A few days after the Associated Press investigation and report about Nazi war criminals from the U.S. collecting Social Security and other benefits became public, U.S. Senator Charles “Chuck” Schumer (D-NY) announced that he wouldintroduce a bill to close the loophole that allows expelled Nazis to collect social security benefits.

While he said he vows to push for speedy consideration, Schumer’s office did not return JLBC’s phone calls on why he is spending thousands of taxpayer dollars, introducing a bill that would affect possibly three to four people, in their 90’s who might very well be dead before the bill is passed, if it is passed. Schumer who began his political career in a neighborhood with a dense population of Holocaust survivors, is joined in this endeavor by Senator Bob Casey of Pennsylvania and Congresswoman Carolyn Maloney of New York.

The youngest of the Nazi war criminals could not be less than 87 years old and that’s a conservative figure. Except for maybe three or four people, they’re all dead, the benefits paid, spent and gone. Though the U.S. paid millions to these people over the course of the years, there’s nothing written into the legislation to get the money back from their estates.

The loophole was created five years after World War II, when the U.S. Congress amended the immigration law barring entry to members of Nazi SS units (Schutzstaffel translated to Protection Squadron or defense corps, abbreviated SS) and those tied to a group considered hostile to the U.S. The list of banned organizations was dropped and the focus shifted to keeping out individuals who “personally advocated or assisted in the persecution of any person or group of persons because of race, religion or national origin.”

This opened the door to more than 10,000 members of the Nazi Party, many of them members of the SS, but did not manage to keep out concentration camp guards as well as other murderers of the Jewish people. They worked here, made lives for themselves, paid taxes and reaped the benefits of living in this country, hiding in plain sight.

Some of them, more than 1,500 scientists, technicians and engineers, were brought to the United States as part of Operation Paperclip, a program of the Office of Strategic Services (precursor of the C.I.A.) under the auspices of the Joint Intelligence Objectives Agency. The purpose was to use their knowledge and skill for the benefit of the U.S. and to keep them out of the hands of the then Soviet Union as well as the United Kingdom and Germany as the cold war developed.

While President Truman signed off on the project, he expressly excluded anyone found to have been a member of the Nazi Party or who worked for or supported them in any way. That would have made rocket scientists like Wernher von Braun, Kurt H. Debus (member of the SS and subsequently the first director of the Kennedy Space Center), Arthur Rudolph and (physicians who were reputed to experiment on concentration camp inmates like) Hubertus Strughold ineligible. So in defiance the President and of U.S. and international laws and treaties, the JIOA created false backgrounds for the former members of the SS and expunged their true backgrounds from the public record. These men are all dead now, but until they died, they received retirement benefits paid for by themselves and U.S. taxpayers.

Other Nazi war criminals, like Jaob Denzinger, a former Auschwitz guard; Martin Hartmann, another guard; Michael Karkoc, a former SS unit commander who ordered his unit to raze a Polish village, and Wasyl Lytwyn, 93, who took part in the destruction of the Warsaw ghetto, were found and either escaped, were deported, or thought it expedient to leave this country. They took with them their social security benefits.

They couldn’t keep Medicare because the benefit does not pay for services outside U.S,. Those few still alive in their late 80s and 90s, are still receiving benefits. Yet thousands of survivors, also in their 80s and 90s, have yet to see a cent in reparations.

The AP alleged that those millions of dollars of benefits were available to these people because of a legal loophole, which an Associated Press report states gave the “U.S. Justice Department leverage to persuade Nazi suspects to leave. If they agreed to go, or simply fled before deportation, they could keep their Social Security, according to interviews and internal government records.”

Yet Peter Carr, spokesperson for the Department of Justice told JLBC said that it was not a loophole but the law, and to this day, while legislation has been repeatedly proposed to end this practice, it never really got off the ground. The AP reported that of the more than 10,000 former members of the Nazi Party in the United States, since 1979, 38 of 66 suspects were removed from the United States but kept their Social Security benefits. Four are alive in Europe and are still collecting benefits.

The AP reported that records they obtained through the Freedom of Information Act show that the U.S. State Department and the Social Security Administration, “voiced grave concerns over the methods used by the Justice Department’s Nazi-hunting unit, the Office of Special Investigations.”

JLBC contacted Eli M. Rosenbaum who had been the Director of the U.S. DOJ OSI from 1994 to 2010 and was responsible for identifying, denaturalizing and deporting Nazi war criminals from 1994 to 2010 and is now the director of the DOJ’s Department of Human Rights Enforcement Strategy and Policy. He told JLBC he was glad that a reporter had called to verify the reported information but that he was unable to speak to us and referred us to Carr.

This was a statement issued by DOJ: “Federal law does not provide for the termination of Social Security benefits (including retirement benefits and Medicare payments) as a consequence of being convicted of a crime–even the most serious crimes, such as murder and acts of terrorism–except while the beneficiary is imprisoned in the United States, or if the beneficiary is an alien who has been removed from the United States or in some cases ordered removed.”

This means their social security benefits would stop if they did not leave the U.S. voluntarily, ie. being deported. It also means that their defense attorneys encouraged clients to leave of their own accord to preserve their benefits, keep their property and continue to live the good life.

“Similarly, under existing law, an individual who renounces U.S. citizenship and voluntarily leaves the U.S. might continue to receive SSA benefits, unless they meet one of the exceptions under 202(t) of the Social Security Act, the Alien Nonpayment Provision. However, Medicare benefits are not retained since they do not provide payment for services outside the United States.

“While there is no basis under existing law to terminate these SSA benefits for criminals, the department is open to considering proposals addressing this issue.”

Carr said, “Because the U.S. Constitution effectively prevents the United States from conducting domestic criminal prosecutions of alleged participants in Nazi crimes, the department has sought justice by identifying Nazi criminals, seeking to extradite them to other countries with jurisdiction to prosecute them and/or obtaining court orders to revoke their American citizenship and deport them to countries that do possess criminal jurisdiction.”

However the AP investigation found that only 10 suspects were ever prosecuted after being expelled, but that does not mesh with DOJ records.

“To date, the Department has brought cases against 137 (out of more than 10,000) alleged Nazi criminals and has been successful in 107 of those cases. Most of the remaining cases were unsuccessful only because of the death or medical incapacity of the defendant prior to trial or judgment. Seventeen have been criminally charged in European countries.”

Carr said that since the 1980s, some persons alleged by the government to be Nazi criminals departed the United States on their own or informed the department through counsel that, rather than contest in court the government’s efforts to denaturalize and then remove them from the United States, they would depart the country and voluntarily relinquish their U.S. citizenship,” and thus by law, they were able to keep their Social Security benefits and not because of a bargaining chip or through a special agreement, as alleged.

Some of those who left were prosecuted in Europe for their Nazi-era crimes and lost other benefits including Medicare benefits. “Those who were not prosecuted lived out the rest of their lives abroad under at least the threat of prosecution,” said Carr.

Carr said, “In the mid-1990s, Congress considered but ultimately did not pass legislation that would have terminated Social Security retirement benefits upon the denaturalization of Nazi criminals. (Note that nothing has ever been done about those remaining in the U.S.) The proposed legislation was opposed by the Justice Department and the Clinton Administration, along with advocates on Holocaust issues, including the World Jewish Congress, the Simon Wiesenthal Center, the Anti-Defamation League, the International Association of Jewish Lawyers and Jurists, and former Rep. Elizabeth Holtzman. The Administration and these victim advocates opposed the legislation because terminating benefits at the time of denaturalization would likely have undermined the department’s Congressional mandate to remove Nazi criminals–as expeditiously as possible–to countries where they would face the possibility of criminal prosecution.”

In 1997 the Clinton administration investigated terminating benefits to Nazi suspects when they were denaturalized, instead of deported but the acting commissioner of the Social Security Administration at the time, John Callahan, insisted that Social Security benefits not be used as a bargaining tool. This was supported by Elena Kagen who is now a U.S. Supreme Court justice.

AP reported that in 1999 U.S. Rep. Bob Franks, (R) New Jersey, proposed legislation to cut off benefits for any Nazi who left the country voluntarily, whether he/or she, was a U.S. citizen or not.

The DOJ argued the bill would jeopardize the mission of the OSI and cost taxpayers thousands in litigation costs if the suspects did not leave voluntarily, according to statements by Neal Sher, former head of the OSI and former executive director of the American Israel Public Affairs Committee, who now represents the American Gathering of Holocaust Survivors and Their Descendants. He also said that during the six to 10 years of litigation each case could take, the defendants would be receiving retirement benefits as well as Medicare. Sher has not returned JLBC calls to confirm this argument.

The bill, now supported by the World Jewish Congress, would deny Federal public benefits to individuals who have been participants in Nazi persecution. If an immigration judge finds that an individual has participated in Nazi persecution, that judge is required to:

Promptly issue an order declaring the respondent to be ineligible for any Federal public benefit and prohibiting any person from providing such a benefit to the respondent; and

2) Transmit a copy of the order to any governmental entity or person known to be so providing such a benefit and to any governmental entity or person known to have received an application for benefits that has not been finally adjudicated. Authorizes the Attorney General to review any finding or conclusion made, or order issued and to initiate any review within 30 days.

It also requires any order, finding, or conclusion to be final:

1) 30 days after it is issued if the Attorney General does not initiate such a review; or

2) either upon the issuance of a decision by the Attorney General or 90 days after the order, finding, or conclusion is issued, whichever is earlier, if the Attorney General does initiate a review. Allows any party aggrieved by a final order issued under this Act to obtain judicial review of the order by the U.S. Court of Appeals for the Federal Circuit by filing a petition for such review no later than 30 days after the final order becomes final, or completion of any review by the Attorney General, whichever is later.

On the other hand, with the tremendous upsurge in anti-Semitism around the world, this legislation might be a sign of forward thinking.

By Anne Phyllis Pinzow