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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.
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