A major support of the Holocaust myth is the popular belief that National Socialist crimes were proven in various trials after World War II. Even 50 years after the War various governments seek to support the myth through prosecution of alleged war criminals. The case of John Demjanjuk in Israel and Imre Finta in Canada are two examples. In the United States the process of "Nazi hunting" has been put on a permanent basis with the creation of a bureaucracy within the United States Department of Justice, the Office of Special Investigations. It was formed on September 4, 1979 to enforce a law passed by Congress the previous October 30th. The law was Public Law 95-549 and its purpose was, and is, to track down and revoke the citizenship of so-called "Nazi war criminals." In the first ten years of its operation the OSI has stripped approximately 35 citizens of their citizenship and deported them to various countries. It has an annual operating budget in excess of $4,000,000. Its director as of 1993 was Neal Sher.
The actions of the OSI are increasingly being called into question by members of the Bar, the courts, and members of Congress. This article is a study of a single case prosecuted by the Office of Special Investigations, the case of Martin Bartesch. In 1987, the OSI filed a lawsuit against Martin Bartesch of Chicago, Illinois, seeking to strip him of his American citizenship and to deport him. In the legal papers and press announcements the OSI accused Martin Bartesch of having been a Nazi war-criminal who "personally" murdered tens of thousands of people at Mauthausen concentration camp. He was accused of obtaining entry into the United States by fraud in that he failed to disclose he service in the SS.
It is important to remember that, although the victims of the OSI are called "war criminals" by the OSI and some of the media, they are only charged with the technical violation of omitting to put certain information on their entry papers when they came to America. They are not charged with any crime. The OSI is only charging people with a civil immigration offense and the result of losing the suit is only considered by the Courts as a "civil" result and not a "criminal punishment." It may seem illogical that being stripped of your citizenship, being seperated from your family, having your Social Security payments taken away, and being deported is not considered "punishment" while having to pay a $100 fine for speeding is. However, this is the position of the OSI and, unfortunately, it has been supported by the Courts.
This distinction between civil trials and criminal trials is very important. It means that the defendants in an OSI action have none of the rights that every murderer or rapist has. For example the defendant does not have a right to an attorney, does not have a right to a jury trial, does not have a right against self-incrimination, and can be found guilty on a far lower level of evidence than in a normal criminal proceeding. With these serious disadvantages and facing ruinous legal costs, Martin Bartesch accepted a deal offered by the OSI. He would go to Austria, be allowed to keep his Social Security benefits, and most importantly, the OSI would not prosecute his wife. That would have been the end of the matter except for the determined and courageous struggle of Martin Bartesch's children who were determined to clear their father's name. In 1988 I was retained by Martin's son, Heinz, to file a Freedom of Information Act1 request regarding his father. The request was for the information which the OSI had about Martin Bartesch. When the OSI ignored the FOIA request, I filed a lawsuit.
The Freedom of Information Act 5 U.S.C. was passed by Congress in 1966 and substantially modified in 1974. It was considered a major liberal triumph in establishing, for the first time, a statutory right of access by any person to federal agency records. FOIA requires that the agency either release the records that it has on an individual or or compile a complete list of the documents and cite one of various exemptions to release (such as national security). The list is called the "Vaughn" Index.
Several weeks after I filed the legal action a large packet was mailed to my office. It was full of documents from the OSI files on Bartesch. This is what makes the Bartesch case particularly interesting. With someone in the Office of Special Investigations leaking documents to me, I was in a interesting position: I would be able to observe how my legal colleagues in the Office of Special Investigations complied with the Freedom of Information Act. I also was able to detail the entire course of the original Bartesch case.
THE HISTORY OF MARTIN BARTESCH
Martin Bartesch was a Volkdeutscher living on a farm in Romania. When he was 16 years old, in 1943, he entered the S.S. under great pressure to avoid service in Russia. He was never a member of the Hitler Youth or any Nazi organization. In September and October 1943 he received training outside of Mauthausen concentration camp in Austria and was then moved about 60 miles away to Linz III. This camp was a work camp (Arbeitslager) run by civilians under SS control and was not the site of beatings or atrocities. Testimony also showed that Bartesch had shared his cigarettes with his charges while on road building assignments and obtained extra food for them. While Mauthausen had been the site of atrocities, Linz III had not. In 1945 Bartesch was transferred to the eastern front. He served against the Soviets and was captured by them at the war's end. When the Soviets overran Romania he lost his home and country. In 1958 Martin Bartesch came to America as a refugee, raised a family here and was a model citizen. While Bartesch was stationed outside of the Mauthausen he did serve as a perimeter guard for three weeks and did shoot an escaping prisoner, named Max Ochsbron. The matter was recorded in the camp records and clearly showed that the prisoner had been trying to escape. Ochsbron appears to have been arrested for forgery.
THE HISTORY OF THE DEPORTATION CASE OF MARTIN BARTESCH
Sometime in 1985 this single entry on camp records was discovered by OSI investigators looking for leads. A computer match was made with the name of Martin Bartesch on immigration files. It was on this weak evidence that the OSI filed its lawsuit against Martin Bartesch. It also issued press releases which, as mentioned above, accused Bartesch of being a mass murderer. The attorneys at OSI did this despite their having a list of those S.S. who had been stationed at Mauthausen (Bartesch is not on them) and the list which shows he was at Linz III. A second OSI list also reveals that Bartesch was never stationed in Mauthausen. The OSI attorney directly in charge of the case was Michael Bernstein, who acted with the consent and approval of OSI director Neal Sher. It was only after the filing of the lawsuit that the OSI started to look for evidence against Bartesch. Advertisements were run in various newspapers stating "OSI urgently seeking Mauthausen witnesses." Investigators combed record files in Prague, Vienna, and Berlin. Bernstein and his aide (named Betty Shave) took several expensive trips to Israel and Paris to interview possible "witnesses." Despite an exhaustive search, the OSI did not discover any evidence of any kind which implicated Martin Bartesch in any crime. As one Department of State telegram put it, "All that could be established from documentation is that the French Jew (No. 14582) Max Ochsbron, born August 20, 1916 in Vienna died on October 28, 1943 at 9:55 A.M. while trying to escape (Auf der Flucht erschossen)."
Indeed, the OSI search only uncovered evidence which exonerated Bartesch. Various interviews with ex-prisoners state time and time again that the interviewees never saw any beatings or killings of prisoners by SS guards at Linz III or even heard of other prisoners complaining of beatings or killings. Linz is mentioned as being "relatively nice." The reports of many interviews are ended with OSI comment, "Interview not useful. He [interviewee] paints a rather easy picture of life at Linz III." Despite this clear evidence of Bartesch's innocence, Neal Sher did not drop the case, or even retract the more extreme and heinous accusations against Bartesch. The discovery requests of the immigration attorney for Bartesch were avoided and Michael Bernstein, with the approval of OSI director Neal Sher, concealed exonerating evidence from the Bartesch family. The declarations regarding mild conditions at Linz III were "forgotten". Even worse, documents were translated in a manner which increased the father's appearance of guilt (omitting the fact that Bartesch had disclosed that he had been in the S.S. in his entry documents and by adding "Concentration Camp Mauthausen" to the list of names of the Linz III guards implying that Linz guards served at Mauthausen. The OSI never admitted that the original charge of killing ten of thousands of persons was incorrect. During the Bartesch deportation suit various citizens wrote protest letters to the White House and Congress supporting Martin Bartesch. The leaked documents reveal that the OSI collected these protest letters and proposed taking administrative and legal action against the letter-writers. Michael Bernstein requested the immigration files of the letter writers in order to investigate them and a memo was circulated at OSI saying that the letters were "irritating" and discussing subpoenaing the protesters for depositions.
The OSI files were filled with collected newspaper articles and letters to the editors of various publications. Director Sher was careful to monitor the publicity OSI cases generated and the OSI evidently worked with private organizations to influence public opinion. A single tragedy put Martin Bartesch's name on a list which the Office of Special Investigation used to find possible Nazi war-criminals. Without any investigation, the OSI leveled the most serious charges against him and ruined him. That was irresponsible conduct for our government. The case was continued after the truth was known because the OSI couldn't admit that a mistake had been made. OSI hasn't had the decency to retract the original charges or to apologize to the Bartesch family.
THE FREEDOM OF INFORMATION ACT SUIT
The Freedom of Information Act was meant to be an important law for controlling secret government activity and opening up governmental practices. The OSI clearly failed to comply with the Freedom of Information Act regarding Heinz Bartesch's requests for information. Many documents which were in the Bartesch file were not included on the Vaughn Index. I believe that it is more than a coincidence that all of the documents which provided exonerating evidence for Bartesch or which indicated OSI wrong-doing were simply not listed at all. In other FOIA cases brought by Rad Artukovic or Edward Nisnic, regarding the John Demjanjuk case, the OSI failed to produce or even list many important documents. Thus, the attorneys of the OSI seem to be engaging in a pattern of ignoring or evading the Freedom of Information Act. During the FOIA suit the OSI acted in a hostile and unprofessional manner. Threats were made by the OSI to revive the lawsuit against Martin Bartesch if his son continued to pursue his FOIA suit. Threats of criminal action were made against me for possessing OSI documents. Reasonable discovery requests were opposed. In summary, the documents show that the OSI:
1. filed the de-naturalization suit on very weak evidence while alleging extremely serious crimes;
2. failed to release evidence which exonorated Bartesch;
3. used distorted or incorrect translations;
4. failed to retract the most serious charges against Bartesch when they found to be untrue;
5. collected the names of citizens who wrote to their elected officials;
6. and considered taking administrative action against them.
Regarding the FOIA suit, the OSI failed to list important documents on the Vaughn Index and described those documents that it did include in a misleading manner.
The existence of the Office of Special Investigations shows the power of and is an example of the continuing importance of the Holocaust Myth. The fact that the OSI must prosecute cases such as Martin Bartesch shows that they have no real Nazi criminals to pursue.