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And Justice for All

As the grandchild of German survivors, Rabbi Dovid Asher’s intense interest in the case is very personal

 

A few weeks back, I wrote about Democratic Congresswoman Abigail Spanberger of Virginia and her widely covered analysis of the 2020 election. Now, thanks to constituent Rabbi Dovid Asher, a rav in Richmond, Virginia, she’s in the news again, going to bat for the families of survivors who are the plaintiffs in two Holocaust restitution cases that are now before the US Supreme Court.

In one case, Republic of Hungary v. Simon, the plaintiffs are 14 Hungarian Jewish survivors whose property was confiscated by the Hungarian government in a “wholesale plunder” prior to their deportation to death camps as part of the Nazi annihilation of more than two-thirds of Hungary’s Jews. In the other litigation, Federal Republic of Germany v. Philipp, the plaintiffs are heirs of German Jewish art dealers who were forced to sell a very valuable collection of artworks at a fraction of their worth to agents of top Nazi official Hermann Goering, who personally presented it as a surprise gift to Adolf Hitler yemach shemo. They sued in the US after the German Advisory Commission on the return of cultural property seized by the Nazis deemed the sale to not have been coerced.

Lower federal courts ruled that the suits could proceed, and the defendant governments appealed those rulings to the Supreme Court, which heard arguments in the cases last week. Although a federal statute, the Foreign Sovereignty Immunities Act (FSIA), protects foreign governments from having to defend claims in American courts, an exception under the FSIA does allow claims regarding property taken in violation of international law to be made in US courts. The plaintiffs argue that the property taken was part of the Nazi program of genocide, and was thus without question in “violation of international law.”

Arguing before the Court, the defendant’s attorney claimed, however, that the exception did not apply because the Nazis had taken property from German citizens within German territory. The defendants in both cases have also invoked the doctrine of international comity, which compels courts to abstain from hearing a case to show due respect for the sovereignty of another country.

According to Jewish Insider, the “Justice Department is siding with Germany in calling for the heirs’ lawsuit to be dismissed and with Hungary in asking that the survivors’ case be returned to a lower court to decide whether US courts should weigh in.” Plaintiffs’ attorney Nicholas O’Donnell describes the Justice Department’s decision to side with the German government as “a shocking abdication of the US government’s responsibility that will take a long time to repair…. The US government has taken the position that only property claims against non-Germans suffice…. In other words, the United States of America is saying that so long as the victim was a German Jew, an art sale that is indisputably forced can nonetheless never constitute a violation of international law.”

Enter Rabbi Dovid Asher, who since 2011 has been the rav of Keneseth Beth Israel in Richmond, Virginia, which he describes as “a beautiful place to live, with a thriving chinuch system” that includes a day school and boys’ and girls’ high schools. As the grandchild of German survivors, Rabbi Asher’s intense interest in the case is very personal. His great-grandfather, Isaak Rothschild, was the president of the shul in the Bavarian city of Aschaffenburg, and jumped to his death trying to flee from a cattle car en route to an extermination camp.

But Rabbi Asher wasn’t content to simply rue what he saw as the perpetration of legal injustice against survivors like his grandparents — he took action.

In a phone conversation with him last week, he told me, “I’m a rav and my avodah is Torah, not political advocacy, but I can’t detach myself from a very difficult family history. I’m not a lawyer, so I can’t speak to the legal issues in an intelligent manner, but I believe all parties have sought to keep this under wraps and out of the spotlight and I’m working to make sure there is a spotlight shone on this case.”

Rabbi Asher approached his congressional representative, Democrat Abigail Spanberger, because, he says, “whether the issue pertains to Israel or to anti-Semitism in the US or abroad or Holocaust issues, I knew that I would have somebody in our corner who would fight on behalf of what’s right.” Meanwhile, a friend of Rabbi Asher, lobbyist Ari Mittelman, contacted Republican Congressman Jim Banks.

Together, Representatives Spanberger and Banks drafted a letter signed by a bipartisan group of 18 members of the House to the German ambassador to the US, stating that the “timeline of the Holocaust is settled and sacred. This has been the bipartisan position of the United States Congress for a generation. We are concerned… that your government seems to be arguing that forced sales of art to the Nazi regime do not constitute takings at all and that the definition of genocide does not include what happened with respect to the full elimination of Jews from German economic life starting in 1933.”

In a separate letter addressing the position of the US Justice Department in the case, six Congressional Democrats wrote that they “were concerned to read that the United States’ brief for this case supports a German position that suggests that the sale of the cultural artwork collection in question was not forced based on the year of the sale. The United States’ brief… echoes the German position noting that genocide is understood as involving infliction of physical killing and harm, but not economic crimes.”

With the help of the Orthodox Union, Rabbi Asher also organized a letter signed by over 50 rabbanim of shuls around the United States, addressed to the German ambassador to the US for clarification of its position in the case. The ambassador’s response to the letter has opened an ongoing and hopefully productive discussion on the issues.

Rabbi Asher offers what he acknowledges is his own speculative analysis of why Germany is taking Holocaust survivors all the way to the Supreme Court with claims that seem to minimize Jewish suffering under Nazi Germany. “I believe that with the rise of the far-right AfD party in Germany’s parliament, Chancellor Angela Merkel is trying to hold together her coalition and needs to placate right-wing elements within it. The art collection is housed in a Berlin museum that is under the aegis of the Prussian Cultural Heritage Foundation, which is itself under the sway of German right-wingers. If that wasn’t so, this lawsuit would not have been brought, which is a reflection of the extreme right wing gaining power in Germany.

“I also believe the Justice Department owes the Jewish community, and survivor families specifically, an explanation for why it has supported the efforts of Germany and Hungary that seem to go against past precedent regarding restitution. It’s admirable to want to work with our allies but I don’t thing doing so at the expense of doing what’s right is the way to ensure having good allies. Germany has been a great friend to America and Israel since it rejoined democratic society, but this is a deviation from that and it should hear from us as a Jewish community.”

 

Originally featured in Mishpacha, Issue 840. Eytan Kobre may be contacted directly at kobre@mishpacha.com

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