German duplicity on Nazi criminals

German authorities recently announced that they intend to prosecute nine former concentration camp guards, most in their 90s. Germany has been praised for abandoning what we have been led to believe was longstanding precedent that prohibited filing charges against these instruments of mass murder.

As the former head of the Justice Department’s Nazi prosecution office, I would be the last person to argue that these criminals should get a pass; I certainly support the latest investigations and trials. The simple truth, however, is that we have been hoodwinked all along. There was no change in precedent; the Germans always had authority to prosecute the types of cases they are now belatedly bringing. They just chose not to.

Back in the 1980s and 1990s, when I worked for our government to bring Nazis to justice, I expected that the German government would honor its moral obligation to take back those who had committed crimes in the name of the German state.

I could not have been more wrong. Rather than cooperation, when I approached the German Embassy, I was met with indignant refusals. Why, I was asked by the deputy chief of mission, should Germany accept “America’s garbage”? After biting my lip, I responded that we only wanted to return the garbage they had created.

With breathtaking audacity, they came up with one phony excuse after another.

A murderous Latvian policeman from Long Island could not be tried because his immediate superior was not a German. Years later the Germans, behind our backs, took him in so that he could avoid deportation to the Soviet Union, where he would not be treated with kid gloves.

Then there was a collaborating Ukrainian policeman, who was found by a federal judge to have murdered, among others, a terrified 6-year-old Jewish girl by shooting her at point-blank range. Surely, I thought, he would be a prime candidate for prosecution in Germany.

Instead, we received a formal diplomatic note advising that this gruesome crime did not involve the level of depravity needed to prosecute under German law. The criminal exploited the delay to escape to Costa Rica, where he died a free man.

In the mid-1950s, the U.S. passed the Refugee Relief Act allowing for the immigration of large numbers of refugees, mostly from Germany and Austria. Nazis were explicitly excluded; persons later to be found ineligible were to be returned to the country from which they immigrated. The file of every immigrant contained a copy of a diplomatic note in which Germany unequivocally agreed to take back anyone who had fraudulently obtained a visa.

When I inquired whether that commitment would be honored, I was told, with straight faces, that Germany believed the diplomatic note was not authentic and created no obligation.

That stubborn refusal to accept, much less prosecute, Nazis continues to this day.

Jakiw Palij, a concentration camp guard, has been living freely in Queens — where our President (and I) grew up — for 14 years after he had been ordered deported. Germany has refused to take him back. He too is likely to die a free man right here in New York. But there is another aspect of this story, one which exposes the spineless behavior of our State Department in enabling Germany to get away with its duplicity.

Time and again, the diplomats at Foggy Bottom timidly accepted the lies thrown our way. In the case of the child murderer, State dutifully passed along the obscene message without even a hint of protest or incredulity.

In response to the crazy claim that the diplomatic note had been faked: not a whimper.

A U.S. ambassador to Germany complained to a visiting Jewish leader about “all this Holocaust business.”

My office repeatedly received nothing more than lip service from State. It was painfully clear that they were not on our side.

In 1985, the House Judiciary Committee publicly lambasted the State Department for “seriously undermining” our Nazi prosecutions by making only “routine inquiries” of Germany and other European nations.

Today, almost 35 years later, nothing has changed. There is, however, an opportunity to do the right thing in the Palij case: German Chancellor Angela Merkel should be told by State and the White House in no uncertain terms to take him back now.