Decades of political and legal changes shaped U.S. Nazi hunt
As many as 10,000 former Nazis filtered into the United States following World War II, among them plenty of former SS concentration camp guards.
The government says none of them were ever allowed to enter the country, and federal investigators have spent nearly three decades hunting down former Nazis. Their search continues, 62 years after the war ended.
"It's clearly still the case that concentration camp guards were to be excluded from the United States," said Eli Rosenbaum, director of the U.S. Justice Department's Office of Special Investigations, the government's Nazi-hunting squad.
Critics of the government claim it is trying to atone for a past in which it failed to respond promptly to the Holocaust, put up road blocks for European Jews trying to immigrate here and actively recruited Nazi war criminals as spies and scientists -- then obstructed efforts to later identify and deport those people.
"This is about politics. It's not about the law," said James Benzoni, a Des Moines lawyer who represented former Nazi guard John Hansl. "They're going after old guys who were low on the totem pole who did about the same thing our soldiers did at Abu Ghraib (military prison in Iraq.) They are at the same level."
Hansl, 82, lost his final appeal last year, when the U.S. Supreme Court declined to hear his case.
Mercer County resident Anton Geiser, also 82, is in a similar situation. The Yugoslavia native came to the United States in 1956, after being approved for a visa in Austria. His visa application lists his wartime activities as having been in the German Army, not the Waffen SS -- in which he served as a concentration camp guard.
A federal judge in Pittsburgh last year stripped Geiser of his citizenship. He appealed.
"Anton Geiser did not personally persecute anyone based on their race, religion or ethnicity," said his attorney, Jay Reisinger.
Rosenbaum's predecessor, Allan A. Ryan, said that defies logic.
"That goes under the assumption that being a guard at a death camp is OK if you don't actually kill someone yourself," Ryan said. "Courts have routinely rejected that. Death was the responsibility of everyone."
The Displaced Persons Act of 1948 initially barred former Waffen SS members from being granted visas to the United States. That restriction later was relaxed to allow SS soldiers who fought on the front lines. Former camp guards were still denied entry, however.
In 1953, Congress enacted the Refugee Relief Act to deny visas to "persons who personally advocated or assisted in" persecutions.
Geiser and Hansl both applied for their visas under the Refugee Relief Act.
Benzoni referred to a 1954 State Department memo, which stated former Nazi guards were to be admitted if no evidence of war crimes existed.
"The government acts like everybody in the 1950s was deaf, dumb and blind," Benzoni said.
In 1981, the Supreme Court concluded that serving as an armed guard at a concentration camp with orders to shoot and kill equated to personally participating in persecution. The ruling came in the government's case against Feodor Fedorenko, a former Treblinka death camp guard who applied to come to the United States under the Displaced Persons Act.
The Supreme Court has not ruled on similar cases under the Refugee Relief Act.
The Fedorenko decision, however, has been applied ever since in cases against former Nazi concentration camp guards found in the United States.
"They've got a loaded gun, and they know it," Benzoni said of federal prosecutors.
Because of the way U.S. laws were written during World War II, Rosenbaum said the government is precluded from filing criminal charges against Nazis found here -- even if it finds evidence of war crimes. Regardless, Rosenbaum says there is underlying criminal conduct.
"All of the World War II cases are brought against people whom we allege took part in Nazi crimes of persecution," Rosenbaum said.
His only remedy, however, is to file a civil lawsuit designed to strip citizenships and deport defendants to countries that can pursue harsher punishment.
Even though the government files civil lawsuits, it is held to a much higher standard than required in standard civil cases. Instead of proving its case through a preponderance of evidence, the government must provide "clear, convincing and unequivocal evidence that does not leave the issue in doubt."
This is much closer to the "reasonable doubt" threshold of criminal law, Rosenbaum said.
"It's a very, very heavy burden of proof on us, and I think that's the way it should be," Rosenbaum said.
Defense lawyers argue the government's burden should be to prove actual crimes, not simply that someone served as a guard and carried a gun.
"We think it requires more than just being there but requires actual participation," said Reisinger, Geiser's lawyer.