Gruber decision
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
NEW YORK, NEW YORK
________________________
In the Matter of: ) IN REMOVAL PROCEEDINGS
)
GRUBER, Michael ) File No.: A10 270 346
)
)
Respondent ) Date: August 11, 2000
CHARGE: Section 237(a)(4)(D) of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1227(a)(4)(D), as an alien described in § 212(a)(3)(E)(i) of the Act, 8 U.S.C. § 1182(a)(3)(E)(i) who, as a member of the SS Death’s Head Guard Battalion at Sachsenhausen Concentration Camp, ordered, incited, assisted or otherwise participated in the persecution of persons because of race, religion, national origin or political opinion between March 23, 1933, and May 8, 1945, under the direction of or in association with the Nazi government of Germany.
On Behalf of the Respondent: On Behalf of the Government:
Mr. Robert A. Murtha, Jr., Esq. Mr. David W. Folts, Esq.
401 Broadway, Suite 1507 Mr. Robert J. Groner, Esq.
New York, N.Y. 10013 Mr. William H. Kenety V, Esq.
Trial Attorneys
United States Department of Justice
Office of Special Investigations
Criminal Division
1301 New York Avenue, N.W., Suite 200
Washington, D.C. 20530
DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. Procedural History
Respondent is an 85 year old native of Croatia and citizen of Austria who
entered the United States of America at New York, New York, on or about April
5, 1956, as an immigrant. On or about September 14, 1942, he became a member
of the Waffen SS, an organization that, throughout its existence, acted under
the direction of or in association with the Nazi government
of Germany. From on or about October 1942 to on or about January 20, 1943, respondent
served as a member of the Waffen SS at Zhitomir, Ukraine.
The United States Department of Justice, Office of Special Investigations, Criminal Division (the “Government”), alleges that from on or about January 20, 1943, to on or about September 4, 1944, respondent served as a member of the SS Totenkopf-Wachbatallion (SS Death’s Head Guard Battalion) at Sachsenhausen Concentration Camp (Sachsenhausen), near Berlin, Germany. The Government further alleges that the SS Death’s Head Battalions were organizations within the Waffen SS charged with guarding Nazi concentration camps, including Sachsenhausen. Lastly, the Government alleges that during the period between January 1943 and September 1944, under the direction of, or in association with the Nazi government of Germany, respondent ordered, incited, assisted, or otherwise participated in the persecution of persons because of race, religion, national origin, or political opinion.
Based on the foregoing allegations, the Government issued a Notice to Appear in removal proceedings under § 240 of the Immigration and Nationality Act (Act), 8 U.S.C. § 1229a, on August 13, 1999, which was served upon respondent on August 18, 1999 and filed with the Immigration Court in New York, New York on August 19, 1999. The Notice to Appear charges respondent as removable from the United States pursuant to § 237(a)(4)(D)of the Act, 8 U.S.C. § 1227(a)(4)(D), as an alien described in § 212(A)(3)(E)(i) of the Act, 8 U.S.C. § 1182(a)(3)(E)(i), in that, as a member of the SS Death’s Head Guard Battalion at Sachsenhausen Concentration Camp, respondent ordered, incited, assisted, or otherwise participated in the persecution of persons because of race, religion, national origin or political opinion between March 23, 1933, and May 8, 1945, under the direction of or in association with the Nazi government of Germany.
At a October 1, 1999 master calendar hearing, respondent, through counsel, acknowledged service of the Notice to Appear. (Exhibit 55 ). On that date, respondent’s counsel stated his client was not prepared to enter pleadings. The Court noted respondent’s counsel had been newly retained and therefore held the proceedings in abeyance.
The Court observed that the record of proceedings contained a copy of a letter sent to respondent by the Government dated September 8, 1999, urging him to retain counsel prior to his scheduled master calendar hearing. The Government included a list of organizations providing pro bono attorneys as well as the telephone number for the New York Bar Association.
Additionally, the Court noted that copies of two separate subpoenas, dated November 15, 1994 and July 20, 1998, were also contained in the record of proceedings. (Exhibits 52, 53). The Government stated it had interviewed respondent on those dates. See Id. The Court required that complete and full transcripts of the sworn interviews completed on December 4, 1994 and August 3, 1998, be provided to respondent’s counsel on or before October 8, 1999. The Government stated that it would also provide respondent’s counsel with certain “core documents” by that date.
The Court anticipated a second pre-trial conference pursuant to 8 C.F.R. 3.21, and scheduled a pre-trial conference call on or before December 1, 1999 . It reminded the parties of the local rules regarding production of evidence and respondent’s counsel was reminded of his right to examine documents and evidence offered by the Government pursuant to 8 C.F.R. § 240.10. The parties were informed that any stipulations reached prior to the date of the conference call should be submitted to the Court in writing. A second master calendar hearing was scheduled for February 4, 2000.
On November 15, 1999, respondent’s counsel, Stanley J. Teich, Esq., filed a Motion to Withdraw as Counsel of Record, in which he informed the Court that respondent had discharged him from further representation. In that motion, counsel stated he notified respondent, both orally and in writing, of the scheduled pre-trial conference on December 15, 1999, and the master calendar hearing on February 4, 2000. On November 16, 1999, the undersigned Immigration Judge granted the unopposed motion.
In a letter dated November 16, 1999, the undersigned Immigration Judge informed respondent of the granted motion and urged him to retain new counsel. In addition, the Court reminded respondent of the scheduled December 15, 1999 pre-trial conference and stated that it would be canceled by the Court should respondent fail to retain counsel on or before December 1, 1999. As of December 1, 1999, respondent had failed to retain new counsel and therefore the Court canceled the scheduled pre-trial conference. On December 14, 1999, Mr. Robert A. Murtha, Jr., Esq. notified the Court by facsimile that he had been retained as counsel by respondent. On December 17, 1999, the Court received an original Form EOIR-28, Notice of Entry of Appearance as Attorney from Mr. Murtha.
On January 25, 2000, the Court advised the parties in writing of the February 4, 2000 master calendar hearing and of a pre-trial conference to follow at 1:00 p.m. The Court requested the parties be prepared to present any stipulations or agreements at that conference.
At the February 4, 2000, master calendar hearing, respondent, through counsel, stated he was unprepared to plead to the allegations and charge in the Notice to Appear. Respondent’s counsel explained that he and the Government had prepared a lengthy list of stipulations the previous evening and after reviewing those stipulations with respondent, he would then be prepared to plead. Without requiring respondent to enter pleadings, the Court read the contents of the Notice to Appear into the record. The Court, in consultation with both parties, selected May 31, 2000 and June 1, 2000, as trial dates. The Court stressed the importance of respondent having counsel to represent his interests at trial and warned respondent that if he appeared without representation on May 31, 2000 and June 1, 2000, he would be required to represent himself.
Following the February 4, 2000, master calendar hearing, the Court convened the scheduled pre-trial conference. The Government alerted the Court of the possible need to subpoena from the National Broadcasting Company (NBC) a second videotape of an interview of respondent. The Court set a motion schedule and directed that all of respondent’s pre-trial motions be filed on or before March 4, 2000, with the Government’s response and its list of proposed witnesses due on May 1, 2000. The Court stressed that it would not bifurcate proceedings if, as indicated by respondent’s counsel, a Motion to Terminate on the basis of a pending Naturalization Application were filed with the Court.
On March 1, 2000, the respondent, through counsel, filed written pleadings
to the Notice to Appear. (Exhibit 56). He conceded proper service of the Notice
to Appear, and admitted factual allegations numbered 1, 2, 3, 4, and 5, except
with regard to the direction and association of the Waffen SS. He denied factual
allegations numbered 6 and 8 and declined to plead to allegation number 7.
The respondent also requested in a Motion to Terminate filed on March 1, 2000,
that the removal proceedings against him be terminated to permit the Immigration
and Naturalization Service (Service) to process his pending naturalization application.
(Exhibit 61G). On April 7, 2000, the Government filed an opposition to that
motion alleging, inter alia, that respondent sought to circumvent § 318
of the Act, 8 U.S.C. § 1429, which prohibits a naturalization application
to be considered by the Attorney General while removal proceedings are pending.
(Exhibit 61H). The Government contended that since neither the Service or a
naturalization court had made a determination of respondent’s prima facie
eligibility for naturalization, this Court did not possess jurisdiction to terminate
proceedings sua sponte. The respondent’s reply brief filed on May 1, 2000,
alleged that the Government employed “circular logic” to conclude
respondent’s ineligibility for termination based upon the pending removal
proceedings. (Exhibit 61 I). Respondent maintained that his case presents compelling
humanitarian factors and otherwise meets all requirements for naturalization.
Furthermore, respondent alleged the Government had failed to prove removability
as charged. The Government’s response filed on May 11, 2000, refuted respondent’s
contentions of eligibility for termination of proceedings based on his pending
application and argued that respondent was removable as charged. (Exhibit 61
J). Moreover, the Government alleged respondent’s removability was illustrated
by the wartime documents relating to respondent contained in the record of proceedings.
On March 9, 2000, the Government and the respondent, through counsel, jointly filed a list of stipulated facts. (Exhibit 57). A second joint list of factual stipulations was received by the Court on May 19, 2000. (Exhibit 61C). On May 2, 2000, the Government filed a witness list with the Court, consisting of Dr. Ronald M. Smelser and Dr. D. Scott McMurry, 2 expert historians; Mr. Rudolf Herz, a survivor of the Sachsenhausen Concentration Camp; and respondent, Mr. Michael Gruber. (Exhibit 61D). On May 4, 2000, respondent, through counsel filed a witness list with the Court consisting of the respondent, Michael Gruber, and his wife, Katharina Gruber. (Exhibit 61E).
On March 16, 2000, the Court received the videotape from NBC in accordance with the previously issued subpoena. (Exhibit 58). In a pre-trial conference on May 10, 2000, the parties viewed the videotape prepared by NBC. (Exhibit 58). Respondent’s counsel orally advised the Court that respondent had several medical conditions which would likely adversely affect his ability to attend and participate in his scheduled trial. In response, the Court directed respondent’s counsel to file a Motion for a Continuance with the Court no later than May 19, 2000, if respondent’s medical conditions would actually impede and impair respondent’s ability to attend his hearing. The Court specifically directed that the motion contain medical reports from physicians as well as medical records, including biopsies and other objective data, which would support a conclusion that respondent had good cause to request a continuance pursuant to 8 C.F.R. § 3.29.
In accordance with the direction of the Court, respondent’s counsel filed a Motion for Continuance on May 19, 2000 with supporting documents consisting of 2 unsworn letters from 2 separate physicians, Dr. John Giella and Dr. Dominic Monaco, and a copy of results of a CAT scan of respondent on February 7, 2000 by Dr. Kenneth I. Blumberg. (Exhibit 61A). Upon receipt of respondent’s motion on May 19, 2000, the Court contacted the parties by telephone and scheduled a telephonic hearing on the record on the motion for May 22, 2000 at 2:00 p.m. Shortly before the May 22, 2000 hearing, the Court requested an in-person appearance of respondent’s counsel. The Government, through delivery by the Immigration and Naturalization Service, served a copy of its opposition to the motion upon the Court and respondent’s counsel at that hearing. (Exhibit 61B).
Respondent’s counsel argued orally and in his written motion that respondent was suffering from an “advanced renal tumor and [was] scheduled for radical nephrectomy in [sic] June 9, 2000.” (Exhibit 61A). During oral argument he contended respondent was in pain, was taking the pain medication Percodan and was scheduled for preoperative testing on June 1, 2000 and subsequent surgery. He alleged that respondent was unable to carry on an intelligent conversation and was therefore unable to assist in the preparation of his case. He indicated that respondent’s treating physicians, Dr. Giella and Dr. Monaco, recommended surgery for his kidney tumor and separately estimated that respondent would require between 6 weeks and 3 months of post-operative recovery time. Further, the physicians stated that respondent suffered from “pain” and he was “quite weak.” Respondent’s counsel stated his attempts to obtain additional clinical information were unsuccessful.
In its written motion, the Government characterized respondent’s references to his scheduled surgery as a “diversion” because the June 9, 2000 surgery was scheduled to occur after trial. (Exhibit 61 B). Based upon findings by its consulting physicians, it contended that the drug Percodan does not normally cause confusion or weakness. The Government further observed that the medical documentation dated February 7, 2000 intimates that the kidney tumor existed in the past and “is still there,” while no explanation was offered by either physician regarding the 4 month delay in scheduling surgery. Lastly, the Government argued that due to respondent’s failure to follow the explicit instructions of the Court regarding the proffer of medical records and documentation, including the results of a biopsy, he prevented both the Court and the Government from adequately and accurately judging the severity of respondent’s condition. Although respondent’s counsel indicated respondent’s willingness to submit to a medical examination by a physician designated by the Government, the Court, at that time, found such an examination unnecessary and rendered an oral decision based upon the available documents in the record.
The Court, in its oral decision on the record, denied the motion finding that
it lacked sufficient medical substantiation or objective medical data supporting
a finding of pain and weakness precluding the respondent’s travel or participation
in his hearing. The regulations provide that a continuance may be granted in
the discretion of an Immigration Judge if good cause is shown. 8 C.F.R. §
3.29; 8 C.F.R. § 240.6 (2000). The Court noted that no statement or submitted
documents contained in the record indicated respondent was scheduled for pre-
operative testing on June 1, 2000, as orally alleged by respondent’s counsel.
The written motion indicated that surgery was “tentatively scheduled”
for June 9, 2000. There was no medical evidence substantiating the need for
extensive pre-operative care or treatment. In the Court’s view, such surgery
was clearly not required on an emergency basis and no medical evidence indicated
that surgery was required for a life-threatening condition. Based upon the proffered
CAT scan results, the kidney mass was known to exist at least since February
7, 2000. Counsel’s claim that respondent is on Percodan is totally unsupported
by any medical documentation appended to the motion. Furthermore, no mental
status examination reporting a lack of understanding, coherence or orientation
due to such medication was presented. Respondent’s wife, who, according
to respondent’s counsel, possessed direct knowledge of respondent’s
apparent aberrant behavior was not present to support counsel’s contentions.
Respondent’s physicians, Dr. Giella and Dr. Monaco, commented separately
that respondent’s pain and weakness prevented him from traveling and attending
court proceedings; however, neither physician offered a medical report consisting
of clinical signs or findings confirming the existence of pain or weakness demonstrable
by objective medical observation and objective medical findings. In fact, the
motion did not confirm that respondent has been examined by any physician since
Dr. Blumberg performed a CAT scan on February 7, 2000. Although Dr. Monaco stated
respondent suffers from “severe anemia,” “congestive heart
failure,” and “mild coronary artery disease,” he did not relate
either pain or weakness to any of these conditions. There are no reports verifying
that either Dr. Giella or Dr. Monaco have ever performed clinical examinations
of respondent. Without the submission of such reports, the Court was unable
to validate the etiology, the extent, and the severity of the pain and weakness
and their impact on respondent’s ability to participate at his hearing.
The Court therefore found that respondent failed to offer any credible medical
evidence establishing good cause for continuing the case beyond the trial date
of May 31, 2000 and June 1, 2000.
At the conclusion of its oral decision, the Court noted that it would not accept any other Motion to Continue filed by respondent based upon the reasons set forth in its May 19, 2000 motion. Nonetheless, respondent’s counsel stated his intent to file a second motion if he obtained additional medical information. The Court stated it would not consider a continuance based upon an amplification of the reasons set forth in respondent’s May 19, 2000 motion because to do so would merely reopen the decision already rendered by the Court.
The Court warned respondent’s counsel that if respondent failed to appear on May 31, 2000 and no application for a continuance was filed based upon any other reason, the hearing would be conducted in absentia. The Court stated, over counsel’s objection, that if respondent failed to appear at his hearing on May 31, 2000, respondent’s counsel would not be permitted to make arguments or cross-examine witnesses on his behalf.
On May 25, 2000, respondent filed a Second Motion to Terminate Proceedings in which he denied his service at the Sachsenhausen Concentration Camp. (Exhibit 61M). He contended that the Government “seized the Holtzman Amendment, twisted it out of shape and turned it into an instrument to persecute the innocent.” Id. at 2. Respondent alleged that his case is distinguishable from other precedential Supreme, Circuit, and District Court cases; however, he also cited cases where the “defendants did not personally participate in persecution, but were nonetheless “stripped of their citizenship despite a dearth of evidence that they had personally persecuted anyone or known that any persecution was taking place.” Id. at 7-8. In sum, respondent argued that the Government, “can never prove that [respondent] was ever actively personally involved in persecutorial acts.” Id. at 11. In response, the Government filed an opposition alleging that respondent’s Second Motion to Terminate was untimely filed since the Court specifically directed all pre-trial motions to be filed on or before March 4, 2000. (Exhibit 61N). The Government also asserted that respondent’s claims that the Holtzman Amendment required proof of “active personal involvement in persecutorial acts” was unsupported by the controlling case law. In conclusion, the Government contended that termination of respondent’s proceedings was inappropriate because certain issues of fact required resolution at trial.
The Court found respondent’s May 25, 2000 Motion to Terminate premature, as it essentially argued that the Government had no factual or legal basis to charge the respondent as removable. The Court found that it could not pass judgment on the motion without first providing respondent a full and fair evidentiary hearing. Therefore the Court declined to adjudicate the motion until the date of trial.
On May 25 and 26, 2000, less than one week prior to trial, respondent’s counsel filed a Motion to Recuse the Immigration Judge (Exhibit 61K) and a Second Motion to Continue (Exhibit 61O). The Court ordered a pre-trial conference on May 30, 2000 to address these motions at which time the Government filed its oppositions.(Exhibits 61Q, 61P, respectively).
In respondent’s Motion to Recuse, he alleged, inter alia, that the undersigned Immigration Judge “clearly demonstrated that his interest in this case is personal rather than judicial. [The Judge] has entirely lost his judicial objectivity.” (Exhibit 61K at 1). The motion recounts numerous examples of alleged manifestations of the undersigned Immigration Judge pursuing “his personal agenda.” Among counsel’s allegations constituting “major violations of [respondent’s] rights”, counsel includes the Court’s: (1) refusal to grant an adjournment for preparation of pleadings and stipulations; (2) scheduling of the individual merits hearing 4 months after the master calendar hearing; (3) “crude attempts” at intimidation of respondent and his counsel; (4) alleged “collusion” with the Government regarding signing a non-waiver agreement; (5) refusal to grant an adjournment based on respondent’s alleged medical condition; (6) alleged “scheduling of a ‘stealth’ hearing on May 22, 2000"; and (7) alleged refusal to consider any additional evidence regarding respondent’s cancer. The Government filed a response to the motion on May 30, 2000. (Exhibit 61Q).
The regulations provide that an Immigration Judge assigned to conduct a hearing shall withdraw at any time if he deems himself disqualified. 8 C.F.R. § 240.2(b). The Board of Immigration Appeals (Board) in Matter of Exame, 18 I&N Dec. 303 (BIA 1982), found 3 instances that require an Immigration Judge to recuse himself, namely: (1) when the alien demonstrates that he was denied a constitutionally fair proceeding; (2) when the Immigration Judge has a personal bias stemming from an extra-judicial source; and (3) when the Immigration Judge’s judicial conduct demonstrates such pervasive bias and prejudice. The respondent must show that facts and reasons tend to show personal bias or prejudice on the part of the Immigration Judge, rather than merely showing that adverse rulings have been made. See Matter of K-, 5 I&N Dec. 347, 348 (BIA 1953).
On May 30, 2000, the Court rendered an oral decision denying respondent’s Motion for Recusal filed on May 25, 2000. The Court established that in the first instance, the procedural history of the case, including the previous master calendar hearings and pre-trial conferences, as described by respondent’s counsel in his motion, is factually inaccurate and is not supported by the record. A 4 month period was provided to allow respondent’s counsel to prepare for trial, a time period, which in the Court’s view, was more than sufficient. Respondent’s counsel advised neither the Court nor the Government at any point prior to the submission of the Motion for Recusal that he had an inadequate amount of time to prepare. Respondent’s counsel was invited to file a motion for a continuance by this Court as late as May 10, 2000 and was provided until May 19, 2000 to marshal the necessary medical evidence in support thereof. A second motion for a continuance dated May 26, 2000 was filed by respondent which the Court considered a motion to reconsider the decision of the Court dated May 22, 2000, denying the respondent’s First Motion to Continue. The Court concluded that it provided the respondent and his counsel ample time to prepare and ample opportunity to provide the Court with good reason to continue this matter. Counsel’s allegation that the Court engaged in an “emotional five minute rant” during the February 4, 2000 master calendar hearing is a gross mis-characterization of the Court simply reading the factual allegations and charges in the Notice to Appear into the record in accordance with 8 C.F.R. § 240.10(a)(6). The Court notes that it did not require respondent to plead to the allegations and charge on that date. Respondent’s displeasure with the Court’s rulings does not constitute a proper ground upon which to allege bias or prejudice on the part of the Court. The Motion for Recusal was unsupported by any persuasive evidence and was denied by the Court.
Also on May 31, 2000, the Court considered respondent’s Second Motion to Continue as a motion to reconsider its earlier decision of May 22, 2000. The motion contained a notarized statement from respondent’s physician as well as laboratory and CAT scan results; however, the Court observed that several documents were attached which existed prior to the filing of respondent’s previous motion of May 19, 2000, namely blood tests dated November 14, 1999 and February 10, 2000, as well as a letter from respondent’s wife dated May 6, 2000. Respondent’s counsel failed to explain why these documents were not included in the first motion dated May 19, 2000, since they were discoverable and available at that time. The Government filed its opposition on May 30, 2000 and appended a letter from Dr. Steven Greenstein and an affidavit from pharmacist William Eisenstein. In particular, Dr. Greenstein stated that he based his opinion on reference to respondent’s medical record without benefit of a medical examination of respondent.
Most significantly, the Court determined that respondent’s Second Motion to Continue contained medical confirmation of respondent’s use of Percoset, a prescriptive narcotic pain medication, which raised an inference of pain at a level which would impede his ability to participate fully at his hearing. The Court determined that such confirmation shifted the burden to the Government to medically examine respondent and offer an opinion regarding his pain and weakness and the effect Percoset had on his ability to participate in and understand the nature of the hearing. The Court continued the matter for the sole purpose of allowing the Government the opportunity to examine the respondent. Once such an examination was conducted and a report submitted to the Court on May 31, 2000, the Court would consider such report as the full Government response to respondent’s motion and would render a decision.
Following respondent’s medical examination by Dr. Eric Niebart, M.D., 1100 Park Avenue, New York, New York 10128 and preparation of a medical report (Exhibit 61R), the Court reconvened at 4:00 p.m on May 31, 2000. The Government maintained that the report indicated that respondent was capable of appearing for trial and capable of functioning in both the doctor’s office and his counsel’s office and therefore in the Courtroom.
On May 31, 2000, after receipt and review of the medical report submitted by the Government, the Court rendered an oral decision denying respondent’s Second Motion for Continuance filed May 26, 2000. In an affidavit attached to respondent’s second motion, Dr. Monaco commented that respondent was taking the pain medication Percoset and was very weak. The doctor failed to note when he last performed a clinical examination of respondent and did not disclose whether he was the physician who actually prescribed the Percoset. In contrast, respondent’s medical history taken with the assistance of his family by the Government-selected physician, Dr. Niebart, revealed that the respondent had been taking 4 tablets of Roxicet daily for the past 3 months. The clinical examination by Dr. Niebart revealed absolutely no adverse mental or cognitive impact on respondent due to that medication. Additionally, Dr. Niebart’s clinical examination exposed no evidence of weakness or pain. In his report, he stated “[i]n summary, Mr. Gruber appeared comfortable at rest and in no distress. He is capable of following all instructions and is aware of the charges against him on his current medications. His anemia is physiologically insignificant.” He also states: “In my opinion, he is aware of his situation and is physically capable of appearing in Court and participating.” In accordance with 8 C.F.R. § 3.9 the Court concluded that no substantial medical basis to establish good cause to continue and reschedule respondent’s hearing, and therefore, the Court existed ordered respondent to stand trial on June 1, 2000 at 9:00 a.m.
Amending its previous statement, the Court stated it would allow respondent’s counsel to cross-examine witnesses if respondent failed to appear at his scheduled hearing. Finding that an in absentia hearing is simply a hearing which proceeds in a respondent’s absence, the Court found that in its’ view, respondent’s attorney was not precluded from providing representation. The Court strongly advised respondent’s counsel to instruct respondent to appear before the Court on June 1, 2000. Respondent’s counsel stated his intention to be present but could not confirm respondent would appear.
On June 1, 2000 at 9:05 a.m., although respondent’s counsel appeared, respondent was not present. When the Court inquired regarding respondent’s whereabouts, his counsel stated that respondent was at Nyack Hospital and that “[t]he Court should not be surprised [that the respondent is in the hospital]. I told you two - maybe three weeks ago that he was going in for his pre-op today.” Although he did not have proof of respondent’s hospitalization at that time, he stated that his paralegal would deliver the proof later in the morning.
While the Court did not recall respondent’s counsel having ever mentioned the scheduled pre-operative testing on June 1, 2000, it noted that the documents contained in the record clearly indicated respondent was scheduled for surgery on June 9, 2000. The Court confirmed that no documentary evidence contained in the record indicated respondent was scheduled for pre- operative testing on June 1, 2000. Counsel alleged that he mentioned the pre-operative testing on or about May 9 or 10 at a prior pre-trial meeting, a week after being informed that the respondent would be undergoing surgery; however, the only reference to pre-operative testing on June 1, 2000 made orally on the record was on May 22, 2000. When asked by the Court whether respondent’s counsel was aware on the previous day, May 31, 2000, that respondent was to be seen at Nyack Hospital on June 1, 2000, respondent’s counsel replied that it had “completely slipped [his] mind.” He stated that he was concentrating on the written pleadings and failed to mention the pre-operative testing.
The Court conducted a careful review of the record of proceedings and established that no reference was made to June 1, 2000 pre-operative testing in any of respondent’s written court filings and the first oral mention of the June 1, 2000 testing was on May 22, 2000. After May 22, 2000, respondent’s counsel failed to mention June 1, 2000 in any of his written pleadings or at any of his appearances before the Court. At 9:15 a.m., the Court stated that it had no current medical evidence that respondent was either required to undergo preoperative testing at all or that he was required to undergo preoperative testing on June 1, 2000 as opposed to any other time prior to his June 9, 2000 surgery, either because of the convenience of the physician, or because of an urgent medical condition requiring the immediate examination of respondent. Faced with the lack of any medical evidence to establish the nature, time frame, or type of pre-operative testing required, the Court rendered an oral decision on respondent’s oral request for a Third Motion to Continue.
In the June 1, 2000, oral decision denying respondent’s Third Motion to Continue, the Court erroneously applied the “exceptional circumstances” standard under § 240(e)(1) of the Act, 8 U.S.C. §1229a(e)(1) which is applicable to motions to reopen and to rescind previous in absentia orders of removal. The Court notes that the applicable standard is “good cause” under 8 C.F.R. § 3.29. In finding that respondent lacked “good cause” for a continuance, the Court finds that respondent failed to present any medical evidence establishing the requirement for his hospitalization for pre-operative testing on June 1, 2000 as opposed to any other day. Further, respondent failed to submit a medical affidavit from any physician establishing the requirement to attend preoperative testing. No medical evidence was presented which established the requirement that the testing be performed at Nyack Hospital or established the nature of preoperative testing and the period of time necessary to accomplish the testing. No medical evidence was proffered that indicated any change occurred in respondent’s health since May 31, 2000 and that he was in a different medical state on June 1, 2000 than on May 31, 2000.
As respondent failed to appear for his scheduled hearing, the Court proceeded in absentia at 9:25 a.m. The Court reiterated the right of respondent’s counsel to cross-examine any witnesses and retained the German interpreter in the event that respondent appeared.
II. Evidence and Evidentiary Rulings
As a threshold issue, this Court determined the admissibility of the Government’s proffered exhibits.
In administrative removal proceedings the Federal Rules of Evidence (FRE) are not controlling. See Matter of D-, 20 I&N Dec. 827 (BIA 1994); Matter of Grijalva, 19 I&N Dec. 713 (BIA 1988). The regulations provide that in a removal proceeding, an Immigration Judge may receive into evidence any oral or written statement previously made by respondent or any other person during “any investigation, examination, hearing, or trial” which is material and relevant to any issue in the case. 8 C.F.R. § 240.7(a) (2000). To be admitted, evidence must be probative, its use must be fair, and it must not deprive an alien of due process. See e.g., Bustos- Torres v. INS, 898 F. 2d 1053 (5th Cir. 1990); Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988); Matter of Grijalva, supra.
The Government presented certified copies of all exhibits. Although respondent’s counsel did not object to the authenticity and authentication of documents marked as Exhibits 1A through 49, he questioned the relevance of those documents and stated that he believed that they were prejudicial to respondent. Similarly, he objected to the admission into evidence of Exhibit 1 (camp personnel card of Michael Gruber) and Exhibits 52, 53, and 54 (transcripts of the sworn interviews of respondent and his wife) on the same grounds. Respondent stipulated to the admission of Exhibits 1A, 50, 51, and Exhibits 55 through 61T and thus the Court immediately admitted those exhibits into the record.
On May 25, 2000, the Government filed a Memorandum of Law with the Court concerning
the admissibility of its proposed exhibits. The Government contended that all
of its proffered documents should be admitted as authenticated Nazi wartime
documents and claimed that the documents were admissible as (1) self-authenticating
documents under FRE 902(3); (2) documents authenticated under the general provisions
of FRE 901(a) ; or (3) “ancient documents” under FRE 901(b)(8) and
FRE 803(16) as a hearsay exception. Relying upon the FRE, the Government contends
that under FRE 902(3), documents which are certified pursuant to the Hague Convention
and originate from foreign archival collections or which receive final certification
by a United States Embassy, are self-authenticating. The Court notes that 8
C.F.R. § 287.6 contains specific provisions regarding the required proof
of official records, both domestic and foreign. The requirements for self-authenticated
foreign documents under 8 C.F.R. mirror, in large part, the authentication processes
required under FRE 902(3).
An official record or entry from a domestic source must be evidenced by either
an official publication or a copy attested to by the legal custodian of the
record. 8 C.F.R. § 287.6(a). An official record or entry from a foreign
country not a signatory to the Hague Convention, if a copy, must be attested
to by an authorized officer. 8 C.F.R. § 287.6(b)(1). That copy may be,
but is not required to be certified by any authorized foreign officer regarding
the official position of the attesting officer and the genuineness of his or
her signature. Id. A chain of certificates may be created by having the signature
and official position of the certifying officer certified by another authorized
foreign officer. Id. Then, the attested copy must be certified by a United States
Foreign Service Officer stationed in the foreign country where the record is
kept. 8 C.F.R.§ 287.6(b)(2). The Foreign Service Officer must certify the
genuineness of the signature and the official position of either the attesting
officer or any of the foreign officers in the chain of certificates. Id. In
the case of foreign documents emanating from a country which is a signatory
to the Hague Convention, a public document or an entry in such a document may
evidenced by a copy certified under the Convention. 8 C.F.R. § 287.6(c)(1).
Proper certification under the Hague Convention requires that the certificate
be signed by an authorized foreign officer and it must certify the authenticity
of that signature, the capacity of that officer and the identity of any seal
or stamp on the document. Id. Under the Hague Convention, the certification
takes the form of an apostille, either stamped directly on the document or affixed
to an accompanying paper.
In this case, each of the proffered Government documents with foreign origins
contains the appropriate certification of its authenticity. Exhibit 1, the historical
document to which respondent objected is from the Center for Preservation of
Historical Documentary Collections in Moscow, Russia (Moscow Center). The Court
notes that Russia is a signatory to the Hague Convention. The archival stamp
found on Exhibit 1 indicates a record group, folder, file and page number. The
required apostille is attached to the copy of the document. Notably, respondent
does not object to any of the other documents originating from the same archival
collection including the identical apostille. Documents from foreign archives
which have been certified under the Hague Convention are specifically admissible
as self-authenticated foreign public documents according to FRE 902(3). See
United States v. Koziy, 728 F.2d 1314, 1321-22 (11th Cir.), cert denied, 469
U.S. 835 (1984). Absent a showing that the document is untrustworthy, this Court
is compelled to find Exhibit 1 a true and correct copy of the original camp
personnel card of Michael Gruber currently housed in the Moscow Center.
In addition to the above finding, the Court notes that Exhibit 1, the camp personnel card of Michael Gruber, and its contents are admissible as statements in an ancient document pursuant to FRE 803(16). Although the Court recognizes that the FRE are not controlling in removal proceedings, an Immigration Judge, in his discretion, is not barred from adopting reasoning which parallels that of the FRE. The document in question has been in existence nearly 60 years and the Court finds that its authenticity was established by Dr. McMurry’s testimony, infra. Dr. McMurry stated that in his expert opinion, the camp personnel card which was housed in the archival collections of the Moscow Center was in a place where he would expect to find authentic captured Nazi wartime documents. Dr. McMurry stated that historians use documents from such archives without questioning their authenticity. The 2nd Circuit Court of Appeals held that because FRE 803(16) does not contain an independent trustworthiness requirement, if a document is authenticated as an ancient document, its lack of trustworthiness is a matter of evidentiary weight, not admissibility. George v. Celotex Corp., 914 F.2d 26 (2d Cir. 1990). When documents are authenticated as ancient documents under FRE 901(b)(8), they automatically fall within the exception to the hearsay rule, FRE 803(16). See Fagiola v. National Gypsum Co., et al., 906 F.2d 53 (2d Cir. 1990). Respondent has not objected to the admission of the camp personnel card on account of its trustworthiness. Dr. Smelser testified regarding the reliability of Nazi wartime documents such as the camp personnel card and found the documents reliable in analyzing and forming opinions regarding respondent’s wartime activities. Thus, the Court finds that the camp personnel card is what the Government alleges it to be, namely a reliable record of respondent’s wartime activities and service in the Waffen SS. The Court found the camp personnel card of Michael Gruber admissible and admitted it into the record based upon the substantial and credible testimony of Dr. McMurry and Dr. Smelser.
Respondent’s counsel also objected to the admission of Exhibits 52, 53, and 54 (transcripts of sworn interviews of respondent and his wife) on the ground that respondent and his wife were unrepresented by counsel at the time of those sworn interviews and were not properly advised of their right to have an attorney present. Respondent’s counsel stated that because the sworn interviews were conducted by the Criminal Division of the United States Department of Justice, the investigation of respondent and the court proceedings were quasi- criminal in nature and required that respondent be advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). The Government contested counsel’s claims arguing that respondent failed to have an attorney at his interviews because he chose not to do so. Although respondent’s choice to appear for the 1994 sworn interview without counsel was not specifically discussed in that interview, respondent was specifically asked about his choice to appear during the 1998 interview without counsel. (Exhibit 54 at 6). Respondent’s wife and son were present in both instances and participated fully in the interviews. The Government maintained that since the sworn interview was non-custodial, in accordance with United States v. Kirsteins, 906 F.2d 919 (2d Cir. 1990), the requirements of Miranda, supra, were not implicated.
Respondent’s counsel alleged that the questioning of respondent was in violation of the principles established in Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court in Miranda, supra, created warnings which must be provided to suspects prior to commencing custodial interrogation. “Custodial interrogation” connotes situations where any individual being questioned is taken into custody or “otherwise deprived of his freedom of action in any significant way.” Id. at 444. The 2nd Circuit in United States v. Kirsteins, supra, held that an interview at a Federal Building conducted by the Office of Special Investigations, United States Department of Justice, Criminal Division, of Mikelis Kirsteins regarding his activities between 1941 and 1945 was non-custodial. Notably, the Circuit Courts and the Board have not applied Miranda to civil deportation proceedings. See Nason v. INS, 370 F.2d 865 (2nd Cir. 1967); Nai Cheng Chen v. INS, 537 F.2d 566 (1st Cir. 1976); Chavez-Raya v. INS, 519 F.2d 397 (7th Cir. 1975); Trias-Hernandez v. INS, 528 F.2d 366 (9th Cir. 1975); Matter of Chen, 15 I&N Dec. 480 (BIA 1975), aff’d, Chen v. INS, 537 F.2d 566 (1st Cir. 1976).
The Court ruled that the instant proceedings are removal proceedings brought
by the Department of Justice and are not criminal, but are civil proceedings
under the Immigration and Naturalization Act. Upon the Court’s review,
although not required to provide respondent with Miranda warnings, the Government
took all means necessary to advise respondent of his right to counsel. Upon
review of the sworn interviews, the Court finds that they were non-custodial
and respondent was accompanied by his wife and son. Indeed, the 1998 subpoena
contains a statement advising respondent that he could bring an attorney with
him and during the interview, in 1998, he was specifically asked regarding his
choice not to have an attorney present. Furthermore, the Court found not even
a scintilla of a suggestion existed that coercion or intimidation was used by
the Government in preventing respondent’s exit. Nor is there evidence
of the Government using any threatening, intimidating or coercive means to keep
him present at any point during those interviews. Had respondent been present
for the proceedings, he could have testified as to whether or not the Government
prevented him from accessing counsel. Since respondent elected to be absent
from his hearing, there was no evidence contradicting the plain statements contained
in the sworn interviews. (Exhibits 52, 53, 54). The Court admitted Exhibits
52, 53, and 54 into the record over objections of respondent’s counsel.
Respondent’s counsel objected to the relevance of the all of the admitted
documents and contended that they are overly prejudicial to respondent. An Immigration
Judge, as a trier of fact, must determine the materiality and relevancy of the
proffered evidence. 8 C.F.R. § 240.7(a). The Court found that all of the
Government’s evidentiary submissions are authentic, relevant to the instant
controversy, and not prejudicial and therefore admitted them into the record
of proceedings. Respondent failed to present any evidence calling this finding
into question. The admitted exhibits constituting the record of proceedings
in this case are attached to this decision at Appendix, infra.
III. Facts
A. Testimony of Rudolph Herz
The Government’s first witness was Mr. Rudolph Herz, a survivor of the Holocaust who currently resides in Myrtle Beach, South Carolina. He testified that he was born on August 23, 1925, in the village of Stommeln near Cologne, Germany, where he grew up and attended school. He resided in Stommeln with his grandparents, parents, and six siblings. At that time, Mr. Herz and his family were Jewish. In 1936, his parents were informed that the family’s presence in the small village of Stommeln was no longer desired. The family immediately moved to Cologne, Germany. He attended school until 1938 and was a carpentry apprentice for a short period of time in Cologne. Thereafter he was forced to work for the Nazi government, building military barracks.
On May 31, 1942, Cologne was razed by a concerted bombing attack which caused hundreds of thousands of people to become homeless. The Nazi government then removed all of the Jews residing in Cologne to an unknown destination in the East. Under the surveillance of guards, Mr. Herz and others were loaded into a guarded passenger train which stopped two days later in or near the Theresienstadt ghetto. Theresienstadt was an ancient fortress located 30 miles north of Prague, the capitol of what was then Czechoslovakia.
In Theresienstadt, the occupants were restricted in their movement both inside and outside of the fortress. The entry and exit to the fortress were guarded day and night by the German SS guards. In May 1944, the constant influx of prisoners into the Theresienstadt ghetto made it necessary to evacuate people further East. In May 1944, Mr. Herz received a notorious “red slip” which directed him to the railroad for evacuation. When he was locked inside the railroad boxcar, he was unaware of its destination. Two days later, he was told that he was in Auschwitz.
After remaining in the Auschwitz Concentration Camp for 2-1/2 months, a group of men between the ages of 18 and 35, including Mr. Herz, were selected to work at an unknown location. The men were stripped of all their clothing and their body hair was shorn. They were issued striped prisoner uniforms with numbers sewn onto them. The number on Mr. Herz’s uniform was not the same number tattooed onto his skin in Auschwitz. The tattooed number that Mr. Herz was given was 85501. His uniform had a symbol on it consisting of a Star of David comprised of a yellow triangle superimposed on a red triangle. The red triangle signified that he was a political prisoner, and because it was superimposed on a yellow triangle to form a Star of David it also indicated that he was Jewish. He does not know why he was considered a political prisoner.
Upon leaving Auschwitz, he and the other men were crowded into sealed boxcars which each held between 50 and 75 prisoners. After traveling between 24 and 36 hours by train, they were unloaded in an area that Mr. Herz surmised was located in the Mark Brandenburg. The men were then marched in rows of five to a camp and were told that they had arrived in Schwarzheide, a satellite camp of the Sachsenhausen Concentration Camp. The SS guards who had accompanied the train from Auschwitz to Schwarzheide departed and a new formation of guards arrived from Sachsenhausen. The guards wore field uniforms which included a cloth cap with a Totenkopf or Death’s Head insignia and were armed with Schmeisser machine pistols at all times. Mr. Herz noted that the guards at Schwarzheide spoke in such a manner that he determined that they were from somewhere in the former Austro-Hungarian Empire. After arrival, the prisoners were left standing in rows of five for a roll call during which scribes marched along the rows and counted the prisoners. When the count was incorrect, the prisoners were counted and recounted until the count was correct. The counting of the prisoners became a regular part of prisoner life.
Sachsenhausen was established in 1933, early in the Nazi regime, and had 13 to 20 satellite camps. In Schwarzheide, the food came from Sachsenhausen and the bodies of the prisoners who died in Schwarzheide were returned to Sachsenhausen for cremation. Schwarzheide was located near a large factory. All of the prisoners at Schwarzheide came from the family camp at Auschwitz and all were Jewish.
Mr. Herz described the work at Schwarzheide as “exceedingly harsh.” In addition to the physical exertion demanded of the prisoners, they were also subjected to physical abuse. This abuse came at the hands of the “Kapos ” or prisoner trustees and the SS guards. Mr. Herz stated that the Kapos were mostly German political prisoners, criminals or deviants. In addition to abusing the prisoners and driving them to work harder, the Kapos ensured that the guards’ commands were obeyed.
The prisoners were forced to perform three different types of tasks: unloading bricks to rebuild the factory, clearing the rubble of the destroyed factory, and building an air raid bunker for the German personnel of the factory. The prisoners were guarded at every moment and were never out of the sight of the SS guards. The work was exceptionally heavy and was “back breaking” in the truest sense because the prisoners were never permitted to carry more than 4 to 6 bricks at one time. Air raids were frequent at Schwarzheide. A synthetic fuel plant was nearby and because its location was well known to the allied personnel 2 to 3 air raids occurred every day and night. During the air raids, the prisoners were instructed to sit in a circle and to remain still, while the guards took cover in portable, concrete one-man bunkers with their guns trained on the prisoners.
Mr. Herz recounted a typical day in his life as a prisoner at Schwarzheide. The day would begin by being awakened by a very loud “gong” at 5:30 a.m. The prisoners were instructed to put on their clothing and were called out for the first roll call which lasted until 7:00 a.m. They were then returned to their barracks for two slices of bread and “some blackish brew.” At 8:00 a.m. work began. At 12:00 noon, the prisoners received a half hour break and were given a ration of potato soup with a “substance of unknown consistency” that they assumed was meat. Mr. Herz described the jockeying which occurred in efforts to receive a better quality or quantity meal. Mr. Herz sought to determine if he stood at the front of the food line whether he would receive a better quality portion of the liquid of the soup, or at the end of the line he would receive a more substantial portion of soup with more “material” in it. He eventually gave up trying to determine which was better and simply stood in line, accepting the portion he received.
Work concluded for the prisoners at 5:30 or 6:00 p.m. At the end of the workday, the prisoners were counted again by the SS guard commander and were marched back to camp. The prisoners were required to stand at attention again after their arrival in camp and await completion of a second roll call. They returned to their barracks for their evening meal consisting of two slices of bread supplemented with marmalade once or twice a week. Mr. Herz stressed that he never received any additional rations of food. After eating, the prisoners would mend their torn clothing or visit with others. They would often try to ascertain the fates of the families that they had left behind.
Mr. Herz stated that 2 to 3 of the 50 to 75 men who lived in his barracks died each week. Prisoners died throughout the camp while at work and during the night. The guards treated the prisoners with utter disregard and disrespect and as “less than human.” Mr. Herz stated that the guards would sometimes order the Kapos to force the prisoners to do knee bends or push-ups. If a prisoner could not perform the required number of exercises, he would be kicked and beaten. Mr. Herz testified that although the guards did not physically participate, they were always present during such mistreatment and would ensure the required number of push-ups or knee bends were performed.
In August 1944, Mr. Herz was detailed to work in a personnel bunker. One day he failed to hear the guards’ whistle and was late for the roll call. He was kicked and beaten with a stick by an SS guard wearing the Death’s Head insignia and eventually lost consciousness. At the time of the beating, the guard was not punished by his supervisors. Indeed, the guard continued to pursue him because he caused the guard inconvenience by arriving late to role call.
After the beating, he regained consciousness in a provisional sickbay in the camp which was staffed by doctors who were also prisoners. They did not have medicine to treat Mr. Herz. The doctors told the camp commander that he was incapable of returning to work and required a period of rest to regain his strength and recover from his wounds. Ten to 12 weeks later, Mr. Herz and a group of the prisoners from the sickbay were loaded into trucks and were told that they were going to another satellite camp of Sachsenhausen where an SS doctor would examine them to determine whether they were fit to work or whether they should be returned to Auschwitz. Fifteen to 20 injured prisoners were loaded into a truck guarded by armed SS guards which then traveled in a northeasterly direction from Schwarzheide. A stop was made and 4 women who had been beaten were pushed into the truck. The prisoners were immediately warned that they were not permitted to speak with the women and were told “who talks, dies.” The prisoners were later unloaded in front of a gate which read in German “work frees the man.” The camp was named Lieberose. The women were left in the truck and Mr. Herz was unaware of their fate.
Upon their arrival in the Lieberose camp, the prisoners were assigned barracks. The barracks Kapo informed the prisoners that they were to be examined by the prison doctor from Sachsenhausen, but that he was unavailable and would arrive later. Approximately 10 days to 2 weeks later, the doctor examined the prisoners. The prisoners told the doctor that they were injured while working and were to be examined to determine their ability to work. The doctor asked the Kapo for his opinion of the prisoners’ ability to work to which the Kapo responded that the prisoners had been assigned light duty and were capable of working. The doctor marked the prisoners, including Mr. Herz, as ready for duty. The doctor’s name was Dr. Baumkötter. See Exhibit 15. Under cross-examination, Mr. Herz explained that Dr. Baumkötter did not examine him as a physician would medically examine a patient, but instead merely looked him over to determine whether he was standing on his own.
The guards at Lieberose were SS and all guards had the Death’s Head insignia on their caps. They were trained at and sent from Sachsenhausen. Although Mr. Herz rarely spoke with any of the guards, he was able to identify them as “Banats Deutsche,” from a region in Hungary settled by Germans. Over 3,500 prisoners were guarded at different locations in the Lieberose camp, therefore Mr. Herz believes that he did not have the opportunity to hear every guard speak in order to recognize each guard’s specific regional dialect.
At Lieberose, Mr. Herz worked preparing a “proving ground” for the training of SS troops. The prisoners also built roads and cleared woods. The training ground that they created was called “Kurmark.” They were required to work every day including Saturdays and were forced to sing German folk songs while marching to and from work.
A typical day at Lieberose was similar to that at Schwarzheide except that the roll call was longer due to a greater number of prisoners. During the roll call, they were required to stand in place. If they moved, the prisoners would be hit on the face and body by the Kapos. The SS guards witnessed and consented to the mistreatment. At Lieberose, 1 or 2 people died each week in Mr. Herz’s barracks. Mr. Herz knew of these deaths because the block Kapo would report the number of prisoners in the barracks, sick bay and dead at each roll call.
Mr. Herz remained in Lieberose from September 1944 until February 1945. During that time, the weather was frequently cold and windy. The prisoners were very cold due to their inadequate clothing. In an attempt to warm themselves, they would sneak paper from cement bags under their clothing to ward off the bitterly cold wind. If the guards observed them doing this, they would be subject to unmerciful beatings.
Mr. Herz testified that he was frequently beaten for a number of reasons or for no apparent reason at all. On occasion he was beaten because he may have misunderstood the guards. The guards did not always speak German well, and the Kapos would sometimes misinterpret the orders. In addition, he was subjected to verbal abuse. The prisoners were not considered people and were treated as if they were a “lower grade of human being[s].” The guards and Kapos called the prisoners “Jew pig[s]”, “excrement,” and many other names. They ensured that “Jew” preceded every expletive that they used.
On one occasion, because he could speak German, and because his Kapo was required to stay with another group, Mr. Herz was delegated to lead a group of prisoners back to the camp gate. Upon arrival at the gate, he stood at attention before a guard and reported “30 men returning to camp.” The guard responded immediately, “You, Jew pig, you must understand, you are not men or persons, you are prisoners. So, the report is, yes sir, 30 prisoners returning to camp.” The guard told him that if Mr. Herz ever referred to himself as a person, he would be beaten “within an inch of [his] life.”
On February 2, 1945, Mr. Herz left Lieberose with a group of prisoners who were told that they were marching to the “mother camp,” Sachsenhausen. The prisoners were given two loaves of bread and no additional clothing during the week-long march. The weather was cold and snowy. They wore pine wood clogs on their feet which consisted of 1-1/2 -inch thick soles with a canvas covering nailed across the top, barely covering the toes. En route from Lieberose to Sachsenhausen, the prisoners who were unable to continue marching were told to sit by the side and they would be picked up by a truck. Ten to 15 minutes after leaving those prisoners, gunshots could be heard and the remaining prisoners knew that they had been killed. Soon thereafter Kapos returned with shovels and spades. During their march, as they entered each of the villages, a large sign was displayed indicating that the village was free of Jews from the year 1943 onward.
The march ended in the western suburb of Berlin named Charlottenburg. There the prisoners were marched into a rail station, where they entered first class subway cars which transported them to Sachsenhausen. They arrived at Sachsenhausen on February 10, 1945 and were instructed to enter barracks number 3. For the next 2 weeks at Sachsenhausen, the prisoners received one meal each day consisting of a thin soup and one slice of bread in the morning and one slice in the evening. The guards were present each day at the roll call in the morning and evening. After 2 weeks, the prisoners who were deemed able to work by the Kapo were placed on work detail and marched to the rail station in Sachsenhausen on February 27 or 28, 1945. In May 1945, Mr. Herz and the other prisoners were transported from the Sachsenhausen Concentration Camp to the Mauthausen, Austria Concentration Camp. Mr. Herz was liberated in Gosen number 2, one of the 20 or 30 satellite camps of the main Mauthausen Concentration Camp.
Of his family members including his grandparents, parents, and six siblings, only Mr. Herz and a brother survived. Mr. Herz arrived in the United States on December 27, 1946 and became a citizen in 1953. In 1950, he was drafted into the United States Army and assigned to the Oklahoma National Guard for duty in Korea where he served in an infantry unit. He was injured in action in the war and he has a mortar fragment in his body and two artificial hips. He has three children. He and his wife own and operate a small plant nursery and garden center in Myrtle Beach, South Carolina.
Under cross-examination by respondent’s counsel, Mr. Herz testified
that he does not know respondent. He stated that while he has written about
Jews from his village in Germany, he has never testified in Court. He stated
that he receives a small pension from Germany which began two years ago. He
has never received an apology from the German government or any German official.
B. Testimony of Dr. Dean Scott McMurry
The Government’s second witness, Dr. Dean Scott McMurry is a current employee of the Office of Special Investigations, Department of Justice, Criminal Division. He has been employed as a professional historian in the Office of Special Investigations since October 1991. In his current capacity he reviews historical documents and conducts research which requires him to work with captured Nazi wartime documents on “a daily basis.” See Exhibit 60. He has conducted primary document research in archival collections which house documents relating to the Third Reich in Washington, D.C., Western and Eastern Europe, and Russia. See Id.. He has worked in each of the archival collections which house all of the historic wartime documents contained in the Government’s exhibits, with the exception of Exhibit 26, which is from the Stutthof Museum Archive. During the course of his studies and during his years working for the Government he has worked with numerous documents pertaining to the Third Reich including documents involving Nazi Concentration Camps and the men who served at them.
Respondent’s counsel stipulated to Dr. McMurry’s qualification as an expert, in accordance with his curriculum vitae; however, respondent’s counsel objected to his testimony because he was the Government’s witness and an employee of the Department of Justice. (Exhibit 60).
Dr. McMurry testified that the Center for the Preservation of Historical Documentary Collections in Moscow, Russia (Moscow Center) was a repository for documents captured by Soviet forces during World War II and housed primarily German documents. The Moscow Center was incorporated into the Russian State Military Archive in March 1999. Dr. McMurry personally conducted research in the Moscow Center and is familiar with its collections. He described the process by which copies of documents are obtained from the Moscow Center by providing the archival number or data of the desired document and ordering them via facsimile through the State or Public Prosecutor’s Office of the Russian Federation. The request is forwarded to the Moscow Center and a copy of the document is then sent to the requesting individual.
Dr. McMurry stated that an original certified copy of the respondent’s SS Death’s Head Guard Battalion Sachsenhausen Personnel Card (camp personnel card) was obtained from the Moscow Center. (Exhibit 1). He explained that the copy contains archival markings including an archival stamp and an attached apostille, executed by Mr. Korotaev, the Assistant Director of the Moscow Center. The archival stamp contains the abbreviation or acronym for the Moscow Center and provides archival records data which indicate to a historian the location of the document within the archives.
Dr. McMurry stated that he is aware of other Sachsenhausen personnel documents contained in the record which corroborate the information on Michael Gruber’s camp personnel card. He specifically noted a Transfer List indicating a transfer of 500 men from the Sachsenhausen Concentration Camp to the training area “Kurmark” in Lieberose in September 1944, including a “Michael Gruber” born on February 6, 1915. (Exhibit 3). Additionally, Dr. McMurry noted the camp personnel cards from men whose names are found on the Transfer List are contained in the record and marked as Exhibit 4 (Josef Goldschmidt ), Exhibit 5 (Peter Reigl ), Exhibit 7 (Josef Kertz ), Exhibit 8 (Heinrich Pospischil ), and Exhibit 9 (Martin Hubert ). Dr. McMurry stated that this cross-corroboration is significant because it indicates that data on one document conforms with the data on another document, and within a group of documents and are consistent with each other. In Dr. McMurry’s expert opinion, the camp personnel card of Michael Gruber (Exhibit 1) is a true and accurate certified copy of an authentic Nazi war document, as it was contained in the collections of the Moscow Center. The Moscow Center is a place where he would expect to find the records of captured German World War II documents.
Upon cross-examination, Dr. McMurry agreed with respondent’s counsel that neither respondent’s signature, photograph, or fingerprint appears on the camp personnel card. Dr. McMurry testified that he had never seen a personnel card with any of those items on it. He stated that, based upon his experience, it was not customary for guards at Sachsenhausen to affix their signatures, photographs or fingerprints to their personnel cards. He estimated that he had examined 6 to 7 Sachsenhausen camp personnel cards in the course of his professional career. Following the conclusion of his testimony, Dr. McMurry again took the stand and stated that he remembered that he had, in fact, seen a camp personnel card bearing a photograph of an individual. Clarifying his earlier testimony, he stated that although not customary, he had seen the Sachsenhausen camp personnel card of Wilhelm Kernbach, which contained a photograph. That camp personnel card was received from the Moscow Center and German Federal Archive. The copies did not contain apostilles. When asked whether an individual whose name appears on such a card is conclusive evidence that the individual served at Sachsenhausen Concentration Camp, Dr. McMurry replied that it was possible that the named individual could have served at one of the “aussenkommandos,” such as a factory.
Over the Government’s objection, respondent’s counsel asked Dr. McMurry to state the number of guards serving at Sachsenhausen on September 1, 1943. Dr. McMurry stated that he did not know. The Government objected to counsel’s line of questioning alleging that Dr. McMurry was to testify solely regarding the authentication of the personnel card (Exhibit 1) and not to give substantive testimony about Sachsenhausen Concentration Camp. The Court overruled the Government’s objection since Dr. McMurry had been qualified not only in the area of authentication, but based upon his entire curriculum vitae as a historian.
Respondent’s counsel offered a document entitled “List of Sachsenhausen Personnel under Post-War Investigation n.d.,” which he had obtained from the Government through discovery. (Exhibit 61V). The Court permitted counsel to present the document, subject to a finding by the Court concerning its relevancy. Counsel questioned Dr. McMurry whether the name “Gruber” appeared anywhere on that document. The Government stipulated that no “Gruber” is listed on the document. The Government stated that it did not have a translation of the document; however, counsel claimed that he received a translation of its title. The Government noted that it was unsure of the source, archives, or date of the list. Dr. McMurry testified that the document contained a list of the guards at the Sachsenhausen Concentration Camp against whom investigations are still being conducted. He agreed that neither respondent nor any of the other men in his unit are listed on the document.
Upon redirect examination by the Government, Dr. McMurry stated that he did not know who prepared the list and did not know if the list encompassed individuals who were Prisoners of War (P.O.W.s) in the American, French, British, and Russian sectors of territory known at that time as Germany. Dr. McMurry testified that the names of other men who were also guards at the Sachsenhausen Concentration Camp during World War II also did not appear on the list, including Michael Negele, Ferdinand Hammer, Michael Schmidt, and Nicholas Schiffer.
Dr. McMurry testified that the notation in German on the upper right-hand corner of the document, “Anlage I” translates to “Attachment I.” He testified that he does not know to what the list was formerly attached.
C. Testimony of Dr. Smelser
The Government’s third and final witness was Dr. Ronald M. Smelser, Professor of History at the University of Utah in Salt Lake City, Utah. Respondent’s counsel stipulated to Dr. Smelser’s qualification as an expert in the history of the Holocaust based upon his curriculum vitae. See Exhibits 59, 61C. Based upon Dr. Smelser’s extensive expertise in German history and the history of the Third Reich, the Court qualified him as an expert witness.
Dr. Smelser testified that in preparation for his testimony he reviewed exhibits numbered 1 through 49, 52, 53, and 54 as well as respondent’s factual stipulations contained in exhibits 57 and 61C. The reviewed documents consist of wartime Nazi personnel documents including camp personnel cards, troop muster roles, change in strength reports, and transport reports. Additionally, he reviewed documents in the record relating to the Sachsenhausen Concentration Camp, the SS, and the Nazi regime in general. He also reviewed post-war investigations and judgments as well as secondary literature discussing concentration camps and the Nazi police system, also contained in the record.
Dr. Smelser stated that German wartime documents are generally reliable sources to historians. He explained that the Nazi regime generated a “gargantuan” amount of documentation and the reliability of that documentation varies depending on its source. For example, diaries, specifically that of Joseph Goebbels, are useful tools in understanding the mentality of the regime, but he cautioned that such diaries must be considered carefully due to their self-serving nature and the fact they were intended for ultimate publication. Furthermore, documentation in the form of inter-office memoranda and “think pieces” were generated by various agencies and offices of the regime, party and state. The reliability of such documents varies since the agencies and offices in the regime were competitive and would often make misrepresentations to improve their respective statistics.
In contrast, Dr. Smelser distinguished internally generated administrative and military documents used by the regime to account for its personnel and their actions, testifying that those documents are reliable and are what they purport to be. Dr. Smelser stated that post-war judgments and interrogations are also generally reliable sources. He reviewed the post-war judgments from West German Courts including the trials of Schubert, Sorge, and Dr. Baumkötter all of whom were at Sachsenhausen Concentration Camp and August Höhn. See Exhibits 13, 14, 15. He also reviewed Soviet interrogations and found the content of such interrogations to be generally reliable. See, e.g. Exhibit 11.
Based upon his review of all of the documentary evidence of record, Dr. Smelser believes that the respondent, Michael Gruber, was an armed SS Death’s Head Battalion Guard at Sachsenhausen Concentration Camp. In forming his opinion, Dr. Smelser reviewed several documents relating to respondent including his camp personnel card (Exhibit 1) and his recent sworn testimony contained in affidavits. See Exhibits 52, 53. He also reviewed the camp personnel cards from other men from his hometown, Krndija, who were members of the SS during the same time period. See Exhibits 4, 5, 6, 7, 8, 9.
The camp personnel card of Michael Gruber (Exhibit 1) and the information contained therein helped Dr. Smelser in forming his opinion. He noted several items of information contained in that exhibit which coincide with statements and factual stipulations made by respondent. He illustrated the conforming items to the Court. For example: the name “Michael Gruber”; the birth date of February 6, 1915 ; the birthplace of Krndija (which at the time of his birth was in Austria-Hungary, subsequently in Yugoslavia and later in Croatia); the first name and maiden name of respondent’s wife, Katharina Feldi ; the month of respondent’s marriage , the number and sex of respondent’s children , 1 male and 1 female; the religion, Roman Catholic ; the home address in Krndija ; and the occupation, farmer.
Dr. Smelser noted further that the dates of military service on the camp personnel card coincide with respondent’s sworn statements and stipulations, including his dates of service in the Yugoslavian Army between 1936 and 1937 and his September 14, 1942 date of entry into the Waffen SS as a private. Furthermore, Dr. Smelser testified that the information on the camp personnel card regarding a service period between “14 September 1942- 19 January 1943" in the “3rd Company [of the ] SS Infantry Replacement Battalion ‘East’ (Motorized)” coincides with respondent’s stipulations. The final transfer indicated on the personnel card from the Sachsenhausen Concentration Camp ”on 4. SEP 1944" to the “SS Combat Transfer Unit ‘Kurmark,’” conforms with respondent’s stipulations and his sworn interview.
Dr. Smelser testified that on the first page of the personnel card in the left-hand column, the date of November 1, 1943 indicates a promotion from private to private first class or “Sturmmann.” He noted that respondent denied receiving such promotion; however, Dr. Smelser referred the Court to additional documents which confirm respondent’s rank of Private First Class, namely, his American and French P.O.W. documents. See Exhibit 1A. Additionally, the transfer list to SS Combat Unit Kurmark dated September 13, 1944 (Exhibit 3), indicates Michael Gruber’s rank as “SS Sturmmann” or private first class.
Significant areas of disagreement also exist between the respondent’s sworn statements and the information appearing on the camp personnel card. For example, Dr. Smelser pointed to a notation at the bottom of the first page of the personnel card indicating “Transferred on 20 January 1943 to the Concentration Camp Reinforcement in Concentration Camp Sachsenhausen,” and a remark on page 3 indicating a service period of “20 January 1943 - 4 September 1944," in the “SS Death’s Head Guard Battalion, Sachsenhausen.” In contrast to this information, respondent refuted that he served in the Sachsenhausen Concentration Camp and claimed that he was elsewhere during that time period. (Exhibit 53). Although the personnel card asserts that Michael Gruber was “utiliz[ed] in the [Sachsenhausen] Concentration Camp” as a guard, when asked during an interview “Did you work at Oranienburg? ” respondent replied that he guarded a weapons transport being loaded by prisoners. See Exhibit 53 at 73 et. seq. Dr. Smelser stated that corroborative evidence exists supporting the information on the camp personnel card including the camp personnel cards for other members of the SS Death’s Head Guard Battalion at Sachsenhausen, who, like respondent, were also from Krndija, Croatia and joined the SS at the same time. See Exhibits 4-9.
Using documents contained in the record of proceedings, Dr. Smelser demonstrated that Josef Goldschmidt, Peter Riegl, Franz Gruber, Josef Kerz, and Heinrich Pospischil were all born and resided in Krndija. Dr. Smelser established that all 5 of these men entered the Waffen SS on September 14, 1942, the identical day respondent entered the Waffen SS. In comparing each personnel card (Exhibits 1 and 4-9), Dr. Smelser verified that respondent, Goldschmidt, Riegl, Franz Gruber, Kerz, Pospischil, and a 6th man, Pfaff were all assigned to the “3rd Company [of the ] SS Infantry Replacement Battalion ‘East’ (Motorized)” from September 14, 1942 to January 19,1943, and with the exception of Pfaff, were transferred on January 20, 1943 to Sachsenhausen Concentration Camp. Id. The camp personnel cards indicate that respondent, Goldschmidt, Riegl, and Pfaff were transferred to Kurmark on the identical date of September 4, 1944, while Pospischil and Kerz were transferred on September 12, 1944 and September 19, 1944, respectively . (Exhibits 1, 4, 5,7 -9). Dr. Smelser also referred the Court to the change of strength report for the month of February 1943, for the SS Death’s Head Guard Battalion, Sachsenhausen dated “Oranienburg, 3 March [1943]” (Exhibit 2) which is comprised of a list of names indicating 146 arrivals at the Sachsenhausen Concentration Camp from the “SS Grenadier Replacement Battalion ‘Ost’ (motorized),” the same unit of which all the men from Krndija identified in Exhibits 1 and 4 through 9 were members.
Dr. Smelser testified that additional corroboration is provided by the camp personnel card of Martin Hubert from “near Djakovo, Croatia,” who served in the “3rd Co, SS Infantry Replacement Battalion ‘East,’” from “14 September 1942 - 19 January 1943," and the “4th Co, SS Death’s Head Battalion, Sachsenhausen,” from “20 January 1943 - 12 September 1944.” (Exhibit 10). Hubert was ultimately transferred to Kurmark on September 12, 1944. Id. Dr. Smelser explained that, in his opinion, the variance in transfer dates on the camp personnel cards was due to the fact that the men were sent in two separate groups from Sachsenhausen to Kurmark. Dr. Smelser also recited, in part, a statement made by Hubert on May 5, 1952, at the Salzburg Branch Office of the Displaced Persons Screening Project and United States Army Intelligence (Exhibit 10A) which states:
According to SUBJECT he was conscripted into the Waffen SS in September 1942 and assigned to the 3rd SS “Ersatz Battalion OST” in Breslau, Germany. SUBJECT received infantry training until December 1942 and was then transferred to Zhitomir, Ukraine, USSR where he participated in field maneuvers until February 1943. At that time the Ethnic German soldiers from the SS Ersatz Battalion “Ost” were transferred to the 3rd Company of the SS “Totenkopf Verband” where they were assigned duties as concentration camp guards at the Concentration Camp Sachsenhausen near Oranienburg, Germany until September 1944. In September 1944 SUBJECT was transferred to the “Truppen Uebungs Platz” - Training area near Kurmarkt near Berlin, Germany...
Dr. Smelser noted that roughly in accordance with Huber’s statement, his camp personnel card lists his date of transfer to the Sachsenhausen Concentration Camp as January 20, 1943. See Exhibit 10. Dr. Smelser stated that the “Kurmark” mentioned by Mr. Herz and the Kurmark mentioned by respondent in his sworn interview (Exhibits 52,53) was likely the same location.
Dr. Smelser asserted that the sworn statements made by respondent confirming his service as a Death’s Head Guard at Sachsenhausen include his admissions that: he was transferred to Breslau for basic training; his unit was thereafter transferred to Zhitomir, Ukraine and he was then in the company of other ethnic Germans who he names as Goldschmidt, Kerz, and Riegl; and he was at Oranienburg. (Exhibits 52, 53). His admission that he was at Oranienburg is significant because, according to Dr. Smelser, “Oranienburg” was another name for the Sachsenhausen Concentration Camp and the two terms were used interchangeably by both former prisoners and guards.
In respondent’s sworn statements, he indicated he was in Oranienburg guarding a train being loaded with military goods by prisoners in striped uniforms. (Exhibit 53). Dr. Smelser asserted that only concentration camp inmates wore such striped uniforms. Respondent also indicated he was not permitted to speak with the prisoners and he was to keep at a certain distance. Id. Dr. Smelser testified that respondent’s statement in this regard is significant because it is consistent with the regulations stipulating the behavior of concentration camp guards. (Exhibit 27T). According to Dr. Smelser, guards were not permitted to speak with prisoners except within the narrow confines of their guard duty and the guards were specifically advised to keep a certain distance from them. Dr. Smelser elaborated that, in respondent’s case, because the train station was a work site, in accordance with the regulations, the guards would establish a perimeter around the prisoners such that the guards were not involved in the immediate work activity.
Dr. Smelser detailed additional statements made under oath by respondent indicating his service at Sachsenhausen including respondent’s statements that: he wore a Waffen SS uniform and a cap bearing the Death’s Head insignia; he performed guard duty with a loaded rifle; he has an SS blood group tattoo; and he drew pay and received leave from the Waffen SS. (Exhibit 53). Dr. Smelser testified in his expert opinion as a historian that based on the camp personnel card of Michael Gruber, camp personnel cards from other residents of Krndija, Croatia, respondent’s sworn statements, and other documents of record, respondent was an armed SS Death’s Head Guard at Sachsenhausen Concentration Camp.
He then detailed the role of the SS Death’s Head Guards whose primary duty was to prevent the escape of prisoners. The guards were vital in maintaining work discipline, by accompanying prisoners to work sites and by reporting any infractions. The guarding would occur from the perimeter of the camp where the prisoners were held, including from the guard towers manned with rifles or machine guns, and from a strip between the outer masonry wall between the camp and the inner electrified barbed wire fence. They guards were important in maintaining the security of the camp SS and its administrative personnel. The primary duty of SS guards was to keep prisoners confined and prevent them from leaving the camp. The guards also accompanied transports of prisoners to and from Sachsenhausen and other concentration camps. Dr. Smelser stated that a guard would be obliged to shoot anyone he saw attempting to escape, to report infractions to superiors, and to represent the Waffen SS vis-a-vis all prisoners. The guards were required to be in readiness should there be any sign of unrest in the camp, such as during roll call or during public executions. Guards could also be assigned duty on a firing squad.
Dr. Smelser related that respondent would have had the same duties as other guards at Sachsenhausen including the guarding of prisoners. As a guard, respondent would have been required to accompany prisoners from the protective custody camp to the various work sites, to establish a guard cordon around those work sites, and to accompany the prisoners back to the camp at the end of the work day.
The prisoners in Sachsenhausen were ill-fed, ill-housed, and overworked. Dr. Smelser stated that they were often worked to death, harassed, beaten, tortured and dehumanized. When the prisoners were first brought to the camp, they were registered by the Gestapo, or administrative personnel, and subjected to verbal and physical abuse. For example, Dr. Smelser stated that the individual taking the prisoners’ vital information would, instead of asking “What was the name of your mother?” ask, “What is the name of the bitch that shat you into this world?” The prisoners were then stripped of their clothing, their heads and bodies were shaved, and they were put through delousing and disinfectant. Finally, they would be given ill-fitting uniforms and wooden clogs for their feet and assigned to wooden barracks. During the entire process they would be subjected to verbal and physical abuse.
Dr. Smelser testified that the prisoners at Sachsenhausen wore triangles on their uniforms. He asserted that a Death’s Head guard would have been able to distinguish who the prisoners were by the markings on their uniforms. When asked if respondent should have doubted that the prisoners he guarded were in fact criminals, Dr. Smelser stated that if respondent were even passingly aware of the meaning of the triangles, he would have known that many of the prisoners were not criminals. Dr. Smelser stated that if respondent were a perimeter guard at a work site he would have been obliged to be at least 6 paces away from an individual prisoner and would have been able to see those triangles from time to time.
Dr. Smelser described a typical day for a prisoner beginning with revelry at 4:30-5:00 a.m. The prisoners would rush to perform basic functions with inadequate facilities. Roll call at the square would follow, and the bodies of those who had died during the night were brought to the square to ensure an accurate count. The prisoners would then be given an inadequate meal consisting of a piece of bread or a cup of gruel and marched to their work assignment. While the work assignments varied, they were for the most part heavy and physically crushing. The prisoners would receive a short lunch break with inadequate nourishment. In the evening they would return to camp, where they would again stand at roll call which could last between 30 minutes and an hour. They would receive a small meal before being returned to their barracks. If a prisoner had escaped, the roll call would last as long as necessary to find the missing individual. It could be as short as half an hour or as long as 18 hours. Regardless of the length of the roll call, the prisoners would be required to report to work the next morning.
Dr. Smelser then detailed the physical layout of the Sachsenhausen Concentration Camp. See Exhibit 33T. He explained that the surrounding area of the camp was partially residential although much of it was devoted to SS barracks, various workshops, construction areas, vehicle depots, and a brick works. Dr. Smelser described the brick works as a particularly punishing area, which the Nazis established to produce bricks and stone for Hitler’s construction projects. Prisoners often performed heavy labor in knee-deep water, dug out clay and loaded heavy bricks. Other work details existed outside the camp. The SS established more of its own business enterprises as the war progressed and invited other outside industries to relocate closer to the camp so that they could avail themselves of concentration camp labor.
The entire concentration camp was centered around the protective custody camp,
which was in the shape of an isosceles triangle and was approximately 600 meters
on each side. At its base was the “Kommandantur,” the administrative
area, consisting of the commandant’s office, Gestapo office, and the entrance
to the camp, an iron gate which read “Work will make you free.”
The SS barracks facility bordered the protective custody camp. In Dr. Smelser’s
opinion, if respondent was at Sachsenhausen, he would have either been housed
in the SS barracks bordering the camp or he would have been in barracks within
the confines of “Kommandantur.” In the center of the protective
custody camp, was the roll call square where the prisoners would gather every
morning and evening. Public executions at Sachsenhausen, required to be viewed
by prisoners, likely occurred several times monthly and would be conducted on
portable gallows in the square.
On the outer perimeter of the protective custody camp, a shoe testing track
was laid out with nine different surfaces. Prisoners wearing heavy packs would
be required to test new army boots, while marching in double-time around the
track. Punitive company barracks 13 and 14 were for the prisoners the SS believed
needed particularly punitive kinds of work. Prisoners in those barracks were
temporarily assigned “killing work assignments,” which were extremely
physically punishing and in some cases, actually involved physically killing
other human beings. The adjacent T-shaped building was the Gestapo prison, consisting
of a concrete building with cells and metal doors, where various arrest assignments
would occur.
Dr. Smelser described the infirmary and pathology buildings within the Protective Custody Camp. Prisoners often went to the infirmary to die. In these buildings, medical experiments were carried out on live human beings, including the infliction of phosphorous burns to test new healing salves. Dr. Smelser commented that prisoners were selected arbitrarily for this treatment.
In an isolated area outside the camp, still surrounded by towers and barbed wire, were the firing squad ditches and crematorium station Z. There, the SS had 4 different methods of killing prisoners: (1) firing squad ditches where people were marched down an incline and shot; (2) hooks inside a building where prisoners could be hanged; (3) a small gas chamber; and (4) a “nape shot” facility. The “nape shot” facility was a room which appeared to be a doctor’s examining room, where individuals would be brought in and someone in a white doctor’s coat would pretend to give them superficial examinations. In the “nape shot” facility the prisoners were then stood against the wall allegedly to have their height measured. The vertical portion of the height measurement had a slit in it which connected to the neighboring room so that when the horizontal bar came down to measure the prisoners’ height, an SS member in the neighboring room would shoot the person in the nape of the neck. This scheme was devised to lull the prisoners into a false sense of immediate security.
Prisoners of war were not housed in concentration camps, but were placed in separate German-run P.O.W. camps. See Exhibit 38T. Dr. Smelser related that P.O.W.s from Western countries received better treatment than Russian P.O.W.s on racial grounds. Some allied P.O.W. pilots were housed in the separate P.O.W. camp at Sachsenhausen and not within the confines of the protective custody camp. While Western P.O.W.s generally received better treatment than their Slavic and Russian counterparts, a group of 70 British and American P.O.W.s were nonetheless shot and killed in Sachsenhausen.
Dr. Smelser testified that the purpose of the concentration camp system was to remove from society those individuals identified as enemies and to incarcerate, brutalize, and eventually annihilate them. While some individuals were identified arbitrarily, there were certain specific groups that the Nazis viewed as enemies. People were classified as enemies of the Nazi State based upon their race, religion, national origin or political opinion. Individuals who criticized the Nazi regime from a political perspective, particularly Communists, and later including Social Democrats, were targeted by the Nazi regime. The Nazis perceived Jehovah’s Witnesses as religious enemies because they were pacifists and refused to serve in uniform and were thus seen as a force undermining German military prowess. From 1937 through 1939, the Nazis also identified “asocials” as enemies including pimps, prostitutes, recidivist criminals, wanderers, gypsies, and the mentally ill. These groups were viewed as either dangerous to the system or of no use to the system. Lastly, the racial enemy of the Nazi regime was above all the Jew.
In his testimony, Dr. Smelser explained that race was central to Nazi ideology, and was viewed as the key to history. Some races, such as the Aryan race, were alleged to be superior, while others were viewed as inherently inferior. The Nazis believed that if the superior races mixed with the inferior races, the number and size of the inferior races would increase. Within Nazi ideology, the Jew, in particular, was viewed as “a human pathogen”and “an anti-race with global reach.” The Nazis feared and hated the Jews and held them responsible for the loss of World War I. Jews were viewed as a racial pathogen with the desire to mingle with and “pollute” the Aryan race. They were further linked to the political enemy through “Jewish Bolshevism.” Dr. Smelser testified that the “Nazis were able to take a kernel of truth and blow it up to a large popcorn of propaganda,” and therefore many people were convinced that communism was a Jewish conspiracy.
Dr. Smelser provided a brief summary of the historical progression of the Nazi regime. In 1933, Hitler became Chancellor of Germany and the Nazi party came to power. Hitler solidified that power in June 1934, when he used the SS to massacre the top leadership of the paramilitary group, the Storm Troopers. Thereafter, the SS emerged as “an empire within an empire.” In 1936, Heinrich Himmler combined the title of head of the SS, and chief of the German police, thus bringing the two organizations together. Also in 1936, Hitler occupied the Rheinland, thus breaking one of the tenets of the Treaty of Versailles.
In 1938, Hitler achieved two major foreign policy successes during the “Anschluss,”
by joining Austria and Sudetenland (inhabited by ethnic Germans) to Nazi Germany.
In November 1938, during the Reichskristallnacht or “Night of the Broken
Glass” Storm Troopers were released throughout Germany invading Jewish
homes and burning Synagogues and Jewish businesses. On September 1, 1939, Hitler
unleashed World War II. The start of war impacted the concentration camp system
because the Nazis began to occupy country after country, thus bringing many
non-Germans under German control. During this time, the Nazis found more enemies
than before and therefore began arresting more individuals, and building more
concentration camps, including Auschwitz. The populations of the concentration
camps swelled after the start of the war. A “protective custody order”
was promulgated, which simplified the Nazis’ ability to place individuals
into concentration camps. The protective custody order issued by the Gestapo
contained charges against individuals and required them to report to the police
station. They were then transported to concentration camps, without any judicial
proceedings.
In 1940, the war expanded westward and Germany occupied Norway, Denmark, Holland,
Belgium, and France. The invasion of the Soviet Union occurred on June 22, 1941,
launching a massive attack on what was perceived as “the fundamental Jewish
Bolshevist enemy.” In late 1941, Jews were being sent Eastward to be murdered
while others were murdered in the German camps. Reluctantly, Hitler permitted
some Jews with special labor skills to remain in Sachsenhausen. In the summer
of 1944, 300 to 400 Jehovah’s Witnesses and several hundred homosexuals
were incarcerated in Sachsenhausen.
On November 19, 1942, at the Battle of Stalingrad, Germans occupied 90% of Stalingrad. After the Soviets launched a defensive attack, the final result was a “pocket” of German military surrounded by Soviet soldiers and the demise of the German 6th Army. The SS Infantry Replacement Battalion East was sent through Zhitomir in the Ukraine to take part in that battle, but once the German 6th Army was enveloped, no one could move in or out.
Meanwhile, the prison population of the Sachsenhausen Concentration Camp grew swiftly in November and December of 1942 and reached approximately 16,500 inmates. By the end of January 1943, the population increased by 25% to a total of approximately 21,000 prisoners. In response to the sudden need for additional guards, SS units which were previously transferred East for combat were transferred West for concentration camp duty. In November 1942, the Sachsenhausen prisoner population experienced an influx of Eastern European (mainly Polish and Russian) prisoners as well as prisoners from Western Europe, while the percentage of German prisoners declined. Western Europeans were brought to Sachsenhausen after the “Night and Fog Order” (“Nacht und Nebel”), which allowed the Germans to spirit a large number of people from areas such as France into Germany without providing any information to their families or any legal processes. Those individuals were then incarcerated in concentration camps for extended periods of time. The “Night and Fog Order” brought in people who either were formerly involved in or thought to be involved in the resistance.
The labor forces lost through the enormous casualties and the rising number of men drafted into military were replaced by slave labor. The concentration camps became important pools of such slave labor due to the changed nature of the war economy. The increase in the population at the Sachsenhausen Concentration Camp correspondingly required an increase in the number of its subcamps. In 1943 and 1944, Dr. Smelser estimated that there were approximately 70 to 80 subcamps, including both Schwarzheide and Lieberose, with satellite camps as far away as Riga. The conditions of the subcamps and the inhumane treatment meted out to the prisoners in Sachsenhausen was mirrored in each subcamp. Between 1942 and 1945 an estimated total of 5,700 guards served at the Sachsenhausen Concentration Camp. Dr. Smelser testified that every individual guard took part in persecution to the extent that his responsibility was to guard the prisoners and prevent them from leaving the protective custody camp. Dr. Smelser estimated that 200,000 people were incarcerated in Sachsenhausen between 1936 and 1945. Based upon an estimate by Anton Kaindl, the Sachsenhausen Concentration Camp Commandant from 1942 until 1945, 42,000 of those 200,000 prisoners died. Dr. Smelser accepts Kaindl’s figures as correct and has no reason to believe that Kaindl under or overestimated that figure.
Upon cross-examination, when questioned whether respondent was conscripted or whether he voluntarily joined the Waffen SS, Dr. Smelser testified that the Waffen SS was a volunteer organization. He stated that the government of Croatia allowed the Waffen SS to recruit among the ethnic Germans living in Croatia. He distinguished forced conscription or being “drafted” by stating that a “draft” implies a national obligation and a method for calling up names. Since such a system was absent, it was Dr. Smelser’s opinion that respondent “joined” the Waffen SS rather than being conscripted. Respondent’s counsel questioned how an individual coerced to join an organization could be considered a volunteer. Dr. Smelser explained that the SS was permitted to draft individuals in certain areas in 1943 and 1944, therefore when respondent entered the Waffen SS, he wasn’t technically drafted, but he could have joined under coercion.
In summary, Dr. Smelser stated that Adolf Hitler’s ultimate aim was to destroy his arch enemy in the world, namely the Jews, and to annihilate individuals and groups in German society or elsewhere which he viewed as threats or superfluous to the Nazi regime.
D. Factual Stipulations
On March 9, 2000 and May 19, 2000 the respondent, through counsel, and the Government filed two separate joint submissions of factual stipulations with the Court. (Exhibits 57, 61C).
Respondent, an ethnic German, was born in Krndija, Croatia on February 6, 1915 and baptized into the Roman Catholic faith. His parents were Ignaz Gruber and Rosario Gruber, née Kleschitz. He married Katharina Gruber, née Feldi, on either February 12, 1935 or February 4, 1936. Respondent has a daughter, Anna Gruber Königshofer, who was born on June 24, 1936 and a son, Peter Gruber, who was born on June 24, 1942.
Respondent’s service in the Waffen SS began on September 14, 1942. He was assigned to the 3rd Company SS Rifle Replacement Battalion “East” motorized. From on or about October 1942 to on or about January 20, 1942, he served as a member of the Waffen SS at Zhitomir, Ukraine. On September 4, 1944, respondent was transferred to the SS Combat March Formation “Kurmark,” where he was assigned to the 17th SS Armored Infantry Division “Goetz von Berlichingen.”
IV. Credibility
The Court observed the testimony of the Government’s three witnesses,
Mr. Herz, Dr. McMurry, and Dr. Smelser and finds that they each testified credibly.
The testimony of each witness was consistent and believable in light of the
wealth of corroborating documentary evidence presented in this case. Mr. Herz
testified regarding his very painful experiences while a prisoner at Sachsenhausen
and two of its satellite camps, Schwarzheide and Lieberose. He did not claim
to know respondent and therefore it cannot be said that he had anything to gain
by providing false testimony to the Court. Respondent’s counsel objected
to Dr. McMurry’s testimony because he is an employee of the Criminal Division
of the United States Department of Justice. The Court did not observe any bias
on the part of Dr. McMurry and found that he testified credibly and in accordance
with his expertise as a historian. His testimony is corroborated by uncontested
documents which are contained in the record. Likewise, Dr. Smelser’s testimony
was based upon his expertise and was equally consistent and believable, standing
alone and especially in light of the abundant corroborating evidence in the
record.
As respondent was not present during the removal proceeding, and the Court was
not present during his sworn interview, the Court is unable to assess respondent’s
credibility. The Court found each witness forthright and candid in his testimony,
therefore, the Court has no reason to question the veracity of the witness testimony
in this case.
V. Historical Background
A. Development of the Concentration Camp System in the Third Reich
In addition to the Government’s witness testimony, the Government has submitted documentary evidence including wartime Nazi personnel documents, Nazi historical documents, and post-war statements and findings describing the Sachsenhausen Concentration Camp. To fully comprehend the role of an armed Waffen SS Death’s Head Guard at Sachsenhausen Concentration Camp, one must understand the political environment which generated the camps.
The German National Socialist Party (NSDAP), under the leadership of Adolf Hitler, seized power on January 30, 1933. (Exhibit 13T at 13). In response to a burning of the Reichstag Building on February 27, 1933, the Reich government, in defense against “revolutionary efforts hostile to the state and nation [Volk]” temporarily canceled the civil guarantees of the Weimar Constitution, including the right of freedom of the individual. Id. The NSDAP began taking hold of state police power and building up a special police force to fight and destroy Communists and any opponents of the national socialist system. Id. This defense of the German state and nation took the form of protective custody orders which were imposed either “for the personal protection of [a] prisoner,” or, “if [a] prisoner by his behavior directly endanger[ed] the public safety and order, particularly by activity hostile to the state.” (Exhibit 18T). A protective custody order was executed with the delivery of a written and officially signed order at the time a prisoner was taken into custody or within 24 hours after arrest. Id. The Reich government directed that “[p]rotective custody [was] to be enforced exclusively in state prisons or concentration camps.” Id. Initially, Communist legislators were placed in “protective detention.” Id.
The protective detention camps assembled in accordance with the February 28, 1933 decree were not well organized and the treatment of the prisoners in the camp varied. Chief of the German Security Police and the Security Service, Heydrich, directed Colonel Eicke to establish Dachau as the first official police concentration camp. See Exhibits 13,16. Dachau became the model for new concentration camps, including Sachsenhausen. Id. Following Hitler’s rise to power in 1933, Goering, the former head of the Security Police initiated the creation of concentration camps in various locations in Germany. (Exhibit 11T). In 1934, when Heinrich Himmler took over the leadership of the German police and the Reich’s Interior Ministry, he reorganized the camp system and created the 5 central camps of Dachau, Esterwegen, Columbia-Berlin, Frankenburg and Lichtenburg. Id. That same year, Himmler received a mandate to combat all opponents of the Nazi regime. A National Socialist police state was created with Himmler, as the Chief of the German Police, at its head. According to a memorandum dated April 30, 1942, there were at that time 6 main concentration camps with 21,400 prisoners, and by August 1943, there were 19 concentration camps holding over 224,000 prisoners.
In a secret memorandum regarding the principles of internal state security during World War II, dated September 1939, the Chief of the German Security Police, Heydrich, stated that “[a]ny attempt to undermine the solidarity and fighting spirit of the German people w[ould] be ruthlessly suppressed.” (Exhibit 20). In particular, any person who expresse[d] any doubt about a German victory, or the legality of war, w[ould] be arrested immediately.” Id. Such treatment would not befall a “volksgenossen,” that is, an individual considered by the Nazi government to be a German. Id. A “volksgenossen” in such a case, would be “treated with understanding and re-educating efforts [would] be exercised to strengthen him.” Id.
Heydrich ordered the arrest of any person who attempted to organize groups to disseminate anti-German or anti-Reich statements. Id. After preparation of a report regarding such individual and his or her activities, the report was required to be forwarded to Heydrich requesting a decision regarding further action against the suspect “because higher authorities may order the brutal liquidation of such elements of society.” Id. Informers who denounced a “volksgenossen” for personal, unjustified, or exaggerated reasons were to be given an emphatic warning, or in malicious cases, taken to a concentration camp. Id.
At the outbreak of World War II on September 1, 1939, 6 concentration camps existed, including Sachsenhausen. (Exhibit 31). Between 1940 and 1942, 9 additional concentration camps were erected. Id. The war changed the structure of the concentration camps. A document regarding “Protective Detention” dated October 24, 1939, and signed by Deputy Mueller of the Chief of the Security Police and of the SD [Security Service] and addressed for information to “the Inspector General of the reinforced Death’s Head regiment in Oranienburg”(emphasis in original) states that prisoners were not to be released from protective detention during wartime, especially “enemies of the state with long criminal records and markedly asocial elements.” (Exhibit 23T).
On September 21, 1939, in a secret communication from Heydrich to the Chiefs of All Einsatzgruppen of the Security Police, Heydrich described the “strictly secret” “final goal.” (Exhibit 21T). In this document Heydrich distinguishes between the “final goal,” and the various phases necessary in attaining that goal. Id. Heydrich outlined a plan involving the “concentration of the Jews from the rural areas into the major cities.” Id. “The explanation for concentrating the Jews in the cities is to be that the Jews participated most decisively in the sniper attacks and looting.” Id. His goal was to make certain areas of Germany completely “free of Jews,” with the exception of a few cities of concentration. Id. In the German-occupied territories, the goal was to establish as few concentration points as possible in railroad hubs or on railroad lines “so that the implementation of subsequent measures [could] be facilitated.” Id.
To assist the Reich in implementing its goals, Heydrich ordered the establishment of a “Jewish council of elders” fully responsible for the prompt implementation of all issued instructions. Id. The councils were charged with carrying out an improvised census of Jews in their local areas categorized by age, sex, and main occupation type. Id. The needs of the army were paramount and although Heydrich recognized the necessity of some Jewish merchants remaining to supply the army, the local German administration was to “work toward the swift Aryanization of th[ose] enterprises and subsequent emigration of th[ose] Jews.” Id. Real estate owned by Jewish settlers was to be given to German “or even Polish” farmers. Id. In the Aryanization of the Jewish industrial branches and enterprises which required an assignment of German or Polish personnel, “[i]f Polish workers [were required to be] called in, it [was] necessary to keep in mind that they must above all be obtained from the former German provinces so that the Polish community there [could] be diluted.” Id.
On March 9, 1940, Himmler issued an order banning the release of all Jewish protective detainees in the concentration camps for the duration of the war. (Exhibit 25T). Following the start of the military campaign against the Soviet Union on June 22, 1941 and increased activities hostile to the state, Heydrich, in a confidential memorandum, ordered that “all rabble-rousing clergy, Czechs and Poles hostile to Germany, as well as Communists and similar low-life shall as a matter of principle be transferred to a concentration camp for a longer period of time.” (Exhibit 29T). “Poles and Eastern nationals are alien and racial inferior people living in the German Reich Territory.” (Exhibit 34T). “[P]ersons of an alien race, for reasons of public interest, are to be treated in an entirely different way from German people...” Id. On July 31, 1941, Goering, the Reich Marshal of the Greater German Reich, wrote to Heydrich, “...I hereby charge you with making all necessary preparations in regard to organizational and financial matters for bringing about a complete solution of the Jewish question in the German sphere of influence in Europe.” (Exhibit 28T ).
On April 30, 1942, Lieutenant General Pohl stated that the custody of prisoners was no longer for reasons of security, education, or prevention, but for economic benefit to the Reich, specifically in the area of the armaments industry. (Exhibit 31T). As of May 1, 1942, the camp commandants of the concentration camps were charged as solely responsible for the utilization of manpower. Id. It was directed that the utilization be “in the true meaning of the word, exhaustive, in order to achieve the greatest measure of performance.” Id. Working hours were to be potentially unlimited and were to be fixed by the camp commandant, and any shortening of hours was required to be restricted to an “incredible minimum.” Id. Thus, the concentration camps served the dual role of providing manpower to aid Germany’s war effort and simultaneously causing pain, suffering, and death to Germany’s perceived enemies.
The Headquarters of the Kommandantur (commandant’s headquarters) of the Death’s Head formations were transferred from Dachau to Oranienburg. Death’s Head formations were responsible for guarding concentration camps. (Exhibit 18T at 19). The Death’s Head formation had a double function, an administrative role for the concentration camps and a separate training role for the military units. (Exhibit 13T). The camp commandant assumed this double role at the individual camp level. Id.
The Service Regulations for the Escorts and Prison Guards from the Dachau
Concentration Camp, dated October 1, 1933 details the duties of the prisoner
work escort units. (Exhibit 17T). SS escort guards were viewed as the “prisoners’
superiors,” and their duty consisted solely of guarding the prisoners.
Id. “The SS escort guards are not allowed to talk to prisoners except
in the line of duty.” Id. Contained in the regulations under the heading:
“Guard-Duty”is
the following provision: “A prisoner who attempt [sic] to escape is to
be shot without challenging. The guard who shoots an escaping prisoner in the
execution of his duty will not punished.” (Emphasis in original translation).
Id. Additionally, “warning shots [we]re basically forbidden.” Id.
Contained in the record of proceedings is a “Wrong-Right” picture book intended to provide instruction for guards in concentration camp service. (Exhibit 24T). It contains depictions of, inter alia, the proper method by which to guard columns of prisoners and prisoner work details, and the loading and unloading of prison transports by truck and train. Id. Each depiction shows SS guards with their weapons trained on prisoners at all times. In a tirade by Heydrich at the conclusion of the picture book he states: “If someone is our deliberate opponent, then he is only to be wrestled down as an opponent objectively and without exception.” Id.
The Service Regulations for Concentration Camps dated 1941, and signed by Himmler, were applicable to all concentration camps, and stated that the camp commandant regulated and supervised all duty performed in the concentration camp and was responsible for providing the guards with repeated instruction of the punishment required for violations by prisoners. (Exhibit 26T). Each of the camps had their own local guard duty regulations. The camp commandant “[wa]s responsible for giving leave to the SS personnel of his duty station in accordance with the leave regulations for SS personnel...” Id. at 8. The protective detention camp was directed by an SS officer. The gates of the camp were required to remain closed at all times. The ratio of guard to prisoner for outside detail was 1 to 4. The guards’ uniforms consisted of a gray service uniform, cap, rifle or submachine gun, bayonet, and live ammunition. Guards were required to remain 6 paces from prisoners at all times. Id. The primary camp regulation was: “[p]risoners in the concentration camps have a subordinate status regardless of age, origin, or standing and must immediately and without contradiction obey the orders issued by their superiors.” All prisoners were obligated to work without exception. The regulations also outline the disciplinary and arrest penalties. Id.
The Draft of “Tasks and Duties of Guards” dated July 27 (Exhibit 41T) was used as background material to instruct SS concentration camp guards (including those at Sachsenhausen) at least once a week. In question-answer format, it addresses the anticipated commonly posed questions of the guards and the required answers. When asked what types of people are housed in the camps, the guards were told that they were criminals, asocials, the sexually abnormal, enemies of the state, loafers, thieves, habitual criminals, and parasites on the nation. Id. The concentration camp guards were instructed that they protected the Fatherland from the internal enemy, while the soldiers on the front protected the Fatherland from the external enemy. The “General Guard Directive” was: “It is forbidden to the guard, unless explicitly determined otherwise, to lay his weapon down.” Id. Regarding the specific guard duties, the guard was told that his main and most important task was to guard the prisoners.
The other primary task of the guards was to keep the prisoners working. Id. Prisoners in the concentration camps, including Sachsenhausen, were forced to work 11-hour workdays, Monday through Saturday. (Exhibit 46T). The guards were instructed to use their weapons against prisoners either after challenging or without challenging. If prisoners mutinied or revolted, the guards were instructed to command that everyone lie down, and if a prisoner raised his head the guards were instructed to fire upon them as that indicated the prisoner’s intent to flee. If a prisoner displayed signs of getting violent, guards were instructed to fire upon the prisoner immediately. Guards were instructed to always break resistance with their weapon. (Exhibit 41T).
“Special treatment” was the euphemism for executions carried out in the concentration camps. (Exhibit 22T). Six SS men would comprise a firing squad. (Exhibit 35T). Hangings would be carried out by a protective detention prisoner, who would receive 3 cigarettes for the execution. The security of the camps was of the utmost concern of the Reich, as evidenced by the plethora of documentation produced discussing the guarding of the camps. E.g. Exhibit 36T.
“The gruesome crimes committed in all concentration camps are explained not so much by there having been potential murderers among the guard personnel but rather by the fact that the SS leadership openly or also covertly urged the guard personnel on to commit crimes against prisoners for alleged welfare of the Fatherland.” (Exhibit 13T). Jews were viewed as “a racially inferior breed,“ and Jehovah’s Witnesses were seen as a sect that had been founded to undermine Germany’s defensive strength. Exhibit 18 at 56. Himmler referred to the Polish population as “a refractory population on the lowest cultural level.” (Exhibit 13T). The prisoners were specifically forbidden to report any of the mistreatment they endured to the outside world. Id.
B. Operation of the Sachsenhausen Concentration Camp System
The historical documentation of record which describes Sachsenhausen concentration camp consists predominantly of post-war statements and judicial findings.
The Sachsenhausen Concentration Camp was founded in August 1936 and was located on the ou