|
A major support
of the Holocaust myth is the popular belief that National Socialist
crimes were proven in various trials after World War II. Even 50 years
after the War various governments seek to support the myth through prosecution
of alleged war criminals. The case of John Demjanjuk in Israel and Imre
Finta in Canada are two examples. In the United States the process of
"Nazi hunting" has been put on a permanent basis with the creation of
a bureaucracy within the United States Department of Justice, the Office
of Special Investigations. It was formed on September 4, 1979 to enforce
a law passed by Congress the previous October 30th. The law was Public
Law 95-549 and its purpose was, and is, to track down and revoke the
citizenship of so-called "Nazi war criminals." In the first ten years
of its operation the OSI has stripped approximately 35 citizens of their
citizenship and deported them to various countries. It has an annual
operating budget in excess of $4,000,000. Its director as of 1993 was
Neal Sher.
The actions of the OSI are increasingly
being called into question by members of the Bar, the courts, and members
of Congress. This article is a study of a single case prosecuted by
the Office of Special Investigations, the case of Martin Bartesch. In
1987, the OSI filed a lawsuit against Martin Bartesch of Chicago, Illinois,
seeking to strip him of his American citizenship and to deport him.
In the legal papers and press announcements the OSI accused Martin Bartesch
of having been a Nazi war-criminal who "personally" murdered tens of
thousands of people at Mauthausen concentration camp. He was accused
of obtaining entry into the United States by fraud in that he failed
to disclose he service in the SS.
It is important
to remember that, although the victims of the OSI are called "war criminals"
by the OSI and some of the media, they are only charged with the technical
violation of omitting to put certain information on their entry papers
when they came to America. They are not charged with any crime. The
OSI is only charging people with a civil immigration offense and the
result of losing the suit is only considered by the Courts as a "civil"
result and not a "criminal punishment." It may seem illogical that being
stripped of your citizenship, being seperated from your family, having
your Social Security payments taken away, and being deported is not
considered "punishment" while having to pay a $100 fine for speeding
is. However, this is the position of the OSI and, unfortunately, it
has been supported by the Courts.
This distinction
between civil trials and criminal trials is very important. It means
that the defendants in an OSI action have none of the rights that every
murderer or rapist has. For example the defendant does not have a right
to an attorney, does not have a right to a jury trial, does not have
a right against self-incrimination, and can be found guilty on a far
lower level of evidence than in a normal criminal proceeding. With these
serious disadvantages and facing ruinous legal costs, Martin Bartesch
accepted a deal offered by the OSI. He would go to Austria, be allowed
to keep his Social Security benefits, and most importantly, the OSI
would not prosecute his wife. That would have been the end of the matter
except for the determined and courageous struggle of Martin Bartesch's
children who were determined to clear their father's name. In 1988 I
was retained by Martin's son, Heinz, to file a Freedom of Information
Act1 request regarding his father. The request was for the information
which the OSI had about Martin Bartesch. When the OSI ignored the FOIA
request, I filed a lawsuit.
The Freedom of
Information Act 5 U.S.C. was passed by Congress in 1966 and substantially
modified in 1974. It was considered a major liberal triumph in establishing,
for the first time, a statutory right of access by any person to federal
agency records. FOIA requires that the agency either release the records
that it has on an individual or or compile a complete list of the documents
and cite one of various exemptions to release (such as national security).
The list is called the "Vaughn" Index.
Several
weeks after I filed the legal action a large packet was mailed to my
office. It was full of documents from the OSI files on Bartesch. This
is what makes the Bartesch case particularly interesting. With someone
in the Office of Special Investigations leaking documents to me, I was
in a interesting position: I would be able to observe how my legal colleagues
in the Office of Special Investigations complied with the Freedom of
Information Act. I also was able to detail the entire course of the
original Bartesch case.
THE HISTORY OF MARTIN BARTESCH
Martin Bartesch was a Volkdeutscher living
on a farm in Romania. When he was 16 years old, in 1943, he entered
the S.S. under great pressure to avoid service in Russia. He was never
a member of the Hitler Youth or any Nazi organization. In September
and October 1943 he received training outside of Mauthausen concentration
camp in Austria and was then moved about 60 miles away to Linz III.
This camp was a work camp (Arbeitslager) run by civilians under SS control
and was not the site of beatings or atrocities. Testimony also showed
that Bartesch had shared his cigarettes with his charges while on road
building assignments and obtained extra food for them. While Mauthausen
had been the site of atrocities, Linz III had not. In 1945 Bartesch
was transferred to the eastern front. He served against the Soviets
and was captured by them at the war's end. When the Soviets overran
Romania he lost his home and country. In 1958 Martin Bartesch came to
America as a refugee, raised a family here and was a model citizen.
While Bartesch was stationed outside of the Mauthausen he did serve
as a perimeter guard for three weeks and did shoot an escaping prisoner,
named Max Ochsbron. The matter was recorded in the camp records and
clearly showed that the prisoner had been trying to escape. Ochsbron
appears to have been arrested for forgery.
THE HISTORY OF
THE DEPORTATION CASE OF MARTIN BARTESCH
Sometime in 1985 this single entry on camp records was discovered by
OSI investigators looking for leads. A computer match was made with
the name of Martin Bartesch on immigration files. It was on this weak
evidence that the OSI filed its lawsuit against Martin Bartesch. It
also issued press releases which, as mentioned above, accused Bartesch
of being a mass murderer. The attorneys at OSI did this despite their
having a list of those S.S. who had been stationed at Mauthausen (Bartesch
is not on them) and the list which shows he was at Linz III. A second
OSI list also reveals that Bartesch was never stationed in Mauthausen.
The OSI attorney directly in charge of the case was Michael Bernstein,
who acted with the consent and approval of OSI director Neal Sher. It
was only after the filing of the lawsuit that the OSI started to look
for evidence against Bartesch. Advertisements were run in various newspapers
stating "OSI urgently seeking Mauthausen witnesses." Investigators combed
record files in Prague, Vienna, and Berlin. Bernstein and his aide (named
Betty Shave) took several expensive trips to Israel and Paris to interview
possible "witnesses." Despite an exhaustive search, the OSI did not
discover any evidence of any kind which implicated Martin Bartesch in
any crime. As one Department of State telegram put it, "All that could
be established from documentation is that the French Jew (No. 14582)
Max Ochsbron, born August 20, 1916 in Vienna died on October 28, 1943
at 9:55 A.M. while trying to escape (Auf der Flucht erschossen)."
Indeed, the OSI search only uncovered evidence
which exonerated Bartesch. Various interviews with ex-prisoners state
time and time again that the interviewees never saw any beatings or
killings of prisoners by SS guards at Linz III or even heard of other
prisoners complaining of beatings or killings. Linz is mentioned as
being "relatively nice." The reports of many interviews are ended with
OSI comment, "Interview not useful. He [interviewee] paints a rather
easy picture of life at Linz III." Despite this clear evidence of Bartesch's
innocence, Neal Sher did not drop the case, or even retract the more
extreme and heinous accusations against Bartesch. The discovery requests
of the immigration attorney for Bartesch were avoided and Michael Bernstein,
with the approval of OSI director Neal Sher, concealed exonerating evidence
from the Bartesch family. The declarations regarding mild conditions
at Linz III were "forgotten". Even worse, documents were translated
in a manner which increased the father's appearance of guilt (omitting
the fact that Bartesch had disclosed that he had been in the S.S. in
his entry documents and by adding "Concentration Camp Mauthausen" to
the list of names of the Linz III guards implying that Linz guards served
at Mauthausen. The OSI never admitted that the original charge of killing
ten of thousands of persons was incorrect. During the Bartesch deportation
suit various citizens wrote protest letters to the White House and Congress
supporting Martin Bartesch. The leaked documents reveal that the OSI
collected these protest letters and proposed taking administrative and
legal action against the letter-writers. Michael Bernstein requested
the immigration files of the letter writers in order to investigate
them and a memo was circulated at OSI saying that the letters were "irritating"
and discussing subpoenaing the protesters for depositions.
The OSI files were filled with collected newspaper articles and letters
to the editors of various publications. Director Sher was careful to
monitor the publicity OSI cases generated and the OSI evidently worked
with private organizations to influence public opinion. A single tragedy
put Martin Bartesch's name on a list which the Office of Special Investigation
used to find possible Nazi war-criminals. Without any investigation,
the OSI leveled the most serious charges against him and ruined him.
That was irresponsible conduct for our government. The case was continued
after the truth was known because the OSI couldn't admit that a mistake
had been made. OSI hasn't had the decency to retract the original charges
or to apologize to the Bartesch family.
THE FREEDOM OF INFORMATION
ACT SUIT
The Freedom of Information Act
was meant to be an important law for controlling secret government activity
and opening up governmental practices. The OSI clearly failed to comply
with the Freedom of Information Act regarding Heinz Bartesch's requests
for information. Many documents which were in the Bartesch file were
not included on the Vaughn Index. I believe that it is more than a coincidence
that all of the documents which provided exonerating evidence for Bartesch
or which indicated OSI wrong-doing were simply not listed at all. In
other FOIA cases brought by Rad Artukovic or Edward Nisnic, regarding
the John Demjanjuk case, the OSI failed to produce or even list many
important documents. Thus, the attorneys of the OSI seem to be engaging
in a pattern of ignoring or evading the Freedom of Information Act.
During the FOIA suit the OSI acted in a hostile and unprofessional manner.
Threats were made by the OSI to revive the lawsuit against Martin Bartesch
if his son continued to pursue his FOIA suit. Threats of criminal action
were made against me for possessing OSI documents. Reasonable discovery
requests were opposed. In summary, the documents
show that the OSI:
1. filed the de-naturalization suit on very weak evidence while
alleging extremely serious crimes;
2. failed to release evidence
which exonorated Bartesch;
3. used distorted or incorrect translations;
4. failed to retract the most serious charges against Bartesch when
they found to be untrue;
5. collected the names of citizens who
wrote to their elected officials;
6. and considered taking administrative
action against them.
Regarding the FOIA suit, the OSI failed to list
important documents on the Vaughn Index and described those documents
that it did include in a misleading manner.
The existence of the Office of Special Investigations shows the power
of and is an example of the continuing importance of the Holocaust Myth.
The fact that the OSI must prosecute cases such as Martin Bartesch shows
that they have no real Nazi criminals to pursue.
|