to get this thing 
started.
    Thank you, oh, we need everybody to sit down. We are going 
to begin in a minute. Let me just say that everyone will have 
whatever material he or she wants submitted for the record, so 
there will be no need to ask. We will also grant by unanimous 
consent, to which there is no objection, the right for 
everybody to submit.
    I would also make a suggestion. We will consider ourselves 
thanked in advance. We probably save time, getting rid of five 
``thank you's.'' And we know what is in the bill, so don't 
summarize it. Tell us why you think we should, or shouldn't 
pass it, or we should change it. And we will begin with a 
constituent who has been a great source of advice, and 
inspiration on this issue to me, central to mine.
    This is Mr. Arbeiter. Mr. Arbeiter is president of the 
American Association of Jewish Holocaust Survivors of Greater 
Boston. Mr. Arbeiter?

 STATEMENT OF ISRAEL ARBEITER, PRESIDENT, AMERICAN ASSOCIATION 
        OF JEWISH HOLOCAUST SURVIVORS OF GREATER BOSTON

    Mr. Arbeiter. Thank you very much. Mr. Chairman, and 
members of the committee, my name is Israel Arbeiter, and I 
have lived in Newton, Massachusetts, since 1970. I retired from 
my business in 1995, but have remained extremely active, 
especially in the face of Holocaust survivors, including as a 
speaker in public schools, representative of survivors of 
several community organization in the Boston area, and as 
president of the Jewish Holocaust Survivors of Greater Boston, 
a position I was first elected to in 1950, and I have been 
president of all but 8 years of this organization.
    I want to extend my utmost gratitude to Chairman Barney 
Frank, our own elected Member of Congress, and a real champion 
of rights to everyone. Mr. Chairman, the survivors of our 
community regard you as a great friend, and consistent 
advocacte on our behalf. And with your permission, Mr. 
Chairman, I would like to express my most sincere thanks to 
members of your staff, for assisting in helping me to come 
here.
    I appear here today with very mixed feelings. On the one 
hand, I appreciate the opportunity to address this committee to 
urge the immediate passage of H.R. 1746, the Holocaust 
Insurance Accountability Act of 2007. On the other hand, I am 
very distressed, and even angered, that 10 years after this 
committee first held a hearing in 1998, under Representative 
Jim Leach, on Holocaust survivor's insurance claims, and 7 
years after I first testified in Congress in 2001, the 
insurance industry has managed to escape having to fully 
account for its handling of our family policies, and has 
retained so many billions that we survivors should have 
received decades ago.
    Today, in 2008, there is no more time to talk. If Congress 
wants to do the right thing, passage of this insurance 
imperative with no more delays. The legislation would restore 
the basic rights of survivors. It isn't asking very much, 
really. Is it too much for Holocaust survivors to have the 
right to have access to American courts to sue insurance 
companies who cheated our families out of insurance proceeds?
    Is it too much for Holocaust survivors to make decisions 
for themselves about property rights? Is it too much to require 
insurance companies who want to do business in the United 
States to disclose information about their customers, and give 
a complete account of their conduct during and after the 
Holocaust? I don't think so. I don't think it is asking too 
much to have the same rights as any other American citizen to 
hold insurers accountable.
    The survivors I represent, and those I am in contact with 
everyday, are confused and frustrated, yet Congress will stand 
by and allow the status quo to prevail.
    I was born in Plock, Poland, one of five sons of Isaac and 
Hagara Arbeiter. My father was self-employed as a custom 
tailor, and had two employees and an apprentice. He made a 
comfortable living. In order to protect his family in case 
something happened to him, my father purchased life insurance. 
Every week, an agent from the insurance company would come to 
our house and collect the premiums. He wrote the date and 
amount in a booklet that was given to my father for that very 
purpose.
    I remember distinctly, when my siblings and I asked my 
father why this man was coming every week to collect money, we 
were told that payment was ``for your future.'' Unfortunately, 
our future was anything but secure. In September 1939, World 
War II broke out, and Nazi Germany occupied Poland. On February 
26, 1941, in the middle of the night, following the orders of 
SS storm troopers, we were ordered out of our homes, and 
required to leave everything behind, including the life 
insurance policies, paperwork, and the booklet in which the 
agents of the insurance company recorded my father's payments.
    From there, we were taken to concentration camps. My 
parents, and my younger brother were later gassed in Treblinka. 
Two of my brothers and I spent the next 4 years in various 
concentration camps, including Auschwitz. Then, by some 
miracle, the war ended, and I was liberated. After the war, I 
attempted to pursue my father's insurance policy. I tried to 
find out where it could be cashed since my father had died in 
the Holocaust. However, my efforts were unsuccessful.
    When ICHEIC was created in 1998, Holocaust survivors and 
family members were promised a decent, total process to recover 
our fair value from these insurers from their massive theft. 
Instead, we have been victimized again by a commission process 
which has operated without any public accountability, far from 
the preying eyes of the United States legal system. Amazingly, 
it was populated by the companies that had managed to hold on 
to our money for 5 decades. This idea was an abomination, 
because companies were represented, but the survivors did not 
ask for their officials, insurance commissioners, or anyone 
else to negotiate for us.
    Why, of all people, should the Holocaust survivors be the 
only ones whose property rights would be negotiated by others? 
In Italy, in 2007, after 9 years, ICHEIC closed its doors, and 
the results are terrible. It paid less than 3 percent of the 
amount of the insurance owned by European Jews in 1938, now, 
conservatively estimated to be worth $17 billion. Those of us 
who personally experienced ICHEIC inefficiency and arrogant 
behavior were certainly not surprised at this.
    My experience is typical, and shows why H.R. 1746 is so 
important. In the fall of the year 2000, I learned that the 
creation of ICHEIC--I applied for a claim form, filled it out 
and sent it in. I soon received a--
    The Chairman. Mr. Arbeiter, we are going to need you to 
move towards a close.
    Mr. Arbeiter. I soon received a letter with the claim 
number 00067890, which stated that all member companies will 
investigate my claim, and they will report their findings 
within 90 days. A year after I filed, I had nothing. In 2001, I 
was asked by Congressman Henry Waxman to testify before the 
U.S. House of Representatives. I explained about my family 
history, my ICHEIC application, and the commission's failure to 
even follow on its rules.
    Time, we all agree, was of utmost importance. I listened to 
ICHEIC Chairman Lawrence Eagleburger, government officials, and 
other members of ICHEIC who promised quick action--a process 
where rules are enforced and everyone gets a fair share. We 
were told to be patient, that the system was new, and would 
improve. Congress chose not to take any action in 2001, to give 
ICHEIC a chance to work. Ultimately, in 2003, I found myself--
    The Chairman. I just want to update, get to a conclusion on 
the bill, we are running late.
    Mr. Arbeiter. Okay. Some say that we should accept what 
ICHEIC gave us, because there was a deal to limit our rights to 
whatever ICHEIC decided. This is simply not acceptable. Ladies 
and gentlemen, no survivor I know asked anyone else to make any 
deals about our insurance policy, and no survivors I know were 
asked if he, or she agreed to any such deals. How did anybody 
presume to deny the history I am certain about, because I lived 
it?
    I know my father had insurance, but whatever deal was made 
by ICHEIC failed to produce the fact, and I know that happened. 
So, it is not disrespectful to say I am entitled to the truth. 
I am entitled, as a Holocaust survivor, to any information that 
these companies have, or that any other company has, that is 
relevant to our past.
    Now, there is no more time to deny me the history, nor the 
histories of thousands of families. I will finish with this, 
and I thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Arbeiter can be found on 
page 63 of the appendix.]
    The Chairman. Thank you, and your entire statement will be 
in the record.
    Mr. Eizenstat, we will give you some extra time here.

STATEMENT OF STUART EIZENSTAT, FORMER SPECIAL REPRESENTATIVE OF 
   THE PRESIDENT & SECRETARY OF STATE ON HOLOCAUST-ERA ISSUES

    Mr. Eizenstat. I have an amended statement that I'd like to 
put in the record.
    The Chairman. The record is open, for anybody who wants to 
put something in.
    Mr. Eizenstat. My capacity as Special Representative of the 
President for Holocaust Issues during the Clinton 
Administration,--
    The Chairman. There are going to be a series of votes. We 
will finish Mr. Eizenstat's testimony, and then we will break 
for vote. There are four votes, so we may be gone for the 
better part of the hour. Mr. Eizenstat, please go ahead.
    Mr. Eizenstat. I negotiated agreements with the German, 
Swiss, Austrian, French and other European governments, 
resulting in payments of more than $8 billion in compensation 
to 1.5 million Holocaust survivors, their heirs, and heirs of 
those who did not survive, including Jews, and non-Jews, for 
slave labor, real estate, insurance claims, and art claims.
    I testified time and again before this committee and others 
on these agreements, including the legal peace that was part 
and parcel of it, and got bipartisan support. None of the $8 
billion would have been paid, or would have been possible, 
without in return, providing legal peace to the companies who 
paid it. These agreements were reached, not just on a bilateral 
basis between the U.S. Government, and the governments of these 
other countries. They were done in a complex set of 
negotiations with private sector representatives and 
corporations abroad and with the plaintiff's attorneys, class 
action lawyers who brought the bulk of these suits.
    And with the World Jewish Congress, and with the Jewish 
Claims Conference, and in full recognition by the Congress, 
this committee, this chairman being ranking member, and with 
Chairman Leach. The bill that is currently drafted threatens 
the integrity of the U.S. Government's long-standing policy of 
resolving Holocaust-era claims through negotiation and not 
litigation. I want to explain why that was our principle. The 
reason was that we wanted to have flexible rules of evidence. 
We wanted to have ICHEIC, which was created by the insurance 
regulators, do the research, not lawyers, for the claimants.
    We wanted to have low burdens of proof, not the high 
burdens of proof that would exist in courts. The ICHEIC process 
emerged from the impetus provided by insurance regulators in a 
number of States. In the spring of 1998, those commissioners, 
and Holocaust survivor organizations, invited the 
Administration to support an international commission to 
resolve unpaid Holocaust-era claims, and asked us to use our 
diplomatic efforts with European governments and companies, to 
bring them into the process.
    We agreed, ICHEIC was created, and the Administration had 
an observer on ICHEIC. We were not full members, because it was 
a State-led process. Our support for ICHEIC was premised on our 
interest in obtaining justice quickly. We knew that there was a 
time window, that litigation would be costly, uncertain, and 
subject to all sorts of defenses--statue of limitations, post-
war agreements, and rules of evidence. And that this would 
consign Holocaust survivors to an endless and fruitless search 
for justice.
    And so what we did, whether it was slave laborers, people 
who had their properties taken, people whose art was stolen, is 
to adopt administrative processes that could move quickly in 
the lifetime of these people, and that is what the ICHEIC 
process was all about. It was done, by the way, also not only 
with the participation, all these negotiations, with Jewish 
organizations, and Holocaust organizations. It was done with a 
representative of the state of Israel, and with the prime 
minister of Israel being directly involved, and informed of the 
negotiations.
    We had to involve, and perhaps, the most difficult part of 
the process was the insurance issue, because insurance was 
regulated at the State level, and yet, we had to merge our 
broader negotiations with Germany over slave labor and other 
issues, with this issue. We felt that to ensure the inclusion 
of the broadest possible number of companies, and countries, 
that State insurance regulators had influence only over those 
European insurers who could be subject to the jurisdiction of a 
U.S. court. And that meant only those doing substantial amounts 
of business here. We wanted a broader universe of insurers 
involved.
    And therefore, the ICHEIC process allowed us to get 
insurance companies engaged in paying into this process, who 
were not subject, and wouldn't today be subject to the 
jurisdiction of these courts. We took a number of steps to 
support the ICHEIC process. I testified in 1999 before this 
very committee, saying that we continued to believe ICHEIC was 
the best vehicle for resolving Holocaust-era claims. We 
reiterated that numerous times, and I wrote a letter to Mr. 
Eagleburger, who is chairman of ICHEIC, stating ``that it was 
the foreign policy of the United States that ICHEIC should be 
recognized as the exclusive remedy for resolving all insurance 
claims relating to the Nazi era, because courts were not a 
satisfactory, timely and appropriate way to do it.''
    Now, it is very important to understand what was done, and 
what wasn't done in the negotiation with the Germans. We 
created a German foundation, funded with 10 billion Deutsche 
Marks, half by the German government, half by the private 
companies. The private companies included thousands of German 
companies, including insurance companies. The insurance piece 
was the most difficult piece to negotiate because the German 
insurers, led by Allianz, said that they would not contribute 
to our overall 10 billion Deutsche Mark pot, unless they, along 
with all other German companies, including the Daimlers, and 
the Siemens and the others who were slave labor employers got 
their legal peace.
    Now, what did legal peace involve? It is very important to 
understand. We had this 10 billion Deutsche Mark. We had to 
divide that 10 billion Deutsche Marks between slave laborers 
and forced laborers, who got 8.1 billion. A future fund for 
tolerance programs got 700 million. More went to property, and 
we agreed after very difficult negotiations, to pass through to 
ICHEIC 550 million Deutsche Marks to ICHEIC, for them to 
administer. But the condition of that was that Allianz, and the 
German insurance companies, as the other German companies, the 
slave labor employers needed to have legal peace. What did 
legal peace involve?
    They demanded, initially, a piece of legislation of 
Congress to cut off the rights of people to sue. We said that 
is not possible. They wanted an executive agreement that would 
cut off the rights of people to sue. We said that was not 
possible. What we did agree to was a statement of interest. To 
say that it was in the national security interest of the United 
States that the cases be dismissed, in return for the payment 
of 10 billion Deutsche Marks. And that statement of interest 
simply said it was in the interest of the United States, the 
U.S. Government, with the full understanding of the Congress, 
to promote that dismissal.
    If there were valid legal grounds found by a court to 
dismiss the case, that was the single most contentious part of 
the negotiation. They said, ``Well, that leaves a huge 
loophole, the courts have to find a valid legal ground for 
dismissal.'' And we said, ``That is exactly right, that is the 
most we can give, and that is what legal peace is going to 
mean, in return for your 10 billion Deutsche Marks.'' And that 
is what ended up happening.
    The Chairman. You need to wind it up.
    Mr. Eizenstat. I'll wind it up. Here is what I would 
suggest. I have particular concerns about access to court 
issues, because it cuts directly against the understanding that 
we have reached after painful, long, difficult negotiations 
with these companies. It would totally vitiate the 
understanding that we reached in broad daylight--
    The Chairman. We have the point, but we do ask you to 
finish.
    Mr. Eizenstat. There is a part of this legislation on the 
registry that I want to talk address. I am concerned about the 
fact that people may not know, and may not be paid for their 
policies. And here is what I would suggest. Instead of a 
registry, which runs against certain privacy rules in Europe, I 
would suggest the following: That Congress pass in legislation, 
a mandated requirement that all companies doing business in the 
United States submit period reports of their post-ICHEIC claims 
processing to the Congress, and to an appropriate office of the 
Department of State, stating the number of claims submitted, 
the number granted, the reasons for refusal, the amount offered 
in compensation, to vindicate the public interests in ensuring 
that companies live up to their commitments, while still 
respecting our agreement and the privacy rules of European 
companies.
    They should do so according to the rules submitted by 
ICHEIC, the loose rules. I would go a step further, and suggest 
that all potential claimants be told that they can file claims 
through the German Insurance Association, GDV, and that 
insurance associations distribute those claims to the 
appropriate German companies. And those companies would be 
obligated to search their files to see if there was a match, 
and then to report, on an annual basis to the Congress and to 
the State Department, on their results. This, to me, would be a 
more appropriate way of dealing with it, than vitiating 
agreement--
    [The prepared statement of Mr. Eizenstat can be found on 
page 102 of the appendix.]
    The Chairman. We are over time, and we have a vote. So, we 
will recess, and come back when we are through voting.
    Mr. Eizenstat. Mr. Chairman, may I just ask, I am supposed 
to be--
    The Chairman. We are over time.
    Mr. Eizenstat. I understand. How long do you anticipate we 
should--
    The Chairman. It is going to be about 40 minutes--4 votes. 
If you have to leave, we understand that.
    [Recess]
    The Chairman. Sorry, the delay, in part, was to commemorate 
the victims of the Tennessee tornadoes, which took longer than 
anticipated. We will resume, and we are now up to Mr. Dubbin; 
is he not here yet? Then, we will move on to Ms. Koken, and we 
will get back to Mr. Dubbin.
    Ms. Koken, why don't you begin.

  STATEMENT OF DIANE KOKEN, FORMER VICE-CHAIRMAN, ICHEIC, AND 
           FORMER PENNSYLVANIA INSURANCE COMMISSIONER

    Ms. Koken. Chairman Frank, and members of the committee, 
thank you for the opportunity to appear before you today. I 
appreciate the committee's efforts to examine the issues 
underlying the Holocaust-era insurance claims, including the 
work of ICHEIC, in the context of considering this legislation. 
ICHEIC's mission was to identify, and compensate previously 
unpaid Holocaust-era insurance policies. Under the leadership 
of former Secretary of State Lawrence Eagleburger, ICHEIC 
resolved more than 90,000 claims, ensuring that over $306 
million was offered to Holocaust survivors and their heirs for 
previously unpaid insurance policies.
    Of this amount, more than half went to individuals who were 
unable to provide policy documentation or identify the company 
that may have issued the policy. The commission also 
distributed more than, or nearly $200 million more for 
humanitarian social welfare purposes, largely to honor the 
memory of heir-less claims.
    I hope to help you to understand why, and how the 
commission approached its mission, and how the organization was 
structured around that mission. As a former president of the 
NAIC, and vice chair of ICHEIC, I participated in this process 
from its earliest days. I was joined in this effort by 
insurance regulators from all parts of the country who deserve 
even greater recognition for much of the work of ICHEIC. In 
particular, is the work of New York, and the late Neil Levin, 
who perished on 9/11, and Glen Pomeroy, former president of the 
NAIC and North Dakota insurance commissioner.
    Credit also goes to the NAIC for their efforts to resolve 
the complex issue of unpaid Holocaust-era insurance claims. 
Through the participation of a diverse group, ICHEIC offered 
recourse to thousands of individuals who would not otherwise 
have had the opportunity to pursue their claims. We only came 
to appreciate the challenge we worked through with the 
undertaking. We were creating a process to address claims that 
were over 70 years old, from more than 30 countries, with more 
than 20 languages and currencies with no relevant value, and 
with little documentation.
    To start, we researched the pre-war, and wartime insurance 
market, and then invested heavily in extensive global outreach. 
We utilized all means available, and emphasized that anyone, 
regardless of the documentation they possessed, who thought 
that they were entitled to a Holocaust-era insurance policy, 
should file a claim.
    We established an agreement on relaxed standards of proof, 
and created valuation standards that could be calculated 
without usual policy documentation. We also developed an 
extensive research database, and a matching system. 
Furthermore, we instituted a separate, but related humanitarian 
claims payment process for unnamed, unmatched claims, and for 
claims on Eastern European companies that had been liquidated, 
nationalized, or for which there really were no present-day 
successors.
    One of the commission's first priorities was to gain a 
clear understanding of the overall volume, and estimated value 
of potential claims. Glen Pomeroy, brother of your colleague, 
Earl Pomeroy from North Dakota, co-chaired a task force to 
explore these issues. The Pomeroy task force, utilizing outside 
experts, guided the commission in deliberation on how to assess 
appropriate settlement amounts across the markets in Europe, 
which ultimately resulted in overall settlements of 
approximately $550 million.
    ICHEIC's archival research was similarly critical to build 
on the information provided by claimants constructing an ICHEIC 
research database that ultimately could be matched with the 
company's information. As a by-product of this research, ICHEIC 
published the names of 519,000 potential Holocaust-era 
policyholders on its Web Site. Finding a name on a list, 
published by the commission, was neither necessary to file a 
claim, nor proof that a previously unpaid claim existed.
    We recognized that our credibility depended on adequate 
oversight. For this reason, ICHEIC established four important 
processes: One, a two-stage, independent, third party audit for 
the claims review processes of each participating company and 
partner entity; two, an executive monitoring group that could 
conduct real-time evaluations of companies and the ICHEIC 
claims operations; three, an in-house verification process to 
crosscheck every decision on every claim that named a company; 
and four, an appeals process that allowed for any named 
claimant to have a decision by a company reviewed.
    The successful settlement of ICHEIC claims, coupled with 
restitution efforts during the immediate post-war period, and 
the ongoing work of existing entities to resolve the remaining 
unpaid insurance policies within their respective jurisdictions 
addresses a preponderance of the pre-war insurance market. In 
addition, at ICHEIC's concluding meeting, every company that 
was a member of the commission, as well as the 70 companies of 
the German Insurance Association, through its partnership 
agreement with ICHEIC, and the Sjoa Foundation reaffirmed their 
commitment to continue to review, and process claims sent 
directly to them, which was confirmed by company letters.
    The work of the commission was unprecedented, yet we were 
able, through amicable and inclusive dialogue to voluntarily 
adopt a new approach towards the resolution of unpaid 
Holocaust-era insurance claims for the benefits of survivors, 
and their families, and those who did not survive. In the end, 
for me, it was about the people, and their stories, and about 
justice. The commission could not resolve the wrongs done by 
the Holocaust, as that debt is incalculable. However, our 
efforts could bring some measure of justice to the lives of 
thousands of survivors, their families and the families of 
those who perished. Thank you.
    [The prepared statement of Ms. Koken can be found on page 
128 of the appendix.]
    The Chairman. Thank you, Ms. Koken.
    We now go to Sam Dubbin.

    STATEMENT OF SAM DUBBIN, ESQ., ATTORNEY, MIAMI, FLORIDA

    Mr. Dubbin. Thank you. My name is Sam Dubbin, and I am an 
attorney from Miami, Florida. I would like to explain to the 
committee how I got involved in this matter.
    Mr. Chairman. Mr. Dubbin, we have a limited amount of time, 
and your background may or may not be relevant to what we do on 
the bill.
    Mr. Dubbin. I understand.
    Mr. Chairman. Use your judgement, but you don't have--
    Mr. Dubbin. I got involved because when I returned to 
practice law in Miami in the late 1990's, I was approached by a 
number of Holocaust survivors, elected leaders of survivor 
groups who were very concerned about the way deals had been 
made, and discussions were done over their rights. And many of 
them talked about insurance policies. And the survivors, and I 
went to our legislators. And in the State of Florida, 
legislation was passed that provided, based upon the testimony 
that the insurance commissioners had heard that--because 
everybody recognized that today would be difficult, or in the 
1990's it would be difficult for survivors to be able to know 
about a claim.
    The legislation in Florida, like the legislation in several 
States, required the publication of names, and it allowed 
survivors to go to court with a 10-year window. And the 10-year 
window was extremely important, because to have to litigate the 
statue of limitations under the circumstances would be an undue 
burden to impose upon people who obviously have been denied 
that information for years.
    So, it was the heartfelt outpouring of desire for truth, 
and for reconciliation for history, and the ability to 
reconnect with what their families had lost, from Holocaust 
survivors, that got me involved. I filed a number of lawsuits 
against certain insurance companies. I was one of the lead 
counsels in the Hungarian Gold Train case in which we were 
able, with the help of Members of Congress, including many 
people on this committee, to get a just resolution. And that 
was through the courts.
    And that is because the survivors had the ability to speak 
for themselves. It is the denial of that ability to control 
their own rights through the courts of the United States that 
is the greatest abomination really of what has happened over 
the last 10 years. I want to remind the committee that those 
who are opposing the legislation talk about legal peace. What 
is legal peace?
    Mr. Eizenstat has said, in his book, that during the 
negotiations over whether German industry would pay slave and 
forced laborers for the torture that they inflicted on them; he 
said, in effect, that before they would make those payments, 
they insisted that the United States wrap insurance into that 
overall agreement at the 11th hour.
    Now, whether or not it is appropriate to negotiate by 
executive agreement payments about slave labor, which is a 
different kind of legal claim than a documented insurance 
claim, remember the policies, the documents are there, in most 
cases. The companies have the documents in most cases. The re-
insurers have the documents in most cases.
    So, why there should be a legal or moral nexus between 
slave labor payments and the property claims, like insurance 
claims, is a very serious, fundamental policy issue that this 
Congress should look at. It is also clear, from Mr. Eizenstat's 
book, that the Germans demanded that the President agree to 
abolish people's rights to sue for insurance policies. It was 
equally clear that the President does not have the authority to 
do that, and that the German then, in effect, gambled that the 
so-called ``legal peace'' that was agreed to, would somehow 
prevail in the courts.
    And the Solicitor General, Mr. Waxman, evidently wrote a 
letter outlining that, under no circumstances, did the United 
States have the ability to abolish people's rights to sue for 
insurance policies. So, the agreement provided, that was in the 
``foreign policy,'' that they would file a statement of 
interest that it was in the foreign policy interest of the 
United States, for cases to be dismissed on any valid legal 
ground.
    Today, it is the interpretation of that, in the courts, 
that has caused the problem. It is the courts' interpretation 
of the executive agreements that now bars survivors from going 
to court. They said it is not the agreements that matter. So, 
when the State Department says here that we didn't agree to 
keep people out of court, that is disingenuous, because the 
courts have said there is a Federal policy that operates 
separately from these executive agreements, from the language 
of the agreements, that they have relied upon to bar Holocaust 
survivors and heirs from access to the courts for insurance 
claims.
    So, those who now oppose the legislation want to give 
Germany more than it was able to bargain for, in connection 
with that executive agreement. Now, so, the question is who 
decides Federal policy about how Holocaust survivors' rights 
ought to be determined in the United States of America. The 
question is, did the President have the authority to negotiate 
away the rights of survivors to go to court, as a practical 
matter?
    The language of the agreement is more restrictive than what 
they have obtained today. The courts have interpreted that as 
embodying a policy. This is not about foreign policy, this is 
about international commerce, and it is about access to the 
courts of the United States. And those are areas that this 
Congress has jurisdiction over, pure and simple. And to the 
extent that there is an argument that there is a foreign policy 
element to that, there is no case, and no principle where, in 
the absence of a grave international crisis, and congressional 
authority, that based upon the President's word alone, people 
have had their rights to go to court denied.
    But that is the effect of the agreement, and the subsequent 
court decisions. That is why the access to courts provision of 
this legislation is so important. So, that leaves to the 
Congress the question of who sets policy about whether or not 
companies that do business in this country, who sold insurance 
to people who live here today--and believe me, these policies, 
as I put in my statement, they were very explicit, when 
Victoria, and Generali and the others sold insurance, it said, 
``You can collect this policy anywhere in the world where you 
demand payment.''
    And that meant something very special to Jews in Europe in 
the 1930's, because they sure hoped they would be somewhere 
else, or thought they might be, when it came time to collect. 
So, this is not about foreign transactions, this is about 
global companies at the time. They had assets in the United 
States at the time, and people today want to redeem those 
policies. These are contract rights, and to think that there is 
one class of people in this country today who do not have the 
right of access to courts, to obtain compensation for contracts 
that were sold to their parents under, admittedly, unusual 
circumstances.
    But those circumstances, as you have heard from many 
people, shouldn't justify the denial of access. If anything, it 
should demand more favorable treatment, such as the publication 
of names, which is justified under the conditions, and the 
statutory extension of the statue of limitations. Is Congress 
willing to abide by the executive's judgement? There are two 
questions. Legally, there is no question that Congress has the 
authority. Morally, do you accept the judgment that, as a 
condition of allowing the German companies to make slave labor 
payments, that people's insurance rights should be obstructed 
the way they are? That is a decision for Congress to make.
    I would just close by saying ICHEIC, in spite of the 
accomplishments that it had, and there were some, its 
overarching purpose was to limit the financial exposure of the 
insurers, and the moral exposure of the insurers. And by that, 
I mean there are records that show what the companies did when 
the Nazis came to collect people's policies. Those files exist, 
and the survivors have a right to know what someone who sold 
their parents insurance did at the time the Nazis came 
knocking, what they did to identify their Jewish customers. 
That is as much a part of this as the compensation. And for 
that truth, and frankly, for fair compensation to be denied as 
a result of those transactions, is really a travesty, and it is 
not the kind of thing that this Congress should associate 
itself with, as far as, the policy of the United States of 
America.
    [The prepared statement of Mr. Dubbin can be found on page 
66 of the appendix.]
    The Chairman. Thank you.
    Next, we will hear from Roman Kent.

STATEMENT OF ROMAN KENT, CHAIRMAN, AMERICAN GATHERING OF JEWISH 
                      HOLOCAUST SURVIVORS

    Mr. Kent. Thank you, Chairman Frank, and members of the 
committee, for allowing me to appear here. I am a Holocaust 
survivor. I received a bachelors degree in the Lodz Ghetto, and 
I received a Ph.D. degree in Auschwitz. Presently, I am 
chairman of the American Gathering of Jewish Holocaust 
Survivors, and officer of the Conference of Jewish Material 
Claims Against Germany, known as the claims conference.
    I participated in the negotiation leading to the 
establishment, and was commissioner of, the International 
Commission of Holocaust-Era Insurance Claims, known as ICHEIC. 
I also participated in the negotiation involving the German 
foundation, and am presently also involved in the ongoing 
claims conference negotiation with the German government, which 
has provided hundreds of millions of dollars annually for 
Holocaust survivors.
    For 25 years, I fought for justice, in memory of the 
Holocaust survivors. For this reason, I believe that I have a 
unique perspective from which to comment on the issues which 
are the subject of this hearing. At the outset, I want to 
highlight three key points. First, the ICHEIC process has 
concluded, however, insurance companies which worked with 
ICHEIC continue to accept and process Holocaust-era insurance 
claim, applying ICHEIC standard in their decision, at no cost 
to claimants.
    In addition, a number of organizations, including the 
Holocaust Claim Processing Office of New York State, will 
assist survivors filing such claims at no charge. Second, H.R. 
1746 would generate huge expectations among survivors that will 
not be met. The cost in time--above everything time--and effort 
required to engage in litigation will be excessive, if not 
prohibitive.
    Even if European data protection hurdles could be overcome, 
the mandatory publication of the companys which work with 
ICHEIC, of all policyholders name will, at that point, yield 
little new information regarding policyholders who were victims 
of Nazi persecution.
    Third, H.R. 1746, by effectively reopening previous 
agreements, will certainly, and I want to emphasize the word 
``certainly,'' damage ongoing negotiation with Germany, among 
others, and will put at risk hundreds of millions of dollars in 
crucial funding, which is required now, for the Holocaust 
survivors.
    Since the beginning of World War II, and for the next 60 
years, few survivors recovered the proceeds of their unpaid 
Holocaust-era insurance policies. They faced enormous 
obstacles, including the resistance of insurance companies to 
pay or even give a fair hearing, the virtual impossibility of 
obtaining relevant documents, and the statue of limitations. 
Moreover, many companies were no longer in business after the 
war. A communist regime banned any sort of recovery for 
survivors in many countries.
    Clearly, there was a vacuum in post-war insurance 
resolution effort. No effective forum existed. This is 
precisely why the ICHEIC agreements were reached. ICHEIC 
developed a process and methodology to identify and compensate 
previously unpaid individual Holocaust-era insurance claim, at 
no cost to claimants.
    Working with the insurance companies that had agreed to 
participate, ICHEIC made great strides to fill this void, and 
attained a measure of justice for claimants, which up to that 
point, had not existed. However, only five European companies, 
which signed the agreement to work with ICHEIC, and the German 
companies, which were part of the German foundation agreement, 
provided funding for ICHEIC. ICHEIC received no other funds 
from any companies which were part of the European insurance 
market.
    Nonetheless, ICHEIC developed a special process to make 
payment, even for policies issued by such companies. Moreover, 
many complications arose with the companies that did work with 
ICHEIC. For example, the different data protection of privacy 
law of Germany, Italy, France, and Switzerland had to be 
addressed individually. ICHEIC also developed a liberal 
approach towards evidence to make it possible, and easier for 
claimants to recover.
    Only a small percentage of claims named a specific company, 
and fewer still included any documentation linking the policy 
to the specific company named in the claim. Yet, ICHEIC did 
something no court would do, and developed a way to pay 
claimants who did not produce an insurance policy, or name a 
specific company.
    Thus, to address the ineffectiveness of lawsuits, ICHEIC 
became the first, and indeed, the only one organization to 
offer Holocaust victims, and their heirs, a way to pursue 
Holocaust-era insurance claim at no cost, without regard to any 
statue of limitation, even if the policy in issue could not be 
produced. An assertion had been made on a number of occasions 
that less than the 5 percent of the total value of Jewish 
Holocaust-era insurance policies was paid through the ICHEIC 
process. This is a figure without any solid basis.
    As I have noticed, ICHEIC paid claimants for insurance 
policies issued by companies in Eastern Europe which no longer 
exist. Beyond that, the ultimate percentage of the Holocaust-
era insurance market, paid through ICHEIC, depends on the 
valuation of Jewish purchases policies in question, and that, 
in turn, will vary depending on which values out of the broad 
range of possibilities, are used in the relevant calculation.
    The factors involved in the complex calculation required 
included the following: One, the total pre-war face value of 
all insurance policies in the local currency at the time; two, 
the Jewish share of such policies; three, the propensity of 
Jewish individuals to purchase insurance in greater numbers and 
at a higher value than the rest of the population; four, an 
adjustment for policies which were paid; and five, the method 
used to convert the value of unpaid Holocaust-era policies in 
today's value.
    There is no single correct measure for any of these 
factors. The final conclusion one can reach, will radically, 
and I say radically differ, depending on which values, out of 
the extensive range of possibilities, were selected for their 
relevant component factors. To summarize, was ICHEIC perfect? 
Hell no. Excuse me for saying, ``Hell no.'' Let me correct it 
by saying clearly not.
    The Chairman. I would instruct the recorder that ``Hell'' 
can stand.
    Mr. Kent. Thank you, Mr. Chairman. Nothing, nothing can 
remedy the wrongs perpetrated during the Holocaust. The life of 
one child, and one-and-a-half million children, and I was a 
child, cannot be measured in dollars and cents. The most that 
can be achieved is an imperfect justice. Imperfect justice on 
this planet, we do not have a perfect justice on this planet 
yet. I hope maybe sometime we will. Yet, as imperfect as ICHEIC 
was, what it accomplished was without precedent.
    One, ICHEIC provided a forum for all of--
    The Chairman. We have to speed this up, Mr. Kent.
    Mr. Kent. Yes, one more minute please. ICHEIC provided a 
forum for Holocaust-era insurance claims where before, 
practically speaking, there was nowhere to go. Second, ICHEIC 
did not charge survivors, nor was it bound by any statue of 
limitation. Third, ICHEIC paid on policies issued by insurance 
companies which no longer exists. Four, insurance which worked 
with ICHEIC, continued to accept, and process claim, while the 
Holocaust Claim Processing Office will assist applicants with 
filing claims. Fifth, based on ICHEIC research, an archive 
consisted of over 520 most likely Jewish insurance policy 
holder, is now available to survivors, historians and other 
researchers.
    And finally, about $600 million of Holocaust-era insurance 
policy was paid to policyholders, and heirs, and to programs 
benefiting survivors, and it was paid based on ICHEIC's 
standards. ICHEIC--
    [The prepared statement of Mr. Kent can be found on page 
119 of the appendix.]
    The Chairman. That will have to do Mr. Kent.
    Mr. Kent. Yes, I just--
    The Chairman. You said another minute, and we are over 
that.
    Mr. Kent. I do appreciate, I just have to finish it though.
    The Chairman. You have 10 seconds.
    Mr. Kent. I cannot do it in--
    The Chairman. Then we will get back to you in the 
questioning. We are going way over on all these, and I did try 
to advise you.
    Mr. Kent. Can I just finish my conclusion?
    The Chairman. No, we will get to you in the questioning.
    Mr. Zabludoff?

STATEMENT OF SIDNEY ZABLUDOFF, FORMER CONSULTANT, CONFERENCE ON 
          JEWISH MATERIAL CLAIMS AGAINST GERMANY, INC.

    Mr. Zabludoff. Thank you for allowing me to present the 
facts relating to the restitution of Holocaust victim assets. 
My basic conclusion after examining the issue for more than 10 
years is that extraordinary events require extraordinary 
solutions. Clearly, the murder of two thirds of continental 
European Jewery and the compensation of nearly all Jewish 
assets by the Nazis who were collaborators was such an event. 
Despite the extraordinary circumstances, only about 20 percent 
of the stolen property and other assets has been returned, as 
of 2007. Two bold actions could be taken to rectify this 
sizeable and unconscionable shortfall. They are the passage of 
H.R. 1746 and ensuring that the remaining unpaid stolen assets 
are used to assist needy Holocaust survivors.
    In the first case, H.R. 1746 would help restore to 
Holocaust victims or their heirs the value of policies never 
paid by insurance companies or companies. This amount is 
conservatively about $17 billion in today's prices.
    The bill's important first step is to ensure the names of 
policyholders are published. ICHEIC started this process, and 
some 500,000 names were placed on its Web site. Germany 
produced about 80 percent of these policyholder names. In the 
ICHEIC context however, the German list was of little use since 
it was made public only a few month before ICHEIC's filing 
deadline. For all other countries, the number of Jewish 
policyholders published is minimal. The most notable 
shortcomings are in Hungary, Poland, and Romania, all of which 
had large pre-Holocaust Jewish populations. Even in most west 
European countries, the number of published names is 
extraordinarily small. To deal with the shortcoming, non-German 
archives need to be further examined, and most importantly, 
companies doing business outside Germany should publish the 
names of the policyholders.
    The proposed legislation also provides victims and their 
heirs a means to receive a fair value for policies taken out in 
the Holocaust period. This recognizes that there is still a 
long way to go for life insurance companies to meet their 
Holocaust era obligations. At most, about 11 percent of the 
fair value of outstanding policies was paid during the post-war 
and ICHEIC years. H.R. 1746 provides the last opportunity to 
increase that percentage.
    Again there are differences between Germany and other 
countries. Germany is the only entity that has pledged or 
continued to accept claims and pay them under ICHEIC 
guidelines. There are, however, very serious negative aspects 
of the seemingly benevolent action. The German Association will 
not accept claims that do not name companies. This is an 
enormous drawback. Nearly all the 400,000 German names of 
policyholders listed on the Web site do not indicate a company 
name, and ICHEIC experience clearly demonstrates that two 
thirds of the claimants did not know the company name. Thus 
this German action is of little benefit to the claimant.
    Also on the downside is the method Germany insisted upon in 
using in determining a policy's current value. It produces an 
amount that is only about 15 percent of similar valued policies 
paid under ICHEIC guidelines for all other West European 
countries. In special arrangements with other European 
countries ICHEIC achieved little in settling claims. A number 
of these shortcomings are illustrated in my written 
presentation.
    The chief reason for ICHEIC's problems were inept 
governance and poor management. Governance became akin to 
secret diplomacy in which those who ran ICHEIC relied heavily 
on dealing only with those who favored their views, while 
making promises to others that were not fulfilled or long 
delayed. Judge Michael Mukasey succinctly summed up the problem 
when he described ICHEIC as ``the company store.''
    But no matter what steps are taken to find claimants, many 
policies will remain unpaid. Those working on ICHEIC and other 
restitution efforts recognized this outcome from the start. 
This is because whole families were wiped out by the horrific 
events of the Holocaust, leaving only distant relatives with 
knowledge of their policies, especially when dealing with 
events over half a century ago. It is also understood that many 
records no longer exist. For example, the extensive search of 
life insurance records in Germany yielded about 8 million 
policies, or only about a quarter of the policies outstanding 
in the late 1930's.
    Recognizing this fact, ICHEIC attempted at one time to 
calculate the overall value of policies, called the top down 
approach. The companies would then pay the difference between 
the overall estimate and the amount actually paid to claimants 
to a fund that would support needy survivors and other causes. 
This approach, however, was quickly forgotten as ICHEIC 
proceeded, and relatively small amounts were provided for such 
a humanitarian fund, mostly under the accord with Germany. 
Insurance companies failed completely to deal with this issue.
    This brings me to my last point. Besides pressing 
individual claims, I would suggest an international remembrance 
fund to support needy Holocaust survivors who are in their 
autumn years. Currently, there are approximately 600,000 
Holocaust survivors worldwide, and actuarial data indicate that 
the number will decline sharply during the next 10 years.
    A review of available studies indicates that there are 
numerous survivors who lack adequate income to meet their daily 
expenses and health requirements. For example, one study of the 
United States indicates the income of more than half of the 
survivors falls within the poverty or near poverty bracket. 
Clearly, what is urgently required is an in-depth study to 
determine more precisely the likely financial requirements of 
needy survivors.
    Simultaneously, we must reach a global accord to establish 
an international remembrance fund. This will require innovative 
financial structure, but again extraordinary measures are 
essential in dealing with an extraordinary event, such as the 
Holocaust.
    Thank you.
    [The prepared statement of Mr. Zabludoff can be found on 
page 148 of the appendix.]
    The Chairman. Thank you. Before we get to the questions, we 
have received several letters. I will read them into the 
record.
    The World Jewish Congress expresses its position on H.R. 
1746--it says that negotiations in the future will be 
irreparably harmed.
    The B'nai Brith International expresses reservations and 
asks that we take these considerations into account: ``We worry 
that the legislature will unfairly raise the hopes of survivors 
without being able to satisfy the negotiations,'' It also 
expresses concerns about future negotiations.
    The American Jewish Committee says that the bill could 
adversely affect similar negotiations in the future, and says 
that it believes current measures are adequate.
    And the Anti-defamation League says that H.R. 1746 is 
unnecessary and does not serve the needs of Holocaust 
survivors, nor answer the credibility of agreements on these 
matters.
    They will be made a part of the record. The record remains 
open if others wish to submit anything, and copies of these 
letters will be available, if anyone wishes to comment on them.
    One technical question as to timing, Mr. Eizenstat. When 
did this all finally get done? The agreement? You referred to a 
period of my being the ranking member. I became the ranking 
member in 2003.
    Mr. Dubbin. In 1998, February 12--
    The Chairman. Well, I said Mr. Eizenstat, Mr. Dubbin.
    Mr. Dubbin. I'm sorry.
    Mr. Eizenstat. I testified in September of 1999.
    The Chairman. Yes. I was not the ranking member. I just 
wanted to--I know that Mr. Leach and I--he was the chairman. 
You said I was the ranking member. I didn't become the ranking 
member until of January of 2003. Mr. LaFalce was then the 
ranking member.
    Mr. Eizenstat. You are correct.
    The Chairman. Let me raise one question for those who are 
opposed to the bill. Mr. Zubludoff referred to the fact, and 
I'm told by some of the staff, that there is a different 
response from countries. That Germany, in fact, has been more 
responsive than some of the others. If we don't do anything 
legislatively, what can be done about those countries that have 
not been responsive? I'm told the Netherlands, Austria, and 
maybe Switzerland. Is there something that can be done about 
countries which have not been responsive, even if you think the 
terms were acceptable? Any of the three?
    Ms. Koken. Well, I would only mention that with regard to 
ICHEIC, we did archival research in quite a few countries. And 
we entered into agreements--
    The Chairman. Do you disagree with the notion that there 
has been a differential level of response?
    Ms. Koken. I do believe that in many of those countries 
there are mechanisms in place--
    The Chairman. No. No. Ms. Koken, I'm sorry, but I'm tired. 
I have been here all day. That's not what I asked you. I'm sure 
there are mechanisms. Do you agree or disagree that there has 
been a differential level of response?
    Ms. Koken. I believe that some of those countries have not 
completed their work yet in their process.
    The Chairman. Okay. Is that just a timing thing? They were 
busy that day and couldn't get to it? I mean why are some 
slower than others?
    Ms. Koken. The two countries that I know that have not 
completed would be Switzerland and Austria, and they are still 
working on their processing. I would not be an expert--
    The Chairman. All right. I don't mean to be rude, but if 
you're not, don't answer the question. I was unfair to the 
Netherlands apparently. I guess the problems are in Austria and 
Switzerland. Mr. Kent, did you want to respond to that about 
Austria and Switzerland?
    Mr. Kent. Yes. I would like to first, with your permission, 
finish what you said--
    The Chairman. If you can do it in 30 seconds, Mr. Kent. You 
had over 10 minutes for a 5-minute period.
    Mr. Kent. I am extremely concerned that the legislation 
would certainly--this was your question--certainly damage 
critical ongoing negotiations, especially with Germany, 
involving hundreds of millions of dollars in Holocaust-related 
compensation, which is needed now, not tomorrow or next year, 
but now. I also feel that the support the United States 
Government provides Holocaust survivors will be undermined as 
other governments lose faith in the ability of the United 
States to keep its promises. Reimbursement--
    The Chairman. No. I'm sorry, Mr. Kent. That's enough. 
You're abusing the privilage of the committee. You had over 10 
minutes. I've listened a lot. I now want to get to the 
questions. What about Austria and Switzerland? Are they a 
problem, and if they are do we--do they get left undone?
    Mr. Kent. I cannot tell you. But Eastern European 
countries, yes. We have spent over $31 million to pay claims 
for Eastern European countries. You, as the Congress, can do 
something. You can help us to collect from them the money. That 
you, as Congress, could do.
    The Chairman. Okay. And that's an important point. But I 
still went to get back to--does anyone have any response to the 
question that even within the terms of this agreement, Austria 
and Switzerland have not been responsive, I'm told. And if 
people think that is not true, they should tell us. Can we do 
anything about it? Mr. Zabludoff?
    Mr. Zabludoff. You raised the question about Austria and 
Switzerland, and in the case of Austria, they allocated $25 
million for life insurance. That was in relationship to ICHEIC. 
Because it was only $25 million, they have just sent out 
notices--or fairly recently--that they are only going to pay 15 
percent of that, because they don't have the money.
    The Chairman. All right. Well then let me raise that 
question to people who are opposed to the bill. Where does that 
leave people who have a claim against Austria, even under this 
procedure?
    Mr. Zabludoff. People have--
    The Chairman. No. I don't mean--
    Mr. Zabludoff. I'm sorry.
    The Chairman. A strong argument has been made that Germany 
has acted in good faith and made a deal, but there are other 
countries. And the question is, what do we do about these other 
countries?
    Ms. Koken. Well, I would say that ICHEIC did pay a number 
of the claims of the Austrian, about $10 million, because we 
wanted to make sure those claimants were not left behind. But I 
might suggest that might be a level of inquiry for this 
committee, is to ask each of the countries to set out what they 
have done. I know in--
    The Chairman. That's not my question. My question, is can 
we do something to make them do it? You're saying we made good 
because Austria wouldn't. Is that what ICHEIC did? Yes, Mr. 
Eizenstat?
    Mr. Eizenstat. The issues that I have raised, and perhaps 
Mr. Kent as well, refer--
    The Chairman. Please answer my question or else we'll pass 
on.
    Mr. Eizenstat. I'm answering the question.
    The Chairman. No. I'm talking about Austria and 
Switzerland.
    Mr. Eizenstat. --Refer only to those companies that have 
participated in ICHEIC or adopted ICHEIC policies. It did 
include certain Swiss and Austrian companies. If there are 
Eastern European companies that did not participate in ICHEIC 
the legal peace issue--
    The Chairman. I understand that. But with regard to Austria 
and Switzerland, maybe again--
    Mr. Eizenstat. There are a number of Swiss companies that--
Winterthur and Zurich, and so forth, which were part--
    The Chairman. Are there companies in Austria and 
Switzerland as a whole? And are they doing less than they 
should be under the agreement? Because the fact that some 
companies are doing well doesn't answer the question about 
others. It's not a trick question. I'm trying to get 
information.
    Ms. Koken. I guess the question is the agreement, when you 
refer to the agreement. With regard to ICHEIC, the companies 
all applied the standard equally. So to the extent that Zurich 
and Winterthur were in ICHEIC, we're very satisfied with the 
work that they did.
    The Chairman. What about all of the other companies? You 
just said that Austria was not living up to its agreement.
    Ms. Koken. To the extent that there are separate entities 
that were created, the Swiss Bank settlement, which is what the 
Swiss are participating in. And the Austrian, they haven't 
completed their settlement work, so we can't say--
    The Chairman. What's the timetable? When are they going to 
do it? We have been doing this for a long time.
    Ms. Koken. That's a good question. That's a very good 
question.
    The Chairman. Well, that sounds to me like some problem 
might be--
    Mr. Kent. Mr. Chairman, if I can say something to you. 
Several years ago, I testified here in the Congress, and I told 
them if you want to do something, that means if the Congress 
wants to do something, stop giving licenses to the insurance 
companies that do business, and do nothing to help Holocaust 
survivors. Unfortunately, I must tell you it's easier to sit 
here and hear the critics. But Congress didn't do anything 
about it. I gave them a strict report--
    The Chairman. Well, I don't remember that. I would say 
this, though. Excuse me, Mr. Kent, I'm going to respond. 
Congress doesn't license insurance companies. The States 
license insurance companies. I will look into that 
specifically. But I don't know what licensing that we at 
Congress would have been involved in. In fact, my European 
friends complain to us all the time that if they want to sell 
insurance in America, they have to go to 50-some-odd different 
jurisdictions. So I don't believe the Congress has been 
allowing that, but I will look further into what you said. 
Still, I am somewhat disappointed. I thought I was asking a 
fairly straightforward question about a differential level of 
compliance, and whether or not that's something that needs to 
be addressed. We'll now move on to Ms. Ros-Lehtinen.
    Ms. Ros-Lehtinen. Thank you. Thank you, Mr. Chairman, again 
for letting me participate. One multi-level question for Mr. 
Dubbin, if you can answer in the allotted time. Some opponents 
of H.R. 1746 have stated that it is premised on inaccurate 
estimates of the unpaid value of Holocaust victim's policies. 
Secondly, that it violates deals to provide legal peace for 
German and other insurance companies that participated in 
ICHEIC. And thirdly, that H.R. 1746 isn't likely to produce 
enough successful claims by survivors to justify the political 
cost of the ill will that it would engender among foreign 
governments whose insurance companies profited from the 
Holocaust. If you could refute those, or not refute them.
    Mr. Dubbin. On the value, Mr. Zabludoff, who participated 
in the ICHEIC group analysis--there was a consensus that at the 
time the value of--there was a consensus about what the value 
of Jewish policies was. He calculated the amount that had been 
paid after the war in various programs and then taking the 
remainder, which was slightly under $600 million, he multiplied 
that by the yield of a 30-year U.S. bond, from 1938 until the 
present. And with that he got--in 2004--$15 billion. Now it's 
$17 billion. A 30-year bond yield is extremely conservative, 
because most insurance companies invest it in stocks, real 
estate, and other much more high-yielding investments. So there 
is no dispute about the underlying numbers.
    And ICHEIC never undertook to go to the next step, which 
was to take the value in 1938 and bring it up to current 
levels. So the $17 billion figure is very solid. But if you, as 
Mr. Waters said, if you accept the $3 billion level, what ICEIC 
paid out would still only be 15 percent. But under Mr. 
Zabludoff's conservative numbers, which are not challenged in 
any--I have not seen a theoretical objection, or a factual 
objection to what he said.
    The second question was legal peace. The U.S. Government 
does not have the power to waive a citizen's right to go to 
court. Germany demanded that. They were told that they couldn't 
have that. What the United States agreed to do was very 
limited, and it said that we will file statements of interest 
in court, which would say that it's in the foreign policy 
interest of the United States Government for the case to be 
dismissed on some--if there is a valid legal ground for doing 
that. And the Germans accepted that, understanding that they 
were not getting everything they asked for.
    So today to say that we agreed that survivors would not 
have the right to go to court is disingenuous. In fact, it's 
giving the Germans more today than they bargained for then. And 
the reason it's necessary is because the courts have 
interpreted that commitment more broadly than the language the 
Germans were actually able to negotiate for. Because the courts 
have said, ``It doesn't matter what the language in the 
agreement says (which is limited) we think there is, addition 
to the language--in addition to the contractual language, there 
is a `Federal policy' of the Executive Branch that Holocaust 
victims' insurance policies should be resolved in a non-
adversarial setting.''
    So the question for you is now, because the legal landscape 
is clear, do you agree with that policy? Does Congress agree 
that someone today, who has a piece of paper from Generali or 
Allianz, which was denied through ICHEIC, do you agree that 
person should not have the right to go to court and have a 
judge force the company to disgorge all of the relevant 
information? Because I can tell you from ICHEIC experiences, 
and I can give you many examples, those companies were able to 
deny claims without providing the information to the claimant, 
so you have a star chamber system where the claims were denied. 
The rules might have said one thing, but the practical 
application was thousands of people were denied claims without 
getting any documentation, including people--
    Ms. Ros-Lehtinen. If I can interrupt you because our time 
is limited.
    Mr. Dubbin. So the last question is the cost-benefit 
analysis.
    Ms. Ros-Lehtinen. Right.
    Mr. Dubbin. I don't believe that human rights are subject 
to a cost-benefit analysis. The right to go to court, to pursue 
your documented insurance claim or to pursue a company you 
believe sold you a policy, if you can convince a lawyer to 
bring that case, in the United States of America, it is a 
fundamental human right. It is enshrined in the U.S. 
Constitution and in the constitutions of every State. And to 
say that we are not going let some people be able to avail 
themselves of that right because of what other groups did--and 
by the way, I don't care what groups sat in the room. Izzy 
Arbeiter, David Mumbelstein, Jack Rubin, Alex Moskovic, and 
hundreds of survivors whom I personally have come in contact 
with did not authorize any organization, did not authorize the 
State Department, did not authorize the Secretary of the State, 
did not authorize the President to negotiate for their 
insurance rights.
    Ms. Ros-Lehtinen. Thank you. Thank you, Mr. Chairman. And 
although I'm not a member of this committee, and you've been 
very kind to me--
    Mr. Eizenstat. May I respond to this--
    Ms. Ros-Lehtinen. Excuse me. Mr. Chairman, I will ask a 
member of the committee if they could introduce for the record 
some of the letters that I have gotten from constituents who--
    The Chairman. Yes. I have been informed Mr. Wexler will 
also be putting material into the record. Anyone who wants to 
can get it. Mr. Eizenstat?
    Mr. Eizenstat. Congressman, the good faith of the United 
States Government is at stake here. We negotiated in the open 
with congressional understanding and support $8 billion worth 
of agreements. Companies paid billions of dollars for slave 
labor payments, for insurance, for a variety of other claims, 
in return for which we gave a legal peace agreement, which the 
courts have upheld. And we did say it was in the foreign policy 
interest of the United States to dismiss claims, if there was a 
valid legal ground. That is what the Germans accepted. That's 
what we gave them. The courts in their own wisdom, including 
the United States Supreme Court, have upheld that. If we now 
try to vitiate that, the whole negotiation posture that we took 
would be undercut. The whole reliance that companies which had 
paid billions of dollars--and governments, the Austrian 
government contributed; the German government contributed, 
would be vitiated. This involved not just their private sectors 

    Second, this is not an all or nothing thing. I have 
suggested in my testimony that we should hold the companies who 
have pledged to continue to honor claims on an ICHEIC basis 
with loose rules of evidence, which would not have existed in 
court. Mr. Dubbin's remedy would have left--if we would not 
have gotten this $8 billion, he would have been trying to bring 
a class action approved back under rules of evidence when they 
didn't even names of insurance companies oftentimes, let alone 
the policies themselves. That's why we set this administrative 
process up.
    What I suggested is let's hold the companies to their 
commitment to continue to handle claims in an ICHEIC-like 
process. Force them to report to the Congress and to the State 
Department. Hold oversight hearings. Get the German Insurance 
Association to submit regular reports on the number of claims 
that were filed and so forth. So there is something that can be 
done here.
    Mr. Kent. I fully agree with Secretary Eizenstat but 
Chairman Leach and Chairman Frank I will ask you to do 
something now. I really would beg you to do something. Close 
your eyes, Members of Congress. Don't see me as I look right 
now. You should see me right now, as you talk in your bill, as 
the needy survivor who needs help. This is what we talking 
about. The needy survivors who need help, and let us consider 
for a second, I am here as one of the survivors, the only one 
except Izzy Arbeiter, who happens to be a good friend of mine. 
I would like to see what is the motivation of the bill.
    The Chairman. I'm sorry Mr. Kent, that's not something that 
we're going to go into at this point. I will tell you this, I 
believe the motivation to be that members of the committee feel 
that they can do things to help people, but the motivation of 
individual members is not the subject of the hearing. I'm 
sorry, and I understand your anguish Mr. Kent, but there is a 
limited amount of time. You have had a great deal of time to 
speak but getting into an examination of the motives of the 
members is just not something we're going to do.
    Mr. Green. Thank you, Mr. Chairman. Mr. Secretary and all, 
I want to thank you for your testimony. Because time is of the 
essence, I'd like to start with you Mr. Secretary. You 
indicated that there was and is, I think, congressional 
understanding associated with this agreement. Could you please 
explain what congressional understanding means?
    Mr. Eizenstat. Yes, sir. I testified time and again before 
this committee, before Senate committees, before the House 
Foreign Relations Committee, before the Senate Foreign 
Relations Committee, and before the Senate Banking Committee 
about these and other agreements, about legal peace, about what 
we were trying to do, about what we were trying to accomplish 
in very extensive hearings. Now, no one sought legislation 
because legislation wasn't appropriate. We did this under the 
foreign policy powers of the President of the United States. 
But we did it in full consultation.
    Second, it was not done in a dark room with a few parties. 
We had plaintiff's attorneys. Not Mr. Dubbin; he didn't want to 
participate. We had dozens of plaintiff's attorneys, the best 
class action lawyers--Mel Weiss and others--around the country. 
Bob Swift in Philadelphia, people in Washington, major class 
action lawyers who decided to drop their cases because they 
realized that those cases did not have much of a chance and 
indeed the two major slave labor cases were dismissed by judges 
on the grounds of statute of limitations problems. We had major 
Jewish organizations who participated in negotiations. We had 
representatives from the State of Israel and we brought the 
Congress into it by our testimony. So this was done in very 
broad daylight. Obviously, the actual details were done in 
private negotiations, but this was not an unknown quantity that 
was just dropped on the Congress or dropped on survivor groups. 
They were part and parcel. The American Gathering, The World 
Jewish Congress, and The Jewish Claims Conference were all 
involved in every stage of the negotiation.
    Mr. Green. Did Congress ever have an opportunity to in some 
way sign off on the agreement that was--
    Mr. Eizenstat. They had every opportunity if they wanted to 
object because I testified. I laid out what the agreements 
were. If they had any criticism, they weren't heard. What I 
heard was praise and bipartisan support for doing something 
promptly. The courts wouldn't have permitted it. If you look at 
these cases, what court in the world would have granted 
jurisdiction to companies that didn't even do business here? 
What court would have allowed payment of policies when the 
claimants didn't know the names of the companies? When there 
wasn't evidence? I mean, of course the tragedy is that there 
was no evidence because it was burned along with the people.
    Mr. Green. Let me intercede for just a moment. I think you 
raised a good question. Mr. Durbin?
    Mr. Dubbin. Dubbin, yes.
    Mr. Green. Would you--excuse me, I'm sorry for--would you 
please respond to the question that was just posed about the 
courts?
    Mr. Dubbin. Of course. Well, let me address a couple of the 
points if I might. The lawyers who sued the German companies 
who were part of those negotiations had filed suits on behalf 
of individuals, so those cases had not been certified as a 
class action, and that is important. They voluntarily dismissed 
their cases, their individual cases, but they said at the time 
they dismissed them that the court should satisfy itself at the 
end whether or not the German Foundation is capable of 
providing compensation to insurance claimants.
    So now you are looking at, even those lawyers understood 
that this was still contingent on a successful outcome. Now 
several Members of Congress, 47 to be exact, wrote letters to 
the Attorney General in the year 2000 rejecting the notion that 
insurance claims estimated to be worth billions could be 
satisfied by the arbitrary $300 million Deutsche Marks set 
aside in the German Foundation Agreement. They said they were 
shocked to learn that the recent slave labor settlement between 
the U.S. Government and Germany included insurance. That's what 
members of the Congress said and what the Justice Department 
responded by saying was, ``Hey we didn't waive anybody's 
rights. We were just going to file a limited statement of 
interest.'' That's what the Assistant Attorney General for 
legislation said.
    And he also said that if this doesn't work out, we reserve 
the right to revisit our views on the constitutional issues. So 
Congress objected in the only way they could at the time. It is 
true that they could have passed legislation, but the fact of 
the matter is there were objections from Congress and the 
Justice Department attempted to solve those objections by 
saying if this doesn't work--
    Mr. Green. Let me intercede. I have one more question I 
have to ask Mr. Zabludoff. Is that correct, am I pronouncing 
your name correctly, sir? Please forgive me. You mentioned 
congressional--pardon me, that claims that do not have--can not 
name an insurance company, you spoke about that and how they 
would be rejected. Would you and this is my final question so 
could you please explain that again for me?
    Mr. Zabludoff. Sure. In the case of Germany, Germany did 
publish a lot of names; 400,000 names, 360,000 names were from 
the German Accord and was published by the German authorities. 
Another 40,000 came from ICHEIC archives, so you have about 
400,000 policies all together. Now the real problem is that 
when you look at that list, it doesn't list the company. So you 
have to name a company the GDV which is the German overall of 
regulator of companies. They basically said you have to name a 
company but the list doesn't show the company so how could you 
do that? And we know from ICHEIC experience that two thirds of 
the people who sent in claims did not--from years and years 
before--did not know the name of the company. So how could you 
expect a claimant to know the name of a company?
    Mr. Green. My time is up, sir.
    Mr. Dubbin. May I have 15 seconds? Because Congress did in 
2003 pass the Foreign Affairs Authorization Act of 2003 which 
required the State Department to get reports from ICHEIC about 
its performance, and for 4 years ICHEIC refused to provide the 
State Department anything even though statutorily mandated by 
Congress.
    The Chairman. Mr. Green, do you want to finish up with him?
    Mr. Green. Thank you, Mr. Chairman now that you're back.
    The Chairman. We have been joined by our colleague again 
from California, Mr. Sherman.
    Mr. Sherman. Thank you, Mr. Chairman. There has been a lot 
of discussion here about how we did the best we could under 
current law. We're in the business of changing laws here in 
Congress and I have approached this from a consumer protection 
standpoint. Neither the State Department nor the Jewish Claims 
Conference has a responsibility to make sure that people in the 
27th District are not sold life insurance policies by grave 
robbers, pirates, or their affiliates. That is a responsibility 
of myself and my colleagues on this committee and there are so 
many reasons why somebody might buy an insurance policy. Their 
family would be unaware of it, and they might lose all contact 
with the company, and then according to the company's own 
records, they have an insured who is 100 years old, 110 years 
old, or 120 years old, and there has been no claim.
    Mr. Eizenstat, would you ever buy a life insurance policy 
from a company that didn't have it as its policy that if there 
had been some great social disruptions so families and records 
were destroyed that they wouldn't put up on a Web site your 
name on your 100th birthday so that your next of kin could make 
a claim, but would instead want to in effect be grave robbers, 
to hope that 100 years would pass after your birth, 200 years, 
or 300 years, and there just wouldn't be any claim.
    Mr. Eizenstat. The answer is ``no'' and that is not what 
happened here, Congressman Sherman; 519,000 names were 
published on a--
    Mr. Sherman. Well I'm not just talking about the victims of 
the Holocaust here. We have the victims of the Armenian 
genocide but we have millions of people who are not targeted 
for genocide whose families were destroyed in World War II and 
you have all of the consumers in the United States. Why would 
any company not post on a Web page the name of an insured under 
the following circumstances; the insured is over 90 years old 
and the company hasn't any contact with them or their family 
for 30 years. Why wouldn't we require that of domestic 
companies, international companies, World War II companies, 
World War I companies, Ottoman Empire companies, companies that 
sold policies in Poland or Albania. Why wouldn't we require 
that of anybody who would come into my district and say we have 
clean hands, we should be allowed to do business in the United 
States?
    Mr. Eizenstat. That's certainly not what this legislation 
does. This legislation is applied to European insurers who have 
privacy laws that preclude them in their own countries from 
doing so but the way in which that was avoided to the extent 
possible was that of their 8 million--
    Mr. Sherman. Excuse me, Mr. Eizenstat. I have such limited 
time. So these companies get privacy laws passed in their own 
countries. You know, a lot of insurance companies get--
    Mr. Eizenstat. Mr. Sherman, of the 8 or 10 million policy 
holders, those were all given to the ICHEIC process. They were 
used by Yad Vashem to vet out--
    Mr. Sherman. Mr. Eizenstat, you're giving me the details of 
what was done and I'm asking a much broader consumer policy 
issue because what you're describing is a policy that did 
nothing for Albanian families or Armenian families.
    Mr. Eizenstat. Well I'm not here to--I can't answer a broad 
consumer question. I'm here to defend an agreement which got $8 
billion for survivors in return for legal peace.
    Mr. Sherman. I'm not here to--
    Mr. Eizenstat. I'm not an expert on consumer protection for 
insurance policies.
    Mr. Sherman. I'm not here to attack that agreement. I'm 
here to say that we ought to have an overall policy starting 
with the Holocaust of requiring placing on the Web the names of 
insureds whose families obviously are owed money. These are 
folks who are well over 90 years old. They have lost attention 
and your response is well, these companies might have to comply 
with privacy laws in their home country.
    I can't imagine a home country privacy law that wasn't 
there at the behest of the insurance company if its sole effect 
is to simply deny the payment to families where the insured is 
100 years old, or 110 or 150 years old.
    Mr. Eizenstat. No, sir. My response was that 519,000 names 
were supplied after they were vetted of 8 million by Yad 
Vashem.
    Mr. Sherman. I thank you for your work. I would hope that 
this would be the first step in requiring us to use the new 
technology of the Web to publish the names of those insureds. I 
can't see how a life insurance executive could go to sleep at 
night knowing that they have in their files unclaimed policies 
of insured people who obviously died in the World War II era 
and they still have not made payment.
    The Chairman. Mr. Arbeiter wanted to respond in part to 
that question.
    Mr. Arbeiter. Yes, Mr. Chairman, I keep hearing here about 
legal peace, legal peace for Germany, for the insurance 
companies. What about justice for the Holocaust survivors? What 
about the insurance policies that were written on behalf of our 
parents, our families who were murdered.
    The Chairman. Mr. Arbeiter, I appreciate that. That's 
substantial, I mean we understand that. I want to ask Mr.--if 
the gentleman had concluded--two questions, one to each side. 
The privacy issue is concerning and I would ask the proponents 
of the bill what if I am somebody in the Netherlands who 
doesn't want my family's insurance policy out there for 
everybody to see. What's our response to that? I mean there is 
a legitimate privacy concern. So as I understand it, we're 
talking about putting everybody's insurance policy on there. 
What if I had a relative I didn't like and I didn't want her to 
know that I had an insurance policy? What's our answer to that, 
Mr. Dubbin, Mr. Arbeiter?
    Mr. Dubbin. Well, this bill calls for policies that are 
over--that were issued prior to 1945 to be published. Those 
are--to think that is going to infringe on anyone's current 
privacy rights, I think, is a stretch. You know, our State 
Treasurer puts out names of dormant bank accounts and things 
all the time. I mean I think it's fatuous to make that argument 
from the other side because insurance companies control--we 
know that those privacy laws are there to protect much deeper, 
darker secrets. Mr. Eizenstat said they published 519,000 
names. They managed to publish those names, okay, even though 
there were privacy--
    The Chairman. Okay, let me ask you this, is this only 
uncollected claims?
    Mr. Dubbin. The legislation calls for all policies to be 
published. All of the policies that were sold. The reason for 
that--
    The Chairman. Including if they were collected on or not?
    Mr. Dubbin. Right.
    The Chairman. Because they might have been collected--well, 
I understand your argument but I would disagree with your 
dismissal of those as fatuous.
    Mr. Dubbin. I retract that statement, Mr. Chairman. I think 
it's not--
    The Chairman. You have retracted, my advice; leave it with 
the retraction. Don't characterize any further. But I have to 
tell you, I think that is a legitimate issue that we have to 
take into account. Mr. Kent, did you want to comment on that?
    Mr. Kent. Yes, Mr. Chairman.
    The Chairman. On the question of the privacy.
    Mr. Dubbin. I'd like to see the law.
    Mr. Kent. Just in privacy. I give you an example of the 
United States. I mentioned that we have about $30 million of 
policies that we paid out and we want to collect the money. 
Now, the privacy law in the United States is right now--we 
cannot get the names of the people because they are right now 
subject to United States privacy laws. So I cannot even collect 
the money here that we paid out, ICHEIC paid out, because of 
the privacy laws.
    The Chairman. You can't collect from Austria?
    Mr. Kent. But from Poland, from Czechoslovakia
    The Chairman. I understand, yes, from other countries. All 
right thank you. Let me now ask, on the other side if I'm not 
as--my memory is not as refreshed about law school and I 
haven't ever practiced law. But on class action suits, in 
general, in the United States, I am a member of a class that 
has suffered harm. A class action suit has been brought in 
which I have had no involvement. I have not been given the 
option of opting out, am I precluded, Mr. Eizenstat or Ms. 
Koken, am I precluded by the results or do I retain a separate 
to right to sue? Ms. Koken?
    Ms. Koken. In the ICHEIC process--
    The Chairman. No, no, no, I know my diction isn't great. 
But let me try again. In general, in the United States, if 
there is a class action suit brought and I'm a member of the 
class that suffered the harm but I was not involved in the 
suit. I was not given a chance to opt out, am I concluded under 
American law by the results of that class action suit? Mr. 
Dubbin you may be the only practicing lawyer among us, so--
    Mr. Dubbin. If the suit--if the settlement is subjected to 
a rule 23 fairness process where there's notice to the class of 
the terms of the settlement and the judge approves it as being 
fair, and then it's either appealed and the Court of Appeals 
upholds it or if it's not appealed, then if you're a member of 
that class you are precluded. Now that's what happened in the 
Swiss Bank case but that did not happen--
    The Chairman. Under the rule 23, what is the rule 23 
procedure?
    Mr. Dubbin. That's the rule that authorizes class actions.
    The Chairman. What's the procedure that they would have to 
go through? Notify me and I can opt out, is that what--
    Mr. Dubbin. The rules says that all class members who can 
be identified through reasonable effort need to be given--
    The Chairman. Right, it's one thing to get notice. What can 
I do with the notice? Can I opt out?
    Mr. Dubbin. You can opt out.
    The Chairman. Okay.
    Mr. Dubbin. It has to inform you of your right to opt out.
    The Chairman. So there is--you are concluded only if it can 
be reasonably assumed that you were notified and declined to 
opt out?
    Mr. Dubbin. And there was a full rule 23 fairness process--
    The Chairman. Mr. Dubbin, if we all knew what rule 23--
    Mr. Dubbin. --only the Swiss Bank case did that--
    The Chairman. Excuse me.
    Mr. Dubbin. I'm sorry.
    The Chairman. If we all knew what rule 23 was, we wouldn't 
be going through this step by step. Stop with the specific--I 
want to get this done clearly. In general, if you were 
notified, and had a chance to opt out, and you didn't opt out, 
you are precluded? But if you did not get that notice or if you 
opted out, you are not precluded?
    Mr. Dubbin. The law says that--
    The Chairman. But did make a good effort to--
    Mr. Dubbin. Right. If the court says the notice was 
reasonable under the circumstances, you could be precluded even 
though you didn't get notice.
    The Chairman. Right, but the error made about Mr. 
Eizenstat.
    Mr. Eizenstat. Just to clarify, as Mr. Dubbin correctly 
said here, the Swiss Bank case was such a class action 
settlement. It did preclude it. But the others did not. They're 
subject to this, but they did not preclude you--
    The Chairman. But the question then is, why should some 
Holocaust survivor who did not agree with the settlement be 
precluded from pursuing his or her rights independently?
    Mr. Eizenstat. They are not precluded. They can still sue, 
but they would be subject to the statement of interest.
    The Chairman. Statement of interest by whom?
    Mr. Eizenstat. By the United States Government pursuant to 
our agreement and--
    The Chairman. Okay, so they would be, in effect, precluded?
    Mr. Eizenstat. And the court could--
    The Chairman. Would that in fact preclude them?
    Mr. Eizenstat. It effect--
    The Chairman. Come on, yes or no?
    Mr. Eizenstat. The courts have said yes.
    The Chairman. Okay, well that wasn't so hard was it? Just 
to say yes? Okay, then that's what I disagree with, at least 
that's my other issue. That is, a government-to-government deal 
takes away my right to sue if I don't like what the government 
did and those are offsetting, troubling concerns. I do think 
privacy is real, but I also think the principle of me being 
precluded by a deal that the government set, because you know, 
when governments make deals, let's be clear, governments have a 
lot of interest at stake. We're told by the German government, 
for instance, and the State Department argued this as well, 
that what is at stake here is not this particular deal, but 
German American relations in general. That if we were to allow 
something which the Germans feel violates the deal, it maybe 
does violate the deal. Because I don't think you're not 
violating it if the people aren't bound by it, that can affect 
other things. So that's the point that I make. What's the 
justification for precluding the rights of people who didn't 
like the deal when they were part of it?
    Mr. Eizenstat. They were--if we had not done this legal 
peace in the way we did it and the limited form which we did 
it, which of course is accepted, we wouldn't have gotten $8 
billion in--
    The Chairman. And I understand that and I'm glad that you 
did but why should that stop other people from also--
    Mr. Eizenstat. Because then the companies wouldn't have 
paid the $8 billion if they had known they were going to pay $8 
billion, and they would still be subject to suit--nobody in his 
right mind would have done that.
    The Chairman. Then maybe what you should have told them--
    Mr. Dubbin. Mr. Chairman.
    The Chairman. No, I'm going to finish. Maybe their lawyer 
should have told them that there was a possibility that this 
wasn't going to be final. Mr. Kent.
    Mr. Kent. I can answer your question from a practical point 
of view. Just recently we have a recent agreement, part of the 
agreement from the German government. They are giving right now 
to survivors $150 million; 50,000 survivors are going to get 
$3,000. I have meetings with the German Ambassador and people 
who came from Germany to our office and they told me point 
blank, Mr. Kent, why should we make any agreements with the 
Jewish side for Holocaust survivors if we cannot depend on the 
word of the--
    The Chairman. I'll give you the answer that I would give 
them. I'll call them up and I'll tell them, here's the deal--
why should you make the deal? Because your country, not you 
personally, did the most vicious thing in the history of the 
world and if I were you I would lean over backwards to fix it, 
and I must tell you this, I will live up to this agreement. 
I'll urge other people to do, but I don't speak for every one 
of the victims and I would tell you this, if you're going to 
tell me that you think this is the right thing to do but 
because 100 people or 1,000 people disagree, and you're mad at 
them--you're going to deny the money that you think you ought 
to give to these other people. That's not nice. That's what I 
would tell them.
    Mr. Kent. I talked to the German government and the German 
Foundation was not signed for a few months because I said to 
the Germans that I will not sign, as a Holocaust survivor, an 
agreement unless we will get a full apology from your 
government. So the money--I agree with you, is not the key 
issue for me.
    The Chairman. I'm not saying the issue is--I would say to 
them you do the right thing because it's the right thing, and 
you hope you get the best. But you don't say I'm only going to 
do the right thing and by that get immunity from every other 
possible victim. And you know what I think that they are 
probably in reality than they are in the negotiations. In a 
negotiation situation, we tend to be a little nastier than we 
might be in the reality. Sometimes we threaten to do things 
that we're not really going to do because you know, we'll see 
what happens. Is there any further--
    Mr. Sherman. Mr. Chairman, I do think privacy is important 
but if we were to limit this--
    The Chairman. Well, let's not debate this among ourselves. 
The committee can do that.
    Mr. Sherman. I just need 20 seconds.
    The Chairman. Very quickly.
    Mr. Sherman. Okay, if we were to limit the bill to those 
policies where the company hadn't had any contact with the 
insured or the family for 20 years--
    The Chairman. That's mark-up talk.
    Mr. Sherman. Okay, sorry.
    The Chairman. No, those are areas that with the bill and 
everybody should understand, this does not come before us as 
yes or no. This is a bill which is subject to amendment. There 
are two different sections. There are different countries. I am 
certainly convinced that further action is relevant, but we 
will have a lot of conversations with people and any of the 
issues that anyone listening feels could be further elaborated 
upon, please feel free to elaborate. Yes, Ms. Koken, you get to 
have the last word.
    Ms. Koken. I know it's risky to do this but I would say 
that I would want to point out that there was matching done of 
these records against all of the archival research so that we 
would be sure that we--
    The Chairman. You said that already. Didn't somebody say 
that already?
    Ms. Koken. I don't know.
    The Chairman. I thought somebody did. All right, go ahead.
    Ms. Koken. And that through that process we were able to 
also, in our Pomeroy report, get to these heir-less claims so 
that that was dealt with and I would also ask that I could put 
into the record--
    The Chairman. No, you don't have to ask. Anybody who wants 
to put anything into the record can put it in.
    Ms. Koken. Okay.
    The Chairman. That's the--Mr. Kent, what is it?
    Mr. Kent. I'd just like to say in many times I heard here 
reports about the 15 billion, 200 billion and so on and I'd 
like to say Willard Rogers said that there are three lies. 
There is a lie that is a big lie--
    The Chairman. Mr. Kent you already said there was no 
reality to the numbers. If this is repitition of things already 
said--
    Mr. Kent. Yes, and I'd like to add to it. I was for a few 
years with Mr. Zabludoff of the Commission. He never said to 
me--
    The Chairman. That is a whole new subject that we're not 
going to get into now and start a whole new debate. You all had 
a lot of time; nobody was held to the 5-minute rule. The 
hearing is adjourned.
    [Whereupon, at 1:44 p.m., the hearing was adjourned.]



























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                            February 7, 2008

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