Holzman's Witch-hunt

Another chapter in the BOOK OF OGRES, this one by Margaret Renkl, a New York Slime “contributing opinion writer who covers flora, fauna, politics and culture in the American South.”

This latest tale in ogreology arises from the case of Karl Friedrich Berger who, at age 96, was deported to Germany on account of his having “participated” in the Holocaust in violation of the “Holzman Amendment” which, in 1978, amended the Immigration Act so as to require the deportation of anyone who “assisted or participated” in Nazi “persecution.”

“Some offenses,” writes Renkl, “are so hideous that even the distance of history offers no shield.” And the hideousness in question? “Mr. Berger . . .marched 70 people to their deaths outside Meppen, Germany, in 1945.”

I hate to sound callous, but if marching people to their deaths is one of the most hideous offences, then human history is an interminable succession of ne plus ultra's. This kind of hysterical exaggeration is a tad choice coming from someone who specializes in things Southern and who might be expected to remember an event known as the Trail of Tears.

Well anyways... what did Karl Berger actually do? We can begin with the preposition “to”...

1. Expressing motion in the direction of (a particular location) and hence,

2. Expressing the result of a process or action. (Oxford.)

Thus, the preposition “to” indicates the aim or result of a motion or action. That result can be accidental or intentional. For example, one can march a column “to” Timbuktu in order to get there or because, intending to get to Gao, one made the wrong turn.

The phrase “march to their deaths” strongly suggests intentionality as in “walked him to the gallows.” But it can also simply mean that, in the course of being marched somewhere, people “met their deaths.” It is on this ambiguity that Renkl maliciously imputes one of the "most hideous" crimes in history to a hapless 19 year old.

This is the standard trick of all rabble rousers, such as our recent, former president with whom Renkl would, not doubt, be outraged, positively outraged, to be compared. But it is precisely that sort of trick she uses: to say something that one knows will be interpreted and understood in a particular way but then, when the heat is turned on, to hide behind the ambiguity, and innocently protest that one hadn't meant it that way and, after all, one had not actually stated an untruth.

Let us be clear. Renkl is a journalist (or opinion hacker) who writes for what purports to be the paper of record in the country. Even journalism students writing for the College Blather are taught to check their sources and facts. So let's do that, using materials of public record that one supposes were readily available to Renkl.

Following his mandatory Labour Service (Arbeits Dienst), Berger enlisted in the Kriegsmarine (Navy). (Opinion, Board of Immigration Appeals, In re. F.C. Berger, 13 November 2020.) He did so in order to avoid being sent to the Eastern Front meatgrinder. (In re F. C. Berger, Immigration Court, decision, 28 February 2020.) While in the navy he worked in administration and subsequently as a machinist. (Ibid.) On 23 January 1945, Berger's unit was detached to the S.S. “This did not mean that the navy guards became members of the S.S.” (Ibid, p. 9.) In military jargon (with which Renkl, as an authority on the flora and fauna of Souther Eastern U.S., is surely familiar) to be “detached” means to be taken out of one's regular unit and temporarily assigned to another unit or to another branch of service for the convenience of the service. It is rather like the lending of slaves between masters. As the Immigration Court decision noted, “Respondent was not given a choice in this assignment and was ordered to this post.” (Ibid., p. 11.)

Nor, by being detached, did Berger become a member of the SS, either provisionally or functionally. He was not given the famous SS tattoo, he continued to wear his naval uniform and he remained under the command of his naval superiors. It was they who took orders, if any, from the SS. (Ibid., p. 11.) In this capacity, Berger and his mates were sent to a cluster of labour camps at Neugamme in Germany. From there he traveled to a nearby sub-camp at Meppen. Internally, the camps were operated by SS personnel. Berger never went inside. He and his mates were housed in barracks outside the camps themselves. His job was to escort prisoners from the camp gates to work-sites outside the camp, to guard them at their details, and then, to return them to the camp. (Ibid., pp. 9, 11.)

Both inside and outside the camp, the prisoners were supervised and under the immediate command of Kapos. Berger had little contact with them and none with the prisoners. His job was simply to stand watch with a rifle. Berger “performed his duties as ordered.” (Ibid., p. 11.) Berger claimed to have no specific recollection concerning the camps closing but in April 1945 he and others fled into nearby woods and surrendered to the British. (Ibid., p. 11.)

However, prior to fleeing and according to the Government, on 24 March, the Meppen subcamps were evacuated presumably on orders from higher ups. Berger's naval detachment guarded the prisoners during the march to wherever they were going. The Government rather gratuitously notes that “they were under orders to prevent prisoner escapes, including by shooting any prisoners who could not keep up.” (Ibid. p. 10.) The Government's brief does not state that any prisoners were actually shot, much less that they were shot by Berger. What the Government's brief states is that “[a]t least 70 Meppen prisoners died during the evacuation” as well they might have given the “inhumane conditions” inside the camp, the lack of adequate diet, the course of disease, the weather and so on. (See Ibid, p. 9.) The Government's brief goes on to note that in 1945 post war British authorities charged an SS man and a Kapo with “ill treatment and murder” at Meppen between “1944 and 1945.” However, after inserting this irrelevancy the Government concedes that Berger “was not named as a defendant” in those proceedings.

The rest of the brief and opinion are devoted to reciting “stipulated” historical facts about how terrible the Nazis were in doing all the things they are well known to have done.

So what then did Berger do so as to commit an offence “so hideous that even the distance of history offers no shield” ?

GENERAL ORDERS (USA)

1. To take charge of this post and all government property in view.

2. To walk my post in a military manner, keeping always on the alert and observing everything that takes place within sight or hearing.

3. To report all violations of orders I am instructed to enforce

What, one might ask, did Berger do that has not been done by soldiers and sentries from time immemorial? After the war, Russian soldiers guarded labour camps in Siberia to which German P.O.W.s were transported as slave labor. (Oh yes.) The conditions in those camps were appalling and inhumane. (Oh yes.) One million German soldiers died in captivity. (Oh yes.) Are all the Russian soldiers who guarded them guilty of war crimes? Selective outrage is not about justice but about revenge.

I am disgusted and take offence at Renkl (and others like her) sitting pretty in her Seat of Judgement amid the flora and fauna of the Old South, without the least comprehension of what it is like to be a soldier. To the point: A SOLDIER IS NOT A FREE AGENT. Soldiers are cogs in a machine of mass murder. The best they can do is to get assigned to something that does not involve shooting. One can hear Renkl, pursuing her lips and stating in a tone of clichéd, righteous self-evidency that “following orders is no excuse.” Enlist first and then tell me that.

The press reports of the case sound like a broken record reading off the same Justice Department script. They recite in chastising tones that Berger did not try to escape and didn't even request a transfer. Nooooh, not even that! The monster! One wonders what alien planet these misfits are from. Do they know any history at all apart from whatever trivial docudramas they watch between commercial breaks?

The time is February and March 1945. Nuremberg has just been reduced to a pile of medieval rubble. The Red Army is advancing in East Prussia, employing mass rape as an official military tactic in which an estimated two million German women are being serially violated. Civilians are fleeing in terror from the advance. Nine thousand are murdered when the Soviets torpedo a clearly designated hospital ship. The Western Allies have been carpet-bombing German cities for over three years and in February Dresden is reduced to molten rubble, even as up to 400,000 flee into it for safety from the East. Everywhere roads are jammed with oxcarts and baby carriages pushing one way and hastily raised military units pushing the other, only to meet tanks retreating west. When not bombing merely for the sake of destroying 1000 years of heritage, the Yanks and the Brits are bombing in order to destroy factories, hydroelectric plants, railways, and depots. Destruction and disruption are everywhere, as more water and sewer mains break, as food deliveries falter, as people take to living in bombed out caves. And in this scene of war and devastation, Berger was supposed to report to his commanding officer and ask for a transfer on account of personal preference? Whereto? Marseilles, perhaps? Surely there was still a German Naval detachment in France. Can anyone imagine the reaction Berger would have gotten... and rightly gotten. The press can affect all the high moral tone they want, they are scribbling from the gutter.

The Immigration Board opinion notes that “at times” soldiers who refused orders got away with it. Yes indeed, in all services there are times when a commanding officer overlooks, or looks the other way, or comes down lightly on the offending serviceman. Of course, the opinion provides no facts as to the character of Berger's commanding officer. Was he a fanatical martinet or perhaps a jovial type willing to countenance insubordination and then be shot by the S.S. for treason? In the absence of specific evidence, we have no idea. Suffice to say that insubordination is not a risk most soldiers would take.

Nevertheless, our fearless press will no doubt prattle on that at least Berger should have tried to escape, overlooking the fact that when he could he did. No doubt these same Judges of All things Human will sniff that he ought to have tried sooner. Again they do nothing but display their historical ignorance  moralizing arrogance. On seeing a sailor walking down the street unaccompanied, any policeman, any Gestapo agent, any officer or NCO from some other unit, would stop and demand his Soldbuch. If Berger had thrown it away, he would be shot on the spot. If he produced it and it showed his last duty assignment as Meppen, he also would be shot on the spot.

The press are nothing but sanctimonious sons of bitches doing government's propaganda dirty work. Self righteousness is nauseating enough. It is infuriating when coupled with bullying and slander.

So, again: What did Berger do to commit a war crime or to aid and abet in the mass murder of anyone?

Before answering that question, it might help to bear in mind the traditional rules concerning complicity in crime. Under traditional rules of law, aiding and abetting requires knowledge that a specific crime is being committed coupled with a specifically formulated intent to assist, promote, or encourage that crime. To illustrate, a cab driver who gives a ride to a bank robber does not legally aid and abet a robbery just because he found himself participating in the plan. Even if he knows or may surmise that a robbery has occurred, he must still intend to promote the robbery; and, here, it is quite relevant whether, his passenger pulls out a gun and tells him to keep on driving. In cases of aiding and abetting a murder the aider and abettor must also share the in the intent necessary for that crime; i.e. he must, in addition to intending to assist, also deliberately intend to kill a certain person. These rules were designed to prevent convicting people on the basis of being present and doing nothing when a crime was committed or from being convicted on the basis that, as a matter of happenstance, they in some way played a role in a scheme not of their making.

Under these long-standing principles Berger is not guilty of aiding and abetting in the death of anyone in no small measure because not a single crime of murder, manslaughter, assault, maltreatment or neglect has been cited in the accusation. Conditions were “inhumane” and “70 people died” as a result. Was there the least scintilla of proof that Berger was responsible for or did something to creating those conditions? Zip.

The crime here does not arise from the facts of whatever Berger did, or more to the point, did not do, but from what the Department of Justice has done to the law. They have taken standard legal terms and concepts and stretched them beyond recognition so as to create a “verbal spider web” of strict liability. The lynch pin of this witch-hunting gambit is a play on the word “participate.”

As one might expect, “participate” means “to take part in an action or endeavour.” Whereas traditional common law has sought to narrow the meaning of “participation,” as noted above, the Holzman Amendment and the Injustice Department seek to stretch and expand it. In pertinent part, the Amendment provides :

“Any alien, who during the period beginning on March 23, 1933 and ending on May 8, 1945, under the direction of or in association with (1) the Nazi government of Germany....or (4) any government which was an all of the Nazi government of Germany, ordered, incited, assisted or otherwise participated in the persecution of any person because of race, religion, national origin or political opinion is inadmissible [into the United States, and is deportable].”

 

On its face the statute requires definition of four elements corresponding to its subject (an alien), a set of verbs (including “participates”), its direct object (persecution) and its indirect object (qualifying persons). In Berger's case the subject was clear: an alien of German origin who as a citizen of that country was under the “direction” of his government. However, the indirect object has a curious loophole. The concept of genocide -- the mass killing of an identifiable geno-group -- was originally limited to members by birth of a race, ethnicity or national origin and did not include religious persecution or political oppression. These latter two categories were added in the statute primarily because the Nazis did target people on the basis of religious belief or political opinion. However, this expansion all but swallows the concept of genocide. What government has not persecuted some group for its religious practices or political beliefs? The Soviet government went after religion and dissenting political beliefs with as much vigour as Nazi Germany. Although the term “holocaust” invariably gets tossed about both in press reports and court opinions, the Amendment is not about participation in “the holocaust” but rather penalizes participating in the implementation of any Nazi government policy, whether genocidal or not, which was directed at some racial, ethnic, national, religious  or  ideological group; i.e. at anyone irrespective of any plan or intent to root out a race.

No one can reasonably dispute that Nazi policies included genocide; i.e. the deliberate killing of a substantial number of people from a particular nation or ethnic group with the aim of destroying that nation or group as such. But Nazi policies also included many other things that did not entail genocide. As a government it did all the manifold things a government does from building roads, to delivering mail or providing health care and, in time of war, to drafting troops, rationing food, imposing curfews, raising production and so on. As relates to Berger's case, the German government detained military prisoners sometimes according to the international norms of war and sometimes in conditions that fell short of Red Cross standards. They also imprisoned ordinary criminals in jails and labor camps where they often worked side by side with the labor draftees who had done nothing wrong except be needed as labour. 

At a rhetorical level, the impression calculatedly given is that these cases involve participation in genocide (aka “the Holocaust”). That helps “sell” the deal. But in legal actuality, the cases include much more and can be based on much less. The Holzman Amendment casts an incredibly wide net, even considering its homophobic omission of “sexual orientation” as a designated category.

The Amendment's broad scope is not limited by the use of the word “persecution” which is commonly defined as “hostility and ill-treatment, especially on the basis of ethnicity, religion, or sexual orientation or political beliefs.” Persecution, which entails conduct designed to harass, injure, aggrieve or afflict, is typically contrasted with prosecution which refers to the bringing of an action in accordance with law for a violation of law. But it is a well known truism that what one party deems the “legitimate enforcement of law” may by another party be considered persecution under colour of law. When Black Americans accuse the U.S. justice system of “racism” what they are saying is that it is used to persecute them on account of their race. Likewise when penalties for drugs used by Whites are far lighter than penalties for drugs typically used in Black ghettos.  Judges and prosecutors will dismissively retort that that they most certainly are not persecuting Blacks for their skin colour but prosecuting them for violations of law!!

It is a well known dictum that whom the state would persecute, it first outlaws, in order that it may be prosecuted. Most of Nazi horrors were implemented according to law. But not all Nazi state action is fairly characterized as “persecutions.” Polish partisans, Communist saboteurs, Jews violating currency restrictions, Lithuanians circumventing rationing, Germans profiting from war-production -- these and a plethora of other situations would not have involved persecution but rather the enforcement of laws, rules of war and war-time policies. However, under the Holzman Amendment, none of these distinctions matter. It suffices only that whatever it was, the Nazis did it and the victim was the member of some race, religion, national origin, or political persuasion. 

It is astonishing how a single sentence, like some verbal hand-grenade, can produce such legal carnage. However, instead of nullifying the statute as overbroad and vague, our courts have bent themselves to its implementation. Virtually the sole anchor in this sea of malleable terms was the phrase “assisted or participated.” Alas, rather than defining these two terms narrowly, the courts have done just the opposite, turning a potential anchor into a mere floating cork on a sea of arbitrariness.

The lead case in this area is Fedorkenko v United States (1981) 449 US 490, in which the Supreme Court held that service as an armed guard at the Treblinka concentration camp automatically excluded that person from obtaining an entry visa into the United States, at least where he had admitted to shooting over escapee's heads. The Act in question “specifically provided that individuals who "assisted the enemy in persecuting civil[ians]" were ineligible for visas ” (Fedorenko, supra, at p. 510.) Fedorenko, a Ukrainian who had been pressed into service, claimed that he had only served involuntarily. The Court rejected this defence; viz.: “The plain language of the Act mandates precisely the literal interpretation that the District Court rejected: an individual's service as a concentration camp armed guard — whether voluntary or involuntary — made him ineligible for a visa.” (Id.,at p. 512.)

As the dissent by Justice Stevens pointed out, the Court promptly gagged at its own pronouncement. This is one of the reasons why judicial wigs should still be worn. They so perfect the scene when their lordships intone a rule of law through their noses only to immediately up-chuck through their mouths.

Having pronounced that “assisting in persecution” was a strict liability offence, the Court then, sua sponte, wondered about “an individual who did no more than cut the hair of female inmates before they were executed.” Why ponder? What difference should it make? “To participate” means to “take part in” and a fan-belt is as much an operating part of a motor as a spark plug. If volition is irrelevant each participating person is as much a part of the operation as the other. To escape from this unpalatable conclusion, the Court assures us, is not to focus on volition but on whether “whether particular conduct can be considered as assisting in the persecution of civilians.” (Id., at p. 513 [original italics].)

Having pronounced as much, the Court then shied away from elucidating what constituted “persecution” and what not. Whatever it was, cutting hair outside the gas chamber, was “clearly” different from shooting over escapees heads. Finding itself in an impossible yoga pose, the Court begged off with “Other cases may present more difficult line-drawing problems but we need decide only this case.” (Id., at p. 514.)

Actually, that is not true. The Supreme Court does not exist to “decide cases” but to select those cases which will allow it to set and elucidate the law. It exists to resolve “line-drawing problems” not to leave them “for another day.” Underlying the single word "persecution" is the difficult problem of “legitimacy” and drawing lines between those acts of the German government which were within the established province and prerogative or any government and those which were in violation of established conventions and international laws. This was one of the fundamental problems during the Nuremberg Trials. The line-drawing problem does not vanish because Elizabeth Holzman wanted it to.

The line-drawing difficulty was evidently too painful to be repeated because since then our High Court has left it to lower courts to deal with the knots. And needless to say the lower courts have been no less obliging to the prosecution.

In Schellong v. U.S. I.N.S (7th Cir. 1986) 805 F.2d 655, the issue before the court was “whether Schellong's service as a Nazi concentration camp guard alone is assistance "in the persecution of any person" (Id., at p. 660.) In other words, does it make any difference that, unlike Fedorenko, Schellong didn't shoot over anyone's heads? Schellong asserted that there was no evidence he personally engaged in acts of persecution. Schellong argued that knowledge of persecution as well as personal active involvement in atrocities is required to show that he assisted the Nazis in persecuting civilians. Lastly Schellong argued that the term "persecution" is both unconstitutionally vague and overbroad. (Ibid.) The court dismissed these contentions out of hand, “his position that an individual must have "actively" or "personally" participated in persecution” was negated by Fedorenko. Actually, as we just reviewed, Federenko left “line-drawing problems” to “another day;” but never mind. Under Schellong, it is not necessary to show “active” or “personal” involvement in persecution (whatever that might be) in order to be deported for assisting or participating in persecution.

Schellong was no aberration. In Kulle v. I.N.S (7th Cir. 1987) 825 F.2d 1188, the issue was whether a person who stood guard over criminal inmates on a work detail outside the perimeter of a prison camp was guilty of assisting in persecution, where control and enforcement of the work was handled entirely by kapos. Like Schellong, Kulle had simply stood guard. The difference was that Kulle was not even standing guard at a concentration camp. The Government did not dispute that Kulle personally “never persecuted [sic] anybody.” It “relies instead on a theory which places Kulle in a camp of widespread persecution.” (Id. at 1191.) The court agreed that mere presence alone was sufficient. The court rejected Kulle's argument that “there must at least be some proof of actual knowledge of, or an opportunity to prevent, the wrongful acts of persecution before a court of law can declare that Kulle in fact participated or assisted in the persecution.” (Id. at p. 1192-1193.) “This argument,” the court intoned, “fails on the weight of its irrelevancy. This is a deportation case. ... This is not a criminal proceeding, and the "punishment" is not hanging.” (Ibid.)

To apprise the grotesque cynicism of the court's high-handed rejection of Kulle's claim, it is necessary to recall how these “deportation” cases got started in the first place. Crimes -- including war crimes -- are traditionally tried in the territorial jurisdiction where the crime occurred, which, in most of these cases would mean Germany. As of 1979, however, Germany, as well as most countries, had a 20 year statute of limitation for both capital and war crimes. Interested groups brought pressure to bear on Congress to, in turn, pressure Germany to abrogate it's 20 year statute of limitations. The satrap complied.

This much accomplished, Congress then went to work enacting the above referenced Holzman Amendment allowing the U.S. Government “to denaturalize ..and ultimately to remove or extradite all such persecutors ... to countries in which they might stand trial for their crimes.” (DOJ web page.) In an interview given to Der Spiegel, the head of the DOJ's Office of Special Prosecutions stated, “We have a very strong collaborative relationship with [German prosecutors]. They know that we are available to assist them on a twenty-four-hour-day, seven-days-a-week basis.” This sort of water-carrying is a variation on the “Silver Platter” doctrine whereby one government or agency does the dirty work for another. These “civil” deportation hearings are mere preliminaries in a coordinated scheme of criminal prosecution.

But even wearing the court's extremely narrow blinders, since when were knowledge and intent irrelevant even in civil cases? Since Roman times it has been a universal maxim of jurisprudence that there can be no liability for anything without knowledge and intent. A guest inside a house is not liable for the damages suffered by some third party on account of the homeowner's negligence. Strict liability -- that is, liability without proof of culpability -- is reserved for cases involving some equally strict and necessary public safety issue.

But strict liability it is. In Hammer v. I.N.S (6th Cir. 1999) 195 F.3d 836, the court followed Kulle and held that “although ... the government produced no evidence that Hammer actually shot anyone or forced any prisoner into a gas chamber, no court has required such a showing. Over one million people were murdered based solely on their religion or ethnicity at the concentration camps where Hammer stood guard . ... the requirements of the Holtzman Amendment may be satisfied even in the absence of eyewitness testimony that the alien personally engaged in acts of brutality.” (Id. at p. 843.)

In so saying, Hammer simply substituted demagogic rhetoric for legal analysis. “Spectacle,” says Aristotle, is used in drama to produce shock, suspend judgement and induce a catharsis. Invoking the image of one million murdered victims, no doubt spoken from the bench in a dramatic, high toned pitch, the court would have us base guilt simply on the basis of horror. Was Hammer “present” during all of those one million murders? For 500,000? Maybe 100,000? How about 10,000? One thousand? One hundred? Ten? One? The implications of the court's “logic” need to be grasped: it is sufficient for guilt if Hammer merely came into contact for one hour with a “place where persecution occurred.” This isn't law; this is primitive taboo. You touch, You die! This is what it means to say that knowledge, intent, and personal causative conduct are “irrelevancies.”

Given this state of law, it is hardly surprising that the hearing judge in Berger's case concluded that it was “not required to find direct evidence that [Berger] killed or persecuted a prisoner or to produce “evidence of personal participation in specific atrocities” (Opinion p. 30.) “The Court acknowledges that this is a challenging case, .... However the Holtzman Amendment was enacted to proscribe even innocent followers that supported persecution....” (Ibid.)

Huh?

The careless abandon with which words are abused is stunning. The courts are trapped in the morass of their own vagueries. Because they never bothered to give legal definition to “participation” or to “persecution,” their opinions are littered with phrases like “personally participated” or “actively assisted” which tacitly admit that there is a problem of differentiation that is being avoided.

What does it mean to say that the Holzman Amendment allows the prosecution of “even innocent” supporters of “persecution”? We may begin an answer by observing that the hearing judge just massively contradicted himself. We have been told by our learned judiciary that volition and intent are irrelevant; it suffices to be present at a place where persecution occurred. If that is the case why is “support” even mentioned? To say that someone supports something is to imply that he favours it. But if intent and volition are not “irrelevancies” then why drag in the issue of support? If it is sufficient to be “present” where persecution is taking place, then why does a phrase like “personally participated” or “actively participated” even crop up? These adverbs are irrelevancies. The reason the courts keep stumbling into such phrases is because their own minds resist the bullshit they are spewing. Our minds all but demand a distinction based on intent and volition. It is impossible to talk about things in the real world without making this distinction. Why? Well... it seems self-evident to me that there is a difference between a piano accidentally falling on a passerby's head and a piano being intentionally pushed out the window. It seems obvious to me that we don't blame flying buttresses for “supporting” the walls of a cathedral. But not to our courts. Because their holdings are so utterly untenable they stumble into “irrelevancies” such talking about whether as whether someone (without intent or volition or even guilt) supported persecution.

So, deprived of all meaningful distinctions, we are returned to the question the Supreme Court left for another day, forty years ago: what is the line between persecution and not-persecution?  In answering this question we begin with so-called "historical facts."

These “deportation” cases typical begin with a boilerplate recital entitled “Stipulated Historical Facts.” In the Berger cases, these stipulations were as follows: “The Nazis believed that Germans were racially superior and that inferior races were a threat to the German racial community. Nazi Germany persecuted, Jews, Roma, Slavs, Communists, Socialists a Jehovah's Witnesses because of race, religion, national origin and political opinion. ... The war created a shortage of labor... The shortage was filled by foreign labors who worked under harsh conditions. Under the Charter of IMT this was a “war crime.” Under the Charter of IMT this was also “a crime against humanity which included persecution on political, racial or religious grounds.” Punishment for non-compliance with forced labour rules was transfer to a concentration camp. .... Thousands of Jews, Poles, Soviets etc. were transferred to Concentration camps. Nazis used the concentration camp system to persecute and annihilate those it deemed inferior and dangerous on the basis of race, religion, national origin and political opinion.

Then as to Berger's case: Beginning in 1944, the Nazis expanded the concentration camp system to meet the need for forced labor. The Neuengame cluster held Jews, Poles, Russians, Danes, Dutch, Latvian, French... etc. The SS did not have enough personnel to man the camps SS guards had operational control inside the camps. The German Navy sent men to serve as guards at labor sub-camps.” Berger “was a guard where person were imprisoned because of their race, religion or national origin.” Berger “continues to receive a pension from the German government, in part based on his military service.

Any idiot can figure out that by “stipulating” to these “facts” the game was over.  At three places the stipulation stipulated to the exact statutory language that supposedly needed proof.  The remaining 50 or so pages of discussions, appendices, citations, is just a lot of yadda, yadda, to show -- by sheer volume of sound -- that the “wheels” of “due process” are grinding along.

The second problem with this stipulation is that it is not a true stipulation of fact, as that term is ordinarily used. Typically such a stipulation relates to a specific concrete fact; for example, that the sun rose at 5:43 a.m., on such a date, or that the defendant had suffered a prior conviction. Thus, that the war created a shortage of labour, is properly a primary fact that could be stipulated to. However, the “fact” that the Charter of the International Military Tribunal “defined” crimes against humanity to include “persecutions on political, racial or religious grounds” is only a “fact” in the sense of that being what the Charter did. But what the Charter did was to define a legal crime, which is not the same thing as establishing the fact of an act, omission or circumstance that comes within that crime-definition.

One way such a fact could be established would be by citing the previously made findings of fact made by the International Military Tribunal or any subsequent war crime tribunal. Such a fact might then be taken to have been previously established by a court of competent jurisdiction in accordance with established evidentiary principles. Instead, the historical stipulation resorts to equivocal and contradictory allegations. It states that Jews, Gypsies and Slavs were “persecuted” because of their race, religion or political opinions and that the Nazis used the concentration camp system to annihilate these people. Fine. Let us assume that to be generally true. The historical stipulation then goes on to state that “the war created a shortage of labor ...filled in part by conscripting millions of foreign workers” and that Meppen was a labor camp. One might very well ask whether the inmates at Meppen were being “persecuted” on account of their race or political opinions or whether they were rounded up for no other reason that that Germany was in desperate need of workers, seeing as all “racially superior” German men were being sent to the meat-grinder in the East. Never mind. The Stipulation goes on to assert that many of these people were “used as forced labour under harsh and persecutory conditions.” You know, not really persecution but persecution-like.

Oh, but it gets better. The inmates at Meppen consisted of “Poles, Russians, Danes, Dutch, Latvians, French and Italians.” Since when did the Nazis consider Danes, Dutch, Latvians, French and Italians as “inferior races” ?   Since when did the Nazis consider the Danes and the Dutch to be a “threat” to the German “racial community” Since when were these groups “persecuted” on account of their race? Was every Netherlander required to wear an orange badge? If one wants to talk of historical “facts,” the facts are that people in the Nazi occupied territories were rounded up for a variety of reasons. Some indeed were rounded up for their political opinions. Others for their activities on behalf of the resistance. Still others for having committed ordinary crimes such as murder, rape or theft. Still more were rounded up in a pure and simple labour draft because Germany was short of workers. None of these actual, specific, and highly factual nuances matters. What matters is putting together a broad, equivocal, inflammatory pastische as major premise.

In Berger's case, stripped of all the officious mumbo jumbo, the whole artifice boils down to a very simple proposition: the Nazis persecuted people; Meppen was a place where persecution (supposedly) occurred; Berger was a guard at Meppenp; ERGO he persecuted people on account of their race, religion, national origin or opinions. Since we have already been told that volition and intent are irrelevant. Once 1 and 2 are “stipulated” the only question is whether Berger was a guard, for one hour or more, at Meppen. All the rest is rhetoric and dross, designed to titillate, dress up and disguise the legal brutality taking place.

This technique is used routinely in gang cases. An expert is called to give his opinion on the attitudes, practices and purposes of gangs, which are invariably stated to consist in “committing crimes” in furtherance of “criminal purposes.” Another witness is called to testify that the defendant is a gang member either because he “self-admitted” or was seen to be sporting “gang monikers.” The prosecution then argues that when the defendant committed a petty theft of some Skittles, he was doing so as a gang member and in furtherance of gang objectives - thereby automatically adding ten years to his one year sentence for petty theft. Whether the defendant actually intended to benefit his gang by stealing the Skittles is irrelevant. The case hangs on a characterization. It may be true, as a general proposition, that gangs act the way the experts say they do; but it is a complete leap to conclude that therefore a particular person -- even a gang member -- always acts, and in this case did act, to benefit the illegal purposes of his gang.

There is no way a defendant can defend against this kind of lynching. What the government offered up was a stipulation to historical inferences and interpretative conclusions drawn from thousands of documents and testimonials. Whether and to what extent these inferences and conclusions are well drawn, they still boil down to the prosecution's theory of the case. It cannot be adversarialy tested without the money to hire experts to interpret the evidence and without access to the very same archives the prosecution has been cherry picking for decades.

What we can say, on the basis of the one sided "stipulations" entered into is that they manifestly contradict themselves.  It rather obvious, given the Aryans in the labour camp, that what was taking place was exploitation for labour value, not persecution on account of race or beliefs.  It doesn't matter whether the Nazi government persecuted other people for the reasons stated or whether or to what extent these 'persecutions' materially differed from those of other governments throughout history. What matters is whether conduct and conditions materially different from ordinary state action occurred at this place, whether Berger knew and understood that something different and rising to the level of persecution was taking place and, if so,  whether he intended to support the result.

In this regard, German courts have pursued a far more logical course. The questions they have focused on is whether the accused personally agreed with Nazi ideology and harbored specific Nazi beliefs. They have looked to see how long he was a Party member, how enthusiastic a member he was, what sorts of things he volunteered for. In other words, they have looked at the issue of knowledge and volition. They have drawn the distinction precisely between the gung-ho SS man and the hapless 19 years old made to tag along in a situation entirely beyond his control. They have looked at the very human question our courts deem “irrelevant.”

These proceedings have nothing to do with justice and everything to do with carrying out a species of auto da fé. According to the US Holocaust Memorial Museum, “the OSI and the United States Holocaust Memorial Museum are ‘siblings’ of a sort, having been conceived within the same political and moral context of the late 1970s.” The Justice Department OSI page 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 Justice Department and the USHM are working to keep a certain memory alive. The Museum handles research and memoralization, the Justice Department serves up sacrificial examples.

As Chief Justice Stone remarked of Nuremberg “This is a little too sanctimonious a fraud to meet my old-fashioned ideas." 

In my opinion, anyone is free to remember and memorialize whatever they want. The Catholic Church spent no little effort in putting together a Book of Martyrs with which people could inspire themselves with tales of roastings and being meat for lions. Everyone is free to choose his or her commitments, preoccupations, obsessions, fetishes, ... whatever. What I object to is abusing law in the name of justice. These proceedings have nothing to do with visiting justice on the deserving.

Berger has in fact been classically scapegoated. There was no showing he was involved in “a holocaust crime.” As we have stated, the “holocaust” or “shoah” refers to the extermination of Jews in Europe as Jews and for the sole and sufficient reason that they were (in the Nazi mind) racial Jews, regardless of religion or political persuasion or anything else. In other words, it was genocide and, if not entirely unique in the history of mankind, unique enough and different in kind from run of the mill state persecution, or official abuse under colour of law. I do agree with YadVashem that this “persecution” was more or less sui generis. What is stunning about this case is how totally removed Berger was, even in terms of mere presence, from anything which can reasonably be considered as genocide. If one wants to complain about “minimizing” and “false equivalences” he might begin by noting that not all “persecution,” oppression or criminality is a “holocaust”.

Even with respect to ordinary state oppression or war crimes, the opinions in Berger's case do not bother detailing precisely what the conditions were at the Meppen labor camp, nor the overall circumstances in which they arose, namely a country which at that time was being blown to bits and attacked from all sides. How many of the “inhumane” conditions were calculated and how many the result of shortages and disruptions? If we assume for the sake of argument that the inhumane conditions were gratuitous and intended, there was still no showing that Berger assisted in their implementation or perpetuation or even that he favoured what was going on. The entire case against him is based on a stretched concept of causality; namely that by standing guard, his mere presence deterred people from escaping from inhumane conditions and therefore forced them to continue to suffer inhumane conditions which was tantamount to persecuting them on account of their race, religion or political opinions, as to which Berger would have no idea, not being allowed to speak to any of them. In that case, what about the Meppen policeman? Surely, if he saw a striped suit running down the street he would blow his whistle, give pursuit and detain the escapee. What about the delivery man who brought beer and wurst to the SS guards so that they might be able to carry on with full bellied inhumanity?

We are all familiar with the Butterfly Effect and there is no end to this kind of “reasoning.” Every American law student learns the case of Palsgraf v. Long Island R.R. Company (1928) 248 NY 339, in which Mrs. Palsgraf was standing on the train platform, when a conductor gave an “assisting” push to a passenger running to catch the train. Unbeknownst to the conductor, the passenger was carrying a bag full of fireworks, which fell from his grasp, hit the third rail and violently exploded causing people on the platform to run in a panic, during which they pushed a baggage cart, which careened loose and ran into a hanging scale which thereupon fell on Mrs. Palsgarf.... Was the railroad company liable? Did the conductor's “assistance” cause her injuries? The court held not. Not because some causal connection did not exist, but because law is not physics.

Since about the time of the Hague Convention of 1904, it has been understood that when a nation goes to war the whole of it goes to war. Mass industrial societies are highly integrated machines in which every small cog plays a part. So too, every crime, howsoever seemingly small has a great effect on the whole. Thus, during the war the Nazi government hanged a German citizen for stealing a bar of soap from a burning building hit by bombs on the reasoning that doing so “diminished” the war effort and was treason to the troops at the front. (W. Koppel, Ungesübte Nazijustiz (1963), p. 16.) Similarly, a man who sent “indecent” proposals to a woman who was married to a soldier at the front was condemned to death on the rationale that he had “exploited” war time conditions and therefore was a “particularly reprehensible asocial element.” (Entscheidungen es Reichsericht in Strafsachen, vol 74, Decision of 8 April 1940, p. 166.) By the end of the war, Nazi justice had become a legal freak show. From a mechanistic point of view, such decisions actually made sense; some causative connection did exist between act and effect. But they made no legal sense, because the law is founded on principles of proportionality, knowledge, volition, capacity and intent -- what is generally subsumed under the label of “free agency.” I am appalled to see the Justice Department adopt a mode of rationalization with which Roland Freisler would have been entirely at ease.

Berger's deportation has nothing to do with seeking justice nor a decent and cautionary remembrance of injustice past. Rembrance is a tricky thing. Commemorating happy events engenders confidence and unity. Remembrance of tragic events can serve as a cautionary tale; but it can also turn hurt into a habit, thus engendering negative narcissism and division. What people remember and how is up to them upon due consideration and reflection. But when the how of remembrance turns into tracking down and making an example of others, then we have crossed into the shadows of cult sacrifices, show trials and auto's da fé. Remembering the Passion of Christ was one thing. Chasing down and scapegoating Jews in His Name, was an excrescence that was neither just nor Christian.

Remembering general historical events should not be confused with the prosecution of individuals. The law does not exist to pass judgement on historical, cosmological or "existential" issues. It exists, to order society and to adjudge, and regulate or punish discrete conduct, whether criminal or civil. Human beings are finite and nothing any one human does is infinitely evil. If nothing they do is infinitely evil then there are limits as to when, how and to what extent individual conduct can be prosecuted.

It is said that there is no justice without mercy to which we may add that there is no mercy without forgetfulness. Berger did not shoot out his lips calling for anyone's death. He did not kill anyone. He "participated" in an overall scheme over which he had no control To hunt him down, at age 96 for what was at the very worst a passive crime of omission 75 years before is neither justice nor remembering injustice; it simply a lust for insatiable revenge.

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