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ABOUT THAT AD...

In light of Norman Finkelstein's effort to peddle his vituperative book by taking out advertisements in The Nation [see page 17] calling me a liar, I have asked The Nation to print the letter I sent to Finkelstein prior to the publication of his attack on me, pointing out the numerous errors in his work. I'll let fair-minded readers decide which of us is the liar. Shame on Verso for descending to such a level of venomous and blatantly false sensationalism just to make a buck. I only hope The Nation is charging premium rates for the ads. Finally, to be called a liar by Norman Finkelstein is like being called a traitor by Osama bin Laden. It means you must be doing something right.
      --Burt Neuborne

New York City

Since you were courteous enough to provide me with a prepublication copy of your proposed text labeling me, among other things, a hypocrite, a coward, a falsifier of documents and a shakedown artist and calling for my disbarment, I will provide you the reciprocal courtesy of a serious response, without the venom. Before dealing specifically with your material, though, I want to correct an apparent misapprehension about my relationship with what you call "the Holocaust industry." I have never met Edgar Bronfman or any member of his staff. I did not attend the dinner that opens your chapter. I have never represented the Claims Conference. Indeed, before this litigation, I had never even heard of it. For most of my career, I have been at odds with many Jewish organizations because, as an ACLU lawyer, I represented Nazis--and everyone else--in free speech cases.

In fact I was drawn into the Swiss banks case by a specific request from Chief Judge Korman, who, because of my academic reputation and my earlier work in his court challenging unconstitutional restrictions on access to the ballot, asked me to organize the plaintiffs' Executive Committee and to serve as co-counsel for all plaintiffs. My career has been as a civil rights/civil liberties lawyer and an academic. I spent eleven years on the full-time legal staff of the ACLU, eventually serving as ACLU National Legal Director during the Reagan years. Thus, while I have no quarrel with your right to criticize my work and my judgment, I do object to your inaccurate effort to cast me as a participant in some larger conspiracy. I am simply an experienced constitutional lawyer who was asked by a respected federal judge to take on a difficult case. Once I accepted Judge Korman's invitation to work on the Swiss bank litigation for deeply personal reasons, I fulfilled my duties as a lawyer to the best of my ability.

Your claim that I played a major role in developing the legal theories underlying the Swiss bank cases is true. My June 16, 1997, memorandum of law, together with the four amended complaints I filed on July 30, 1997, set out the legal arguments against Swiss banks. Your characterization of the legal theories as a "shakedown" is, however, completely false. The contract, bailment and constructive trust legal theories underlying the demand for the return of Holocaust-era bank accounts are conventional and universally acknowledged. The international law theories underlying the demand for the disgorgement of unjust enrichment obtained by Swiss banks through knowingly dealing in Nazi plunder and knowingly financing slave labor camps, while more controversial, fall comfortably within precedents in this circuit upholding international law claims against foreign defendants. If you took the time to read my June, 16, 1997, memorandum of law, you would see that the legal theories are very carefully developed. The best test of the validity of my theories is that the banks elected to pay $1.25 billion rather than face them in court.

Your accusation that "hypocrisy and cowardice" explain my failure to have sued the United States for its appalling immigration policy during World War II is ridiculous. If you had done a minimum of research, you would know that I have repeatedly sued the United States in far more challenging circumstances. I was the lawyer who sued the United States several times between 1968 and 1973, arguing that the Vietnam War was illegal. I was the lawyer who sued the United States on behalf of Morton Sobell when the parole board attempted to muzzle him after his release from federal prison. I was one of Daniel Ellsberg's lawyers arguing that the United States lacked power to enjoin publication of the Pentagon Papers. I represented The Progressive magazine when the United States sought to block publication of H-bomb designs. I was counsel in the first wave of flag desecration cases, arguing that the First Amendment protects symbolic use of the flag. I represented homeless plaintiffs in the Supreme Court when they sought to erect a tent city in Lafayette Park across from the White House. I represented the Socialist Labor Party when the authorities blocked its presidential candidate from the ballot. I challenged the effort to prevent Americans from traveling to Cuba. As National Legal Director of the ACLU during the Reagan years, I repeatedly challenged efforts by the United States to cut back on constitutional rights, including efforts to muzzle Palestinian speakers, and efforts to foreclose on family farmers. This year, in Velazquez, I successfully represented federally funded lawyers for the poor in the Supreme Court against the United States when Congress attempted to limit their ability to argue effectively in welfare cases.

The real reason that no suit was brought against the United States challenging its appalling World War II immigration record was not my "hypocrisy and cowardice" but the doctrine of sovereign immunity. Under well-settled law, you simply cannot sue the United States for damages arising out of an immigration decision, even an appalling one. For your information, we never sued Switzerland for its refugee policy because sovereign immunity would have blocked the action. The Swiss asked that refugees be allowed to participate in the settlement, and we agreed.

You seem to imply that it was dishonest of me to have criticized the Volcker audit in my June 16, 1997, memorandum of law while later praising the results of the audit in my subsequent submissions to the Court defending the Swiss bank settlement. But your incomplete description of my June 16, 1997, memorandum badly distorts my position.

The criticism of the Volcker committee audit contained in my June 16, 1997, memorandum was in response to a formal motion by counsel for the Swiss bank defendants seeking to dismiss the Swiss bank litigation as unnecessary because the Volcker audit could be trusted to deal with the problem of Holocaust-era bank deposits without the need for judicial involvement. I argued then--and would repeat the argument now--that a private, nonjudicial audit financed by a defendant can never be a complete substitute for judicial involvement in a difficult case. I noted in the portion of the memorandum you choose to ignore that the lawsuit and the audit should complement each other, and that by working together the two efforts could ultimately achieve a measure of justice for Holocaust victims. I was right. The Volcker audit was enormously valuable in providing the information needed to administer a credible claims program designed to return as many accounts as possible to their true owners. The lawsuit was crucial in pressing the banks to cooperate with the auditors, to provide necessary information to claimants, such as the publication of information concerning 21,000 accounts identified by the Volcker report as "probably" belonging to Holocaust victims, and to establish a credible claims process designed to return accounts to their true owners.

As you know, Chief Judge Korman noted that the Volcker audit validated the core allegations underlying the Swiss bank litigation. You conveniently omit the fact that once the banks' effort to use the audit as an excuse for dismissing the lawsuit failed, extremely close cooperation between the Volcker audit and the lawsuit was achieved. Indeed, Paul Volcker was ultimately appointed by Chief Judge Korman as an officer of the court to supervise the CRT claims process in Zurich designed to return as many Swiss bank accounts as possible to their true owners.

Finally, I note that you have correctly abandoned your untenable claim that Swiss banks did not engage in massive destruction of Holocaust-era bank records.

Your charge that I "flagrantly falsify key documents in published correspondence" is a lie--and you know it. Our exchange of letters in The Nation [Dec. 18 and 25, 2000] makes it clear that I was referring to the figures used by the German foundation "Remembrance, Responsibility and Future" in estimating Holocaust survivors. I was responding to your claim that I had overstated the number of surviving Holocaust victims. You challenged my assertion that more than 1 million Holocaust survivors would be benefited by a combination of the Swiss and German funds. I responded by stating that you must be using figures for Jewish survivors but overlooking the large number of non-Jews who suffered in the Holocaust. In making that statement, I was relying on the findings of the German foundation that more than 1 million surviving Nazi slave and forced laborers exist, about three-quarters of whom are non-Jewish. You conveniently ignore the German foundation in your chapter, perhaps because it doesn't support your obsession.

I will leave to Judah Gribetz the pleasure of demolishing your effort to mischaracterize his remarkable work as a "shakedown" of Holocaust victims. You misstate virtually everything about the allocation plan. In fact, the allocation plan is rigorously designed to distribute Swiss bank settlement funds to individual Holocaust victims, not organizations. In fact, all appeals affecting the ability to distribute are now over, and distribution is about to begin. In fact, the Second Circuit explicitly upheld the limitation of the Swiss settlement fund to targets of the Nuremberg race laws but not to persons who were persecuted on political or national origin grounds because the settlement fund is far too small to cover everyone in Europe. And that's just a few of your mistakes.

I have no illusions that you will alter your chapter to bring it closer to the truth. You appear to be so obsessed with waging your private political war against militant Zionism and the Jewish establishment that you simply cannot see anything except corruption and bad faith. No person or institution is free from actions that would justify criticism. But your stridency and rage prevents your work from playing any constructive role. Rather, you just become fodder for someone else's political obsessions.

BURT NEUBORNE

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