Sunday, June 22, 2014

Another Shoah Trial

This week once again, an aging, enfeebled octogenarian was hauled away in chains to stand trial in Germany for enabling the holocaust. In a sealed indictment, Johann Breyer was indicted on 158 counts of “aiding and abetting in murder”  — one count for each of the 158 trainloads of Jews taken to the killing center at Auschwitz during a six-month span.

According to the New York Times, prosecutors do not believe they need to establish that Mr. Breyer “pulled any levers” at Auschwitz.  Andrea Foulkes, an assistant United States attorney, told reporters that it was only necessary to prove that he “made it possible for the killings to happen.”   

The Times article went on to parrot that, as part of their routine, the “Death’s Head” guards at Auschwitz were responsible for taking incoming prisoners from the trains for “selection” to the gas chambers and, from their positions at watchtowers and along the camp’s barbed-wire perimeter, for preventing escapes.  According to prosecutors this made Bryer  “complicit in the gassing of  216,000 Jews”

We have written before about this and are not about to go into at length again except to say that the entire spectacle is a disgrace and a sham that has nothing to do with justice.  On the contrary, courts of law are being turned into theaters of revenge for modern day autos de fe.

Of Tables & Platforms

Although it may not sound very grand, the bedrock of civilized law is notice and specificity — the requirement that criminal guilt be based on the commission of specified, particular acts which are published beforehand for all to see and know.

This principle dates back to the earliest days of the Roman Republic when “illegal” meant whatever judges said it was and ordinary life got reduced to a game of “act at your peril.”  The people tired of this and demanded that their rulers post the rules so that they could know what specifically was prohibited and punishable.

Ever since then inchoate or amorphous crimes such as disparaging the State or undermining the war effort have been regarded as manifestations of tyranny.

However, between specific and amorphous criminality there lies an intermediate category of crime consisting in accomplice liability.

 Under standard criminal law, a person can be guilty of aiding and abetting a crime if he does a specific act which enables the completion of another specific and discrete crime.  Knowingly serving as the get-away driver in a bank heist is a typical example of aiding and abetting a robbery.  The driver does not himself commit the taking at gun point but his act of driving does facilitate the commission or completion of the crime.  A taxi driver who unknowingly gives a ride to a bank robber is not an abettor much less the garage mechanic who services the taxis or the gun dealer who sold the gun used by the robber.

The concept of derivative liability is intuitively simple but problematic in practice.  Guilt depends, in the first instance, on proximate cause — how close a causal connection exists between the facilitative act and the crime.

It is with these principles in mind that Mz Foulkes explanations need to be assessed.

In saying that the prosecution did not need to show that Breyer “pulled any levers,”  Foulkes admitted that Breyer was not the actual perpetrator of any homicide and had done nothing which caused the death of another human being.   If the prosecutors had such evidence they would not be talking about not needing such evidence.

As such, the question becomes: what specific act did Breyer willfully and knowingly do, which act proximately facilitated any act of murder?   It is at this point that these prosecutions typically resort to vagaries and sophistical shuffling.  According to Foulkes, Breyer’s guilt is based on the fact that he “made it possible for the killings to happen.”

In so saying, Foulkes shifted the issue from doing a specific facilitative act to doing something which contributed to circumstances or conditions for a killing to take place.
Mz Foulkes explained that, as part of their routine, the [1] “Death’s Head” guards at Auschwitz were responsible for [2] taking incoming prisoners from the trains for “selection” to the gas chambers and, from their positions at watchtowers and along the camp’s barbed-wire perimeter, [3] for preventing escapes.

Guilt by Insignia

Walking through the shuffle step by step, it must first be noted,  that Foulkes’ reference to “Death’s Head” guards is blatant example of rhetorical spooking, the insinuation being that because Breyer was a “Death Head” guard he willfully enlisted and knowingly participated in “death.”

Before the whole matter collapses into a heap of Hollywood titillation, it bears pointing out the the so-called Toten-Kopf is a standard and universal military insignia.  In Germany, its use dates from the 18th century when it was used as the insignia of the cavalry.

It is also used by the Queen’s Lancers,

And by U.S. Marine Corps Force Recon units.

During the World War, it was used in Germany by both the Waffen SS (which were not camp units) and the Wachsturmbanne (which were).  During the period in question the various units of the SS, as a whole, underwent multiple reorganizations, reassignments and re-namings. The camps themselves were divided into categories and were administered by both differing and overlapping units.  Typically, camp perimeter and watch towers were overseen by a separate formation called the Guard Battalion, or the Wachbattalion.  Barracks, hospitals and killings were administered by other details.   Who did what, during which period, when and where is not a simple or self-evident issue. Guilt by Insignia is a cheap ploy aimed at spooking and insinuating.

In fact, guilt by insignia is an even cheaper version of the associative guilt that is normally resorted to in these prosecutions.   In previous cases, the prosecution has argued guilt by duty roster or job description -- the theory being that the defendant was a member of a unit whose general and routines duties included : falling in at 5:30 AM.,  cleaning latrines, standing guard duty, peeling potatoes, gassing Jews, sorting mail, vehicle maintenance.... etc.    Guilt by Insignia, efficiently steamlines the theory ... plus it just plain sounds guilty.

From, For,  and To

Proceeding from outright theatrics to what paltry facts are alleged, we are left to infer from Foulkes’ account that Breyer guarded a watch tower, with orders to prevent people from escaping.  How did that “make possible” anyone’s gassing?   Is it suggested that if he did not stand guard, no one would have been gassed?  Is it suggested that someone who was about to be gassed, broke loose, ran across the camp and was about to scale the barb wire, but for Mr. Breyer standing guard?

It is not even stated that he brought victims to the gas chambers.  What is stated in a badly constructed sentence is that he was “responsible for taking incoming prisoners from the trains for 'selection' to the gas chambers.

In other words, he lined them up on the platform where someone else made a selection of who was to be sent to the gas chambers and who was fit to work.  But Breyer himself made no selection for anything.

The reason for the awkward syntax goes back to the Ivan Demjanjuk prosecutions which began with the allegation that Demjanjuk laughed with glee as he accelerated the pedal of the diesel engine that generated the gas.  The  allegation then became that he had stuffed people into gas chambers and this in turn got turned into leading people to the gas chamber compound.  At last, the facilitative “fact” ended up being Demjanjuk’s having duties which included being a guard somewhere along the path from the railway platform to the gas chambers.

In Breyer’s case, Foulkes spares us the stuffing.  But she still herniates herself trying to scrounge up some act of  “leading to” something or other which led to death.  Thus we are subjected to  a “taking from / for  selection  to.”   Ah yes!  DOJ  Grammar, a new beast on the block.

The standard of account of the process is that “selection” was made upon arrival on the station platform.  The case boils down to the fact that Breyer was a guard in the area where arrivals were lined up for processing.  Foulkes' theory is rather like arguing that the bailiff in a courtroom where a death sentence is pronounced is guilty of “making possible” the defendant’s execution elsewhere, later, by someone else, at the court’s order.

The fallacy of the theory is illustrated by another famous platform case with which every American law student is unforgettably familiar.

 The Proximate Platform

In Palsgraff v. Long Island Railroad 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928),    a passenger running to catch a train was assisted by a platform conductor who pushed him into the moving car.  The shove caused the passenger to drop a package which contained fireworks that exploded when coming into contact with the electric third rail.  The explosion caused a panic on the platform causing people to run helter skelter.  Either the explosion or the fleeing people knocked over a scale balance beam which fell on Miss Helen Palsgraff who sued the railroad for personal injuries.

The Platform on which Helen Palsgraff got Bonked
As a physical causative matter, it was indisputable that but for the shove the beam would not have fallen.  The conductor had triggered a chain of events that culminated in the injuries suffered by Mrs. Palsgraff.   But that, the court held, was not enough; the harm to Mrs. Palsgraff had to be direct and foreseeable as to her.  In other words, although there was a causal connectivity, it was not proximate to injuries to Mrs. Palsgraff.

Although Palsgraff was a negligence case, the American rule is that criminal liability requires more than mere negligence.  In these camp-cases, by contrast, liability is based on even less than what would be required to show actionable negligence.

It is not claimed that Breyer pulled any levers.  It is not alleged that he led anyone to the gas chambers.  It is not argued that he selected who was to be sent to death.  The prosecution does not even bother to specify how many people in each of the 158 railway cars were actually killed.  It is asserted only that he stood guard on a chaotic platform where a selection for work or death was made by some other person; and this assertion conveniently ignores that Breyer just as much assisted in the "selection for work" and therefore by the same wholesale logic is guilty of saving from death as least as many as he vicariously killed. 


The spuriousness of the argument is total. There is not the slightest attempt to argue that standing guard was a proximate cause of any death.  The lack of proximate cause is fudged and obscured by the tricking phrase “made possible.”   Of course it made it “possible” in the way that a horseshoe nail “makes possible” the battle in which the cavalryman charges.

By this line of spurious reasoning, anyone who contributed to the general operation of the camp is guilty of murder: the station attendant at the railway junction, the engineer who drove the locomotive, the guard who opened the box car door, the cook who peeled potatoes in the kitchen, the supply clerk who delivered cabbages —  all of these people made the camp possible and thus, supposedly, the killings at the camp.  The prosecution’s case against Breyer is simply guilt by association

Foulkes’ sophistry runs rough-shod over a plethora of other facts bearing on knowledge and intent.  Was this 17 year old guard drafted or had he enlisted?  At the time he enlisted did he know he would be assigned to a camp and if so did he know about the killings taking place there?  Was he attracted by some sort of recruitment poster which said  “Join the SS and See Gassings in Exciting Foreign Lands!”  Once enlisted and assigned what alternatives did he have not to “make possible” 260,000 killings?  

By the prosecution’s perverted reasoning, every soldier at Bagram or Abu Grahib  is guilty of water-boarding which his presence “made possible.”  Every Israel soldier who arrests a Palestinian child is guilty of the abuse the child suffers in IDF detention.  Is this Justice Department willing to prosecute our own on this basis?

It is quite appropriate to recall that in the waning days of the World War, people were hanged from lamp posts in Berlin for treasonous negativism. In one notorious case a man was executed for “stealing” a bar of soap found on the sidewalk following an air raid.  The court ruled that by doing so he had “undermined the war effort” by contributing to the disorder and damage of the air raid.

This is not justice.  It is bullshit.  Whenever theories of amorphous criminality raise their ugly head tyranny and scapegoating are not far behind.

Memorialization and Monstrance

In addition to specificity, civilized concepts of justice are framed within two reflecting principles: forgetfulness and finality.

The doctrine of finality is that there comes a time to put an end to proceedings regardless of the merits of the case.  Although society has an interest in seeing that injustices get corrected, it also has an interest in not beating dead horses forever.  Nothing human is perfect and an endless pursuit of perfect justice gives no rest.  There is a time to let a judgement stand even if it is wrong.

Correlatively, there comes a time past which it is too late to open old wounds.  Thus, statutes of limitations put a time limit as to when a case can be brought, even in the case of murder most foul.  There is a time to forgo prosecution even if it means letting a possibly guilty person escape.

These two principles are essential to justice.  Just as a mathematically perfect scale sounds awful, finality and forgetfulness temper justice so that it is commensurate with our inner sense of fairness.

But mercy got trashed in 1979 when the West German Government, under intense pressure from the United States and American Jewish organizations abolished the statute of limitations for murder, which had existed since the 19th century.

The arguments advanced by the proponents of abolishing the statute of limitations were cut from the same cloth as the theory of aiding and abetting genocide.  

The Union of American Hebrew Congregations argued that “it would be unconscionable to close the door on future prosecution while some of the perpetrators of history's greatest crime have still not had to answer for their deeds.” (Letter July 1979.)

This argument was a patent sophistry which smudged over the fact that there is no individual perpetrator of history’s greatest crime.

Let us parse the statement. The object of the quoted sentence is something called “history’s greatest crime” presented as a unitary thing of near limitless magnitude.  The object called to mind is: a big, big, big, big, ultra big, gigantic BAD THING.

But this “BIG BAD THING” is simply an abstract term of convenience.  Genocide is a single thing only in the sense of it being a collective phenomenon the parts of which share certain features and effects in common. The actuality of the phenomenon only comes into being through a multiplicity of discrete acts which are to varying extents disconnected in actual fact.  This is why it is said that the whole is greater than the sum of its parts.  A genocide is a confluence of details in which, past a certain threshold, an accretion of quantity results in a qualitative change in kind.

It is legitimate, for historical purposes, to speak of a genocide even if that “fact” encompasses thousands or millions smaller facts.  But courts of law do not try history.  They try individuals for individual acts done.   Putting aside the very few, high ups who may have planned the entire enterprise, no ordinary individual could possible be the perpetrator of a genocide.
The statement by the Union of American Hebrew Congregations shuffles over this inconvenience by referring to the perpetrators (plural) of the greatest crime (singular).  That is a technically correct syntax. The ambiguity arises from the adjective “some” which means at least one or any single one in an indeterminate number of persons.  The word “some” singularizes the subject so that the sentence ends up saying that there are “some” individuals out there who are responsible for the greatest crime.
The argument then goes on confuse the magnitude of the crime considered in the aggregate with the guilt of the individual considered discretely. The crime is so huge there can be no limit for it and therefore no limit for any small part a small individual may have played within it.  The argument pure scapegoating because it heaps a collective wrong — the sum total of all the wrongs committed — onto the back of (some) single individuals.

Thus parsed it can be seen that the present day prosecution of Breyer and the original “justification” for abolishing the statute of limitations are two sides of the same coin.  The aim and object was to hunt down hapless individuals who could then be publicly scapegoated for “the holocaust”.  The Union of Hebrew Congregations explained it this way:

"the prosecution of Nazi criminals serves as a valuable means by which to remind the world of the horrors of the Holocaust and to challenge those would deny or willingly forget the past."
Read the sentence again.  It says nothing about “making sure justice is done” rather it justifies criminal prosecution as means to remind people of the Holocaust.

This is like saying that the bank robber is prosecuted in order to remind everyone that a robbery was committed.

This memorializing function is further underscored by the complete absence of any deterrent justification.  The sentence does not say that prosecution is necessary to prevent future holocausts from happening.  It says that prosecution serves the as a means “to challenge those who would deny or forget the past.”

In other words, courts of law — the judicial power of the state — are to be used as argumentum in vivo to silence those who do not assent to an official version of history and to keep the image of barbed wire, starvation, crematoria and death ever before people’s eyes, like some sort of goulish monstrance.

Words are given to man to say what he means and that is what those words say.  It may not be what the listener wants to hear; but that is what the words say.  Nor was it anything just said by an ad hoc association of rabbis.

In tandem with the successful campaign to remove Germany’s statute of limitation, the same pressure groups got the United States Congress to set up the Office of Special Investigations in the Justice Department.  The legislated purpose of the OSI was spearhead investigations and prosecutions of so-called war-criminals. 

On its  OSI page  the Department of Justice proudly adds that,

“As a result of OSI’s record in identifying, investigating and denying refuge in the United States to Nazi persecutors, the United States is the only country in the world to have won the “A” rating from the Simon Wiesenthall Center for effectiveness in pursuing justice for Holocaust crimes.”
In other words, the unending prosecution of these crimes has nothing to do with making individual victims whole; it has nothing to do with re-establishing the King’s peace; it has nothing to do with deterring future perpetrators of a holocaust.

No — the machinery of justice is to be used as a “means” to remind the world of how awful the Holocaust was and to combat the blasphemy of holocaust-denial.  It is an auto de fe in modern form.

There is a fine and unfortunately all too permeable line between retribution and expiation.  The overall purpose of justice is to restore a wrong and to deter future misconduct.  Justice seeks to put things right by providing some equivalent compensation for an injury. The doing of restorative justice is in itself a deterrence in that it demonstrates that there is nothing to be gained by the misconduct in question.  Where such deterrence is not possible or is insufficient, deterrence is achieved by the infliction of a commensurate loss or punishment.

Thus viewed, it can be seen that the sine qua non of justice is the existence of a victim, some particular person who was hurt and who can be compensated or vindicated.  Even when the crime is against “the King’s Peace” there is an actual, concrete victim involved.

Things get tenuous when a person is prosecuted for crimes in which the “victim” is some concept of general welfare or some “potential” for a foreseeable harm that has not actually materialized.

Things tip into hell when the victim or the “offended party” is some deity or some socially mandatory belief or  memory.  At that point the so-called doing of justice is not restoration but expiation to and before an wrathful god.

The perversion involved in the Autos of the Inquisition, was that they actually denied the Expiation they were supposedly vindicating.

For Christians the “horrors of the Crucifixion” serve as a remembrance of Christ’s expiation of our sins.  The fundamental idea is that by suffering a completely unjust punishment, God himself atoned for our sinful human condition, expiated our wrongs and set us forever free, no longer burdened by guilt.  One need not believe any of this, of course; but that is premise of Christianity.   By demanding a further expiation in the name of that Expiation which was supposedly offered once and for all, the Inquisition turned a forgiving god back into a vengeful one.

The god of the Union of Hebrew Congregations is vengeful from the start.  The word holocaust is a liturgical term for a fully burnt sacrifice of atonement.  The idea was that, instead of partaking in the succulent fat of a lamb, your "feast at the table" consisted in eating ashes.    Those who employ this term in reference to Nazi genocide have never been very clear as to what the millions of Jewish victims were atoning for by their deaths. 

Be that as it may, the proponents of these prosecutions never argue that acknowledging the holocaust serves as an atonement on our behalf or that its horrors provided a redemption which allows us to forgive, forget and be free.  Unlike the Inquisition, there is no perversion of a redemptory concept because, from start to finish, the unadulterated motive involved is one of perpetuating guilt and shame. Unlike the Crucifixion which transcends itself into a Resurrection, nothing is offered except a form of sorrow and remorse which, we are told, should never be denied or challenged.  And, in order to keep this eternal sorrow alive, it is necessary to find some pathetic human sacrifice to served up to the Nightmare.

It is stupidly said that those who forget history are doomed to repeat it.  Only an American dimwit could come up with the idea of history as a User Manual of Avoidable Mistakes.  Memory is not looking back or a retrieval of the past; it is a present composition made with elements we select and arrange. We are doomed to repeat history when we forget our humanity and we forget our humanity when we fail to forgive the wrongs we hold on to.   It was for this reason that Christ said Let the Dead Bury the Dead  (Luke 9:60) and that to love one's neighbour as one's self is more than all whole burnt offerings and sacrifices (Mark 12:33).

Nazi labour and extermination policies were among the darkest episodes in human history.  Still, nothing but mold grows in the shade; we either move on into light or we don’t.  These Shoah Trials are not only a perversion of justice they are a passive aggressive pseudo-religion that blasphemes against the better angels of our nature.

 ©WCG 2104

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