Amicus Curiae Brief — Federal Republic of Germany, et al., Petitioners v. Alan Philipp, et al.

Supreme Court briefOct 29, 2020

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Nos. 18-1447 & 19-351

IN THE

Supreme Court of the United States

————

REPUBLIC OF HUNGARY, et al.,

Petitioners,

ROSALIE SIMON, et al.,

Respondents.

————

FEDERAL REPUBLIC OF GERMANY, et al.,

Petitioners,

ALAN PHILIPP, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

————

BRIEF OF AMICI CURIAE

HOLOCAUST SURVIVORS FOUNDATION,

USA, INC., RENEE FIRESTONE,

DAVID MERMELSTEIN, DAVID SCHAECTER,

KLAIRE FIRESTONE, THOMAS WEISS, M.D.,

AND NAOMI VILKO, M.D.

IN SUPPORT OF RESPONDENTS

————

SAMUEL J. DUBBIN

Counsel of Record

DUBBIN & KRAVETZ, LLP

1200 Anastasia Ave., #300

Coral Gables, FL 33134

(305) 815-8060

(305) 357-9004

sdubbin@dubbinkravetz.com

Counsel for Amici Curiae

October 29, 2020

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

INTEREST OF AMICI CURIAE ........................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. The Circuit Court Correctly Held that

Petitioners’ Confiscation of the Respondents’ Property Violated International

Law Under FSIA Section 1605(a)(3) and

that FSIA Jurisdiction Precludes the

Discretionary Defense of Comity..............

II. Prior Court Decisions Departing from

Established Constitutional Principles in

Favor of Standardless “Foreign Policy”

Considerations Allowed Global Insurers

Who Collaborated with the Third Reich

to Retain Billions of Dollars in Insurance

Proceeds They Owe to Holocaust Victims

and Families..............................................

A. States Legislate to Protect Survivors

and Heirs and Insurers Respond by

Creating ICHEIC – 1998. ....................

B. German Foundation Agreement –

2000. .....................................................

C. Garamendi Decision and Executive

Preemption. .........................................

D. Justice Ginsburg’s Prescient Dissent.

E. Garamendi Dissent’s Deconstruction

of Majority Reasoning. ........................

(i)

TABLE OF CONTENTS—Continued

Page

F. The U.S. Government Changed its

“Foreign Policy” in the Middle of the

Litigation, Proving the Dangers of

Deciding Cases Based on Foreign

Policy and Abandoning Traditional

Constitutional Principles ....................

G. Expansion of Garamendi Preemption

Based on Additional Misrepresentations of U.S. Foreign Policy .................

III. It Would Be Physically Impossible and

Emotionally Traumatic To Require

Hungarian Holocaust Survivors in the

United States To Litigate Their Rights In

Hungary ....................................................

A. Naomi Vilko..........................................

B. David Mermelstein ..............................

C. Renee Firestone ...................................

D. Klara Firestore ....................................

IV. Survivors’ Ability to Personally Participate in Holocaust Restitution Proceedings is a Valuable Element of the Justice

System. ......................................................

CONCLUSION ....................................................

iii

TABLE OF CONTENTS—Continued

APPENDIX

Page

APPENDIX A: Statement of David Mermelstein,

United States Senate Judiciary Committee,

Hearing on Holocaust Era Insurance Claims

(September 17, 2019) .......................................

APPENDIX B: Statement of Jack Rubin,

United States House of Representatives,

Committee on Foreign Affairs Joint Subcommittee Hearing, Subcommittee on Europe,

Eurasia, and Emerging Threats, Subcommittee on the Middle East and North Africa

The Struggles of Recovering Assets for

Holocaust Survivors (September 18, 2014) .....

APPENDIX C: Statement of Klara Firestone,

United States House of Representatives

Committee on Foreign Affairs, The Struggles

of Recovering Assets for Holocaust Survivors

(September 18, 2014) .......................................

37a

APPENDIX D: Statement of Renee Firestone,

United States Senate Committee on the

Judiciary, Holocaust Era Claims in the 21st

Century (June 20, 2012) ..................................

56a

APPENDIX E: Statement of David Schaecter,

U.S. House of Representatives, Committee

on Foreign Affairs, Righting the Enduring

Wrongs of the Holocaust: Insurance Accountability and Rail Justice (November 16, 2011) .

75a

TABLE OF CONTENTS—Continued

Page

APPENDIX F: Statement of Herbert Karliner,

U.S. House of Representatives, Committee

on Foreign Affairs, Righting the Enduring

Wrongs of the Holocaust: Insurance Accountability and Rail Justice (November 16, 2011) .

82a

APPENDIX G: Testimony of Alex Moskovic,

House of Representatives, Committee on

Foreign Affairs, Subcommittee on Europe

(October 3, 2007) ..............................................

89a

APPENDIX H: Fairness Hearing Before the

Hon. Patricia A. Seitz, 3., United States

District Judge, in Rosner v. United States,

Case No. 01-1859 in the United States

District Court for the Southern District of

Florida (September 26, 2005) ..........................

94a

APPENDIX I: Statement of Dr. Tom Weiss,

United States House of Representatives,

Committee on Banking and Financial

Services (February 12, 1998) ........................... 110a

TABLE OF AUTHORITIES

CASES

Page(s)

American Insurance Association v. Garamendi,

539 U.S. 396 (2003) ..................................passim

Barclay’s Bank PLC v. Franchise Tax Bd.,

512 U.S. 298 (1994) ...................................

Buxbaum v. Assicurazioni Generali,

33 N.Y.S.2d 496 (N.Y. Sup. Ct. 1942) ......

Dames & Moore v. Regan,

453 U.S. 654 (1981) ................................... 9, 13

Gerling Global Reinsurance Corp. v. Kelso,

No. 00-16163 (9th Cir. 2000) ....................

Hamdan v. Rumsfeld,

126 S. Ct. 2749 (2006) ...............................

In re Assicurazioni Generali, S.p.A

Insurance Litig.,

228 F.Supp.2d 348 (S.D.N.Y. 2002)..........

Medellin v. Texas,

128 S.Ct.1346 (2008) .................................

Philipp v. Federal Republic of Germany,

894 F.3d 406 (D.C. Cir. 2018) ................... 5, 17

Rosner v. United States,

231 F.Supp.2d 1202 (S.D.Fla. 2002) .. 30, 31, 32

Simon v. Republic of Hungary,

812 F.3d 127 (D.C. Cir. 2016) ............... 5, 17, 26

United States v. Belmont,

301 U.S. 324 (1937) ............................... 9, 13, 14

United States v. Pink,

315 U.S. 203 (1942) ............................... 9, 13, 14

TABLE OF AUTHORITIES—Continued

Page(s)

Weiss v. Assicurazioni Generali, S.p.A,

592 F.3d 113 (2d Cir. 2010) ......................

Zschernig v. Miller,

389 U.S. 429 (1968) ............................... 9, 10, 13

STATUTES

28 U.S.C. §1605(a)(3)....................................

2, 5

INTERNATIONAL INSTRUMENTS

German Foundation Agreement, 39 Int’l

Legal Materials 1298 (2000) ...................... passim

COURT FILINGS

Brief for Amicus Curiae the United States

of America in Support of Affirmance in

Gerling Global Reinsurance Corp. v.

Kelso, Case No. 00-16163..........................

Brief for the United States as Amicus

Curiae Supporting Petitioners, American

Insurance Association, et al., v. Harry

Low, Insurance Commissioner, State of

California, Case Nos. 02-722 and 02-733,

2003 WL 721754 .......................................

Transcript of Final Approval Hearing,

Rosner v. United States, No. 01-1859-civ

(S.D. Fla. Sept. 26, 2005) .................... 32, 33, 34

vii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

David Mermelstein and Samuel J. Dubbin,

Responses to Senate Judiciary Questions

(October 17, 2019), available at https://

www.judiciary.senate.gov/imo/media/doc/

Dubbin-Mermelstein%20Responses%20

to%20QFRs.pdf .........................................

Gerald Feldman, Allianz and the German

Insurance Business, 1933-1945 ................

Holocaust Survivors Foundation USA, Inc.,

www.hsf-usa.org (last visited Oct. 28,

2020) ..........................................................

Letter from Naomi Vilko, M.D. to Samuel

J. Dubbin, P.A. (January 24, 2018),

available at http://www.hsf-usa.com/wpcontent/uploads/2018/02/LTR-re-HungaryLitigation-Jan-24-2018.pdf; http://www.

hsf-usa.com/class-action-lawsuit-againsthungary-and-hungarian-railway/ ..............

Video, U.S. Senate Judiciary Committee

hearing of September 17, 2019, http://

www.hsf-usa.com/judiciary-committee-he

aring-unpaid-holocaust-insurance-claims/...

James Moll, The Last Days, Steven

Spielberg, Shoah Foundation (1998) ........

Letter from State Department Legal Adviser

to Department of Justice Appellate Staff

Director, August 19, 2009 .........................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Sidney Zabludoff, “The International

Commission of Holocaust-Era Insurance

Claims: Excellent Concept but Inept Implementation,” Jewish Political Studies

Review (Spring 2005) ................................

Statement of Dr. Tom Weiss, U.S. House of

Representatives Committee on Banking

and Financial Services (February 12,

1998) ..........................................................

Statement of Klara Firestone, U.S. House

of Representatives Committee on Foreign

Affairs, The Struggles of Recovering Assets

for Holocaust Survivors (Sept. 18, 2014) ....

Statement of Samuel J. Dubbin, Counsel,

Holocaust Survivors Foundation USA,

Before the United States Senate Judiciary Committee, Hearing on Holocaust

Era Insurance Claims (September 17,

2019), available at https://www.judiciary.

senate.gov/imo/media/doc/Dubbin%20Te

stimony.pdf................................................

Stuart E. Eizenstat, Imperfect Justice

(2003) .........................................................

Testimony of David Schaecter, U.S. House

Committee on Foreign Affairs, Righting

the Enduring Wrongs of the Holocaust:

Insurance Accountability and Rail

Justice (Nov. 16, 2011) .............................

TABLE OF AUTHORITIES—Continued

Page(s)

Testimony of Sidney J. Zabludoff before the

U.S. House of Representatives Financial

Services Committee (Feb. 7, 2008) ........... 11-12

Testimony of Sidney J. Zabludoff before the

U.S. House of Representatives Foreign

Affairs Committee Subcommittee on

Europe (Oct. 3, 2007) ...............................

U.S. Department of State – The JUST Act

Report, March 2020 ..................................

U.S. Dept. of Justice, Civil Division,

Memorandum (Sept. 25, 2008) ................. 22, 23

U.S. Dept. of Justice, Office of the Solicitor

General, Memorandum (Sept. 25,

2008) .......................................................... 23, 24

INTEREST OF AMICI CURIAE

The Holocaust Survivors Foundation USA, Inc. (HSF),

is a national coalition of Holocaust survivor groups

and their elected leaders, which formed in 2000

to call attention to the inadequacy of high-profile

“restitution” activities, and the dire circumstances

faced by Holocaust survivors in the United States and

throughout the world, half of whom live in or near

poverty.1

HSF members, including the Amici, participated in

various Holocaust restitution processes and litigation,

either as direct claimants, or as organization leaders

advocating for others who were not as fortunate. They

have testified before the U.S. Congress about restitution issues, the need for open Holocaust records and

archives, and the widespread suffering that tens

of thousands of survivors have endured after the

Holocaust from the unique physical and emotional

harms survivors suffer today, due to the crimes of the

German Nazi regime.2

HSF and several of the Amici here who are

Hungarian survivors and children of Hungarian

survivors filed an amicus curiae brief in the Circuit

Court in Simon to describe the unique problems

litigation of the case in Hungary would impose on

survivors and their families, as well as the value of an

No counsel for either party authored this brief in whole or in

part, and no party or counsel for a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No one other than amici curiae made a monetary

contribution to the preparation or submission of this brief.

Counsel for the parties have consented to the filing of amicus

briefs through letters filed with the Clerk of the Court.

See generally www.hsf-usa.org.

American forum where they could participate and

follow the proceedings. With the Court’s grant of

certiorari, Amici wish to address that issue here, as

well as the Petitioners’ efforts to have non-statutory

free-form “foreign policy” considerations be imposed to

evade U.S. court jurisdiction established by Congress.

SUMMARY OF ARGUMENT

The U.S. Survivors support the Respondents’

position in both Philipp and Simon, and the Court

of Appeal’s decisions below, that Germany’s and

Hungary’s (and their instrumentalities’) theft of the

Respondents’ (and their ancestors’) property as an

integral part of the Holocaust constitute genocide

and a taking of rights in property in violation of

international law under the Foreign Sovereign

Immunities Act (FSIA), 28 U.S.C. §1605(a)(3).

Further, once FSIA jurisdiction is satisfied, the

Petitioners are not entitled to avoid the U.S. courts by

invoking “prudential” doctrines such as comity.

In addition, the Amici include Hungarian survivors

and children of Hungarian survivors. Section III

addresses the unique obstacles they would face if

the District Court’s ruling had stood and required

“prudential exhaustion” in Hungary.

The U.S. Survivor Amici are making this important

effort to support the Respondents in both cases

because, sadly, U.S. courts at all levels have employed

the kinds of standardless, discretionary “doctrines” or

methodologies urged here by Petitioners to deny

Holocaust survivors and heirs of Holocaust victims the

rights, protections, and benefits of existing and wellestablished judicial principles and doctrines. The

results have allowed Holocaust profiteers to escape

accountability and deny survivors the opportunity to

seek material and moral restitution available under

the law.

The U.S. Survivor Amici will focus on one area in

which the courts’ deviation from existing concrete

standards in favor of standardless “foreign policy”

considerations allowed corporations that collaborated

with the Nazis and profited from the Holocaust to

retain billions of dollars in unjust enrichment –

insurance. Several of the Amici here, and thousands

of survivors who are (or were) members of HSF

member organizations, attempted to recover unpaid

family insurance policies sold by Allianz, Generali,

AXA, and other global insurers, but were denied the

same rights as every other American to their day in

court to vindicate their claims.

The Court’s decision in American Insurance Association v. Garamendi eschewed traditional rules of

constitutional adjudication and held that Holocaust

survivors and heirs’ insurance rights under state

law were subordinate to the “foreign policy” of the

executive branch. The Court held state disclosure

laws (and by implication survivors’ and heirs’ common

law contract rights) were preempted without any act

of Federal lawmaking such as a treaty, statute, or

preemptive executive agreement.

The dissent, written by Justice Ruth Bader Ginsburg,

and joined by Justices Scalia, Thomas, and Stevens,

made it clear that the Court majority had deviated

from accepted canons of constitutional adjudication

and in the process set the stage for massive unjust

enrichment for the insurers, at the expense of Jewish

Holocaust victims and victims’ families. As Amici

show here, the Garamendi Court’s deviation from

accepted constitutional law analysis handed a multibillion dollar windfall to global insurers who collabo-

rated with the Nazis and refused to pay Holocaust

victims their policy benefits after the war.

Amici urge this Court to follow Justice Ginsburg’s

lead and demand that Hungary and Germany (in

these cases), and their instrumentalities, not be

allowed to conjure an “exception” such as the one

Garamendi allowed in order to allow insurers to avoid

being accountable for their financial crimes and other

wrongs.

As David Schaecter, President of HSF, testified

before the U.S. House of Representatives Foreign

Affairs Committee in 2011:

No one can ever repay us for the murder

and destruction of the Holocaust. However,

the Nazis and their collaborators also perpetrated a massive theft of the European

Jewish people’s property and assets. They

even used some of the looted assets forcefully

taken from our people to finance the war

effort, and transport us to the hells of

Auschwitz-Birkenau. Yet, companies that

profited from the Holocaust such as Allianz,

Generali, and the others have never been

held accountable. We have been robbed of our

family histories and legacies, and the world

needs to know these companies are inflated

and tainted by Holocaust profits.

It pains me to say that half of the survivors

in the United States live below or near the

poverty line, and cannot afford the home care,

dental care, medicines, eyeglasses, wheelchairs, and even food they need.

It is an outrage that the insurance companies have failed to pay over $20 billion they

owe to Holocaust victims, while so many

survivors are living in misery, dying before

their time.

Testimony of David Schaecter, U.S. House Foreign

Affairs Committee, November 16, 2011, App. 78a.

ARGUMENT

I. The Circuit Court Correctly Held that

Petitioners’ Confiscation of the Respondents’ Property Violated International Law

Under FSIA Section 1605(a)(3) and that

FSIA Jurisdiction Precludes the Discretionary Defense of Comity.

The U.S Survivor Amici agree with the Circuit

Court’s holdings below that the Petitioners’ taking

of Respondents’ property in the perpetration of

the Holocaust constitutes a “taking in violation of

international law” for purposes of 28 U.S.C. §1605(a)(3)

of the Foreign Sovereign Immunities Act (“FSIA”),

and that with the establishment of FSIA jurisdiction,

the Petitioners are not entitled to escape jurisdiction

via the discretionary doctrine of “comity.” The Respondents, and several amici curiae, have provided

the Court with excellent technical analyses supporting

the Circuit Court’s decisions below.3 Amici will focus

on the catastrophic impact that have resulted from

courts’ scrapping traditional legal protections in

favor of shifting and unaccountable “foreign policy”

considerations.

Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016);

Philipp v. Federal Republic of Germany, 894 F.3d 406 (D.C. Cir.

2018).

II. Prior Court Decisions Departing from

Established Constitutional Principles in

Favor of Standardless “Foreign Policy”

Considerations Allowed Global Insurers

Who Collaborated with the Third Reich to

Retain Billions of Dollars in Insurance

Proceeds They Owe to Holocaust Victims

and Families.

Before World War II, hundreds of thousands of

European Jews purchased life, annuity, dowry, and

education policies from insurers such as Allianz and

Munich Re of Germany, Assicurazioni Generali, S.p.A.

of Italy, AXA of France, and Swiss Re, Swiss Life,

and Basler Leben of Switzerland, to name a some of

the most prominent. After the Holocaust, as survivors

struggled to reconstruct their lives, the insurers

demanded original policy documents and death certificates, and used other shameful tactics to cheat

survivors and heirs.

A. States Legislate to Protect Survivors

and Heirs and Insurers Respond by

Creating ICHEIC – 1998.

In the late 1990s, there was growing public information about corporate complicity and profiteering in

the Holocaust, with insurance policies as a prominent

example. In 1998, New York, Florida, and other states

enacted laws to require the companies operating within their jurisdictions to publish the names of policy

holders and, if settlements were not reached, to allow

beneficiaries and heirs to bring lawsuits (comparable

to typical state insurance consumer laws).

To counter these state laws, in 1998, the insurers

created the International Commission for Holocaust

Era Insurance Claims, or “ICHEIC,” promising to address the problem on a “non-binding, non-adversarial”

basis. All parties agreed regulators retained their

right to enforce their state’s laws, and all claimants

retained their rights to go to court if they did

not accept an ICHEIC settlement. Nevertheless, as

Justice Ginsburg detailed in her dissent, ICHEIC was

highly dysfunctional and failed to deliver anything

close to its promises, including desultory production of

policy information after five full years.4

B. German Foundation Agreement – 2000.

Meanwhile, to resolve survivors’ lawsuits for slave

and forced labor exploited by German manufacturers,

the U.S. government and Germany entered into an

executive agreement (“German Foundation Agreement”) in the year 2000. At Germany’s insistence, the

Agreement was expanded to address claims against

German insurers, providing that German insurers

would participate in ICHEIC.5 However, although

Germany asked President Clinton to immunize its

There is a substantial body of information about ICHEIC’s

history, and the insurers’ behavior, in the record of the U.S.

Senate Judiciary Committee hearing of September 17, 2019.

http://www.hsf-usa.com/judiciary-committee-hearing-unpaid-holo

caust-insurance-claims/. https://www.judiciary.senate.gov/imo/

media/doc/Dubbin-Mermelstein%20Responses%20to%20QFRs.

pdf; https://www.judiciary.senate.gov/imo/media/doc/Dubbin%20

Testimony.pdf.

Allianz, whose Chairman Kurt Schmitt became Hitler’s

second minister of economics, insured the construction of

Auschwitz and other camps and ghettos, at the same time it was

selling life insurance to European Jews. Gerald Feldman, Allianz

and the German Insurance Business, 1933-1945, at 409-415.

By 1933, Allianz barred Jews from its offices. Feldman, at 521

(letter from Gertud Becker).

insurers from litigation in return, the U.S. government refused.

Instead the U.S. agreed to file

“statements of interest” in U.S. courts stating that

dismissal of claims against German insurers on other

legal grounds was in U.S. foreign policy interests, but

that the Agreement and ICHEIC themselves did not

call for dismissal of survivors’ claims against any

German insurer.

The limited nature of the U.S. government undertakings in the Agreement was explicitly stated in

Annex B: “The United States will recommend

dismissal on any valid legal ground (which, under the

U.S. system of jurisprudence, will be for the U.S.

courts to determine).” It adds: “The United States does

not suggest that its policy interests concerning the

Foundation in themselves provide an independent

legal basis for dismissal.” [Text of Agreement and

Annex] (Emphasis supplied).

C. Garamendi Decision and Executive

Preemption.

During this time period, the California Insurance

commissioner subpoenaed several insurers’ records

pursuant to California’s disclosure law. The insurers

sued to block the subpoenas, claiming their constitutional rights were being violated. After failing in the

district court and the Ninth Circuit, the insurers

succeeded in this Court. In Garamendi, in a 5-4

decision, the Court held that although the U.S.Germany Agreement did not directly or indirectly

preempt any state law, and even though there is no

Federal treaty or statute preempting state disclosure

laws, the state law was preempted by a “federal

executive policy” favoring “non-adversarial resolution”

of Holocaust victims’ claims in ICHEIC. The source of

the Executive “policy” was letters and Congressional

testimony of State Department officials, as well as

the statement of interest provided for in the U.S.Germany executive agreement.

The Court painted with a very broad brush to

burnish the Executive’s authority over foreign policy,

and extolled the “unquestioned superiority” of foreign

policy over state’s power. (“There is, of course, no

question that at some point an exercise of state power

that touches on foreign relations must yield to the

National Government’s policy,” and “[n]or is there any

question that there is executive authority to decide

what that policy should be [a]lthough the source of the

President’s power to act in foreign affairs does not

enjoy an textual detail. . . .) 539 U.S. at 413.

The Court also found that the President’s authority

extended to making executive agreements requiring

no Congressional approval to settle claims of U.S.

nationals against foreign governments, citing United

States v. Pink, 315 U.S. 203, 223 (1942); United States

v. Belmont, 301 U.S. 324, 330-331 (1937), and Dames

& Moore v. Regan, 453 U.S. 654, 679 (1981). The Court

found: “Making executive agreements to settle claims

of American nationals against foreign governments is

a particularly longstanding practice, the first example

being as early as 1799,” and concluded “that the

President’s control of foreign relations includes the

settlement of claims is indisputable.’” 539 U.S. at 415.

The Court then dismissed the major differences

between the cases it believed supported broad executive power, e.g. that prior agreements settled claims

against foreign governments, not companies, and that

the other agreements were expressly preemptive,

while the German Agreement was not. The gap was

filled by Zschernig v. Miller, 389 U.S. 429 (1968),

because the “foreign policy those agreements embody”

could preempt state law:

But petitioners and the United States as

amicus curiae both have to acknowledge that

the agreements include no preemption clause,

and so leave their claim of preemption to rest

on asserted interference with the foreign policy

those agreements embody. Reliance is placed

on our decision in Zschernig v. Miller, 389

U.S. 429 (1968).

Id., at 416-417 (Emphasis supplied).

D. Justice Ginsburg’s Prescient Dissent.

Justice Ginsburg’s dissent thoroughly exposed the

majority’s departure from established norms and principles of constitutional adjudication, which require an

act of Federal lawmaking with preemptive effect as a

requirement to preempt state law, beginning with this

concise summary:

Although the federal approach differs from

California’s, no executive agreement or other

formal expression of foreign policy disapproves state disclosure laws like the HVIRA.

Absent a clear statement aimed at disclosure

requirements by the “one voice” to which

courts property defer in matters of foreign

affairs, I would leave intact California’s

enactment.

539 U.S. at 430 (Ginsburg, J., dissenting)(Emphasis

supplied).

Justice Ginsburg’s dissent began by emphasizing

the unprecedented harm inflicted by the insurers

against Jewish policy holders:

[T]he Nazi regimentation of inhumanity we

characterize as the Holocaust, marked most

horrifically by genocide and enslavement,

also entailed widespread destruction and

confiscation, and theft of property belonging

to Jews. For insurance policies issued in

Germany and other countries under Nazi

control, historical evidence bears out, the

combined forces of the German Government

and the insurance industry engaged in

larcenous takings of gigantic proportions.

Id.

In that regard, Justice Ginsburg explained that the

ICHEIC was a private commission the insurers

created which had failed survivors in every respect. It

was repeatedly “on the verge of collapse;” represented

barely one-third of the Holocaust era insurance

market; did not expand for many years to include all

German insurers as Germany agreed; it paid “only a

tiny proportion” of the claims received; paid less in

claims ($38.2 million) after five (5) years than it had

spent on expenses ($40 million); and its “non-binding

directive” to publish lists of unpaid Holocaust era

policies “had not yielded significant compliance at the

time this case reached the Court.” 539 U.S. at 432433.

In the end, as in the beginning as Justice Ginsburg

explained, ICHEIC, unhindered by oversight by any

state or federal authority, proved to be a spectacular

success for the insurance companies and a disaster for

survivors and their families. When it closed in 2007,

the total amount paid for the actual settlement of

claims ($250 million) and “humanitarian” payments

($200 million), represented less than three percent

(3%) of the $17 billion in insurance proceeds owed to

Jewish families in 2007 values. The number of unpaid

policies for which claimants accepted a settlement, the

result was also less than 3% – ICHEIC – 14,186, out

of the 875,000 policies owned by Jewish families in

Europe in 1938. See Testimony of Sidney J. Zabludoff

before the U.S. House of Representatives Financial

Services Committee, February 7, 2008, and the U.S.

House of Representatives Foreign Affairs Committee

Subcommittee on Europe, October 3, 2007. See also

Sidney Zabludoff, “The International Commission of

Holocaust-Era Insurance Claims: Excellent Concept

but Inept Implementation,” Jewish Political Studies

Review 17:1-2 (Spring 2005).

According to Mr.

Zabludoff, the value of unpaid policies today is $25

billion.

E. Garamendi Dissent’s Deconstruction of

Majority Reasoning.

Justice Ginsburg’s dissent thoroughly addressed the

unprecedented, and harmful, elements in the Court’s

decision. First, all of the agreements analyzed by

the Court had specifically preempted state law or

“suspended” litigation in U.S. courts, id., at 437-438,

whereas the German agreement not only did not

preempt state law, they did not even address the sole

subject of the California law – disclosure of policy

information:

The Court states that if the executive

‘agreements here had expressly preempted

laws like HVIRA, the issue would be

straightforward.’ One can safely demur to

that statement, for, as the Court acknowledges, no executive agreement before us

expressly preempts the HVIRA. Indeed, no

agreement so much as mentions the HVIRA’s

sole concern: public disclosure.

Id., at 438 (citations omitted)(Emphasis supplied).

Justice Ginsburg then zeroed in on the heart of

the majority decision – the unprecedented elevation

of “foreign policy objectives” to preempt state law:

“Despite the absence of express preemption, the Court

holds that the HVIRA interferes with foreign policy

objectives implicit in the executive agreements,”

relying on Zschernig:

We have not relied on Zschernig since it

was decided, and I would not resurrect that

decision here. The notion of “dormant foreign

affairs preemption” with which Zschernig is

associated resonates most audibly when a

state action “reflect[s] a state policy critical of

foreign governments and involve[s] ‘sitting in

judgment’ on them.” . . . . The HVIRA entails

no such state action or policy. It takes no

position on any contemporary foreign government and requires no assessment of any existing foreign regime. It is directed solely at

private insurers doing business in California,

and it requires them solely to disclose information in their or their affiliates’ possession

or control. I would not extend Zschernig into

this dissimilar domain.

Id. at 439-440 (citations omitted).

Justice Ginsburg also observed that in implying

that not only disclosure laws but actual claims by

Holocaust survivors and heirs would be eliminated by

the “foreign policy” embodied in the agreements, the

Court was giving the insurance industry more than

they and Germany had bargained for:

“Neither would I stretch Belmont, Pink, or

Dames & Moore to support implied preemption by executive agreement. In each of those

cases, the Court gave effect to the express

terms of an executive agreement. . . . Here,

however, none of the executive agreements

extinguish any underlying claim for relief. . . .

Id. at 440-441. She added:

The United States has agreed to file precatory

statements advising courts that dismissing

Holocaust-era claims accords with American

foreign policy, but the German Foundation

Agreement confirms that such statements

have no legally binding effect. It remains

uncertain, therefore, whether even litigation

on Holocaust insurance claims must be

abated in deference to the German Foundation Agreement or the parallel agreements

with Austria and France. Indeed, ambiguity

on the point seems to have been the studied

aim of the American negotiating team. See

Eizenstat, Imperfect Justice, at 272-273

(describing the “double negative” that satisfied German negotiators and preserved the

flexibility sought by Justice Department

litigators).

Id. at 441.

Justice Ginsburg added:

“If it is uncertain whether insurance

litigation may continue given the executive

agreements on which the Court relies, it

should be abundantly clear that those agreements leave the disclosure laws like the

HVIRA untouched. The contrast with the

Litvinov Assignment at issue in Belmont

and Pink is marked. That agreement spoke

directly to claim assignment in no uncertain

terms. Belmont and Pink confirmed that

state law could not invalidate the very assignments accomplished by the agreement.”

Id. at 441 (Emphasis in original). She concluded:

Here, the Court invalidates a state disclosure law on grounds of conflict with foreign

policy “embod[ied]” in certain executive

agreements, ante, at 2388, although those

agreements do not refer to state disclosure

laws specifically, or even to information

disclosure generally. It therefore is surely an

exaggeration to assert that the “HVIRA

threatens to frustrate the operation of the

particular mechanism the President has

chosen” to resolve Holocaust-era claims. Ante,

at 2392. If that were so, one might expect to

find some reference to laws like the HVIRA

in the later-in-time executive agreements.

There is none.

Id. at 441.

The dissent also criticized the majority’s reliance on

“policy statements” of lower level Executive officials

such as a letter from a Treasury Department official,

or congressional testimony stating that a company’s

participation in ICHEIC should give them “safe haven

from sanctions, subpoenas, and hearings relative to

the Holocaust period:”

We have never premised foreign affairs preemption on statements of that order . . . We

should not do so here lest we place the

considerable power of the foreign affairs

preemption in the hands of individual subCabinet members of the Executive Branch. . .

‘[N]o authoritative text accords such officials

the power to invalidate state law simply by

conveying the Executive’s views on matters of

federal policy. The displacement of state law

by preemption properly requires a considerably more formal and binding federal

instrument.

Id. at 442.6

The dissent also rejected the Court’s judicial activism in granting broad, sweeping power to lower level

executive branch officials to strike down a state law

when neither the President nor Congress had acted

with the clarity or force of Federal law to overrule the

States’ authority:

Sustaining the [California law] would not

compromise the President’s ability to speak

with one voice for the Nation. . . . To the

contrary, by declining to invalidate the

[California law] in this case, we would reserve

foreign affairs preemption for circumstances

where the President, acting under statutory or

constitutional authority, has spoken clearly to

the issue at hand. . . . “[T]he Framers did

not make the judiciary the overseer of our

government.” . . . . And judges should not be

the expositors of the Nation’s foreign policy,

which is the role they play by acting when the

President himself has not taken a clear stand.

Subsequent preemption decisions of this Court rejected the

executive branch’s ability to preempt state law without express

constitutional or statutory authorization. Medellin v. Texas, 128

S.Ct. 1346 (2008); Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

As I see it, courts step out of their proper role

when they rely on no legislative or even

executive text, but only an inference and

implication, to preempt state laws on foreign

affairs grounds.

Id. at 442-43 (Emphasis supplied).

The concerns raised by Justice Ginsburg’s dissent in

Garamendi sound a clear warning for the Simon and

Philipp cases. Petitioners ask the Court to abandon

the long-established principles of statutory construction applied by the Court of Appeals below, and allow

standardless Executive branch “foreign policy” to

dictate the rights of Holocaust survivors and heirs of

Holocaust victims. In Garamendi, this approach

inflicted significant pain, insult, and financial injury

to Holocaust survivors and their families, and handed

a multi-billion windfall to global insurers who

collaborated with the Nazis and profited from the

Holocaust.

F. The U.S. Government Changed its

“Foreign Policy” in the Middle of

the Litigation, Proving the Dangers

of Deciding Cases Based on Foreign

Policy and Abandoning Traditional

Constitutional Principles.

The dangers of the Court’s approach in Garamendi

were lurking within the case file already, because the

position the Department of Justice presented to the

Court in 2002-2003 was the opposite of the position it

advanced in 2000, leading to the Court’s split decision

in favor of the insurers.

In the year 2000, its brief in the Ninth Circuit in

Gerling v. Kelso, the case that came to this Court as

Garamendi, the Clinton Administration, which had

negotiated the German Foundation Agreement, made

it clear that neither the U.S.-German agreement,

nor the policy underlying any agreement, nor any

company’s participation in ICHEIC, independently

justified dismissal of survivors’ claims for payment of

unpaid insurance policies in lawsuits in U.S. courts, or

preempted the California statute. The United States

Government position in 2000 was clear:

– the United States “has not undertaken

a duty to achieve legal peace for German

companies against state litigation and regulatory action.”(p. 8).

– the Foundation Agreement itself does

not preclude individuals from filing suit on

their insurance policies in court . . . .” (p.8).

– the Agreement does not “mandate that

individual policyholders or beneficiaries

bring their claims in ICHEIC.” (p. 8-9).

– the American Insurance Association

(AIA) "is mistaken in asserting that the

Foundation Agreement is in 'direct conflict'

with California law, if by this AIA means to

suggest that the Agreement by its terms

preempts the California statute.” (p.9).

– the District Court “overestimated the

Agreement's ultimate legal effect when it

predicted that the Agreement would make

the Foundation an ‘exclusive remedy’ as a

matter of U.S. law.” (p. 9, note 4).7

The term “exclusive remedy” never meant what the US

government argued. According to ICHEIC minutes, ICHEIC was

always intended to be “exclusive” only for claimants who accepted

See Brief for Amicus Curiae the United States of

America in Support of Affirmance in Gerling Global

Reinsurance Corp. v. Kelso, Case No. 00-16163, etc. in

the United States Court of Appeals for the Ninth

Circuit, at 7-9. (“DOJ Ninth Circuit Brief”).

However, in 2002-2003, when the case went to the

Supreme Court, the Department of Justice reversed

the Government’s position from two years earlier on

several crucial points:

The State Department has repeatedly stated

that ICHEIC “should be recognized as the

exclusive remedy for all insurance claims that

date to the Nazi era and has “encourage[ed]

all insurance companies that wrote policies

during the Nazi era to join the ICHEIC.

....

The German government agreed to supervise

the activities of the foundation and to assure

that the foundation publicizes its existence. . .

It also agreed that all claims by or on behalf

of Holocaust victims against German insurance companies would be processed by

those companies and the German Insurance

Association based on ICHEIC procedures and

payment for their policy; ICHEIC mere existence never precluded

other remedies for claims. ICHEIC Minutes, March 2-3, 1999.

The government also argued, incorrectly, that these policies

were entirely overseas transactions, ignoring that many policies

expressly called for payment anywhere in the world the insured

made their demand. In Dr. Weiss’s father’s policy, Generali

promised to pay “either at the Generali office in Prague, or the

place the insured requested the proceeds to be sent.” See

Buxbaum v. Assicurazioni Generali, 33 N.Y.S.2d 496, 498 (N.Y.

Sup. Ct. 1942).

additional procedures that may be agreed to

among ICHEIC, the foundation, and the

German Insurance Association.

The United States, in turn, agreed to inform

its courts that “it would be in [its] foreign

policy interests *** for the Foundation to be

the exclusive remedy and forum for resolving

[Holocaust era]claims asserted against

German companies.

Brief for the United States as Amicus Curiae Supporting Petitioners, American Insurance Association, et al.,

v. John Garamendi, Case Nos. 02-722 and 02-733 in

the United States Supreme Court, at 3-4; 2003 WL

721754, at *2-3 (Emphasis added).

The 2002-2003 DOJ directly contradicted the 2000

DOJ positions that the Agreement did not “make the

Foundation an “exclusive remedy” as a matter of U.S.

law, and that the insurers were “mistaken” to assert

that the Foundation Agreement was in conflict with

the California law, “if by this AIA means to suggest

that the Agreement by its terms preempts the

California statute.”

Therefore, in addition to the Court’s embrace of an

unprecedented preemption rule based solely in executive “foreign policy,” the “foreign policy” presented to

the Court had inexplicably and without disclosure

changed with the change of administrations. This is

the reason Justice Ginsburg was so right to condemn

the standardless “foreign policy” preemption holding

of the Court in Garamendi. And that is another reason

(of many) this Court should reject the Petitioners’

positions.

G. Expansion of Garamendi Preemption

Based on Additional Misrepresentations of U.S. Foreign Policy.

After the German Foundation Agreement was

reached in 2000, the cases against German companies

were dismissed “without prejudice,” meaning the

plaintiffs could go back to court if they were dissatisfied with the way ICHEIC handled the claims. The

class action and individual lawsuits against Generali

and other insurers continued before Judge Michael

Mukasey.

As Justice Ginsburg observed, Judge Mukasey had

previously denied Generali’s motion to dismiss the

lawsuits on the ground that ICHEIC was an unsatisfactory alternative remedy, citing ICHEIC’s multitude

of problems, even calling ICHEIC “the company store”

because it was paid for and controlled by the insurance

companies. In re Assicurazioni Generali, S.p.A Insurance

Litig., 228 F.Supp.2d 348, 357 (S.D.N.Y. 2002). He also

cited the lack of any U.S. “foreign policy” interest involving the Generali due to the absence of any executive

agreement with Italy, Generali’s home country. Id., at

358.

However, after the Garamendi decision in 2003,

Judge Mukasey reversed himself and dismissed the

Generali cases in 2004 solely because Generali participated in ICHEIC, under the same “federal policy”

favoring non-adversarial resolution of survivors’ insurance claims and ICHEIC as the “exclusive forum” as

stated in Garamendi.

In the Generali appeal in the Second Circuit, the

record was clear, and Generali even admitted that

between 1999-2001, the State and Justice Departments had rejected Generali’s request for a statement

of interest on the basis that the United States had no

foreign policy interest relating to Generali – due to the

lack of any executive agreement with Italy. After oral

argument, the Court of Appeals, sua sponte, wrote a

letter to Secretary of State Condoleezza Rice asking

for the government’s position – in 2008.

Documents obtained via the Freedom of Information

Act (FOIA) show that the State Department was

determined in 2008 and 2009 to support Generali

despite the lack of any agreement, and despite the

Clinton Administration’s previous position that there

was no foreign policy conflict, and despite misgivings

about the validity of Garamendi in the first place, and

further misgivings about extending Garamendi to the

Generali case where there was not even a relevant

executive agreement, and where the insurers were

asking for preemption of common law contract claims.

The Solicitor General Office’s memorandum of

September 25, 2008, recommended that DOJ tell the

Second Circuit that there is a foreign policy conflict,

but not to address whether that policy actually has the

effect of preempting plaintiffs’ claims. The memo

shows that DOJ at the time understood Justice

Ginsburg’s dissent to be correct, and expressed

concerns about the legal basis to further expand

“executive preemption” based on “foreign policy.”

On the merits, I have some reservations

about the legal theory on which the

district court dismissed the plaintiffs’

common law claims. To begin with, the

district court holds that the Executive

Branch’s foreign policy can preempt

state law claims even when that policy

is not embodied in some formal action

that carries the force of federal law.

As a general matter, “Executive Branch

actions” that “express federal policy but

lack the force of law” do not preempt

state law.

Barclay’s Bank PLC v.

Franchise Tax Bd., 512 U.S. 298, 329330 (1994)(dormant Commerce Clause).

While Garamendi may reflect an exception to that general rule, that principle is

still subject to some doubt. Moreover,

Garamendi involved preemption of State

laws that imposed peculiar burdens with

respect to Holocaust claims, and in the

Executive Agreements, the United States

had expressly undertaken to work to

eliminate such state burdens. In contrast, the district court here held

preempted [sic] the claims of individuals

to enforce their common law contract

rights. Yet, the Executive Agreements

expressly stated that the United States’

statements of interest would “not suggest

that its foreign policy interests concerning the Foundation in themselves provide

an independent basis for dismissal” of

individual claims. 39 I.L.M. at 1304.

September 25, 2008 Memorandum of the Solicitor

General’s Office, at 10-11. (Emphasis supplied). https://

www.scribd.com/document/482019799/Justice-Dept-Me

morandum-for-the-Solicitor-General.

Similarly, the Civil Division’s September 25, 2008

Memo, at pages 12-13, states:

Arguing for federal preemption in this

case would require an extension of the

holding in Garamendi to a setting in

which there is no executive agreement

to support the assertedly preemptive

foreign policy, but merely public statements of State Department officials.

Furthermore, we would be required to

argue that federal foreign policy preempts not only state laws specifically

targeted at the problem of post-war

reparations for insurance claims – a

context in which the Supreme Court

viewed the state’s interests as minimal,

see 539 U.S. at 425-426 – but also common

law claims seeking to enforce traditional

tort duties. . . .[I]t would nevertheless

mark a further step beyond Garamendi

itself.

....

Even in cases in which the United

States has filed a Statement of Interest

pursuant to a Foundation Agreement,

there is considerable tension between the

position that foreign policy requires

dismissal of an action and the express

recognition in the Foundation Agreement that the agreement does not

itself provide an independent basis for

dismissal. . . .

September 25, 2008 Memorandum of the Civil

Division, at 12-13 (Emphases supplied). https://www

scribd.com/document/482019799/Justice-Dept-Memora

ndum-for-the-Solicitor-General.

Nevertheless, when DOJ responded in October

2008, its brief misrepresented prior U.S. agreements

and policy, stating: “it would be in the foreign policy

interests of the United States that ICHEIC be

regarded as the exclusive forum for resolution of

insurance claims against companies like Generali that

participated in the ICHEIC process;” that “it is

contrary to settled United States foreign policy for

plaintiffs’ claims to be adjudicated in the courts of the

United States;” and “[a]ccordingly, it would be in the

foreign policy interests of the United States that such

claims not be pursued through the courts.”8

After the November 2008 election, the Second

Circuit asked the new administration for its position

on whether survivors’ litigation against Generali

conflicted with U.S. foreign policy. Records show the

State Department Legal Adviser understood that the

Court’s decision in the appeal would hinge on what

DOJ said about whether the cases conflicted with U.S.

foreign policy, and warned in a letter to DOJ, that the

2008 DOJ letter brief was too weak in its justification

of the U.S. foreign policy interests to persuade the

Court. He urged DOJ to “more persuasively explain

why the absence of an executive agreement with Italy

does not affect the relative strength of U.S. foreign

policy interests in this case.” casting about for new

reasons DOJ might assert to justify support for

Generali, and even suggesting others that were

fictional. August 19, 2009 letter from State

Department Legal Adviser Harold Hongju Koh to

Robert Kopp, Director Appellate Staff, U.S.

Department of Justice. https://wwwscribd.com/docum

Another bogus “foreign policy” argument by DOJ in 2008

was that “Poland is on the verge of approving new compensation legislation.” DOJ 2008 Brief, at 8-9. Twelve years later,

“Poland. . . has not yet enacted comprehensive legislation on

national property restitution or compensation covering Holocaust

confiscations.” U.S. Department of State – The JUST Act Report,

March 2020, at 6.

ent/482019799/Justice-Dept-Memorandum-for-the-Sol

icitor-General.

Unfortunately, the Obama Administration repeated

the Bush Administration’s argument, and wrote: “[i]t

has been and continues to be the foreign policy of the

United States that the International Commission on

Holocaust Era Insurance Claims (ICHEIC) should be

regarded as the exclusive forum and remedy for claims

within its purview.” The italics were added in 2009 to

the DOJ language from 2008.

Based on these two DOJ submissions, on January

15, 2010, the Second Circuit Court of Appeals held

that Holocaust survivors and heirs could not take

Generali to court despite documented policies and

clear defaults, solely on the ground that the Department of Justice represented that such lawsuits

conflicted with United States foreign policy. Weiss v.

Assicurazioni Generali, S.p.A, 592 F.3d 113 (2d Cir.

2010).9

III. It Would Be Physically Impossible and

Emotionally Traumatic To Require

Hungarian Holocaust Survivors in the

United States To Litigate Their Rights In

Hungary.

A substantial number of HSF leaders and members

are Hungarian Holocaust survivors and would be

members of the class in the Simon case. They contend

the Circuit Court correctly reversed the district court’s

ruling that would have forced Hungarian Holocaust

Amicus Dr. Thomas Weiss was the plaintiff in that case.

His testimony to the House Financial Services Committee in

February 1998 is Appendix 110a. DOJ produced the FOIA

memos two months after the Second Circuit denied rehearing.

survivors, now in their late 80s and 90s, to litigate in

Hungary.

A. Naomi Vilko.

Naomi Vilko is a psychiatrist who has worked with

survivors in New York and New Jersey for over 40

years, and she is also the daughter of two Holocaust

survivors. In 2018, she described the experiences of

her father, William Vilko, and her mother, Olga Vilko,

Hungarian Jews, who were subjected to the criminal

behavior of Hungarian government officials and the

Hungarian railroad on their way to AuschwitzBirkenau and several other camps. In 2018, before her

mother passed away at the age of 99, Dr. Vilko opined

that her mother and other survivors from Hungary,

who are also mostly in their 90s, would not be able to

travel to Hungary for a trial, both because of the

physical impossibility, and the emotional toll such a

return to the scene of their torture would entail.10

B. David Mermelstein.

David Mermelstein was born in Kivjazd,

Czechoslovakia in 1928, in the Carpathian Mountain

region that was annexed by Hungary in 1939. After

his town fell under Hungarian control, they took over

half his family’s house and his father’s business.

Hungarian gendarmes came frequently and confiscated valuable personal possessions, such as fine

china, fancy linen table cloths, and chandeliers. In

1944, Mr. Mermelstein’s entire family was forced to

Dr. Vilko’s statement is posted on the website of the

Holocaust Survivors Foundation USA:

http://www.hsf-usa.

com/class-action-lawsuit-against-hungary-and-hungarian-railway/;

http://www.hsf-usa.com/wp-content/uploads/2018/02/LTR-re-Hu

ngary-Litigation-Jan-24-2018.pdf.

leave their home and were taken to the Beregszász

Ghetto and then to Auschwitz-Birkenau. He survived

grueling work details and starvation there, and was

then taken in an open coal train car in the freezing

winter to Ebnsee and Mathausen. Mr. Mermelstein

miraculously survived, but his mother, father, brothers,

sister, and grandparents were all murdered.

After the war, Mr. Mermelstein returned home to

discover everything gone and no one alive. The local

townspeople and the Soviet government did not

welcome Jewish people. He managed to escape and

spent nearly two “miserable” years in a displaced

persons camp in Germany before being able to

immigrate to the U.S. in 1947.

He married another survivor, Irene Markovic, in

1951, and they moved to Miami that year. Mr.

Mermelstein helped organize a number of local

survivor groups in South Florida, especially because in

the early years, survivors only had each other. Only

fellow survivors understood what they had gone

through. The groups grew in size in the 1980s and

1990s, but are much smaller now because so many

survivors have passed away. Mr. Mermelstein was a

founding member of HSF and serves as its Vice

President. His testimony before the U.S. Senate

Judiciary Committee on September 17, 2019, is found

at App. 1a.

At the age of 91, it would be extremely physically

difficult for Mr. Mermelstein or any survivor to travel

to Hungary. It would also be terrible for himself and

fellow Holocaust survivors to be forced to depend the

country whose citizens willingly collaborated in the

murder of their families, the destruction of their way

of life, and the theft of their valuable personal and

religious property, to be the place where the survivors’

lawsuit against Hungary and the Hungarian Railroad

are heard.

C. Renee Firestone.

Renee

Firestone

was

born

Uzhorod,

Czechoslovakia, the capital of the region. It was

annexed by Hungary in 1938. In April of 1944, Renee’s

family was forced out of their house by Hungarian

gendarmes working with the Nazi SS. She was

imprisoned in Auschwitz/Birkenau for 13 months.

Her entire family was murdered, except for her father

Morris, who died of tuberculosis shortly after

liberation, and her brother Frank, who had escaped

the Hungarian forced labor camp and became a

partisan (a freedom fighter). After liberation, Renee

returned to her family’s home in Uzhorod and found

that everything was gone – other people were now

living in her family villa, her home – and her father’s

business no longer existed.

After the war, Renee was fortunate to continue her

education in Prague, where she met her husband

Bernard (also a survivor). They moved to Los Angeles

where she became a successful fashion designer. In

the last several decades, Renee has documented her

experiences in Hungary and in the camps in several

books, interviews, and multiple documentary films,

including the movie The Last Days, produced by

Steven Spielberg. Among many organizational affiliations, Renee is a member of the HSF Executive

Committee. Ms. Firestone has also testified in Congress about the unfairness of many of the so-called

post-war “restitution” activities, most of which have

left survivors without material restitution, and without even the dignity of a fair opportunity to make

claims for looted assets such as unpaid insurance

policies. App. 56a.

Ms. Firestone has also traveled to Hungary since the

war, where Jewish community leaders felt unsafe

because of its historical and current antisemitism.

She believes litigation in Hungary today would be

“unthinkable.”

D. Klara Firestone.

Klara

Firestone

was

born

Prague,

Czechoslovakia, immediately following the end of

World War II, the daughter of Renee Firestone

and Bernard Firestone, who was in Hungarian forced

labor and then Mauthausen. She is the founder and

president of Second Generation of Los Angeles. In

September 2014, Klara Firestone testified before the

U.S. House of Representatives Committee on Foreign

Affairs on the issues of survivors’ needs, the needs of

the second generation, and the unfairness of what has

been known as the restitution process. App. 37a.

According to Ms. Firestone, especially at their

advanced age, it would be re-traumatizing and completely unfair to require Hungarian survivors to press

their claims against Hungary and the railroad in the

courts of Hungary, and would be similarly traumatizing for the second generation to litigate in Hungary on

behalf of their parents or for themselves.

IV. Survivors’ Ability to Personally Participate in Holocaust Restitution Proceedings is a Valuable Element of the Justice

System.

The U.S. Survivor Amici also believe that litigation

of this case in Washington, D.C. would provide the

additional benefit of allowing the survivor community,

whose rights are at stake and whose horrific experiences in the Holocaust are at the heart of the case, to

participate, witness the proceedings, and see likely

media reports about the case, at a close distance.

In Rosner v. United States, 231 F.Supp.2d 1202

(S.D.Fla. 2002), Hungarian survivors brought an

action under the Little Tucker Act against the United

States Government for misappropriating the property

that was looted by the Hungarians and the SS from

Hungarian Jews, and placed on the “Hungarian Gold

Train.” When WWII ended, the train was located in

Austria and handed by the Hungarians to the U.S.

Army. Recently declassified records showed the U.S.

Government misappropriated and mishandled much

of the property in violation of U.S. law.

The case settled for $25.5 million in 2005 after

nearly five years of litigation. Over $22 million was

earmarked for emergency medical care and basic

social services for indigent Hungarian survivors in the

U.S., Canada, Hungary, Israel, Australia, South America,

and Europe. In addition, $500,000 was allocated to

collect and archive records about the Holocaust in

Hungary and the Gold Train events, and to ensure the

records would be made publicly available.

Throughout the Rosner case, HSF served as a

national clearinghouse to provide information to

Hungarian survivors throughout the United States

and provide feedback to class counsel. The survivors’

direct participation and attendance at hearings

enabled them to understand the difficultly and

complexity of federal human rights litigation against

a strong adversary like the U.S. government, and

reach closure based on their first-hand observations of

how all of the elements of the system worked together,

or conflicted, but eventually got resolved in a hardfought settlement.

Alex Moskovic, a Hungarian survivor, who was an

amicus in the Circuit Court, and a member of the HSF

executive committee, attended numerous hearings

and participated in conferences with the attorneys and

the Justice Department.

At the final approval

hearing, he stated:

I am proud of the effort the survivors have

put into this case, and it has been an honor to

observe this Court preside over what I know

has been a difficult case.

It has been difficult for us too. All this

restitution business has caused survivors a

lot of pain because it required us to relive our

past; something that no one should ever have

to experience.

But we did press several cases because

justice requires accountability to the people

who were harmed and to history. That is why

we support the settlement. We support it

mostly because we believe the results, as it

has been agreed to so far, will be honest to

history and fair to the survivors.

Transcript of Final Approval Hearing, September 26,

2005, at 62; App. 100a. Sadly, Mr. Moskovic passed

away in September 2019.

David Mermelstein, who was a named plaintiff in

Rosner, spoke in favor of the settlement at the final

approval hearing:

Good afternoon, Your Honor. We fought this

case hard on behalf of all the Hungarian survivors

and their families. We fought for honor and

justice. We fought for accountability. We were

always informed about what was happening in the

case, and had a lot of input with our lawyers.

Our lawyers were advocates for the living and

for the memory of the dead. We saw the Justice

Department fight hard, but in the end when it

came time to do the right thing they were very

honorable.

Id., at 65-66, App. 103a.

Finally, Hungarian survivor Jack Rubin, who was

also a member of the Holocaust Survivors Foundation

USA executive committee, participated actively from

the outset of the case. At the final approval hearing,

he spoke in favor of the settlement:

I was here in March, Your Honor. As you

remember, I gave a very short bitter speech

as a 15-year-old as I was collecting all the

valuables when I was in the ghetto.

I have attended several of the hearings.

Thank you for letting me speak again this

morning.

This case has been remarkable in several

ways. First, Mr. Rosner and our families had

the opportunity to seek justice against the

United States government in this court of law

under the government’s very own laws, and to

receive a fair hearing in that process.

I have watched Your Honor preside over

these hearings and although we didn’t always

agree with you, we know you have been just

and fair and tried to apply the law the best

way you can.

Second, the survivors have had the opportunity to participate directly in this litigation.

We spoke frequently with the lawyers as the

case had its ups and downs. We sat in this

courtroom and witnessed justice at work.

When it came time to negotiate, we had real

input and it was part of the settlement.

Third: After reaching a settlement we had

the chance to speak directly to this Court

about it, what it meant to us. And we had a

chance to shake the hands of the government

lawyers and thank the United States for

recuing civilization in World War II, and

providing many refugees such as ourselves

with a home and a chance for a new life; . . . .

Finally, to thank the government for finally

being accountable for the Gold Train.

Id., at 57-58, App. 96a. Sadly, Mr. Rubin passed away

in July of 2016. A fighter to the end for the rights and

interests of his fellow survivors.

CONCLUSION

For these reasons, Amici respectfully urge this

Court to affirm the decisions below.

Respectfully submitted,

SAMUEL J. DUBBIN

Counsel of Record

DUBBIN & KRAVETZ, LLP

1200 Anastasia Ave., #300

Coral Gables, FL 33134

(305) 815-8060

(305) 357-9004

sdubbin@dubbinkravetz.com

Counsel for Amici Curiae

October 29, 2020

APPENDIX

APPENDIX A

STATEMENT OF DAVID MERMELSTEIN

UNITED STATES SENATE JUDICIARY

COMMITTEE HEARING ON HOLOCAUST ERA

INSURANCE CLAIMS SEPTEMBER 17, 2019

My name is David Mermelstein. I am the President

of the Holocaust Survivors of Miami-Dade, and Vice

President of the Holocaust Survivors Foundation USA.

I was born in Kivjazd Czechoslovakia in 1928. My

father Martin Mermelstein was a self-employed businessman who owned a business selling beer, wine,

liquor, and cigarettes. In 1944, we were all deported

to the Beregsatz Ghetto and then to Auschwitz. My

parents, my four brothers, my sister, and grandparents were all murdered in Auschwitz. I am the only

member of my family to survive.

Unfortunately I do not have the time in this hearing

to talk about everything we went through. Although I

realize the purpose of this hearing is to discuss the

problems of insurance policies that our parents and

grandparents bought but the companies refused to

honor, it is impossible to provide the context of this

particular injustice without describing the terrible,

terrible crimes that were perpetrated against the

Jewish people, including of course my family, in the

Holocaust. What we went through, I could talk about

for hours, which is exactly what I do with school

children and community groups all the time.

How I survived the Nazis, and how I survived the

aftermath of World War II, the Russians, the DP

Camps, and the rest, is described in my deposition in

the Hungarian Gold Train case, which I am attaching

to this statement so that the Senators on this

Committee can understand more about my life, the

Holocaust, and the unprecedented crimes inflicted on

us by the German Nazi regime.

As I explain in that deposition, I was very lucky to

survive the Nazis, lucky to escape the Russians after

the war, and lucky, after two years in a Displaced

Persons (DP) Camp, to be allowed to immigrate in

1948 to the United States. I courted my wife Irene,

another survivor, for a while in New York and after we

got married, we went to Miami for our honeymoon and

decided to stay. So, I was lucky again to build a business and raise a wonderful family in Miami. However,

we can never forget what happened to our families in

the Holocaust and we never will.

Now, let’s talk about the insurance. I remember

there was a plaque on our in house that said there was

insurance, by Generali. My father was a careful businessman, so naturally he would have had insurance to

protect his business and his family. Many survivors

also remember those plaques, or an agent coming

around every two weeks to collect premiums, but most

of us were too young to know the name of the

insurance company. Of course we have no documents

for obvious reasons.

In 1998, we worked closely with our Florida Insurance

Commissioner, Bill Nelson, for a State law to make the

companies publish all the names and allow survivors

to go to court if they wouldn’t settle. That is when the

companies came up with the idea of the ICHEIC

commission – because of pressure from the states.

Still, everyone told us ICHEIC was voluntary and not

binding unless you agreed to a settlement.

So, with all those promises, I applied to ICHEIC.

They said they could not find my father’s name. They

sent a check for $1000 as a “humanitarian payment.”

ICHEIC sent out 34,000 of those $1000 checks.

Survivors deeply resent the idea of a “humanitarian

payment” instead of the funds we know our parents set

aside in case of a disaster. The whole thing was an

insult to survivors, and it still is.

Yet the Courts have said that because of ICHEIC,

and because of Bush and Obama Administration

policies, Holocaust survivors cannot go to an American

court to collect our family policies. This is a disgrace

and only you can help us have our rights and dignity

restored.

Survivors are in shock that the U.S. government

took away our rights to go to American courts to make

our claims. Remember, these are contracts – not charity. How would those State Department and Justice

Department people, and those Judges, feel, if they lost

everything, and then their own government said they

couldn’t even go to court like every other American

citizen to collect on an insurance policy their father

paid for? They wouldn’t stand for it, and we won’t

either.

We all endured the ultimate hell. We lost everything

– our rights, our property, our loved ones. How is it

possible that today in the year 2019 we are second

class citizens and can’t even go to an American court

like everyone else? How would you feel if you lost

everything? How would you feel if your rights were

stripped away? How would you feel if your own

government said you couldn’t even have the same

rights as every other American?

Even worse, the government lied when it went to

court against us. I am the one who asked for the

Justice Department’s records under the Freedom of

Information Act. They admitted the government lied

about what Generali was promised. When a Congressman and our lawyer Sam Dubbin used those memos in

a Congressional hearing, the Justice Department told

me to give the records back. They still wanted to hide

the truth. Needless to say, I refused.

One of my closest friends in Miami is Herbie

Karliner, a survivor of Kristallnacht and the S.S. St.

Louis. After the United States forced that ship with

several hundred German Jews to return to Europe in

1939, Herbie’s mother, father, and sister were sent to

Auschwitz and murdered there. He and his brother

survived in hiding. He has papers proving his father

had a large life insurance policy sold to him by Allianz.

But his claim was denied by ICHEIC and Allianz.

They said Allianz already paid Herbie’s father. Years

later, Herbie got papers from the German Embassy

where Allianz said his father cashed in his policy on

November 9, 1938. That was not possible, because

November 9, 1938 was Kristallnacht, when his

father’s store was burned down, and his father was

taken by truck to Buchenwald. Allianz’s and ICHEIC’s

excuse is an obvious fraud. But Herbie, who is not only

a survivor but a U.S. veteran who served in Korea,

cannot to a U.S. Court to sue Allianz. This is just

wrong.

Sadly, you might hear from some Jewish groups that

they are against Congress passing a law. But they

are NOT, I repeat, NOT, Holocaust survivor groups

and do not represent survivors in any way. Survivors

are appalled at the arrogance of these organizations,

such as the American Jewish Committee, the Claims

Conference, the Anti Defamation League, B’nai B’rith,

and the World Jewish Congress. They have no right to

speak for us, or to act for us, and they never did. They

love to speak “ABOUT US, but it is always WITHOUT

US.” They should mind their own business. Please

read the letters the survivor leaders sent these groups,

which is part of my written submission.

I have more bad news. Half of all Holocaust survivors, including in the United States, live in poverty

and cannot afford the basic necessities of life – food,

rent, utilities, medicines, dental care, hearing aids,

eyeglasses, transportation to the doctor, and long term

care. The State Department, and non-survivor groups,

all try to justify stripping away our rights in order to

convince Germany to provide funds for survivors in

need. This is a false choice, and the policy has been a

complete failure.

First of all, what is the connection between insurance policies owed by private companies and Germany’s

moral obligation to provide for survivors’ care? There

is no connection at all.

Second, we have it in writing from the German

Ambassador that the German government would never

threaten to withhold funds for survivors’ needs because

of a law restoring survivors’ insurance rights. That is

in our papers.

Third, the organizations who are supposed to be

negotiating for these funds have failed to deliver

anything close to full funding for survivors’ needs. This

was proven in two Congressional hearings in 2014,

which were convened at the request of the Holocaust

Survivors Foundation USA. This was also found in

Senate and House Resolutions in 2016 calling on

today’s German Germany to fully fund survivors’

needs. Yet, the insurance companies are sitting on

over $25 billion in profits they pocketed from policies

they sold to our families before the Holocaust.

Survivors believe the companies should pay every

policy traceable to living heirs in today’s dollars, and

should disgorge the rest of their Holocaust profits from

policies owned by victims whose entire families were

destroyed, for the benefit of survivors in need today.

Without action by Congress, the insurance companies will be the heirs of the victims of the Holocaust.

This is unacceptable. There should be no legal peace

for the companies until the Holocaust survivors have

moral peace. We are very far away from that today,

Mr. Chairman.

I am 90 years old, about to turn 91. For the past 30

years, I have visited hundreds of classrooms and

community groups in Florida speaking to students and

adults about my experiences in the Holocaust. I do this

not because I enjoy telling the stories because they are

mostly very sad. I do this because I believe that all

people have an obligation to become educated about

the Holocaust, to remember, and to make a personal

commitment that they will do everything they can to

never let such atrocities happen again – not to the

Jewish people, not to anyone.

APPENDIX B

Statement of Jack Rubin

United States House of Representatives

Committee on Foreign Affairs Joint

Subcommittee Hearing Subcommittee on

Europe, Eurasia, and Emerging Threats

Subcommittee on the Middle East and

North Africa

The Struggles of Recovering Assets for

Holocaust Survivors

September 18, 2014

My name is Jack Rubin. I am a survivor of several

Nazi concentration and death camps, the only member

of my beloved family to survive the Holocaust.

Somehow I survived and was fortunate to make it to

this great country and raise a beautiful family, with

three (3) children and four (4) grandchildren.

I have served on the advisory committee of the

Jewish Family Services in West Palm Beach for many

years, and am also a member of the executive committee of the Holocaust Survivors Foundation USA, which

we formed 14 years ago to fight for the rights of tens

of thousands of survivors still living in the United

States, especially those living in poverty. Our leaders

are elected by survivors from all over the United

States. I am speaking here in my individual capacity.

I begin by thanking the leadership of this Committee

for giving us Holocaust survivors and the family

members of Holocaust survivors the opportunity to

speak here about what we have experienced and continue to experience. We thank Chairman Royce and

Ranking Member Engel, Chairman Rohrabacher and

Ranking Member Keating, and Chairwoman Ros-

Lehtinen and Ranking Member Deutch. We are very

proud of our South Florida representatives working

with the other important leaders of this Congress, and

would like to specially acknowledge the many, many

years of dynamic and critical support that Ileana RosLehtinen and Ted Deutch have given to the Holocaust

survivors in the United States, Europe, Israel, and

everywhere else survivors live.

As you know from our struggles dating back to the

late 1990s, we survivors have tried everything we

know to lift our brothers and sisters out of this

grinding poverty and little has worked.

Instead, we have been blocked everywhere we have

turned, in court cases right up the Supreme Court, in

Congress, and even seeking proper funding directly

from Germany. The small and inconsistent gains in

funding for survivors over the years from Germany,

channeled through the Claims Conference, are

delivered in uneven and we believe inadequate ways,

and we still see the poverty and misery at tragically

high levels still today.

Some 55,000 Holocaust survivors in the United

States today live near or below the official federal

poverty level. This is tragic and unacceptable. We

believe that a serious assessment by this Committee

of the actual cost of needed in-home care and basic

emergency services such as medicines, dental care,

hearing aids, food, rent, utilities, transportation, and

other vital services will show a multi-billion dollar

deficit.

The Holocaust survivors in this country strongly

believe even at this very late date, we must return to

the origins of Chancellor Adenauer’s promise in the

1950’s when he said that modern Germany must take

care of the all of the needs of survivors due to the

savage actions of the predecessor government, the

Nazi German regime, with the death camps, the labor

camps, medical experiments, torture, and other crimes

which have left this tragic legacy till this very hour.

Because of the these horrible deprivations, survivors’

mental and physical health care needs are more

extensive, more complex, and more dire than other

elderly people, and require serious, comprehensive

responses.

Unfortunately, the existing system has fallen

tragically short of what survivors need and deserve.

The current funding and care delivery system is

difficult for survivors to access, and also severely

underfunded.

Holocaust survivors are looking to this Committee

to help secure the funding for the care all survivors

need, primarily from the German government and

businesses such as Allianz and Generali who profited

from the Holocaust. Survivors are not seeking

additional funds from the United States government

or American taxpayers, or from Jewish philanthropy.

The United States did not cause survivors’ extensive

problems we experience today, and neither did the

Jewish community. Looking to these sources is wrong

in principle and wrong because it will never yield the

amount of funds actually needed to provide for the

needs of survivors today.

Here are some examples collected from South

Florida and other communities throughout the U.S.:

Emergency funds are capped at $2,500 per year

per survivor. That is a cap, not a guarantee.

Most survivors get less every year because of

limited funds that have to be divided among

10a

many survivors with emergencies. The result is

that many, many survivors’ emergency needs go

unmet.

Hearing aids usually cost about $5,000, and are

not covered by Medicare. With the $2,500 cap

and lower actual amounts available, survivors

often cannot get even one hearing aid, much less

two in the same year. How can a hearing impaired

survivor in his or her late 80s be expected to

manage with no or only one hearing aid?

Most survivors have extensive dental needs

because during the Holocaust, we had no opportunity to care for our teeth, suffered extreme

malnutrition, as well as beatings and other

horrible deprivations. Unfortunately, dental

services are paid for from the same emergency

funds that are limited to $2,500 per year. And

the dental work that many survivors need costs

thousands and thousands of dollars. Some

dentists give pro Bono help in some cities, but

this is very limited. I see and hear story after

story where survivors cannot get the gum

surgery, or extensive dental work they need

because there is no money. This is a very, very

big problem. The lack of proper dental care

harms survivors’ dignity, and also puts them at

risk for bad nutrition and cardiac problems.

Many poor survivors don’t have a car, cannot

access public transportation, or cannot drive

themselves to medical appointments. The lack

of transportation to go to the doctor is a real

problem and there is not enough money for this.

Survivors often miss their doctor appointments

for lack of transportation.

11a

The cap on home care funds has been reduced

in some areas by 50%. In some cases survivors

with documented need of 24 hour care had

funding cut from $2,500 to $1,250 per month.

There is the elderly survivor, Mrs. K, who is

very sick and is in the hospital for blood

transfusions, but was refused when she asked

for her AARP insurance paid which she couldn’t

afford – all of $625 for a quarter

Or, Mrs. I, who needed a refrigerator and after

a six week wait, her application was denied.

This was in September and she still does not

have a working refrigerator for her food and

medicine.

There was the elderly survivor woman who,

during one of the hottest days of this past

summer, requested money for an air conditioner

that cost $500. She was told they only had

enough money to give her half of the cost.

Unfortunately she didn’t have the rest and had

to endure the unbearable summer heat without

air conditioning.

There is the survivor who was desperate for

assistance to pay for a stair lift since her

husband is home bound and was told they were

too rich for assistance, even though their mortgage payments use up most of their income.

Survivors are begging for home care and being

refused. In one community I was told the maximum is 15 hours per week, despite the severity

of the survivors’ illness. These are people who

are not eligible for Medicaid. If they go to an

assisted living facility, they use every penny

available to pay their overhead, but you have to

12a

know that aids in those facilities cost extra. The

Claims Conference programs refuse any assistance to survivors for these so-called “extra”

services in assisted living facilities or nursing

homes.

These many problems are illustrated by the

case of a survivor from Stovnietze, Poland,

who spent World War II in the Lodz and Kielce

ghettos, and Auschwitz. He survived because

he was a mechanic and also learned to be a

bricklayer. He suffered so many injuries in the

camps including terrible foot injuries from

standing barefoot in the snow. Everyone but his

sister perished in the camps. This survivor

eventually settled in Richmond, Virginia. He

worked all his life and had saved some money,

but never married and had no children. But like

many survivors, he was a hoarder. As he aged it

got so bad he was pinned down in his home.

When neighbors didn’t see his car move for

three days, they called the police, who had to

hoist this elderly survivor out the upstairs

window. He was sent to the hospital close to

death. Showing signs of recovery, he got better

in a nursing home until his medical coverage

came to an end. He couldn’t move home because

it was unlivable, so he went to assisted living,

at $5,000 a month, which increased to $6,000 as

he faltered. Soon he needed aides in the facility,

which cost an additional $6,000 per month –

with no assistance from the Claims Conference

or other programs. These costs were far beyond

his reach financially. He had to be moved to

another facility that was less expensive, where

he eventually died in March 2013. However,

without the help of a group of two very dedicated

13a

friends and his former employer in the small

Richmond community he would never have

received the attention or care he needed.

Widows and widowers who live alone cannot get

home care from Medicare if they don’t spend a

certain number of nights in the hospital, and

after many operations are told they should have

help at home even if there were only in the

hospital overnight. Yet the rationing of home

care funds puts these survivors in danger.

Some survivors are now applying for assistance

for the first time. This is because they are

desperate for help, but their needs were not

factored into the agency’s budget and they have

to wait for help which may never come. Others

do not even apply because they are aware of the

funding shortages.

Survivors are re-traumatized every time they

have to retell their wartime experiences and for

many, the application process for assistance is

emotionally brutal.

Though there are fewer survivors every year,

the agencies caseloads are increasing because

more are becoming poor, they are getting more

frail, and their needs are increasing due to

declining health.

It is unconscionable that survivors, who went

hungry for years during the Holocaust, should

go hungry in the United States, but they are.

If a survivor moves to an assisted living facility

or a nursing facility, the Claims Conference

programs provide no assistance if they need

help with a personal aide or with personal

14a

hygiene. If a survivor lives independently, he or

she can get meals delivered or other services,

but these stop if they move to a facility. In these

facilities, a resident must pay extra for assistance with meds or to take a bath, but none of

that is covered by the Claims Conference.

Social workers and survivors involved in the

advisory committees have heard this question

far too often: “Do I take my medication or do I

buy food?” There are limited funds that must

cover a broad range of needs. “Should the agency

take care of every need of a few survivors, or

take care of some needs of many survivors?”

Under the current framework, these questions

are inevitable. Rationing is inevitable. Why

does it have to be this way?

There are children of survivors who are putting

themselves in financial jeopardy to help care

for their parents. We are grateful that the

Committee recognized this problem and invited

Ms. Bar-Cohen to relate her personal experience in caring for her father. These difficulties

are widespread.

Doing the Math to Properly Analyze Recent

German Home Care Announcement

Madame Chairwoman, and Mr. Ranking Member,

you are well aware from our many years of work that

in-home care is vital for survivors as they cannot be

institutionalized easily whether it be a nursing home

or mental health facility, which conjures up for most

survivors the most bitter memories of the way the

Nazis treated us. There could be nothing worse than

having to be institutionalized after all we experienced.

15a

You have heard our pleas for over a decade, seeking

a dedicated, permanent source of funding for longgerm care whose access survivors could control themselves. As you are well aware, these plans have been

repeatedly blocked by the institutions that preferred

the status quo. Think of the thousands who have

suffered since then who could have been helped if the

past efforts you supported had not been derailed! I

raise this not to assess blame, but to remind you and

the Committee that survivors need and deserve

comprehensive, accurate, and survivor-centered

solutions – TODAY.

Now everyone is talking about home care, with

grand announcements that Germany would spend

$800 million over the next four years (2014-2017) for

survivors’ home care through the Claims Conference.

We are asking the Committee to please take a very

close look at this announcement and use a sharp pencil

and paper to really understand what it will mean to

survivors for tangible help they desperately need.

According to the announcements 56,000 survivors

per year are served via the Claims Conference with

these German funds. This 56,000 number does not

include untold numbers of other survivors who are not

currently served, because we know most agencies do

not conduct or cannot afford outreach because funds

for services are already limited. Yet these Holocaust

survivors are also entitled to help and they must be an

integral part of this calculation, too.

But if the Committee and the Congress do the

simple math, it will show how terribly inadequate

these supposedly large dollar figures are when it

comes to the reality of what the survivors really need.

16a

$200 million per year divided by the 56,000

survivors that the Claims Conference and Germany

say are now being served, amounts to about $3,560 for

each Holocaust survivor each year.

The average survivor in his or her 80s needs at least

15 hours per week of home care. At $15 per hour,

which would be the low end in Chicago and South

Florida, $3,560 only provides 16 weeks a year of home

care. What is a survivor supposed to do the other 36

weeks?

If a survivor needs 24 hour a day care, the new

German fund would provide only 9 days of care every

year.

In New York City, where home care costs at least

$20 per hour, the funds would provide even less home

care for Holocaust survivors.

This is obviously not sufficient. Survivors cannot

make it on partial solutions, press releases, and

political rhetoric.

A recent report of the New York City social services

organization Self Help shows how inadequate the

recently announced funding levels really are. It says

that in 2013, in the New York City metropolitan area

alone, 26,572 survivors, or 41% of the New York

survivor population, required some help with daily

tasks. When that number is compared with the 56,000

survivors worldwide that are currently “served” via

home care funds through the Claims Conference,

the deficiencies are obvious. New York accounts for

roughly half of the U.S. survivor population, which is

between 20 and 25% of the world survivor population.

If New York’s survivor population, with about 12% of

the world’s total, has enough survivors needing home

care to comprise (for analytical purposes) 47% of the

17a

total number of survivors getting help with home care

through the Claims Conference today, the “math”

shows there are huge amounts of unmet needs now,

and will be gaping needs in the years to come.

When viewed in historical context, the recent German

home care announcement is even more chilling. This

grand new announcement might meet 25% of survivors’ current home care needs. However, it is the

culmination of several years of increases since 2005

in which the totals have doubled with each new

announcement, usually every two years. Since the

latest, high-water mark will only meet 25% of U.S.

survivors’ home care needs, it shows how much unnecessary suffering survivors had to endure in recent

years as funding has been inching up gradually

through negotiations with Germany without regard

for the actual human needs being neglected.

Another question this Committee should ask is:

What are the Claims Conference’s plans for the new

German home care funds? Have the allocations for

each city in the United States been determined? We

think that the United States House of Representatives

and the Senate, and certainly the Holocaust survivors

and our families, are entitled to know exactly how the

new German home care funds will be allocated –

where, when, and how much? The same is true for all

other funds for all the other needs survivors continue

to need so badly.

Doing this math, taking the local pay scales of any

local venue, X$/hour for home health care workers X

number of days a month which are clinically determined to be needed, gives you a number which makes

a mockery of the actions and proposals currently on

the table. The unique health and emotional conditions

and illnesses of survivors require professional treatments.

18a

We think a serious, intensive, and critical inquiry will

show the actual need is several billion dollars for home

care alone, when you consider the aggregate, world

wide need, and the remaining years this care will be

needed, and a like amount for emergency services also.

Where will the funding come from for these desperately needed professional services when Germany’s

recent, highly publicized increases still yield only 25%

of the funds needed into the foreseeable future?

Survivors need mental health care in much larger

proportion than do any other population directly

because of what was done to them – to us – under

the Nazi German regime for years. Many competent

health care professionals prescribe measures to help

and there is little money to help leaving survivors

alone to contend with the sleeplessness, nightmares

and horrors being relived over and over. Only recently,

the Claims Conference announced the results of recent

negotiations with the German Government resulting

in a one time payment for Child Survivors for the

first time amounting to $3,280 total. Once again,

the negotiations and public relations surrounding

the announcement leave the impression of a very

important result but in fact the math shows a huge

false impression. What are survivors and their families

to do to get help once again with such negotiations

results with Germany not paying the actual funding to

care for their horrid needs directly resulting from what

the Nazi Germans did to them?

I very much doubt that Chancellor Adenauer, who

promised in the 1950s that Germany would provide for

the victims of the Holocaust “to their last breath,”

would be satisfied by the state of affairs today.

Survivors need and deserve a realistic German

rational funding that will address all important unmet

19a

needs, ideally worldwide. It should no longer be

acceptable to cause continuing misery to survivors

based on piecemeal negotiations every few years and a

patchwork of programs.

I would add here that the problems of survivors

living in poverty and suffering without the care they

need is a worldwide problem — including in Israel

where over 40% of the world’s Holocaust survivors

live. The issue is of such concern in Israel that, even

as the people of Israel braced for war with Hamas this

past July, the Jerusalem Post published a statement I

wrote addressing the depth of the problems facing

Holocaust survivors in the U.S., Israel, and worldwide.

In that article, I wrote:

Survivors and second and third generation

leaders have long opposed the current cynical

framework pitting the heirs of East German

properties against indigent survivors. This

shell game, enabled by the silence bought by

Claims Conference grants, has allowed the

Claims Conference to protect Germany while

maintaining monopoly control over Holocaustrelated assets and survivors’ welfare. But the

fact is, Germany caused the massive medical

and emotional problems survivors are confronting today, and Germany should pay for

all of the survivors’ needs, without the bargaining and compromising that has become

the Claims Conference’s specialty. Survivors

and heirs should have the right to recover

their lost assets, including German properties, insurance claims, and artworks, and

Germany should pay for the needs of indigent

survivors.

20a

http://www.jpost.com/Opinion/Op-Ed-Contributors/Me

mo-to-the-Claims-Conference-We-Holocaust-survivorsare-not-dead-yet-362041

In connection with this statement and my live

testimony, I request that the Committee accept some

letters and other materials concerning this and the

other matters I have addressed here.

Survivors Are Not Asking for Help from U.S.

Taxpayers

Members of this Committee and Subcommittees, we

want to also be clear that Holocaust survivors are not

asking for more help from the U.S. taxpayers.

Survivors already benefit from many programs for the

elderly, and should continue to do so. We hope these

can be made better for all elderly in the U.S. However,

U.S. taxpayers are already burdened enough, and soon

10 million American baby boomers will be turning

65 every year for the foreseeable future. Shaving off

thin slices of these precious funds which themselves

have been sequestered and cut along with regularly

targeted funds added would make it tragic for survivors to be inserted in that long line of those seeking

those ever smaller funds.

Holocaust survivors endured ghettos, starvation,

disease, concentration camps, killing factories, and

death marches. We came to the United States and

became proud and productive American citizens. Many

survivors served this country in combat in Korea

and Vietnam. I myself am a U.S. military veteran.

Survivors are fiercely independent and never wanted

to rely on their fellow Americans for a penny of

assistance. These same survivors now have to ask for

help because they can no longer care for themselves.

21a

But the United States did not cause the problems

survivors face today – Germany did.

As a survivor I am sick as are my colleagues that

these taxpayer funds of HHS, and others are being

contemplated for use for us and our brothers and

sisters when we insist Germany’s full responsibility to

provide the actual costs of all the services remains a

moral and a practical imperative.

In this regard, I feel it is necessary to comment on

the recent initiative announced by the White House

about helping Holocaust survivors.

The White House announced an “initiative” to help

Holocaust survivors in need with a plan to appoint one

desk person at HHS to coordinate with social service

agencies, begin a program to recruit VISTA volunteers

to help survivors, and begin to organize fundraising

in the Jewish Federations to augment funding for

survivors’ needs.

As it currently stands, the White House’s announcement is deeply flawed. Survivors deserve the most

thorough, professional, and comprehensive care available,

not half-measures. And the Jewish community should

not be looked to for fundraising to fill these gaps – the

Jewish people were the victims, not the perpetrators.

The Jewish communities should not be called upon

today to provide the financial assistance that is

Germany’s responsibility, and be asked to shortchange other community priorities such as Jewish

education, youth programs of all kinds, providing

assistance for other Jews in need locally and

throughout the world, including other Jewish elderly,

and most recently, Israel’s humanitarian needs during

and after the war with Hamas.

22a

It isn’t like the Jewish Federations have not been

aware of the shortages in funding for survivors over

the past several years. They too have been hit hard

by the economy, and changing philanthropic trends

and lack of confidence in institutions as well. Further,

many communities have tried to hold special fundraising efforts, which are well-intended but never calculated

to nor have they succeeded in actually raising the

funds to provide survivors the full measure of assistance needed.

The survivors’ needs are vast and immediate. Why

should we Holocaust survivors always be subjected to

these kinds of compromises and flawed solutions? Wellmeaning but short-sighted suggestions that survivors’

needs can be addressed through volunteer programs

and extra fundraising in Jewish communities will not

suffice.

We raised all of these concerns with the Vice

President’s staff, and these are only some of the

reasons we believe the White House’s announcement

should be viewed as perhaps a starting point, but not

the end point for what is needed to provide the

complete and professional levels of care that survivors

need and deserve, and not to sidetrack a the urgent

business to immediately get this right for survivors, at

long last. This is in every sense of the word, a matter

of life and death. Where is the urgency?

If there is more Federal Government support or

more charitable contributions to help some of the

survivors in need as we all know about, it would be

welcome. But this is not the solution to the vast

problems survivors face today. This approach has been

tried for decades and it has not worked. When we are

talking about needing hundreds of millions of dollars

per year over and above what is currently being spent

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to properly care for survivors, raising a few million

dollars in the Jewish community will not come close to

solving the problem, and neither will $5 million or $10

million from the U.S. government.

If only all these well-meaning friends would simply

do the math to understand how survivors real,

medically mandated health care could never be met

under those solutions thus far put in place. The

Government of Germany is the only source of realistic

levels of funding to make a difference in the lives of

survivors living in poverty. The good-sounding negotiations results simply will never do that.

This past May, the Administration’s Special Envoy

for Holocaust Issues, and her colleagues, travelled to

South Florida to meet with the survivor community,

the adult children of survivors many of whom are

caretakers, and the Jewish Family and Children’s’

Services professionals who have the prime responsibility to administer what little funds exist for survivors.

These meetings took place in Miami, Fort Lauderdale,

Boca Raton, and West Palm Beach. I am proud that in

each community the survivors and family members

were united in our report: there is simply not enough

funding available to meet the needs that we know

about much less the problems faced by so many

destitute survivors too embarrassed to seek help.

While we were encouraged by the caring attitude

that the Administration’s people brought, we are very

concerned that their agenda is far too limited, i.e.

focused solely on making federal programs work better

for survivors. Well, that is a laudable and long overdue

goal, and we offered what support we could. However,

it would be tragic of the Administration lost sight

of the big picture and the urgency of the needs of

survivors today which can only be addressed by

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substantial increases in funding from Germany and

other culpable Holocaust countries and profiteers. We

implored the White House representatives to urge

the President and Vice President to take a leadership

position and bring our concerns to Chancellor Merkel

personally.

We know social service agencies and local leaders

throughout the United States charged with the responsibility to provide care for survivors have to manage

with insufficient resources. But their hands seem to be

tied when it comes to the most significant obstacles

facing survivors. Why don’t they speak up and support

the survivors seeking to hold Germany responsible for

providing the complete current amounts of funds

survivors desperately need. Why do retired German

WWII veterans and even SS officers receive ample

pensions and complete health care coverage, when

Holocaust survivors are forced to choose between

paying for food or medicine, and cannot pay for dental

care, home care, utilities, home care, and other basic

needs? This isn’t right.

Maybe, after this hearing and the Committee’s

work, the White House will immediately build on the

acknowledgement that the needs are great, and use its

unique authority to deliver the comprehensive

financial support that survivors need and deserve.

However, even without the White House, we believe

in this Committee and in our elected members of

Congress, led by you Congresswoman Ros-Lehtinen

and Congressman Deutch, and the 100-plus other

members of this House who have previously supported

the Holocaust survivors. We ask that you initiate an

effort with them to raise your collective voices with

Germany, as Senators Nelson and Boxer have done in

the Senate.

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Please, Madame Chairwoman and Mr. Ranking

Member and Members of this Committee, help us by

contacting Chancellor Merkel and your counterparts

in the German Parliament, the Bundestag, to get this

message understood once and for all. Otherwise, we

will die never seeing meaningful help provided to the

tens of thousands of brothers and sisters who need

help but continue to suffer.

We are losing more and more survivors every day

and they need our help now. We need to this Committee to figure out how much they need for housing,

dental care, home health care and other survivors and

then use your eminence as members of this great

United States Senate to help us secure the needed

funding, today, without any more delays. The German

government and the United States government

continues to protect the Allianz insurance company

and to hide behind the Claims Conference in providing

insufficient levels of care for tens of thousands of

survivors in need. We need the Vice President, the

entire Administration, this Committee and entire

Congress to pressure Germany, and all culpable

business entities, to fulfill their moral obligations to

Holocaust survivors, today.

What Happened After the 1997 Senate

Resolution Calling on Germany to Provide

Adequate Income Support and Full Health Care

for Holocaust Survivors?

In 1997, the United States Senate unanimously

passed a resolution co-sponsored by Senators Moynihan,

Graham, Hatch, Dodd, and Biden, calling on Germany

to provide adequate material and social service support

so that all Holocaust survivors could live in dignity.

The resolution noted that retired SS officers in Germany

and elsewhere receive far more generous health care

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benefits from Germany than Holocaust survivors.

It called for, among other goals, that “the German

Government should fulfill its responsibilities to

victims of the Holocaust and immediately set up a

comprehensive medical fund to cover the medical

expenses of all Holocaust survivors worldwide.” S.Con.

Res. 39, July 15, 1997.

Unfortunately, neither the Jewish community leadership, the Executive Branch, nor Congress followed

through on persuading Germany to live up to these

aspirations. Today, 17 years later, there is no more

excuse for delay.

The grandstanding, fractured, and irrational, biannual

announcements of Claims Conference-German secret

negotiations have got to stop as the means of caring

for survivors once and for all. It should be replaced by

the serious solution sought by the survivors who have

pleaded for this for nearly 15 years of agony and

endless suffering and inability to lift their brothers

and sisters in need into a reasonably comfortable and

dignified quality of life, and having watched as so

many survivors died in agony these past 15 years

while those in power ignored or failed to grasp the

seriousness of our plight. The above suggested process

is the only way once and for all to set the process right

and kill poverty among our ranks before it is too late.

Data on Survivors Living in Poverty

When the group of survivor leaders who eventually

started the Holocaust Survivors Foundation USA

started this effort back in 1998, 1999, 2000, there were

at least 87,500 U.S. survivors living in or near poverty,

which was half of the 175,000 living survivors in the

U.S. at the time. Today, there are some 110,000 living

survivors, and still, half – 55,000 – live below the

27a

poverty line or are considered poor. To us survivors,

it is unbearable to think about the tens of thousands

of survivors who already died in misery in this great

country without the care they needed. It is unconscionable that thousands of survivors, who went

hungry for years during the Holocaust, should have

died hungry or alone here in these great United States.

The current framework is not acceptable, and never

was. But now that this Committee is investigating the

status of survivors in the United States, we are

praying that this Committee’s work will not allow the

catastrophes of the past decade to be repeated.

Keep in mind that Holocaust survivors also suffer

from much higher levels of poverty than other elderly

because of the loss of parents, grandparents, the loss

of property and other assets, and the deprivation of

educational opportunities. Even many survivors who

did OK economically have outlived their resources,

and are now unable to afford the care they need.

Unfortunately, there is no comprehensive census

data that shows the number of survivors in the U.S.,

the number that live in poverty, and the kind of

care they are receiving via government and privatelydelivered services. However, there are several local

studies and national surveys that support the basic

finding that half of all survivors live below or near the

poverty level, and that the funding for survivors’ needs

is terribly inadequate everywhere. Here are a few of

these summarized.

National Data. As I noted, today, some 55,000

Holocaust survivors in the U.S. – half of the survivor

population here – live below or near the poverty line

and cannot afford sufficient food, shelter, medicine,

health care, home care, dental care, hearing aids,

eyeglasses, and other services necessary for a dignified

28a

old age. This number is derived from data from leading

demographers compiled by the Jewish Federation

system and filed with the Federal Court in 2004. The

number of U.S. survivors living in or near poverty at

the time was 87,500. (See Sheskin, Estimates of the

Number of Nazi Victims and Their Economic Status,

January 2004; 2000-01 National Jewish Population

Survey.) 55,000 is also the number cited by the Claims

Conference when describing the population of U.S.

survivors who are poor today.

Los Angeles. In December 2008, the Jewish

Federation of Los Angeles conducted a survey which

concluded that there are 10,000-12,000 Holocaust

survivors living in the Los Angeles metropolitan area,

most of whom are over the age of 85, 75% of whom are

female, and 49% of whom are “low income or poor.” See

Los Angeles Community Study of Vulnerable Jewish

Seniors and Holocaust Survivors, December 2008.

The Los Angeles study found, “[c]onsistent with

other national studies, Holocaust survivors in Los

Angeles are less affluent than other Jews, with 49%

of households either low-income or poor. Using the

federal poverty guidelines, 27% of survivors are living

at or below 100% of the guidelines.”

New York. A few years ago, the UJA-Federation of

New York City reported that “[t]here are 73,000 aging

Holocaust survivors in NY, half of whom are living

at or below the poverty level.” See http://www.face

book.com/ujafedny.

As I said before, a recent report in 2013 by Self Help

found that in 2013, in the New York City metropolitan

area alone, 26,572 survivors, or 41% of the New York

survivor population, required some help with daily

tasks.

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San Francisco. The Jewish News Weekly of Northern

California reported in 2008 that of 4,000 Holocaust

survivors living in the Bay Area, 1,000 of them “are

in trouble,” and that “the Jewish community is not

raising enough money to care for the poorest and

sickest in a proper and humane way.” See Anita

Friedman, “Holocaust Remembrance is About

Honoring the Living, Too,” Jewish News Weekly of

Northern California, May 2, 2008. These concerns

about the large number of survivors in need in the Bay

Area were again reported four years later. See

Deborah Garel, “As We Memorialize Shoah Victims,

Don’t Forget the Living,” Jweekly.com, April 12, 2012.

Washington, D.C. The Washington (D.C.) Jewish

Week reported in November 2012 that while “Claims

Conference money has never been enough to fund

the JSSA’s (Jewish Social Services Agency’s) support

for Holocaust survivors,” that in 2012 the agency

was estimating a $500,000 shortfall because of the

increased demand for services. See “Fiscal Cliff for

Survivors,” The Washington Jewish Week, November

28, 2012.

South Florida. In Miami, a 2003 survey (the most

recent one to ask the question) found that 39% of

survivors live below the official poverty level. No one

believes the situation has improved since then. But

the community isn’t even asking the question now –

either to avoid embarrassment, or perhaps because

they realize the results won’t make a difference with

today’s funding system.

In preparation for the 2009 Prague Conference

on Holocaust Assets, the South Florida social service

organizations met with the Holocaust survivor leadership and Congresswoman Ileana Ros-Lehtinen to

discuss the conditions facing survivors in the care of

30a

the communities there. In Miami, the director reported

that the survivors under the care of the Jewish

Community Services organization are mostly in their

late 80s and 90s, and require substantially greater

care on the whole than they did even a few years ago,

but the current system only provides a portion of the

hours of home care needed.

Broward County and Palm Beach Counties reported

larger but somewhat younger survivor populations,

with slightly lower levels of poverty levels and lower

levels of hours of care and emergency services needed

on average. So, Broward and Palm Beach Counties’

survivors were at the time of that meeting getting

about one quarter to one third of the home care they

needed, about 4-6 hours per week (like Miami 10 years

ago). Further, their emergency funds from the Claims

Conference are not only rationed every month, but run

out long before the end of the year. Because their

situations mirror what Miami looked like a decade

ago, we can assume the needs will continue to grow

among survivors there in the coming years.

I am including a current write-up from the Alpert

Jewish Family & Children’s Service organization in

West Palm Beach as an exhibit to my testimony.

Israel and elsewhere. There are also thousands of

impoverished Holocaust survivors living in Israel,

Europe, Canada, Australia, and South America who

are not receiving the services they need for a dignified

quality of life. According to the Claims Conference in

2010, the number of Holocaust survivors living in or

near poverty in Israel was 74,000, and the number in

the former Soviet Union was 90,000. When the 55,000

poor U.S. survivors are included in this ghastly count,

it shows 219,000 Holocaust survivors living in

or near poverty worldwide. As has been widely

31a

reported to the shock and dismay of many, even survivors in Israel do not receive proper and needed care,

due to funding shortages from Claims Conference and

the Israeli government, it doesn’t. See, e.g. Liel Leibovitz,

“Israel’s Starving Survivors,” Tablet, April 8, 2013;

Daniel Ziri, “Budget Runs Out for Holocaust Survivors’

Expenses,” The Jerusalem Post, August 11, 2012.

Insurance Companies’ Responsibility

Congresswoman Ros-Lehtinen and Congressman

Deutch, we also appreciate your introducing HR 890

in 2011 and pushing as hard as you did to have it pass

through this Committee and go further. That bill

would have restored Holocaust survivors’ rights to sue

Allianz, Generali, AXA, Munich Re, Swiss Re, Zurich,

Basler, RAS, Victoria, and other global insurers who

dishonored insurance policies they sold to our parents

and grandparents. The failure of your bill to advance

to even a floor vote in the House (and of S. 466 to

advance to a vote in the Senate Judiciary Committee)

remains a bitter disappointment to Holocaust survivors and our families. I would like my testimony before

the 2008 Senate Foreign Affairs Committee, and the

testimony of fellow HSF executive committee member

Renee Firestone in the House and Senate in 2011 and

2012, along with my other HSF colleagues who have

testified on the insurance issue and other issues of

vital concern to survivors, to be deemed an official part

of this hearing record. Here are the citations:

http://www.foreign.senate.gov/imo/media/doc/RubinJTe

stimony080506p 1.pdf

http://archives.republicans.foreignaffairs.house.gov/11

2/fir111611.pdf

http://www.judiciary.senate.gov/pdf/12-6-20FirestoneTe

stimony.pdf

32a

http://democrats.foreignaffairs.house.gov/110/rec03280

7.htm

http://archives.republicans.foreignaffairs.house.gov/11

2/71263 .pdf

http://judiciary.house.gov/hearings/pdf/Dubbin100922

.pdf

http://archives.financialservices.house.gov/hearing110/

arbeiter020708.pdf

http://archives.republicans.foreignaffairs.house.gov/11

0/sch032807.htm

http://archives.republicans.foreignaffairs.house.gov/11

0/rec032807.htm

http://www.gpo.gov/fdsys/pkg/CHRG-110hhrg38141/pd

f/CHRG-110hhrg3 8141.pdf

http://archives.republicans.foreignaffairs.house.gov/11

0/mos100307.htm

http://archives.republicans.foreignaffairs.house.gov/11

0/rub100307.htm

The reason is that my colleagues and I have

attempted to bring the concerns of the survivor community before this Congress over the past decade

on several occasions, and our positions have been

thoroughly documented and supported. But we have

been overwhelmed by the moneyed interests of the

insurance companies, the misrepresentations of the

Bush and Obama Administrations, and the treachery

and dishonesty of certain non-survivor Jewish groups

led by the Claims Conference, ADL, AJC, B’nai B’rith,

Agudas Israel, the World Jewish Congress, and Stuart

Eizenstat.

But insurers collectively owe Holocaust survivors

and our families well over $20 billion in today’s

33a

dollars, and they have denied us our families’ historic

and financial legacies. Thousands of survivors have

died as second class citizens in this country without

the ability to reclaim their families’ financial and

historic legacies. It is criminal that the insurers remain

immune, with the assistance of those I just named.

I raise this here for several reasons. First, even if

survivors’ legal rights were restored and all traceable

beneficiaries and heirs are paid, there would still be

billions of dollars in likely heirless proceeds these

companies could and should contribute to a fund to

assist survivors today. As I said in 2008, what about

the policies that went up in flames in AuschwitzBirkenau, and the other death camps? Why should

Generali and Allianz be the heirs of the Jewish families who were annihilated?

I raise this for another reason. As you surely recall,

to defeat our efforts going back to 2007 in Congress to

restore survivors’ legal rights, the insurers, the State

Department, and even some Jewish groups made the

argument that restoring survivors’ legal rights would

result in less funding from Germany for the needs of

indigent survivors. This was and is an outrageous

argument. One thing has nothing to do with the other.

Insurance companies should pay their debts and survivors should be able to sue them if they breach their

contracts. That has nothing to do with Germany’s long

overdue moral obligation to provide adequate funding

for the needs of survivors, a duty it has ignored and

only recently began to address due to pressure from

the survivors and our allies here in Congress.

But if you go back to the actual hearing record in the

Senate back to 2007 and 2008, you will see that the

Claims Conference witness cited this argument while

was bragging about having secured $70 million from

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Germany for “additional home care funding” – for the

entire world! We pointed out that $70 million for two

years, or $35 million per year, for the 50,000 survivors

then being served, would generate a total of $700 per

survivor for home care funding – about 4 weeks of

home care given the average cost of $15 and average

need of 15 hours per week.

Germany doubled these home care funds again in

2010 and 2013, culminating in the home care fund

discussed above that will address only 25% of the

survivors’ needs. If the funds from Germany have

doubled three times and now will only meet onequarter of the needs, this Committee can easily see

that a far more direct and forceful response is desperately needed. This is what survivors are hoping will

result from today’s hearing and your next steps.

Of course, we hope and expect that Congress will

take up a bill like HR 890 early next year and pass it

so survivors can recover our family insurance policies.

However, in addition, we believe that the insurers

such as Allianz and Generali and others who profited

from the Holocaust should also contribute to the kind

of fund we are urging here to provide for all survivors’

needs, immediately, and without further haggling.

They have the money – they stole it. They can pay it

out today to relieve survivors’ suffering, some of which

they caused.

Survivors’ Care Remains Germany’s Responsibility

Nothing has changed since Chancellor Adenauer’s

remarkable assertions of German responsibility in the

1950’s! Instead Germany, under the present newly reelected government has actively successfully pushed

their own responsibilities to the US government and

35a

the American Jewish community instead. How bizarre

is that? We are outraged and we beg this committee,

especially you, Madame Chairwoman and Ranking

Member Deutch, who have sat so ably on the Foreign

Affairs Committee for all these years, to press the

Secretary of State and the President, who have developed close ties to Chancellor Merkel and visited the

camps with her and with Elie Wiesel, to change all this

now, and get back to providing sufficient funds directly

to meet survivors’ actual physical and mental needs.

The cost of a proper, comprehensive, and permanent

program would be minimal compared to Germany’s

and the insurers’ resources – but would provide a vital

lifeline to survivors who need and deserve it.

While you may think a turn-around is impossible

to refocus on Germany’s responsibility. We believe

because of the very personal ties which exist uniquely

at this time in the relationships with Chancellor

Merkel, and with you, Madame Chairman, and the

Secretary of State, a concerted effort to renew and

refresh German’s role is promising and should be tried

on a concerted high level it should work. I am sure Elie

Wiesel would join such an effort just as he did a the

Prague conference on this subject and his visits with

the President and Merkel at Bergen Belsen

Concentration Camp as well as other such meetings.

Let me remind the Committee of Elie Wiesel’s words

to the 2009 Prague Conference:

However it is with pained sincerity that I

must declare my conviction that living survivors of poor health or financial means,

deserve first priority. They suffered enough.

ANd enough people benefitted FROM their

suffering. Why not do everything possible and

36a

draw from all available funds to help them

live their last years with a sense of security,

in dignity and serenity. All other parties can

and must wait. Do not tell me that it ought to

be the natural task of local Jewish communities; let’s not discharge our responsibilities by

placing them on their shoulders. WE have the

funds. Let’s use them for those survivors in

our midst who are on the threshold of despair.

If only this could be the serious focus by all high

level persons, led by you, Chairwoman Ros-Lehtinen

and Ranking Member Deutch, it would finally cut

through the talk and false efforts once and for all then

to provide actual meaningful care not gimmicks which

won’t work once again leaving survivors continuing to

suffer until they die.

Thank you again to the entire leadership of this

Committee and Subcommittees to hear us, to bring

these issues to light, and for your efforts past and

future. They are historic and extremely important.

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APPENDIX C

STATEMENT OF KLARA FIRESTONE

UNITED STATES HOUSE OF

REPRESENTATIVES

COMMITTEE ON FOREIGN AFFAIRS

The Struggles of Recovering Assets for

Holocaust Survivors

September 18, 2014

My name is Klara Firestone. I was born in Prague,

Czechoslovakia immediately following the end of World

War II, and I am the daughter of two Holocaust survivors. I am the founder and president (for my second

term) of Second Generation of Los Angeles, a founding

member of Generations of the Shoah International

(GSI), and sit on the Board of the Los Angeles Museum

of the Holocaust, the first museum and monument to

the Holocaust in the United States. Since founding

Second Generation in 1978, I have been steeped in

Holocaust affairs and have worked hand-in-glove

with the members of the survivor community in Los

Angeles and our surrounding counties. I come here

today to speak on behalf of myself, my family, and the

hundreds of Survivors and Second Generation who

I have counseled and ministered to over the past

37years, and who have not had a voice to advocate for

their rights. As the leader of Second Generation of Los

Angeles, I have facilitated hundreds of support groups

for children of Holocaust survivors, and in more recent

years, after becoming a psychotherapist, I facilitated

therapy groups for Second Generation. I have also

been instrumental in helping survivor families navigate what have often been very complex and difficult

relationships between parents and children given the

38a

extreme trauma that served as the backdrop for our

developmental years, and most of our lives.

There is a long trail of problems that tens of thousands of survivors and family members have confronted,

too often with incredibly frustrating and painful

outcomes. The status quo is obviously not acceptable.

If half of all survivors worldwide – including in the

United States – are living today in or near poverty,

unable to afford even the basics for a dignified old age,

the approach of the past 50 years is obviously wrong.

The temptation is great to dwell on the past, but we

know you called this hearing to see what can be done

TODAY to make a change for the better. What can be

done today for survivors and their family members

who have suffered terribly and continue to suffer? The

answer is very plain: Germany must assume the

responsibility to provide for all medically necessary

and basic income needs of all Survivors.

I would add my voice to the others who have discussed many of the medical and emotional issues that

survivors and the Second Generation must deal with

on a daily basis. The problems are real, and they

require serious professional attention, with properly

trained health care and psychological care givers who

understand the unique problems that survivors and

their children must deal with. Proper care requires a

sea change in the funding available, and it is only just

and right that this responsibility be assumed by the

German government, and other entities that collaborated and profited from the Holocaust. Later in this

statement, I address the extremely important issue of

the plight and suffering of so many of our Second

Generation members, who are the forgotten victims of

the Nazi’s atrocities and also deserve immediate and

comprehensive support from Germany.

39a

If this Committee does one thing as a result of this

hearing, we ask that you undertake a concerted, bipartisan, and relentless effort to convince Chancellor

Merkel and the German Bundestadt to make good on

Chancellor Adenauer’s pledge in 1952 to take care of

Holocaust survivors “to their last breath.”

As my fellow panelist, Holocaust Survivor, Jack

Rubin, stated in a recent Op-ed in the Jerusalem Post:

“[T]he fact is, Germany caused the massive medical

and emotional problems survivors are confronting

today, and Germany should pay for all of the survivors’

needs, without the bargaining and compromising

that has become the Claims Conference’s specialty.

Survivors and heirs should have the right to recover

their lost assets, including German properties,

insurance claims, and artworks, and Germany should

pay for the needs of indigent survivors.”

My testimony follows in the footsteps of my mother,

Renee Firestone, who appeared before the full House

Committee on Foreign Affairs on November 16, 2011,

and before the Senate’s Judiciary Committee on June

20, 2012. In the interest of conserving time, I have

included her full written testimony to the House

Committee as an exhibit to my written testimony and

I reference it here, at this juncture. I wish, however, to

point up a few salient points from her testimony.

At the age of 20, my mother was imprisoned for 13

months in the infamous death camp known as

Auschwitz/Birkenau during the last years of World

War II. Her mother, my grandmother, was never even

processed into the camp, but was gassed immediately

on arrival to Auschwitz. Six months after arrival at

the camp, her 16 year old sister, after whom I am

named, was first experimented upon before being

shot by the Nazis to avoid her re-entering the general

40a

population of the camp and possibly exposing what the

Nazis were doing. Her father, Morris, died of tuberculosis shortly after liberation. Her brother Frank,

who had been a partisan . . . a resistance fighter . . .

was the only other member of her immediate family to

survive. In addition, we lost almost all of our huge

extended family.

Following liberation in 1945, she was reunited with

her brother and soon-to-be husband, my father Bernard,

who had been in a Hungarian forced labor camp and

then interned at Mauthausen concentration camp.

When the Holocaust ended, the fragments of Europe’s

Jewish communities emerged broken and tattered,

wanting nothing more than to find who of their

families survived and begin rebuilding their lives.

They were too busy fighting their “demons” to care

about fighting bureaucracy in order to claim what was

due them. Many believed, as my mother also did then,

that this was “blood money” and wanted nothing to

do with it. They asked the question, “How can you

compensate me for the loss of my parents, brothers,

sisters, aunts, uncles, cousins, etc. in dollars? What

value should I assign that? So once again, their claims

and needs went unmet. In the years immediately

after the war, these very young survivors traveled to

whichever country would allow them access and safe

haven, thankful to have the chance at new lives.

A handful made it to phenomenal wealth, but the

majority did not, and today the educated estimates are

that approximately half of all survivors in the United

States are living at or below the poverty line. Yet

when they have tried in the past to gain some measure

of justice, they have been met with the appalling

intransigence of the Claims Conference leadership and

had the doors slammed in their faces.

41a

Can someone please tell me why, after suffering the

humiliations and brutality of the Nazis, the survivors

must now go begging for what is rightfully due them,

suffering additional indignities and being re-traumatized, only this time by the ones who are ostensibly

there to aid them! If you could hear the comments and

cries of the survivors at this betrayal, it would break

your hearts, just as it broke mine.

As the most active and visible leaders in our survivor community, my mother and I have been approached

hundreds of times by survivors and their children

beseeching us to intervene on their behalf to recover

restitution which is rightfully theirs. Time and time

again we have attempted to do just that, and we, too,

have been unsuccessful.

Even advocating for my own family has proved to no

avail. My beloved father passed away in 2001. Prior to

his death, he had received a letter from the Claims

Conference confirming that they had assigned him a

claim number for a particular fund and he would soon

be receiving the monies. After contacting them numerous times over the years, we are still waiting for those

funds. They now claim that they are unable to find his

claim in the system. You cannot imagine the pain this

causes the loved ones of a Holocaust survivor, not to

mention re-traumatizing the survivors themselves,

and this is the kind of problem I hear about over and

over again.

With so many obstacles to obtaining what belonged

to them, the survivors sought a different route to

recover some part of their family legacies. They attempted

to file claims with the insurance companies that had

insured their parents’ lives and properties through the

auspices of ICHEIC, the International Committee on

42a

Holocaust Era Insurance Claims. Once again they hit

a wall, thwarted by the ineffectiveness of ICHEIC.

My mother spoke to me numerous times about her

certainty that her father had insurance to cover his

business, their home, and his life. Her comment was

almost always the same, “My father was sort of the

patriarch of the family. Everyone, including his

brothers and sisters would come to him for advice on

all matters. Why would he advise his relatives to get

insurance and then not purchase it for himself and

his family?” This makes no logical sense. By a stroke

of magical luck, my mother’s first cousin found some

documents when he went home after the war, including the insurance policy of his parents. He was the

very first survivor to recover from ICHEIC because of

this document, although others were not so lucky. And

when the children of his deceased brothers finally

discovered that they could claim as well, they tried but

were told that the claim had already been paid. So

much for “adequate and sufficient notice to claimants.”

As my mother stated in her testimony on November

16, 2011,

My father was a very responsible man, with a

business and real property in order to provide our

family with an upper middle class standard of living

in pre-war Czechoslovakia (annexed by Hungary in

1938). I am certain he had insurance. But when I filed

my claim, after all the fanfare, the Commission

(ICHEIC) informed me that his name was not on any

of the lists. This is difficult for me to accept, but since

it is well-known that the lists produced by Generali

and the other insurance companies were incomplete,

I wonder why the U.S. government has neither

demanded a full accounting, nor allowed the states to

require it.

43a

* * *

Here are some facts that this Committee and Congress

should know about when they come to evaluate the

insurance companies’ and anyone else’s claim that

Holocaust survivors, and the children and grandchildren of Holocaust victims, should be satisfied with

ICHEIC, rather than have our rights enforced.

ICHEIC was chartered under Swiss law and headquartered in London to avoid American public record

laws and court subpoenas. It was funded by the insurance companies themselves, its meetings were conducted

in secret, and minutes were not even published of the

secret meetings.

Almost all survivors were frustrated and insulted by

their ICHEIC experiences. This was conveyed to Congress

in a series of hearings between 2000 and 2003. The

survivors regaled experiences such as multi year waits

for responses, denials without any explanation, demands

for information that no claimant could be expected to

know (such as the birthdates or death certificates of

relatives who perished in the Holocaust), and denials

of claims even where policies were proven to have

existed (Generali’s “Negative Evidence Rule”).

In its first five years, ICHEIC spent more money

on administrative expenses than it paid in claims.

Chairman Lawrence Eagleburger told a Congressional

Committee that ICHEIC’s internal processes were

“none of its [Congress’s] business.”

In 2002, Congressman Henry Waxman wrote:

“Holocaust survivors have been waiting decades to

reclaim Holocaust-era insurance policies. Unfortunately,

the . . . majority of the companies that have agreed

to the ICHEIC process have not lived up to their

obligation to disclose policyholder lists. The ICHEIC

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member companies also appear to have wrongfully

rejected, undervalued or left unanswered the claims of

many survivors.”

In 2003, Congress even passed a law – the Foreign

Affairs Authorization Act – that required the State

Department to collect information on ICHEIC companies’ claims, practices, and results. However, ICHEIC

refused to comply with this requirement as the

State Department reported in its annual reports each

year.

When ICHEIC ended in 2007, it had paid fewer than

14,000 of the 800,000 life/annuity/endowment polices

estimated to be owned by European Jews in 1938. The

total paid on policies was $250 million, less than three

percent (3%) of the $18 billion in outstanding values

at the time, according to the estimate of economist

Zabludoff, using what he regards as very conservative

numbers. Today the unpaid amount of Holocaust era

insurance policies exceeds $20 billion.

ICHEIC also issued 34,000 checks for $1000 each

which it termed “humanitarian” in nature, but which

survivors considered insulting rejections. Yet ICHEIC

and its supporters today take credit for having “paid

48,000 claims,” an obvious attempt to inflate its results

and give the appearance of success to a process that

badly failed.

You can also imagine our shock when, after ICHEIC

ended, its Chief Executive Officer, Mara Rudman,

became a paid lobbyist for the American Insurance

Association – the umbrella U.S. group lobbying against

the original version of HR 890 that was introduced by

the late Congressman Tom Lantos in 2007. Mr. Lantos,

the only Holocaust survivor to ever serve in Congress,

was a dear friend of mine. His widow, Annette Lantos,

45a

as well as his daughter Katrina, have remained committed advocates for the rights of Holocaust survivors.

As a Californian, I am also proud to say that our

Insurance Commissioners, especially former Commissioner, and now Congressman, John Garamendi,

were among the very few who stood toe to toe with the

insurance companies and even the Jewish groups on

ICHEIC who were so ready to cave into the insurance

companies and short-change the survivors. Mr.

Garamendi fought passionately for our interests.

Unfortunately, despite Mr. Garamendi’s tireless

efforts to make ICHEIC work to benefit claimants, the

insurance companies won big by paying so few policies,

by paying such small settlements, and by convincing

the Supreme Court that the states did not have the

right to allow us Holocaust survivors to hold the

insurers accountable for their actions. This loss was

devastating, and shocked survivors throughout the

State and the country.

Not only are we distraught over the way the courts

have disrespected Holocaust survivors, but the records

that the Holocaust Survivors Foundation USA has

found under the Freedom of Information Act show that

the State and Justice Departments acted terribly in

their court papers and Congressional testimony. We

cannot understand how our own government became

the adversary of Holocaust survivors in the 21st

Century.

Despite the claim that the United States and Europe

have been “successful in Holocaust restitution,” that is

far from the truth. Specific property restitution f

or individuals has been largely unfulfilled. Only a

fraction of the properties actually looted during the

Holocaust were “recovered” or restituted in any general

46a

sense, and of those funds, only a small portion

recovered and deemed “heirless” or for “humanitarian

purposes” has trickled down to meet the pressing social

service needs of the remaining Holocaust survivors.

Tragically, tens of thousands of survivors, including

many thousands in the US, are facing dire problems.

They cannot meet basic home and health care needs, or

pay for medicines, dentures, eyeglasses, hearing aids,

or walkers, or receive transportation to the doctor. This

may shock most leaders and public officials, but it has

been documented with increasing frequency in the

Jewish and mainstream media.

In the United States, half of all survivors – more than

50,000 – either live below the poverty line (25%) or have

incomes so low they are considered `poor” given the cost

of living in their communities. In my hometown of Los

Angeles, 39% of all Holocaust survivors live below the

poverty line. This is a moral and human tragedy that

should never have been accepted, but it was, and it

continues today. Yet we survivors, and our children,

are dealing with these tragedies day in and day out,

and the governmental and philanthropic establishments have been sadly protective of status quo

organizations and corporations, rather than protective

of survivors’ rights, interests, and needs.

How did this state of affairs come to pass? The role

of the Conference on Jewish Material Claims Against

Germany, Inc. (“Claims Conference”) in the restitution

failures is a common thread that cannot be ignored.

One of the reasons victims have done so badly in the

property and insurance negotiations is that the organizations primarily doing the negotiating (the Claims

Conference, the World Jewish Congress, the World

Jewish Restitution Organization—WJRO) are less

interested in individual claims being honored than in

47a

“global settlements” which result in funds they can

control. Even Stuart Eizenstat, no champion of survivors’

rights, recognized this in his book Imperfect Justice.

As reported in the media and testified in Congressional committees, the Claims Conference has drawn

the ire of Holocaust survivors throughout the world for

its lack of survivor representation in policy making,

for policies that cause grave harm to thousands of

impoverished survivors, for its lack of transparency in

the handling of restituted assets, and worst of all, for

its use of restitution funds for pet projects including

grants to board members and cronies of organization

officials, and other serious concerns.

The Claims Conference is a creation of the early

1950’s. It reflects a political decision made by leaders

of the Jewish community and the German government,

in the aftermath of the Holocaust, to have a mechanism

to channel German reparations to Holocaust survivors.

For over 40 years, there were no official survivor organizations on the Claims Conference board of directors.

In the 1990’s two “survivor groups” were added to the

board, but today only 2 of the 24 voting board members

are survivor organizations. So, the Claims Conference’s

board members and officers were neither elected by

survivors, nor does it morally represent the Nazi victims

in whose names the organization obtains its funds.

After German reunification in the early 90s, Germany

passed a law making the Claims Conference the legal

heir (“successor organization”) to East German properties not claimed by direct heirs within the outrageously

short time limit set by the Germans. However, the

Conference did not publish information about the

names of the Jewish owners of these properties, and

then claimed them as their own! To make matters

worse, the courts have supported the Claims Confer-

48a

ence’s claim to ownership of such properties – even

against the legitimate heirs of Holocaust victims who

had no idea about the two year deadline – including

many who understandably had no idea about family

assets before the devastation of the Holocaust.

Moreover, the Claims Conference has never fully

accounted for nor disclosed information about properties it obtained after German reunification that were

owned by Jews before World War II. Nor has there ever

been an audit of the organization’s asset base by an

independent outside authority that is accountable to

the public or the government.

The shell game taking place was that the Claims

Conference ousted thousands of German property heirs

of their rights, and then turned around and used the

properties for various “research, documentation, and

education “ projects which were only authorized for the

Claims Conference after it amended its by-laws in 1994

– not coincidentally after becoming the “owner” of the

“heirless” Jewish German properties.

Yet, without a mandate to use all of the funds at its

disposal for the needs of survivors, it has spent far in

excess of $250 million in the last 15 years on projects

unrelated to survivors and their welfare. Many of

these “research, documentation, and education grants

are made to organizations that sit on the Claims

Conference Board of Directors. Survivors question the

legitimacy of these grants, and have for over a decade,

yet we hear silence from most public officials and

private community leaders.

Let me repeat – despite tens of thousands of impoverished Holocaust survivors suffering from inadequate

nutrition, housing, medical care, home care, and other

vital services, the Claims Conference has seen fit to

49a

squander $250 million for non-survivor “research, education and documentation “ projects, including many

insider grants – a quarter of a billion dollars worth of

guaranteed Holocaust survivor suffering intentionally

imposed by the Claims Conference. How can Congress

and other leaders be silent in the face of such cruelty?

There has never been a full, public accounting of the

actual value of the assets, including real estate, art,

and other properties in the Claims Conference’s

inventory of assets. This lack of information is not only

inconsistent with all modern notions of necessary

transparency of organizations dealing with the public

trust, but it makes a mockery of the constant refrain of

the past decade – that it “does not have enough funds”

to meet the current needs of survivors around the

world.

Among the many terrible, painful, and disgraceful

indignities we have been made to suffer occurred in

2002 when Israel Singer, then-President of the Claims

Conference (and simultaneously Secretary General of

the World Jewish Congress) wrote an article in a

prominent Jewish journal giving elaborate details

about all of the education and building projects that

the Claims Conference was going to create “with

Holocaust restitution funds after the survivors

are gone.” This column outraged survivors throughout the country, as Holocaust Survivors Foundation

USA President David Schaecter wrote in response:

How can plans for a “Jewish People’s Fund”

go forward while survivors languish on

waiting lists for the health care they deserve,

especially after all they have endured? How

dare these institutions presume to spend

“restituted” funds for their favored “philanthropic” projects into the next century, using

50a

money claimed from the most terrorized

victims of the past century? Who will take

responsibility for ensuring that the individuals around whom much of our modern

Jewish existence is centered - Holocaust

victims - are not abandoned a second time?

Despite an outpouring of survivor anger, and limited

media coverage of this startling admission by Rabbi

Singer that what the survivors had feared all along

was really being planned, very little changed. Pressure

from some communities has caused the Claims Conference to increase allocations here, and there, as if they

were applying grease to a squeaky wheel. But how can

survivors’ rights be toyed with so shamelessly?

You might recognize Mr. Singer’s name. He was

dismissed in early 2007 from his position as Secretary

General of the World Jewish Congress for a variety of

financial improprieties, including taking over a million

dollars from one of the Claims Conference organizations (the Jewish Agency) and placing it in a secret

Swiss Bank account. Yet for a long period, he retained

his position as President of the Claims Conference,

while the Chairman, Julius Berman (who remains

Chairman today), saw “no reason to take action” and

remove him because Rabbi Singer allegedly “has never

been involved in the financial decisions of the Claims

Conference.” Ultimately, public pressure caused the

Claims Conference to dismiss Rabbi Singer.

However, for purposes of HR 890, it is important for

this Committee to understand that during the entire

ICHEIC period, when it opened in 1998 until it closed

in March 2007, Israel Singer was the “leading” voice of

the “Jewish” side. As noted, this was a body where the

insurance companies were fully represented, but not

claimants. ICHEIC documents show that Rabbi

51a

Singer himself represented three different “Jewish

groups” on ICHEIC – the Claims Conference, the World

Jewish Congress, and the World Jewish Restitution

Organization (WJRO). So, when these groups stand

before Congress to oppose my constitutional right as an

American citizen to go to court against these insurers,

based on ICHEIC, they are really defending outcomes

engineered or approved by an insular group of nonelected and non-representative big-shots with no legal

or moral right to speak or act for us, the victims, or our

families.

The Claims Conference has continued to act as if it

owns these survivor funds, and the sincere outcry of

decent people has been overwhelmed by the institutional power of the Claims Conference’s funding

practices. These practices include silencing opposition

by funding a myriad of non-survivor programs around

the world, and by creating the fear in communities that

it might reduce the minimal funding it provides to

Jewish family service organizations for survivors’

needs.

Had they been able to pursue a recovery on these

insurance policies, perhaps we would not have had the

need to be here today and the survivors would have

had the financial resources to live out their golden

years in peaceful and dignified security.

In more recent years, the Survivors trusted that the

U.S. government believed the survivors had made

great contributions to their adopted homeland and

were valuable enough to accord them the same rights

as every other citizen of this great country. And here,

too, they were grossly disappointed . . . by our own

State Department, Executive Branch of our government, and by Congress in not restoring the survivors’

52a

right to have their “day in court” against the insurance

companies.

Finally, I wish to touch on an issue which has yet to

be discussed, but vitally important, and which has no

other platform to be heard. And that is the plight and

suffering of many of our Second Generation members.

Although we are not always certain of the mechanism

and how it functions, there is an awareness now of

something called “transmitted trauma,” the concept

that the trauma our parents went through has been

passed down to some of us, the results of which

manifest as if they themselves had experienced the

trauma directly. They exhibit a sort of vicarious

PTSD, Post-Traumatic Stress Disorder, with all the

attendant symptomology . . . “flashbacks” of events

that they did not experience, but were most likely

gained from stories fed to them “with mother’s milk”

at an impressionable age, irrational fears such as

people coming in the middle of the night to take them

away, hallucinations that Nazi soldiers are coming

down the aisles in a movie theater, startle reflex, etc.

I can’t begin to tell you the number of desperate calls

I have received from survivor parents troubled over

their child’s mental health. Some of these children

have been so damaged by the time they reached their

teenage years that they have been totally disabled and

dysfunctional for the rest of their lives. Additionally,

for some of them who have only been marginally

affected by their parents’ experiences, the stresses of

now having to be caregivers to their parents while

experiencing financial hardships has taken an

enormous emotional toll on us. The survivors come

with unique “baggage” that only serves to exacerbate

the already difficult and stressful task of caring for an

aging parent.

53a

We have watched and suffered alongside our

parents in their struggle for justice. The thought that

our “inheritance” will go into the coffers of the Claims

Conference and its affiliates just heightens our

frustration and pain. On June 22, 2014, the JTA

published an article entitled Considering future,

Claims Conference weighs shutting down vs. Holocaust

Education. In that article, the Claims Conference

stated, “Given the Claims Conference’s successes at

convincing Germany to increase its funding for

survivors, the panel concluded that “to close down

without attempting to leverage its position and

significant experience in the service of Holocaust

education and remembrance would be to miss a major

opportunity. “http://www.jewishpress.com/news/break

ing-news/considering-future-claims-conference-weighsshutting-down-vs-holocaust-education/2014/06/22/.” The

survivor community’s response was incredulous. First,

with half of all survivors living in or near the poverty

line and lacking the funds they need for even basic

necessities of life, the statement that the Claims

Conference has been “successful” in obtaining funding

for survivors defies reality.

Further, it is offensive to survivors and their family

members to perpetrate the myth that the Claims

Conference is indispensable for Holocaust education

and remembrance. Who do they think has been providing it all these years since the end of the Holocaust?

The answer is: The Holocaust Survivors and their

families. Who has spearheaded and funded all the

Holocaust museums and memorials and monuments

in this country and abroad? The survivors! And who

began the process of educating the masses on the

atrocities and lessons gleaned from the Holocaust?

The Survivors! My mother said to me, “If they want to

pay for Holocaust education, they can start by paying

54a

me for the 35 years I have been speaking to the world

about my experiences.”

And, in the unlikely event that any funds should

remain after the last of the Survivors have left this

world, those funds are the rightful inheritance of the

children and grandchildren of the Survivors, and only

they can and should decide how that is disposed of.

We children of survivors feel the inadequacy of our

words whenever we attempt to convey the suffering

of our parents and families to others, especially to

the members of this Honorable Committee, our own

representatives, all of which suffering was for no good

reason. Except now, we have the platform to express

the harsh fact that Germany has shirked its responsibilities to our loved ones who are without adequate

resources to be cared for properly and to allow for a

healing of the physical and mental wounds obtained

at the hands the Nazi German Regime. Why should

others who are not the perpetrators be pushed to

provide inadequate resources thus allowing the tragic

suffering to continue to this day without relief?

That is why we are so grateful to you, the members

of this Committee, for the opportunity to plead our

cause and to urge you, in the strongest terms, to use

your power and press our own government, starting

with the President, the Secretary of State and the

Attorney General, and all of you, to demand that

Germany provide the ADEQUATE funds necessary

until all survivors have gone, as was promised by

Chancellor Adenauer right after the War’s end. Our

efforts for decades in this regard were without appropriate answers. Nothing! Instead silence. followed by

crumbs when the fenders got around to it.

55a

It is “one minute to Midnight” and if something

is not done quickly and sufficiently, my fear is that

thousands of the remaining survivors will die tragically, suffering their unmet medical and psychological

needs.

Simply put, Germany must resume its moral

responsibility to care for ALL the medical and mental

health needs of the survivors and their families, with

no more back turning or sloughing off these huge

responsibilities onto the shoulders of others.

We call upon this honorable Committee and its

members to press Chancellor Merkel and the German

government to fully fund the needs of our aging

Survivors, without offset or delay.

Chairman Ros-Lehtinen, thank you for allowing me

to testify, and I request that I can submit the attached

exhibits in the Hearing Record. I also wish to thank

Chairman Royce for allowing Mr. Rohrabacher,

Chairman of the Europe Subcommittee, and Ms.

Ros-Lehtinen and Mr. Deutch, Chairman and Ranking

Member of the Middle East and North Africa Subcommittee, to hold this hearing. I thank Mr. Rohrabacher

for agreeing to co-sponsor this hearing. And, a most

special thank you goes to Congresswoman Ros-Lehtinen

and Congressman Ted Deutch, who have been the

most steadfast supporters of the Survivor community

and champions of our cause against tremendous odds,

for many, many years.

56a

APPENDIX D

STATEMENT OF RENEE FIRESTONE

UNITED STATES SENATE COMMITTEE ON

THE JUDICIARY HOLOCAUST ERA CLAIMS

IN THE 21st CENTURY

June 20, 2012

My name is Renee Firestone. I was born in Uzhorod,

Czechoslovakia. At the tender age of 20, I was imprisoned for 13 months in the infamous death camp known

as Auschwitz/Birkenau during the last years of World

War II. My entire family was murdered, except for my

father Morris, who died of tuberculosis shortly after

liberation, and my brother Frank, who was a partisan.

Following liberation in 1945, I was reunited with my

brother and my soon-to-be husband Bernard. I settled

in Prague, Czechoslovakia, where I was able to complete my education in the Prague School of Commercial

Arts. In 1948, I emigrated to the United States with

Bernard and my infant daughter, Klara. I settled in

Los Angeles, where I pursued my love of fashion, and

was fortunate to work hard and enjoy a fulfilling

career as a fashion designer.

Of course, the devastating losses I experienced are

with me every single day of my life. Because of

what we experienced, I have devoted thousands and

thousands of hours of my personal time to educating

adults and students of all ages and all walks of life,

throughout the U.S. and Europe, about my experiences as a Holocaust survivor. I have spoken at

workshops and conferences, and have been interviewed in the media countless times regarding the

Holocaust and its contemporary implications.

57a

Because of the trauma I experienced, in the 1990s

when everyone started talking about restitution of

looted assets, I was naturally anxious to locate any

remnant possible that would allow me to have a record

of what my parents had been able to create and build

before the onslaught of the Nazis. Unfortunately, the

promises fell criminally short of what I and other

survivors hoped for, and deserved.

The Search for Family Insurance Policies

My father was a very responsible man, with a

business and real property in order to provide our

family with an upper middle class standard of living

in pre-war Czechoslovakia (annexed by Hungary in

1938). I am certain he had insurance because my first

cousin Fred Jackson (aka Ference Jakubowitz, the son

of my father’s sister) was the very first person to have

a claim approved and paid by ICHEIC under his

parents’ policy. Since my father was the one who

advised the entire family, why would his sister’s

family have had a policy but not my father? However,

when I filed my claim, after all the fanfare, the

Commission (ICHEIC) informed me that his name was

not on any of the lists. This is difficult for me to accept,

but since it is well-known that the lists produced by

Generali and the other insurance companies were

incomplete, I wonder why the U.S. government has

neither demanded a full accounting, nor allowed the

states to require it.

My experience is similar to that of my late friend Si

Frumkin, a survivor and giant in the history of human

rights. Si was speaking for all survivors when he

exposed the hypocrisy and disrespect that Congress,

arrogant Jewish groups, and the Executive Branch of

our government have shown in allowing the insurers

58a

to inherit the funds that should have been paid to

victims’ families decades ago. He wrote:

I am angry. Angry with the SOBs in Germany.

With our own SOBs in Washington. With the

SOBs running the Jewish organizations that

presume to speak and negotiate for me and

others like me. With the criminals who run

European insurance companies that stole

hundreds of millions of dollars from people

who died prematurely in gas chambers, and

then hired stooges to make sure it’s not given

back.

I am a law-abiding American citizen. I pay my

taxes and my traffic tickets. I vote. I have

served on a jury. I fly my flag on national

holidays.

In return, I expect my government to fulfill its

constitutional obligations to me. One of them

is my right to a trial by a jury of my peers.

This has been denied me because, apparently,

my government prefers to defend and uphold

the rights of giant German corporations.

* * *

So far, Generali has been able to keep the

money it stole. It, too, has the cooperation of

the U.S. government and its judiciary in

acknowledging ICHEIC—created, financed,

and controlled by the insurance SOBs—as the

only legitimate body to rule, decide, and

control Holocaust-era insurance claims.

Still, I want to see those lists. I am sure that

my father’s name appears on one of them. I

am also sure that tens of thousands of other

59a

Jews whose parents or grandparents perished

will find the names of their relatives.

Hitler took away my father’s name and gave

him a number. The insurance companies took

it away again by pretending that he never

existed. I want them to acknowledge that he

lived, that he died, and that the way he died

matters to his son and to the grandchildren

he never knew.

Si Frumkin, “Why Don’t Those SOB’s Give Me My

Money,” Reform Judaism Magazine, Spring 2008,

http://reformjudaismmag.org/Articles/index.cfm?id=1315.

We survivors have been stymied with an unremitting series of distortions, rationalizations, and outright

lies and misstatements by the opponents of S. 466 and

its House counterpart, HR 890. Regrettably, these

have been disseminated by institutions survivors once

respected, including the American government and socalled Jewish “defense” organizations.

The most blatant falsehood repeated by our adversaries is that this legislation would undermine

promises the U.S. government made to insurance

companies that if they participated in ICHEIC they

would never be subjected to litigation in U.S. courts.

This is not true, and survivors know it, and we deeply

resent the “big lie” campaign of the State Department,

the Justice Department, the insurance companies,

and the non-survivor groups like the Anti Defamation

League, the American Jewish Committee, B’nai B’rith,

the Claims Conference, and the World Jewish Congress,

Stuart Eizenstat (in his conflicting roles as a Claims

Conference official and State Department special

advisor) and others who have profited and benefited

from ICHEIC.

60a

But what these groups are not, and what Eizenstat

is not, are representatives of, nor advocates for

Holocaust survivors. They are the defenders of a

status quo that has stripped Holocaust survivors of

our rights, of our dignity, and of our family legacies.

They have presided over a restitution enterprise that

has allowed insurance companies to retain 97% of the

mone

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