[Senate Hearing 112-551]
[From the U.S. Government Publishing Office]
S. Hrg. 112-551
HOLOCAUST-ERA CLAIMS IN THE 21ST CENTURY
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
JUNE 20, 2012
__________
Serial No. J-112-82
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
76-040 WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Schumer, Hon. Chuck, a U.S. Senator from the State of New York... 3
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 6
WITNESSES
Bindenagel, J.D., Vice President for Community, Government, and
International Affairs, DePaul University, Chicago, Illinois.... 15
Bretholz, Leo, Holocaust Survivor, Author of ``Leap into
Darkness,'' Baltimore, Maryland................................ 10
Firestone, Renee, Holocaust Survivor, Los Angeles, California.... 14
Nelson, Hon. Bill, a U.S. Senator from the State of Florida...... 1
Rosenberg, Samuel L., Delegate, 41st District of Maryland,
Baltimore, Maryland............................................ 8
Swaine, Edward T., Professor of Law, George Washington University
Law School, Washington, DC..................................... 12
QUESTIONS AND ANSWERS
Responses of Samuel Rosenberg to questions submitted by Senator
Sessions....................................................... 22
Responses of Edward Swaine to questions submitted by Senator
Sessions....................................................... 27
SUBMISSIONS FOR THE RECORD
AIA, Jewish Journal, South Florida, article...................... 31
AVHO, June 18, 2012, ICHEIC statistics........................... 32
Balitzer, Alfred, Foundation for California, Long Beach,
California, June 24, 2012, letter.............................. 33
Bet Tzedek, Los Angeles, California, June 18, 2012, letter....... 37
Bindenagel, J.D., Vice President for Community, Government, and
International Affairs, DePaul University, Chicago, Illinois
statement.................................................... 39
DePaul University, June 22, 2012, letter..................... 48
Blumenfield, Bob, Assembly member, Fortieth District, Sacramento,
California, June 18, 2012, letter.............................. 52
Bretholz, Leo, Holocaust Survivor, Author of ``Leap into
Darkness,'' Baltimore, Maryland................................ 54
Congress of the United States, Washington, DC, Hon. Bill Nelson,
Senator; Hon. Marco Rubio, Senator; Dennis Ross, Member of
Congress; Debbie Wasserman Schultz, Member of Congress; Vern
Buchanan, Member of Congress, Thomas J. Rooney, Member of
Congress; Mario Diaz-Balart, Member of Congress; Ileana Ros-
Lehtinen, Member of Congress; Ted Deutch, Member of Congress;
Allen B. West, Member of Congress; Frederica Wilson, Member of
Congress; David Rivera, Member of Congress; Gus Bilirakis,
Member of Congress, September 20, 2011, joint letter........... 60
CRIF, Richard Prasquier, President, Paris, France, May 31, 2012,
letter......................................................... 62
DePaul University College of Law, Chicago, Illinois, article..... 65
Department of State, Washington, DC:
Davidson, Douglas, Special Envoy for Holocaust Issues,
statement.................................................. 66
fact sheet................................................... 69
Emsellem, Bernard, Senior Vice President, Paris, France, letter,
statement and attachment....................................... 70
Firestone, Renee, Holocaust Survivor, Los Angeles, California,
statement...................................................... 87
Holocaust Survivors Foundation USA, David Schaecter, President:
JTA - The Golobal News Service of the Jewish People, April 4,
2012, joint letter......................................... 97
June 26, 2012, joint letter.................................. 106
David Harris, President, New York, New York, November 30,
2011, joint letter......................................... 113
Jewish Community Organizations Group, joint statement and
attachment..................................................... 119
Jewish Week, New York, December 27, 2011, article................ 129
Kent, Roman, Treasurer, Conference on Jewish Material Claims
Against Germany, New York, New York, statement................. 133
Lantos, Annette, Washington, DC, statement....................... 145
Los Angeles Times, Los Angeles California, June 15, 2012, article 146
Neiman, Richard H., Superintendent of Banks, New York State
Banking Department, New York, New York, statement.............. 148
New York Times International, June 2, 2011, article.............. 157
Politico, POLITICO.com, June 20, 2012, article................... 159
Republican Jewish Coalition, Noah Silverman, Congressional
Affairs Director, Washington, DC, letters...................... 161
Rosenberg, Samuel L., Delegate, 41st District of Maryland,
Baltimore, Maryland, statement................................. 165
SNCF Invoices.................................................... 174
Swaine, Edward T., Professor of Law, George Washington University
Law School, Washington, DC, statement.......................... 180
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government or
other criteria determined by the Committee, list:
J.S. Bindenagel Additional Submissions
New York Banking Department
Executive Summary from 2011 HCOP Insurance Report
HOLOCAUST-ERA CLAIMS IN THE 21ST CENTURY
WEDNESDAY, JUNE 20, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:39 p.m., in
room S-115, The Capitol, Hon. Charles Schumer, presiding.
Present: Senators Schumer, Klobuchar, Blumenthal, Grassley,
and Sessions.
Senator Schumer. The hearing will come to order, and I want
to apologize in advance.
We are going to have to keep order here, please. We are
going to have to keep order and close the door, if need be.
Anyway, I want to apologize to everybody. Because of all
these votes 10 minutes apart, we had to move the hearing room
from our usual Judiciary room to right here, and we are going
to have to be skedaddling back and forth, unfortunately, to go
upstairs and vote and come back. But it is a much quicker walk
and will delay us a lot less.
I have an opening statement which I will read, but again,
because of how the votes are working, Senator Nelson, who is
the spirit and the driving force to have this hearing and who
has done such a good job on this issue, is going to make his
opening statement before mine. Then I will make mine, and then
we will call on the witnesses.
Senator Nelson.
STATEMENT OF HON. BILL NELSON, A UNITED STATES SENATOR FROM THE
STATE OF FLORIDA
Senator Nelson. Mr. Chairman, thank you very much.
The first thing I would like to insert in the record is an
op-ed by Annette Lantos, who just came in, the widow of our
former colleague, Tom Lantos, and it is directly on point. So I
will give this to you, Mr. Chairman.
Senator Schumer. And without objection, we will put the
entire statement in the record.
[The op-ed appears as a submission for the record.]
Senator Nelson. I appreciate you calling this, and for the
cramped quarters we apologize, but please understand this was
the only room available here close to the Senate chamber, and
the choice was either a postponing of the hearing or going
ahead with it in this location because of the votes upstairs on
the second floor.
This issue is extremely important. It is compensating
Holocaust survivors and their loved ones for the value of
insurance policies they held before and during World War II.
These policies, of course, and the insurance company records
were lost, they said, stolen from them or destroyed by the Nazi
regime. And so I am very grateful to Senator Schumer for
calling this hearing, and I would note that I am a cosponsor of
Senator Schumer's bill, which is the Holocaust Rail Justice
Act, which is also the subject of today's hearing.
Naturally, I come to the table, the two of us come to the
table from two States that are two of the three States with the
most Holocaust survivors. Of course, most of them are now in
their 80's or 90's and in urgent need of assistance.
Two survivors that are here today are constituents of mine.
I want to recognize them: David Murmelstein from Miami and Jack
Rubin from Boynton Beach. David and Jack, we first became
friends when I was the elected insurance commissioner of
Florida, and I had the occasion when it suddenly dawned on me
that I had jurisdiction because some of those European
insurance companies did business through subsidiaries in my
State, and there that regulatory hook, we went to work. And, of
course, Annette is here, and that is the article that I have
submitted for the record.
Now, I want to introduce Renee Firestone. She will testify
regarding this legislation. It is an issue that Senator
Feinstein and I agree, which Senator Feinstein has graciously
allowed me to introduce her constituent, Renee.
Renee was born in Czechoslovakia and at age 19 was taken to
Auschwitz. Of her family, only Renee and her brother Frank
managed to survive the war. And like many survivors, after the
war Renee immigrated to the U.S. with a husband and an infant
daughter. They settled in Los Angeles. She quickly dedicated
herself to social justice and Holocaust remembrance and the
education of her country. Her commitment to justice earned
Renee many distinguished awards, including the Elie Wiesel
Holocaust Remembrance Medal and the Golda Meir Award. Renee's
compelling life work was featured in the Steven Spielberg film
``The Last Days.''
The Judiciary Committee hearing today gives the Senate
another opportunity to examine what has been done to help
survivors like Renee and the others that I have introduced from
Florida.
Members of this Committee will review the efforts to
compensate Holocaust victims for the value of their insurance
assets, and many feel that these efforts have been delayed,
flawed, and insufficient. And as a former insurance
commissioner who had to deal with those European companies, I
can tell you I know all the tricks, and they have employed all
of them.
The International Commission on Holocaust Era Insurance
Claims concluded in 2007 and left many of the claimants
dissatisfied or undercompensated, and many continue to feel
that some of the insurance companies that participated in the
commission still have not done enough to compensate Holocaust
survivors. And that is why I introduced this legislation that
creates a new Federal cause of action that enables survivors to
sue these companies in Federal court for damages and attorneys'
fees for compensation for their insurance policies. And with
ICHEIC's disbandment, the court system represents one of the
few remaining avenues by which Holocaust victims and their
survivors may still pursue their legal rights.
We all know that no amount of financial compensation can
ever make up for the wrong of the Holocaust, but many of us who
have been working on this issue for years are committed to
doing what we can to help those survivors recover whatever we
can that has been taken from them.
I have always believed that people who are wronged are
entitled to seek justice. I remain committed to advocating for
the compensation for them, and that is why serving Florida's
Holocaust survivor community has been a clear top priority of
mine in my years in public service.
Mr. Chairman, I want to thank you for the privilege of
letting me come here and kick this hearing off.
Mr. Chairman, I have heard every excuse in the world on,
``Well, we lost the policies,'' or ``They have already claimed
their assets,'' or ``Well, show us proof of death.'' The last
time I checked, Hitler did not keep any of those records. I
have heard all the excuses, and it is time for us to do justice
for these people.
Senator Schumer. Well, let me thank you. Senator Nelson,
you have been a true leader on this issue.
Senator Nelson is one of our most effective Senators. He is
a real fighter for things he believes in, and I know he
believes in this. As I said, it was at his request that we had
this hearing and joined our two proposals in the hearing. And I
can tell people who are seeking justice that they could not
have a better advocate than Senator Nelson.
Thank you.
[Applause.]
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. Now I am going to give my opening
statement, and first I want to start by thanking our Chairman,
Chairman Leahy, for letting me have the gavel today in order to
explore this exceptionally important topic: how to resolve what
I hope, what we all hope are among the last remaining
reparation claims stemming from the murder of 6 million Jews
during the Holocaust. We all know the horror of the Holocaust.
My great-grandmother, who was the matriarch of her family, was
told to leave her home. She and her family had gathered on the
front porch. They refused to leave, and they just machine-
gunned all of them down in 1941. So, obviously, I have personal
experience with the horrors of the Holocaust, but the horrors
are just awful.
Sometimes we refer to the horror as ``unspeakable.'' But
unspeakable is exactly what the Holocaust must never become.
Those who perpetrated it, those who benefited from it want us
not to speak. But we are here to speak and to have this
hearing.
Now, we must continue to find words to describe if not
explain what happened during those very dark years of human
history. We must make sure the stories of the survivors and the
witnesses who have gone before us live on and become part of
our human DNA. We must ensure that we listen to those who are
still with us, and at the least, the very least, it is our
collective moral obligation to make sure that those whose lives
were forever changed by the Holocaust are not forgotten.
As the survivors among us grow old, too many are sinking
into poverty and neglect. In fact, the numbers are shocking and
will surprise people who have not studied the issue.
The Jewish Claims Conference reports in 2010 that of the
517,000 living Holocaust survivors in the world, half live in
poverty. That is disgraceful. Most of these now elderly
survivors live in the former Soviet Union and in Israel. Many
survivors who are eking by nonetheless need nursing care and
other services that can be impossibly expensive.
I am certain that everyone in this room agrees on one
thing: that we need to do everything in our collective power to
make sure that these survivors, these resilient, brave people,
our dear friends and family, do not fall through the cracks.
International efforts to hold accountable the perpetrators and
accomplices of this terrible crime have been a very important
part of giving the Holocaust survivors some modicum of peace
and well-being.
The two bills we will discuss today arise from the desire
to ensure that survivors can get an approximation of justice,
and we can only call it an approximation, and not even a close
one, because nothing will ever make this right or make them
whole. They all live with the memories. They all live with the
holes in their hearts of loved ones who perished.
The first of our two bills is the Holocaust Rail Justice
Act. Today is the first hearing that has been held on this bill
in the U.S. Senate, and I am pleased to have the opportunity to
talk about it. Here is the relevant history.
During World War II, more than 76,000 Jews and thousands of
other so-called undesirables were transported from France to
Nazi death camps aboard trains owned and operated by the
Societe Nationale des Chemins de Fer Francais, the SNCF. Fewer
than 3 percent of those deported or those who boarded those
awful trains survived. Many did not survive the train ride
itself. And that train, which was operated independently by
SNCF, having entered into an agreement with the German
Government to maintain control of its trains was itself a
horror.
A report commissioned by SNCF found that SNCF alone decided
to use cattle cars to transport victims, refused to provide
food or water despite the pleas of Red Cross workers.
In a tragic example of irony, something worthy of Dickens'
``Bleak House,'' SNCF escaped legal liability for its actions
in France by claiming it was a commercial entity and could not
be sued in French administrative court. Meanwhile, in the U.S.
SNCF escaped liability by arguing it was an instrumentality of
the French Government and, therefore, entitled to sovereign
immunity. They were one thing in one place, the opposite in
another place, all to escape liability.
Just recently, 70 years after deportations began, SNCF
expressed regret for its deportations. But as we will hear from
witnesses today, that must only be the beginning. It has never
paid for its actions. Never. Even if the French Government's
reparation programs could somehow be said to cover SNCF's
actions--and I believe they cannot--those programs are,
arguably, closed to Americans or at least highly inaccessible.
The Holocaust Rail Justice Act would make clear that SNCF
cannot claim sovereign immunity for its independent actions
against the Jews and other deportees and would allow SNCF to be
sued in U.S. courts. At this point, opening up the U.S. courts
may be the only way that survivors can obtain the reparations
they so clearly deserve from SNCF.
I want to note here that this bill is intended only to
cover SNCF, which was not a party to any Holocaust litigation
settlement entered into by the United States. The bill is not
intended to allow claims against any companies that are covered
by the U.S.-German Holocaust Settlement Agreement or any other
settlement agreement, and we are redrafting the bill to reflect
that so we can make sure that the bill is effective and not
litigated against.
Now, the second bill that will be considered is Senator
Nelson's bill. It is called the Restoration of Legal Rights for
Claimants under Holocaust-Era Insurance Policies Act of 2011,
and as Senator Nelson talked about, the purpose of this bill is
to allow survivors and heirs who believe that they may have
claims against European insurers because of unpaid policies
from the Holocaust to sue those insurers in U.S. courts.
Several factors have led to substantial debate about this bill.
First, the assets of many if not almost all European
insurers were nationalized by the Nazis, the Soviets, or both.
For the most part, the hundreds of small insurance companies
that existed before the war either collapsed during the
economic crisis of the 1930s or ceased to exist during the war.
Many, many records were lost forever.
Second, in 1998, the National Association of Insurance
Commissioners, six remaining European insurers, the Claims
Conference, the World Jewish Restitution Organization, and the
State of Israel signed a memo of understanding that became
known as ICHEIC. In addition, the Department of State under
both Clinton and Bush administrations and now under the Obama
administration have supported ICHEIC in court as the exclusive
forum for resolving these particular Holocaust-era claims.
Numerous Jewish groups, including B'nai B'rith International,
the Anti-Defamation League, and the American Jewish Committee,
also support ICHEIC as the acceptable forum for resolving the
70-year-old policy insurance claims.
ICHEIC eventually paid out $300 million to 47,353
claimants, over 34,000 of whom were awarded $1,000 humanitarian
payments because no issuing company could be identified from
the remaining records. Some survivors were left extremely
dissatisfied with this process and remain concerned that, put
simply, too few claims were honored. They have argued in court
and here in Congress that the State Department had no authority
to effectively settle these claims on their behalf, and they
want their day in court. They have asserted that these insurers
have not been forthcoming with their records or assets, and we
are going to hear and bring to light important testimony on
these issues of critical importance to the survivor community.
And I am pleased to welcome everyone here to participate in the
discussion.
I share the survivors' goal: to make sure that remaining
survivors are not left destitute, are respected, and have
access to the records, resources, and justice that they are,
frankly, entitled to. It is the very least we can do.
And so with that, let me call on Senator Sessions if he
would like to make a statement. And while Senator Sessions
speaks, I am going to go up and vote and come right back down,
and then you can go up and vote. And if Senator Sessions
finishes, we will recess until I come back.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Chuck would be perfectly happy if I
missed the vote. [Laughter.]
But he is not going to miss it. You can be sure of that. I
know he works hard, but I can usually get to the gym a little
before he does in the morning. He is a hard worker, I can tell
you that.
I would just say that I am looking forward to learning more
about this issue. I got involved with the Japanese World War II
prisoners of war and the abuses there and the litigation
attempts over that. We engaged the State Department and tried
to figure out what the principles are in these kind of cases,
and as a former United States Attorney for 12 years, I just
have some sense that we need to be sure we are doing this
right. Even though people deeply feel they are wronged, I think
it is perfectly healthy and good to bring out what happened,
put the facts on the table, and let us not be timid about
knowing the truth, and then we will ask ourselves what the
proper legal remedies are and how it should be handled. You
have to acknowledge that there are wars and settlements of wars
all over the world, and it is hard to settle if decades later
people are still litigating over it.
So I do not know what the right answer is, frankly, but I
respect Chuck. He is a very good lawyer and sophisticated in
these issues, and I look forward to working through the
hearing.
I guess I will take my moment and go vote, and I look
forward to coming back and hearing the comments of the
witnesses as we go forward. Thank you.
[Recess at 3 to 3:03 p.m.]
Senator Grassley. This is a terrible environment in which
to hold a hearing, meaning not the environment of this room but
the fact that we have votes upstairs and it is not very well
organized. It is no fault of this Committee or the Chairman or
anybody else.
I am glad that we are able to work together on this hearing
between the Chairman and this side of the aisle. I am also glad
for all the witnesses that have been able to come and that we
had consensus on that. And I appreciate the witnesses' sharing
their experiences and perspectives with us. I am very
interested in hearing--now I will have to read the testimony.
Let me ask each of you, if you would--these are very
general questions. I hope you appreciate that. And I do not
suppose all of you would have to respond, but if a few of you
would respond, I would appreciate it.
Is there anything beyond your written testimony or beyond
what has already been given in the Committee that I have not
heard yet, but I would like to give each of you an opportunity
to expand on anything that has not been said that you would
like to expand upon? I am not calling on a specific person, but
maybe you did not get a chance to give your view.
Mr. Rosenberg. We have not given our testimony yet.
Senator Grassley. OK. Well, what happened in the last half-
hour? [Laughter.]
Mr. Rosenberg. We were waiting.
Senator Grassley. You go ahead.
Mr. Rosenberg. We were waiting for----
Senator Grassley. Is it OK if he starts to give his
testimony?
Staff. Absolutely, unless you would like to read the
introductions.
Senator Grassley. Well, if they have not been introduced
yet, yes.
The Honorable Samuel Rosenberg, Delegate, 41st District of
Maryland, has been a member of the Maryland House of Delegates
since 1983 and currently serves as Vice Chair of their Ways and
Means Committee. Delegate Rosenberg has created programs
encouraging students to enter public service and help extend
Maryland's civil rights laws. Among his many significant
legislative accomplishments, last year Delegate Rosenberg's
landmark legislation passed unanimously and was passed into
law. Governor O'Malley signed it in May 2011. This bill
requires any entity pursuing publicly funded rail contracts to
disclose participation in transporting victims to Nazi death
camps during the Holocaust and to post all records online.
Leo Bretholz is a survivor and SNCF victim. He lived in
Vienna until he was forced to flee in 1938. He spent the next 7
years running from the Nazi regime. In 1947, he arrived in the
United States where he married and raised a family. In 1998, he
co-authored a book chronicling his experiences during the
Holocaust entitled ``Leap into Darkness: Seven Years on the Run
in Wartime Europe.'' The title references the evening he leapt
to freedom from a moving SNCF train bound for Auschwitz. He
frequently lectures at schools, universities, synagogues,
churches, and various groups.
Professor Edward Swaine teaches and writes in the area of
public international law, foreign relations, international
antitrust, and contracts. Professor Swaine joined the George
Washington University Law School faculty in 2006 after serving
for one year as a counselor on international law at the
Department of State. At GW he is a member of the Executive
Council of the American Society of International Law, co-chairs
the international law and domestic interest groups, and is a
member of the Advisory Committee on Public International Law of
the U.S. State Department.
If you will continue, please?
Senator Schumer. It would be my pleasure, and I want to
thank my good friend Senator Grassley for stepping in and doing
the introductions. We are up to Ms. Firestone.
Senator Grassley. Yes. I just read the first page.
Senator Schumer. OK. At the age of 19, Ms. Firestone was
imprisoned for 13 months in Auschwitz-Birkenau. In 1948, she
arrived in the United States with her family where she became a
noted fashion designer. She is a tireless leader in many areas
of social justice and Holocaust remembrance and education. She
has conducted workshops for educators, lectured, and has been
the subject of countless interviews regarding the Holocaust and
its contemporary implications. We are honored you are here, Ms.
Firestone.
And, finally, Ambassador Bindenagel served as the U.S.
Special Envoy for Holocaust Issues from 1998 to 2002. He
previously has testified at congressional hearings on the
negotiation and implementation of the agreement regarding the
International Commission on Holocaust Era Insurance Claims,
ICHEIC. Ambassador Bindenagel played a prominent role
representing the U.S. Government negotiations that led to the
creation of Foundation Remembrance, Responsibility, and Future
in Germany as part of the 2001 U.S.-German Holocaust
settlement. For the last 7 years, he served as vice president
at DePaul University in Chicago.
We welcome all of you. Your entire statements will be read
into the record, your full statements. We ask each of you to
limit your statements to 5 minutes, particularly because of the
unusual and rather warm circumstances in this room. So we will
start from my left and work our way over. First, Honorable
Samuel Rosenberg. Welcome, Mr. Rosenberg.
STATEMENT OF THE HONORABLE SAMUEL L. ROSENBERG, DELEGATE, 41ST
DISTRICT OF MARYLAND, STATE OF MARYLAND, BALTIMORE, MARYLAND
Mr. Rosenberg. Thank you very much. Senator Schumer,
Senator Grassley, Senator Sessions, thank you for the
opportunity to express support for the Holocaust Rail Justice
Act and share my efforts for Maryland to require transparency
from SNCF. Senator Schumer, your tireless fight to provide
these survivors their day in court is remarkable.
I also applaud those who support this legislation in the
House and the Senate, including the many members of the
Maryland congressional delegation. With the increasing number
of bipartisan supporters, including Majority Leader Reid,
Foreign Relations Committee Chairman Kerry, Senator Nelson, and
Senator Rubio, I am confident that this Congress will provide
the victims with their long-awaited day in court.
After SNCF's related companies sought to bid on a Maryland
commuter rail contract, I was stunned to learn about the
company's actions during the Holocaust and its ongoing
mistreatment of my constituents. SNCF's blatant refusal to
fully acknowledge its role in the Holocaust led me and my
colleagues in Annapolis to pass legislation requiring
transparency.
Until recently, SNCF refused to acknowledge its role in the
Holocaust. Today, SNCF does not deny sending 76,000 Jews and
thousands of others, including 11,000 children, to their
deaths. Yet the company refuses to take responsibility.
SNCF willingly collaborated with the Nazis and retained
control of the technical conditions of the deportations which
ultimately led to those deaths. SNCF hides behind foreign
sovereign immunity, as Senator Schumer pointed out, claiming it
should not be held accounts in U.S. court. The company has
neither paid reparations to its victims nor to existing French
reparations programs which do not specifically cover the SNCF
deportations.
SNCF's actions during World War II were unconscionable and
unforgivable. The company's ongoing mistreatment of its victims
makes clear that these are no longer the sins of SNCF's
fathers. The company is engaged in an extensive PR campaign to
downplay its role in the Holocaust and stem the growing tide of
opposition standing between the company and lucrative
contracts.
In 2010, the company issued its first apology. The Los
Angeles Times editorial board said it best, noting that the
apology was ``apparently not prompted by regret. Rather, it
seems to have been spurred by the company's desire to win
multibillion dollar high-speed rail contracts in California and
Florida.''
I am proud that my State, California, and Florida have all
taken a stand on this issue. As Florida contemplated
undertaking a $2.6 billion high-speed rail project, the company
sought to underwrite a partnership between the Shoah Memorial
of France and Florida's Task Force on Holocaust Education.
Survivors were outraged by the company's attempt to influence
Holocaust education. I would like to enter into the record a
letter written by roughly half of the Florida delegation to
Florida's Commissioner of Education stating that ``[i]nstead of
attempting to engage in a public relations campaign, SNCF would
be wise to resolve the claims of the Holocaust survivors as a
consequence of their actions.''
Senator Schumer. Without objection, the letter will be
added to the record.
Mr. Rosenberg. Thank you.
[The letter appears as a submission for the record.]
Mr. Rosenberg. The Florida Education Commissioner
ultimately, and rightfully, canceled the partnership.
When SNCF sought to bid on public contracts, California
Assemblymember Blumenfield and I each introduced legislation to
ensure that our constituents would know the character of the
companies seeking tax dollars. Maryland's law requires
companies seeking to bid on MARC contracts to digitize and post
online relevant Holocaust-era archives.
True to form, after the Maryland legislation was signed
into law, the company released documents to three Holocaust
museums and issued a press release boasting of its proactive
new phase of transparency while failing to mention the law's
requirements.
The Maryland legislation should provide transparency, but
that is not enough. For over 10 years, SNCF has escaped
responsibility in the courts arguing one way, and then the
other as Senator Schumer pointed out.
I am certain, if I may close on a personal note, that
Telford Taylor, my constitutional law professor at Columbia and
chief prosecutor for the Nuremberg War Crimes Tribunal, would
be immensely proud of our work. I recently returned from a
visit to Yad Vashem where I viewed a film of individuals about
to be executed by a Nazi firing squad. While it is too late for
those victims to seek justice, the approximation of justice, it
is not too late for SNCF's victims like Leo Bretholz, my friend
and constituent.
While SNCF tries to run out the clock on the survivors, we
must all stand up--on the local, State, and Federal levels--and
together demand that the company finally be held accountable.
Thank you.
[The prepared statement of Mr. Rosenberg appears as a
submission for the record.]
Senator Schumer. Thank you, Mr. Rosenberg, for your service
in Maryland, and thank you for staying within the time limit.
We will next hear from Mr. Bretholz. Welcome.
STATEMENT OF LEO BRETHOLZ, HOLOCAUST SURVIVOR, AUTHOR OF ``LEAP
INTO DARKNESS,'' BALTIMORE, MARYLAND
Mr. Bretholz. Thank you. I just want you to know, if you
know----
Senator Schumer. If you could just pull the microphone a
little closer, that would be great, Mr. Bretholz.
Mr. Bretholz. If you know some of my story, I escaped from
trains and crossed rivers and crossed the Alps, but to come to
this room to find this room was another experience. [Laughter.]
I just want you to know.
Senator Sessions, Ranking Member Grassley, Senator Schumer,
and members of the Committee, my name is Leo Bretholz. I am a
Holocaust survivor. After World War II, I immigrated to the
United States and settled in Baltimore. I am 98--sorry. That
will be one time. I am 91 years of age and speak regularly
about my experiences during the Holocaust.
Thank you for the opportunity to testify about the
atrocities that I experienced at the hands of the French rail
company SNCF. Thank you especially, Senator Schumer--and
Senator Cardin is not here, he was supposed to be, and my
Senator from Maryland, Senator Mikulski, who are very
supportive of all of this, and the other members of the
Maryland congressional delegation, and the many legislators who
have made certain that I and SNCF's other victims are not
forgotten.
Senator Schumer, thank you particularly for holding this
hearing today and for your unwavering pursuit of justice for
the survivors. Many thanks.
This year marks the 70th anniversary of the first SNCF
transports from Drancy--a transit camp north of Paris--toward
death camps, yet I still remember the haunting night I jumped
from an SNCF train bound for Auschwitz as if it was yesterday.
Ladies and gentlemen, this was the 6th of November 1942, and if
it were not for that day, I would not be sitting here.
In October 1942, at the age of 21, I ended up near Paris in
the internment camp Drancy. We called it the ``antechamber of
Auschwitz.'' The train to Auschwitz was owned and operated by
SNCF. They were paid per head and per kilometer to transport
innocent victims across France and ultimately to the death
camps. They collaborated willingly with the Germans. Here I
have a copy of an invoice sent by SNCF seeking to be paid for
the services they provided. A money matter. SNCF pursued
payment on this bill after the liberation of Paris, after the
Nazis were gone. This was not coercion. This was business. I
would like to submit this invoice for the record. I think you
have that.
Senator Schumer. Without objection, yes. Definitely.
[The invoice appears as a submission for the record.]
Mr. Bretholz. SNCF deported 76,000 Jews on those trains,
including over 11,000 children. They would count us off, 50
into each cattle car. Now, this was all done with precision,
with deception, and with cruelty, as an aside. They were
counted off, 50 into each cattle car and the 51st person was
the young boy that belonged to that family. The boy began to
scream, and the father pleaded to allow them to stay together.
But with cold precision, the boy was shoved in one car, his
family into another. I believe that was the last time they saw
each other.
For the entire journey, SNCF provided us one piece of
triangle cheese--you know, Laughing Cow--one stale piece of
bread, and no water for the entire trip. There was hardly room
to stand or sit or squat in the cattle car. And there was one
bucket in the car to relieve ourselves for 50 people. Visualize
this. Within that cattle car, people were sitting and standing
and praying and weeping and arguing and fighting--the whole
gamut of human emotions. My friend Manfred who was with me,
also a Viennese fellow, and I began to try to escape. Many in
the cattle car fearing the guards would punish everyone if we
were found out, urged us not to even try. I also was beginning
to doubt our plan when an elderly woman on crutches spoke out.
She wielded that crutch like a weapon and pointed it at me and
said, ``You must do it.'' A woman on crutches. ``If you get
out,'' she said, ``maybe you can tell the story. Who else will
tell the story? '' I can still see her face today. An elderly
woman.
Manfred and I set out to pry apart the bars on the windows.
First we tried belts. They slipped off. Then someone suggested
we dip our sweaters into the human waste on the bottom of the
car. There was all around human waste. We kept twisting the wet
sweaters tighter and tighter like a wet tourniquet. The human
waste dripped down our arms. We kept going for hours with our
rolled-up shirt sleeves. Kept going for hours. We kept going
for hours until finally there was just enough room for us to
squeeze through. I went first. My friend Manfred helped me
climb out of the tiny window, and I stood on the coupling
between the two cars. He followed me and we held on tight so as
not to slip and fall beneath the train and waited for it to
take a curve where it would slow down. Then we jumped to our
freedom in eastern France.
Of the 1,000 people with me on the SNCF convoy number 42--
there were over 70 convoys; this was number 42--on the 6th of
November 1942, only five survived the war of the 1,000. If I
had not jumped from that train, I would not be here today. It
is my duty to speak for those who did not survive--for the old
woman who pushed us to escape, for my family, and for the
millions of others who were silenced.
SNCF willingly collaborated with the Nazis. Had the company
resisted, even to a small degree, or had they not imposed those
horrific conditions, many lives would have been saved. In the
almost 70 years since the end of the war, SNCF has paid no
reparations nor been held accountable. The company did not even
apologize until 2010 when it was criticized for pursuing high-
speed rail in the United States without fully accounting for
its role in the Holocaust. As it was during the Holocaust for
SNCF, so it is now--all about money. They made money shipping
people, and they wanted to make money building railroads.
The Holocaust Rail Justice Act is the last opportunity we
will have to see justice and our day in court within our
lifetimes. The survivors seek only to have our day in court for
the first time. Seventy years is far too long to wait for a
company to accept responsibility for the death and suffering it
caused. I urge you please to pass the Holocaust Rail Justice
Act this Congress before it is too late.
Thank you very much.
[The prepared statement of Mr. Bretholz appears as a
submission for the record.]
Senator Schumer. Thank you for your ever so powerful
testimony, Mr. Bretholz. Thank you for your courage as well.
Professor Swaine.
STATEMENT OF EDWARD T. SWAINE, PROFESSOR OF LAW, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, D.C.
Mr. Swaine. Senator Nelson, Senator Schumer, thank you for
the opportunity to testify about the international law
implications of the Holocaust Rail Justice Act. I am honored
and moved to be in the presence of Holocaust survivors and
others who advocate on their behalf.
I am speaking about a different aspect of this important
issue, but I would stress the room for agreement here. All
would agree that, irrespective of liability and immunity
issues, justice for the victims of Holocaust deportations,
given these deeply disturbing claims, is imperative, and
attention by political bodies in the U.S., France, and
elsewhere is welcome.
There should also be agreement that international law plays
a role, most importantly, the human rights articulated in the
wake of the Holocaust, but also respect for international
institutions and for other international principles such as
State responsibility, the obligation to make reparations, and
any applicable immunity. Ultimately we should advance according
to the rule of law.
As I explained in my submission, Congress designed the
Foreign Sovereign Immunities Act with a view to what
international law permitted. These standards protect the U.S.
Government as well. My objective is to describe these
parameters and to try to find constructive solutions.
The International Court of Justice recently provided
guidance in a case involving crimes committed during Germany's
occupation of Italy. The court held that Italian suits against
Germany were barred by customary international law principles
of sovereign immunity, which also bind the United States.
Those facts were different than those here. The wrongs were
by the German military, not a state-owned entity like a
railroad, and judicial proceedings were conducted in Italy
where the wrongs were committed. But some of the court's
principles translate.
For example, the court held it was required to apply the
modern law of sovereign immunity, not the law as of when the
wrongs occurred, since immunity concerns the judicial
proceedings that occur in the present day.
The court also held that immunity for sovereign acts
applies regardless of the nature of the underlying
international wrongs, no matter how terrible they are. These
holdings express the traditional view, which is also how our
courts have previously understood the Foreign Sovereign
Immunities Act.
Applying our Foreign Sovereign Immunities Act, courts have
dismissed claims against the French national railroad on the
reasoning--that I simply report--that SNCF is part of a foreign
state and that no exceptions apply. The restrictive theory
immunity allows suits to be brought based on a foreign state's
commercial activities, but claims have to be brought under the
present law based on activity in the United States or otherwise
satisfy a geographic nexus.
The bill would change this result in two ways. First, it
focuses on the status of the railroads during World War II as
opposed to today. Second, as to those railroads and those
claims, it would remove any requirement of a U.S. connection.
Based on my examination of the Act, I would say that U.S.
law can be changed. The questions I address are how to develop
law that can be effective while at the same time respecting our
international law obligations.
The bill's historical perspective is in some tension with
the view expressed by the United States and by other courts
that sovereign immunity focuses on the present. Sovereign
immunity is not about whether a defendant thought it would be
immune when it acted. No one--no one--should be confident when
they act that they can commit international crimes. Rather, the
topic of immunity concerns a sovereign state now and the burden
of judicial proceedings in foreign courts. Doing what the bill
suggests would, in my estimation, require additional
safeguards.
International law does seem to permit treating certain
kinds of separate state entities distinctly. Perhaps the United
States could argue that this present law, the present
international law, permits applying this approach even to prior
facts as they then existed. Even this, however, would not
permit disregarding any proof that a state entity might offer
that they were exercising sovereign authority. It is hard to
avoid continuing litigation as to the scope of immunity while
remaining consistent with international law. I do not
presuppose anything about how that test would apply to the
French railroad.
The second solution, disregarding any U.S. connection, puts
the bill at the frontier of attempts at universal jurisdiction.
This is a controversial area. It is difficult to identify
bright lines. But it is notable that the bill would combine
this extraterritorial reach, which presents its own issue, with
what appears to be at least a marginal encroachment on
sovereign immunity. This makes the case harder in some respects
than the case of Germany versus Italy. Again, we can discuss
creative solutions which might include focusing on U.S. events
or U.S. nationals.
Any solution involves a dilemma. The bill is targeted,
appropriately and reasonably, at a limited class of compelling
claims during a limited period against a limited class of
defendants. This helps reduce the potential for diplomatic
objections. The difficulty is that targeting particular states
and their immunities is a provocative and easily copied
approach here and abroad, including in matters that might
involve the U.S. Government. Ideally, the FSIA would be
updated, if necessary, with a clear view as to how it applies
to other cases, and articulate an international standard to
which the United States itself would be willingly held. I am
hopeful that this or some other solution may be reached.
Thank you.
[The prepared statement of Mr. Swaine appears as a
submission for the record.]
Senator Schumer. Thank you very much for your erudite
testimony, Professor Swaine.
We will now hear from Ms. Firestone.
OK. There is a voting starting, Ms. Firestone. I am going
to go vote while Senator Klobuchar and Senator Sessions are
here, and then I will be back down. So we will not have to
interrupt the hearing.
Ms. Firestone, you may proceed.
STATEMENT OF RENEE FIRESTONE, HOLOCAUST SURVIVOR, LOS ANGELES,
CALIFORNIA
Ms. Firestone. Dear Chairman Schumer and members of the
Committee, thank you for inviting me to present a voice in
support of Senate bill 466. I come before you as an individual,
but I speak on behalf of all survivors and the millions whose
voices will never be heard.
My name is Renee Firestone. I am an Auschwitz survivor. I
would like to address a serious situation still plaguing the
survivors.
For years, we have been trying in vain to collect on
insurance policies issued to our families prior to World War II
and which remain to date largely unpaid. When we tried to make
our claim to the insurance companies, they had the audacity to
tell us that we needed original documents or we were asked for
death certificates of the people to whom policies were issued.
Were they really insane? Did these insurance companies really
believe that after the Nazis stripped us of our families, our
rights, our possessions, our dignity, even the hair on our
heads, that they were standing at the door of the gas chambers,
where they murdered my mother, handing out death certificates
proving their crime?
This insult would have been bad enough, but we survivors,
now American citizens, many of whom after emerging from the
depths of Hell, came here and served in the American military,
are being deprived by our own Government of our constitutional
right to seek redress from the courts and claim what is
rightfully ours.
You can never know, Mr. Chairman, just how painful and re-
traumatizing that is to us survivors. I hear weekly from many
of my fellow survivors how hurt and outraged they are that this
is happening to them. In fact, their frustration finally
reached the breaking point, and over the last 2 weeks, hundreds
of survivors and their families, family members, and supporters
signed petitions, the majority of which were from New York and
California. Signers include a Nobel Laureate and his wife, a
well-known medical researcher, and the petitions have gone to
other Members of Congress as well as to the media. They want
the world to know that injustice has been heaped on them.
In spite of what was promised by ICHEIC, Allianz, Generali,
Exa, and others who are the sole repositories of the proof of
these policies never released the full list of the insured. In
my case, I was told that my father's name was not found.
However, my first cousin, Fred Jackson, was the first survivor
who applied to ICHEIC and collected from Generali because he
was lucky enough to find some papers in his house on his return
from the death camp. Fred's mother was my father's sister. We
lived in the same town where my father built our beautiful
villa, which is still there, and where he had a successful
business in the main center of our town.
My father was the oldest sibling and adviser to the whole
family. He and my aunt were very close. There is no way that my
aunt had insurance and my father did not. Why would he advise
others to get insurance and not get it for himself and for his
family?
All we are asking for is to have our rights restored
through Senate bill 466 and to be able to seek the aid of our
court system to enforce our claims under these insurance
policies. We are not beggars or greedy, as some call us. Our
families paid for these policies with the sweat of their brows,
and now we only want what is rightfully ours.
Shamefully, many Jewish organizations stand in opposition
to the will of the survivors and the passage of Senate bill
466. How obscene and repugnant that our own people would deny
the rights of the survivors and how painful. Where were these
same organizations when we and our parents, brothers, sisters,
and friends were being murdered? Did they come to our aid? How
dare they now oppose us.
I wish that my dear friend Congressman Tom Lantos, the
original champion of this bill, would be here with us today. I
know his lovely wife, Annette, is here, and I want her to know
how grateful I am to both of them.
Again, I am here today to ask this honorable Committee to
support Senate bill 466 and ensure its swift implementation
while some survivors are still alive. We are in our 80s and 90s
now. Half of all the survivors in this country are destitute.
Mr. Chairman, time is of the essence in order to serve justice
and preserve the dignity of the remaining survivors in our
final hours.
I thank the Chairman and the members of the honorable
Committee for your time and for giving me an opportunity to be
heard. Thank you.
[The prepared statement of Ms. Firestone appears as a
submission for the record.]
Senator Klobuchar [presiding]. Thank you.
Mr. Bindenagel.
STATEMENT OF THE HONORABLE J.D. BINDENAGEL, VICE PRESIDENT FOR
COMMUNITY, GOVERNMENT, AND INTERNATIONAL AFFAIRS, DEPAUL
UNIVERSITY, CHICAGO, ILLINOIS
Mr. Bindenagel. Thank you, Mr. Chairman and members of the
Committee. I am J.D. Bindenagel, the former Special Envoy for
Holocaust Issues, and it is humbling to be among Holocaust
survivors, Annette Lantos and others. I would also like to
acknowledge that there are two others who are here with me
today: Max Liebman is a Holocaust survivor, and he is
accompanied by Menachem Rosensaft, a vice president of the
American Gathering of Holocaust Survivors.
I have been asked to review what the efforts of the
International Commission on Holocaust Era Insurance Claims were
regarding unpaid insurance claims from World War II and the
Nazi period. That acronym, as Senator Schumer----
Senator Schumer [presiding]. Could I just interrupt you,
Ambassador Bindenagel.
Mr. Bindenagel. Yes, sir.
Senator Schumer. Senator Klobuchar is very interested and
has been a great supporter on this issue, but she has to go up
and vote. So I wanted to----
Senator Klobuchar. Thank you.
Mr. Bindenagel. Quite understood. Thank you very much.
Senator Schumer. We are joined now by Senator Blumenthal,
another supporter. Please proceed.
Mr. Bindenagel. Thank you, Mr. Chairman.
As a reviewer of the efforts of ICHEIC, I would like to
start off by noting that the overarching interest of ICHEIC
negotiations was to bring some measure of justice to Holocaust
survivors and other victims of the Nazi era through
compensation, where appropriate, but also information where
available. We set out, as Senator Schumer noted earlier,
concerned parties, governments, nongovernmental organizations,
to resolve Holocaust-era insurance claims through dialogue,
through negotiation and cooperation rather than subject victims
and their families to the prolonged uncertainty and delay that
would accompany litigation against the industry.
U.S. regulators and European companies and the Holocaust
survivor representatives created ICHEIC in 1998 and established
policies and processes to identify claimants, locate unpaid
insurance policies, assist Holocaust survivors and their
families in resolving claims.
Survivors and their heirs were able to submit inquiries and
claims to insurers and partner entities at no cost and in their
native language. ICHEIC, in close cooperation with 75 European
insurance companies and a number of partner entities, resolved
more than 90,000 claims. In short, the ICHEIC process went to
great lengths to be claims-driven, claimant-friendly, and
included vocal advocates of the claimant community. One only
had to file a claim and specify the name and home town of the
victim. No lawyers were needed to file a claim, and there was
no cost to the claimant in the process.
Claimants could then, and now can, also access the website
where there appear more than 550,000 names and a list of likely
policy holders, regardless of whether they were outstanding or
compensated in the past, in search of a deceased relative who
also was a Nazi victim. Moreover, virtually all significant
insurers of Holocaust victims participated in this process.
Of course, accepting that ICHEIC was not and could not be
perfect, especially given the loss of information during and
after World War II, some key numbers from ICHEIC will help
summarize what was achieved regarding insurance claims. ICHEIC
paid some 48,000 claimants out of the 90,000 claims that were
analyzed, paying about $300 million. There are some more
details in my submitted testimony.
But more important is that ICHEIC as an organization ceased
to function in 2007, and the most important development since
then is the continuing commitment of all the companies that
participated in ICHEIC to process claims under relaxed
standards of proof. That is, despite the fact that ICHEIC has
closed, anyone who believes that an ICHEIC insurance company
has failed to pay a claim may send his application to the
company or to the Holocaust Claims Processing Office of the New
York State Banking Department of Financial Services and that
claim will be analyzed. Methods of analysis are the same as
they were under the operations of ICHEIC, and there is no
charge to the claimant, and the relaxed standards of proof
still apply.
The German Insurance Association has continued to report--
and I have submitted their most recent report--on the
statistics of continuing claims since ICHEIC was actually
closed. They include 219 inquiries for insurance policies of
Holocaust victims as of last Monday, June 18, 2012. One hundred
and two policies were identified in those claims; 41 were
eligible for compensation, and 61 have been previously paid.
Some claims are still being reviewed.
Mr. Chairman, the insurance companies' commitment to this
ongoing process can be seen and can be tested by their
continued outreach efforts, an example of which can be found in
an advertisement they placed in the Washington Post on Monday,
which is also attached to my statement.
But at the same time, the fulfillment of the U.S.
Government commitment to comprehensive and enduring legal
peace, as set forth in the July 17, 2000, executive agreement
is equally important to the continued resolution of outstanding
claims, which, I will emphasize, were not extinguished by this
agreement.
The purpose of ICHEIC was to pay unpaid insurance claims
and/or provide information on insurance policies so that
victims of the Nazis could achieve some sort of measure of
justice and some closure. ICHEIC itself was not designed or
intended to address the ongoing social needs of survivors, many
of whom live in poverty and deprivation, as you, Mr. Chairman,
have noted.
Significantly, in 2010, the German Government greatly
increased funding to provide 110 million euros for Holocaust
survivors' ``home care''. After some negotiations with the
Conference on Jewish Material Claims Against Germany last year,
a 3-year home care agreement was finalized and will provide for
another 513 million euros, that is, $650 million for Holocaust
survivors' home care.
These agreements, which supplement the ICHEIC process, and
other litigation settlements will provide another measure of
support for Holocaust survivors. The ICHEIC process itself
represented one of many ways the United States addressed and
continues to address the plight of Holocaust survivors.
With that, I would like to say thank you, Mr. Chairman, for
the opportunity to speak to the committee.
[The prepared statement of Mr. Bindenagel appears as a
submission for the record.]
Senator Schumer. Thank you, Ambassador. Your entire
statement will be read into the record.
Mr. Bindenagel. Thank you.
Senator Schumer. Senator Blumenthal wants to say a few
words, and he has been one of the big fighters for this in the
Senate and always cares about issues of justice, so I would
like to call on him for a second.
Senator Blumenthal. Thank you, Senator Schumer, for the
inspiration of your leadership, and thank you to all of the
Holocaust survivors and their advocates who are here today. I
view this hearing as tremendously and profoundly important. I
am sorry that it is in the midst of a series of votes which may
seem somewhat distracting, but I would just like to assure
everyone who is here that the ultimate issue commands our
attention, as it should, as a matter of justice, and I am very
proud to join in the fight that Senator Schumer has so
courageously waged over many, many years and thank him for
holding this hearing.
Senator Schumer. Thank you, Senator Blumenthal.
I have a few questions, although I have to say that the
testimonies of both Leo Bretholz and Renee Firestone speak for
themselves, and I will hope all of my colleagues can read it
because that says it all, and I thank the two of you
particularly for your courage as well as the other witnesses.
I want to ask you, Mr. Bretholz, has SNCF ever reached out
to you in any meaningful way?
Mr. Bretholz. No.
Senator Schumer. And what about some of the efforts SNCF
made in France? And they have been met somewhat receptively by
the French Jewish community.
Mr. Bretholz. I can really not speak for the French Jewish
community, but the French Jewish community is somewhat
reluctant to what you call rock the boat, you see, because----
Senator Schumer. I am sure there is a French expression for
that that neither of us knows. [Laughter.]
Mr. Bretholz. You just heard what happened in Toulouse with
the killing.
Senator Schumer. Yes.
Mr. Bretholz. They are afraid if they would rock the boat,
there will be more atrocities.
Senator Schumer. Understood.
Mr. Bretholz. That is really the issue. They do not want
to----
Senator Schumer. That is all too often the mentality in
some of the European communities. Praise God it is not here in
America, nor yours.
OK. I want to ask Delegate Rosenberg--and I first want to
commend him for his efforts in Maryland.
Mr. Rosenberg. Thank you.
Senator Schumer. Now, as SNCF continues to obscure its role
in the Holocaust, thanks to your legislation in Maryland we are
going to have the historical record of a true, whole account of
their records from that time. Are they planning to comply with
your legislation, do you believe?
Mr. Rosenberg. Well, we do not know for sure. They have
submitted a bid for the contract in Maryland, and they have
submitted information. The State archivist, under our law, will
determine whether they have complied, whether they have given
the relevant information, and we expect to know that within the
month.
Senator Schumer. Thank you.
And for you, Professor Swaine, as you know, Congress
successfully passed amendments to the FSIA in the past. For
example, we amended the FSIA to allow civil suits by U.S.
victims of terrorism against designated state sponsors of
terrorism. Additionally, we enacted legislation enabling those
held hostage in the U.S. Embassy in Iran to bring suit in U.S.
court.
Did the Congress have the authority to enable terror
victims and hostages to sue? And does Congress now have the
authority to pass a narrow amendment to the FSIA as seen in the
Rail Justice Act?
Mr. Swaine. Thank you, Senator Schumer. Congress
undoubtedly has the authority as a matter of our domestic law.
There is no question that under the Constitution Congress can
do this. The issue that I think is worth examining in light of
the values that Congress has previously expressed is how to
make changes to the law compatible with international law and
with our international interests.
Congress has revised the FSIA to, as you say, expand the
possibility of immunity--the possibility of liability for state
entities that would otherwise consider themselves immune. Those
have typically been very narrowly drawn, not unlike this
legislation, but without focus on particular states or
entities, rather on classes of conduct in general. For example,
the terrorism measure focus has an administrative component to
it. States have to be designated as ``sponsors of terrorism,''
and there are other limits in it as well, including limitations
based upon nationality or other identity of the plaintiffs.
So Congress has in the past had sometimes internationally
controversial but well-considered changes to the FSIA, and my
point is simply to urge the same kind of focused attention to
these issues.
Senator Schumer. All right. Great. Thank you, Professor
Swaine.
Ms. Firestone, I want to thank you for being here and
standing up for what you believe in so strongly, not only on
behalf of yourself but other survivors. If the legislation is
passed, what do you hope and expect to happen in court if the
surviving European insurance companies are sued?
Ms. Firestone. Mr. Schumer, I do not think I will live long
enough to finish a court session about this insurance. What I
want and what most survivors want, we do not want to die as
second-class citizens in this country, like my parents died
somewhere else. That is the only reason we are fighting for
this. We want to have the same rights to go to court and claim
our issues like any other American.
Senator Schumer. And you could not be more on target in
asking for that. You are entitled to it.
Ms. Firestone. So I hope you will fight, you will vote.
Senator Schumer. We will do our best, of course.
Now, to Ambassador Bindenagel, one of the criticisms that
Ms. Firestone and others have made about the ICHEIC process is
that the list of names that the companies use were not made
available and accessible to the survivors. Can you address this
issue and also explain where the list came from, whether they
were ever audited by someone outside of ICHEIC?
Mr. Bindenagel. In fact, Senator, thank you very much for
that question. It is a very, very important question. The
550,000 names actually were compiled through many ways, and I
will find here in 1 second where they were. There is a website
at the Yad Vashem that has those names. Those names were
compiled in the first instance by taking names of Jewish
citizens in all of the countries and matching them against the
lists of the companies. That is the basic understanding of how
that list was created, and the 550,000 names were there. That
does not mean they all had policies, but it did mean that some
of those Jewish citizens who are named had policies. They were
checked against the companies. It was overseen by several other
organizations in the process of making sure that that was a
legitimate list.
But, again, it was not everybody that had a policy but,
rather, the list of people that could potentially have had
policies.
Senator Schumer. What could be done to make it better and
more complete?
Mr. Bindenagel. One of the things that would be very
important--the information is really very complete as far as
the historical record is that the claimants still have the
opportunity to take that list--it is still public knowledge; it
is on the website at Yad Vashem; it can be seen--and clamaints
can still make a claim. We never closed off the claims process.
When I checked, the companies have continued to keep their
process open. If anything, there should be oversight of that
process. We should look at the reports that come out of the
insurance association. How many of the last 219 inquiries were
addressed, so that there would be an interaction with Holocaust
survivors and heirs? They would have an opportunity to say,
yes, these claims are still being processed, and also could
work with the Holocaust Claims Processing Office in New York.
The Holocaust Claims Processing Office has been very helpful in
doing research that has been necessary for those claims.
Senator Schumer. Well, again, I thank you. We have a little
bit of difference of opinion here for sure.
Mr. Bindenagel. Yes.
Senator Schumer. But I want to thank our first witnesses.
We have another vote. Do you have any questions, Senator
Blumenthal?
Senator Blumenthal. I want to again express my
appreciation. Ambassador, is it your feeling that SNCF has been
held adequately accountable?
Mr. Bindenagel. I did not deal with the SNCF argument, but
I will tell you it never came up in the negotiations that we
did with the Holocaust.
Senator Blumenthal. But I would believe that in your view
as someone who has a lot of experience in this area as to
whether you feel as a matter of equity SNCF has been held
adequately accountable.
Mr. Bindenagel. SNCF needs to be held accountable. That is
my view.
Senator Blumenthal. And has not been so far.
Mr. Bindenagel. They need to be accountable.
Senator Schumer. You can see why he was one of the best
Attorneys General.
Mr. Bindenagel. He is very good.
Senator Blumenthal. Let me turn to Professor Swaine. I do
not mean to ask an indelicate or undiplomatic question, but are
you assured that claims for anyone who passes away during the
pendency of any litigation that may be brought, assuming that
the Congress does act, will be adequately protected?
Mr. Swaine. Sir, the claim of decedents, people who inherit
the claim?
Senator Blumenthal. Correct.
Mr. Swaine. I am not assured of that. That would be an
issue that would be presumably adjudicated in U.S. courts were
this bill to pass.
Senator Blumenthal. Can we do something to assure that
those interests are protected as part of what the Congress
might do?
Mr. Swaine. Congress might attempt to address that to a
degree that it has not previously. There are a host of domestic
litigation issues connected with the bill that I did not
address in my testimony, including the difficulty conceivably
of recovering. One of the issues that is frequently faced in
these actions is enforcing the judgments and simply exposing
any state entity to a suit does not guarantee the
enforceability of any judgment--which I think is in the past
one of the reasons why diplomatic efforts have sometimes been
preferred, because they are often a surer way of getting a
foreign entity to contribute its assets to reparations than
domestic litigation.
Senator Blumenthal. I would be interested in talking to you
and others about those secondary issues that may arise. We do
have another vote. I apologize that I am going to have to
leave.
Senator Schumer. We are going to have to close the hearing
because of the other vote. It has been great. I would just like
the survivors--there are many survivors here who have come to
witness. Would you please just rise so we can acknowledge you
and thank you?
[Applause.]
Senator Schumer. Thank you. I thank all of the witnesses
and all of those who came. Again, we are sorry for the cramped
conditions, but the record will be open for a week for people
to submit written testimony.
With that, the hearing is adjourned.
[Whereupon, at 3:53 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]