Nov. 29



AUSTRIA:

Prosecuting Holocaust denial

It's ironic that Austria, rather than Britain, has finally arrested David
Irving


British historian David Irving has made a name for himself as the ultimate
Holocaust denier and has become a strong supporter for the neo-Nazis.

For decades, Irving has used all his strength to "explain" that the
annihilation of European Jewry never actually happened, that Adolf Hitler
didn't know Jews under his rule were in danger and that Jews were not
systematically murdered in gas chambers.

Irving claims that we, the survivors of Auschwitz, who lived for months
and years under the shadow of gas chambers and ovens, are simply lying and
spreading slander about the Germans.

"All lies, exaggeration and invention of the Jews," this half-Jew (what
can you do) has written time and again.

In the absence of laws criminalizing Holocaust denial and incitement in
his native Britain, this dangerous man has poisoned the minds of millions
of people around the world. His audacity knows no bounds.

In the 1990s he even sued American author Deborah Lipstadt in Britain, of
course for libel, following publication of her book "Denying the
Holocaust: The growing assault on truth and memory" in which she attacks
Irving.

He lost, but that did not derail his venomous and dangerous activities
writing articles and addressing conferences, presenting his "proofs" over
and over.

Why Austria and not Britain?

Last month, Irving traveled to Austria for an appearance as a guest
speaker for a convention of a radical nationalist party. He apparently
didn't know that Austria has laws against denying the Holocaust. Or
perhaps he did know there was a warrant out for his arrest, but figured it
had been issued so long ago that it had expired. Or perhaps he figured
they wouldn't dare act against him.

Austrian authorities felt a bit differently, and Irving was arrested and
jailed, currently until the end of December, so the state could prepare
its case against him.

It is interesting that Austria, of all countries the country that
supplied Nazi Germany not only with its Fuehrer, but also with a long line
of SS officers that were among the most brutal and cruel cogs in the
entire German destruction machine would bring a Holocaust denier to
justice.

In Britain, a country that fought against Germany and paid a heavy price
in the fight against an evil that, amongst other things, planned,
organized and carried out the destruction of 6 million Jews, Irving is
free to do his work freely, without suspicion or worry.

But more than 60 years after the allied victory, the fall of the Third
Reich and the liberation of the few survivors of the death camps, Britain,
of all countries, has no law prohibiting Holocaust denial, whereas Austria
and Germany do. And that is the greatest joke of all.

(source: YNet News)





USA:

Ruling Clears Way for Payment of Austrian Holocaust Claims


In a divided 2-1 ruling, the 2nd U.S. Circuit Court of Appeals has
dismissed the last remaining class action for Holocaust-era claims against
the Austrian government, setting the stage for the release of $210 million
in compensation negotiated in the waning days of the Clinton
Administration.

Relying on a statement of interest submitted by the U.S. government, the
majority, in an opinion written by Judge Jose A. Cabranes, ordered the
dismissal of claims against governmental entities brought by a group of
Austrian Jews whose property had been seized by the Nazis during World War
II.

Dismissal is required under the political question doctrine, Cabranes
wrote in Whiteman v. Dorotheum GmbH & Co KG, 02-9361, because the U.S.
government had specifically negotiated a vehicle for resolving the claims
that is superior to litigation and advances important United States
foreign policy interests. Judge Amalya L. Kearse joined in the majority.

In dissent, Judge Chester J. Straub wrote that by finding dismissal
mandatory under the political question doctrine, based solely upon the
government's filing of a statement of interest, the majority had created
the prospect of a legal doctrine that is "troubling as well as novel."

Meanwhile, separate developments are likely to moot the dispute which has
been brewing since the U.S. government and Austria created a $210 million
fund and compensation system to pay Austrian Jews and their heirs for
property that was confiscated by the Nazis. The agreement was memorialized
by an exchange of diplomatic notes on Jan. 17, 2001, a few days before
President George W. Bush was inaugurated.

While several groups of plaintiffs seeking class action status agreed to
seek compensation from the fund, the Whiteman group, which is represented
by Jay R. Fialkoff, of Moses & Singer, insisted on pursuing its case.

That stance prevented funds from being paid out under the agreement
because the two governments had agreed that no funds would be distributed
until all pending lawsuits had been dismissed.

In addition, the Austrian Jewish Community, which consists of about 150
Jewish communal organizations, had asserted hundreds of millions of
dollars worth of claims for expropriated property with the Austrian
government but never filed suit.

But two weeks ago, Fialkoff advised Southern District of New York Judge
Shirley Wohl Kram, who has been presiding over the Whiteman case, that the
Austrian government had agreed to pay an additional $18 million to resolve
the claims of the Austrian Jewish Community and to add an additional 1.8
million euros to the $210 million fund.

The Austrian Jewish Community has withdrawn its claims from the settlement
fund, freeing up that money to be paid to other claimants, and joined the
Austrian government in asking for the dismissal of the Whiteman case,
Fialkoff said.

In light of those developments, Fialkoff said, most of the Whiteman
plaintiffs have agreed to the voluntary dismissal of their case. One of
the plaintiffs, however, has retained separate counsel and is resisting
dismissal.

In addition, the 2nd Circuit's dismissal is directed only at Austrian
government entities, and claims remain against several businesses.

SWIFT CONCLUSION SOUGHT

But the majority made plain its intent that the lawsuit be brought to a
rapid conclusion. It ordered Kram to decide all remaining motions within
60 days after its ruling takes effect. Should she be unable to do so, the
court directed that the case be transferred to another judge.

The case had previously been before the 2nd Circuit, which had remanded
back to Kram the question of whether the Foreign Sovereign Immunities Act
of 1976 could be applied retroactively to confer jurisdiction over the
case. Kram had declined to rule on the Austrian government's motion to
dismiss and ordered limited discovery.

But in a related case involving the confiscation of paintings from an
Austrian Jew decided in July 2004, the U.S. Supreme Court ruled that the
Foreign Sovereign Immunities Act applies retroactively to claims that
arose before its enactment in 1976. That law allows American courts to
consider suits against foreign governments under certain circumstances.


Cabranes noted that the Supreme Court, while deciding that the 1976 law
was retroactive in Republic of Austria v. Altmann, 541 U.S. 677,
specifically left open whether the case could be dismissed based upon the
government's submission of a statement of interest urging dismissal.

U.S. GOVERMNENT INTERESTS

Cabranes concluded that dismissal as a political question was required
because to permit the action to proceed would be "impossible without
expressing lack of the respect due" the Executive Branch.

In so concluding, he pointed to several interests asserted in the
government's statement:

The agreement concluded with the Clinton Administration represented the
culmination of a half-century of discussions dating back to shortly after
the end of World War II and implicated the U.S. government's interests in
maintaining good relations with Israel and nations throughout Europe.

The agreement will provide benefits to more victims, and will do so
faster and with less uncertainty, than litigation.

Because many victims are elderly and dying, it is important to bring some
measure of justice to Holocaust survivors in their lifetimes.

Leaving litigation as the sole alternative will likely lead to disputes
between survivors and Austria and its industries which will likely embroil
the U.S. and set back its relations with the Austrian government.

MAJORITY 'CEDES JURISDICTION'

In his dissent, Straub criticized the majority for the "conflation" of the
political question doctrine -- which requires dismissal -- and the
doctrine of deference to the executive, under which dismissal is
discretionary.

The language of the 2001 agreement operates in favor of applying the
discretionary doctrine, Straub contended. The agreement only asserted that
the government would "recommend dismissal on any valid legal ground," and
put the Austrian government on notice that U.S. policy interests
concerning the fund do not in "themselves provide an independent legal
basis for dismissal."

By approving a mandatory dismissal under the political question doctrine,
Straub wrote, "the majority effectively cedes jurisdiction to the
Executive to determine, on an ad hoc basis, when cases can and cannot be
brought against a foreign sovereign."

The Republic of Austria was represented by Gregory S. Coleman, Christian
J. Ward, Konrad L. Cailteux, and Nina Nagler of Weil, Gotschal & Manges.
William M. Barron of Alston & Bird represented Dorotheum GmbH & Co KG.

Bernard W. Nussbaum of Wachtell, Lipton, Rosen & Katz represented Judge
Kram. Douglas Hallward-Driemeier, William H. Taft IV, Jonathan B.
Schwartz, Wynne M. Teel, Robert McCallum, Gregory G. Katsas, and Mark B.
Stern, of the U.S. Department of Justice appeared for the U.S. Government
as amicus curiae.

Charles G. Moerdler, James A. Shifran, Joseph E. Strauss, and Jeremy S.
Rosof, of Stroock & Stroock & Lavan, represented the Austrian Jewish
Community, amicus curiae. And Stanley M. Chesley and Jean M. Geoppinger of
Waite, Schneider, Bayless & Chesley, represented the American Council for
Equal Compensation of Nazi Victims from Austria, amicus curiae.

Phillippe Zimmerman and Jayson D. Glassman, also of Moses & Singer, worked
with Fialkoff in representing the Whiteman plaintiffs.

(source: New York Law Journal)


*************************

Chief Immigration Judge to Hear Nazi Case


In Cleveland, a man accused of being a Nazi concentration camp guard during
World War II says he should not be deported because he could face torture
in his native Ukraine.

The nation's chief immigration judge was scheduled to consider the court
filing from John Demjanjuk at a hearing Tuesday. Demjanjuk lost his
citizenship based on a Justice Department case against him.

"Mr. Demjanjuk's case makes him a high-profile candidate for mistreatment"
if he is returned to the Ukraine, his attorney, John Broadley, said
Monday.

However, the government argued in court documents that Demjanjuk has not
shown that he is likely to be prosecuted, detained or tortured if he is
deported.

The hearing before Chief Immigration Judge Michael J. Creppy is part of a
process to determine whether Demjanjuk, 85, will be deported. Demjanjuk
last appeared before Creppy in a videoconference hearing Feb. 28.

The U.S. first tried to deport Demjanjuk in 1977, accusing him of being a
notorious guard known as Ivan the Terrible at the Treblinka concentration
camp.

Demjanjuk was extradited to Israel, convicted and sentenced to hang. But
the Israeli Supreme Court found that someone else was apparently that guard.

Demjanjuk returned home and his U.S. citizenship was restored.

The current deportation case is based on evidence uncovered by the Justice
Department alleging he was a different guard. That evidence led courts to
again strip Demjanjuk of his citizenship.

Demjanjuk has denied the government's allegations.

The Justice Department has suggested the judge consider deporting Demjanjuk
to Ukraine, Poland or Germany. Broadley said there is no indication another
country would be willing to accept him.

Broadley said the question of whether Demjanjuk can be deported will
eventually be considered by the Board of Immigration Appeals.

Demjanjuk, a former Ford Motor Co. auto worker, is in poor health, which
the government should consider, Broadley said.

(source: Associated Press)





(at the) VATICAN):

Pope says Holocaust "indelible stain" on history


German-born Pope Benedict XVI, who grew up during Hitler's rise to power,
condemned the Nazi attempt to exterminate Jews on Wednesday as a "project
of death" that will remain forever an indelible stain on human history.

Addressing pilgrims Wednesday in the Vatican, Benedict recalled biblical
passages about the destruction of the Temple in Jerusalem and the
Babylonian exile of the Jews.

"It was almost a symbolic foretelling of the extermination camps that the
Jewish people were subjected to as part of an infamous project of death,
which remains an indelible shame on the history of humanity," he said.

The remarks were the strongest yet about the Nazi genocide by Benedict.

(source: Jerusalem Post)