Hearing of the House Financial Services Committee - The Holocaust Insurance Accountability Act of 2007

Interview

Hearing of the House Financial Services Committee - The Holocaust Insurance Accountability Act of 2007

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REP. AL GREEN (D-TX): Thank you, Mr. Chairman, and I associate myself with the remarks of the chair.

I have had the opportunity to travel to Israel, and I visited the Holocaust Museum. And I assure anyone who questions why we are so concerned that if you have an opportunity to just visit one of the museums -- we also have one in Houston, Texas -- you will understand. Tears literally welled in my eyes as I saw the pictorial representations of the horrors and the atrocities that were committed.

We are truly embracing a circumstance where we cannot do enough. We really cannot. However, whenever you cannot do enough, you do have a duty to do all that you can. We must do all that we can to bring justice to the victims of the most horrific atrocity perpetrated upon humankind.

I yield back the balance of my time.

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REP. GREEN: Thank you, Mr. Chairman.

And I thank both of the members of the panel for appearing.

Mr. Ambassador, you have indicated that there is nothing that will prohibit victims from suing. Is this correct?

MR. KENNEDY: Yes, sir, that's my understanding.

REP. GREEN: Let us please examine this statement, because in the United States we have a concept known as open court, which literally means that anyone can sue anybody for anything at any time for any amount of money. It does not, however, mean that you will prevail. It literally means if you want to sue you may.

So to say that you may sue is not enough to give people a proper understanding of what will happen after the lawsuit has been filed.

Is it a fair statement that the government would file pleadings indicating that there is a limitations problem?

MR. KENNEDY: Sir, our pleadings, generally speaking, have asked the court to dismiss on valid legal grounds. I'm not aware -- I'd be happy to check whether we have specifically cited in a particular case a specific reason like the one you note.

REP. GREEN: Well, generally speaking, requests for dismissals that broad are not granted because you have to be specific as to why -- general legal grounds, and you're saying, "Judge, you become my lawyer and determine what my legal rights are and my legal grounds are."

So generally speaking, that would not be sufficient, and if you plead limitations, what you're in essence saying is this, the folk that we are suing, the companies that we are suing, that to some extent created the problem, now get the benefit from the problem that they've created. They put us in the position where we could not bring the action, and now they're saying it's too late for me to bring the action. That is -- in and of itself is an injustice.

It appears to me -- and by the way, I think honorable people can have honorable disagreements, and I perceive you to be an honorable person.

MR. KENNEDY: Thank you, sir.

REP. GREEN: But it appears to me that this really is about more than money. It is about due process; it is about a desire to have an opportunity to know for myself what happened. It is about the desire to have discovery, to find out for myself what is in the record, what's in the files. Has there been something secretive that someone, even my government, may know about and not tell me.

That's what due process gives you when you go to court, the ability to have your day and to understand what happened to the life that has been so horribly interrupted and so dastardly dealt with. It's just about that. And people in this country seem to cherish that right to have a day in court.

So I would say to you, as you make that comment -- this is just about the comment that people have the right to sue -- if you would, I think at least something terribly necessary missing when you don't explain that that right doesn't necessarily mean that it will be anything more than filing a lawsuit.

Final comment, because my time is about up: There was nothing that prohibited the administration from working with Congress so that we could have in the final analysis an agreement that Congress was a part of, that the administration was a part of, and that would have brought in all of the victims so that they could be a part of it in some way, because that's what's missing.

I think people live in this world where there's not enough for things to be right; they must also look right. And it doesn't look right to victims to have someone decide their fate without their input. I think that we should do more to dialogue before we get to this point.

I yield back the balance of my time, Mr. Chairman.

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REP. GREEN: Thank you, Mr. Chairman.

Mr. Secretary and all, I want to thank you for your testimony.

Because time is of the essence, I'd like to start with you, Mr. Secretary. You indicated that there was and is, I think, congressional understanding associated with this agreement. Could you please explain what "congressional understanding" means?

MR. EIZENSTAT: Yes, sir. I testified time and again for this committee, before Senate committees, before the House Foreign Relations (sic/Affairs) Committee, before the Senate Foreign Relations Committee, before the Senate Banking Committee, before the House Financial Services Committee about these agreements, about legal peace, about what we were trying to do, about what we were trying to accomplish in very extensive hearings.

Now, no one sought legislation because legislation wasn't appropriate. We did this under the foreign policy powers of the president of the United States, but we did it in full consultation.

Second, it was not done in a dark room with a few parties. We had plaintiffs' attorneys -- not Mr. Dubbin, he didn't want to participate.

We had dozens of plaintiffs' attorneys, the best class action lawyers -- Mel Weiss and others -- around the country, Bob Swift from Philadelphia, people in Washington, major class action lawyers who decided to drop their cases because they realized that those cases did not have much of a chance, and indeed, the two major slave labor cases were dismissed by judges on the grounds of statute of limitations problems.

We had major Jewish organizations who participated in negotiations. We had representatives from the state of Israel, and we brought the Congress into it by our testimony. So this was done in very broad daylight. Obviously the actual details were done in private negotiations, but this was not an unknown quantity that was just dropped on the Congress or dropped on survivor groups. They were part and parcel. The American Gathering, the World Jewish Congress, the Jewish Claims Conference were all involved in every stage of the negotiation.

REP. GREEN: Did Congress ever have an opportunity to in some way sign off on the agreement that --

MR. EIZENSTAT: They had every opportunity, if they wanted to, to object because I testified; I laid out what the agreements were. If they had any criticism, they weren't heard. What I heard was praise and bipartisan support for doing something promptly that courts wouldn't have permitted. If you look at these cases, what court in the world would have granted jurisdiction to companies that didn't even do business here? What court would have allowed payment of policies?

When the claimants didn't know the names of the companies, when there weren't evidence -- I mean, of course the tragedy is that there wasn't evidence because they were burned along with the people. So we to deal with --

REP. GREEN: Let me intercede for just a moment.

MR. EIZENSTAT: -- that imperfection --

REP. GREEN: Let me intercede. I think you raise a good question.

Mr. Durbin (sic)?

MR. DUBBIN: Dubbin, yeah. Sure.

REP. GREEN: Excuse me. I'm sorry for -- would you please respond to the question that was just posed about the courts?

MR. DUBBIN: About the -- well, let me address a couple of the points, if I might. But the lawyers who were sued, who sued the German companies, who were part of those negotiations had filed suits on behalf of individuals. Those cases have not been certified as a class action; that's important. So they voluntarily dismissed their cases, their individual cases.

But they said at they time they dismissed them that the court should satisfy itself at the end whether or not the German Foundation is capable of providing compensation to insurance claimants. So now you're looking at -- even just those lawyers understood that this was still contingent on a successful outcome.

Now, several members of Congress, 47 to be exact, wrote letters to the attorney general in the year 2000 rejecting the notion that insurance claims estimated to be worth billions could be satisfied by the arbitrary 300 million deutschmarks set aside in the German Foundation agreement and saying we were shocked to learn that the recent slave labor settlement between the U.S. government and Germany included insurance. That's what members of Congress said.

And what the Justice Department responded by saying was hey, we didn't waive anybody's rights. We were just going to file a limited statement of interest. That was what the assistant attorney general for legislation said. And he also said that if this doesn't work out, we reserve the right to revisit our views on the constitutional issues.

So Congress objected in the only way that they could at the time. It's true, they could have passed legislation. But the fact of the matter is there were objections from Congress and the Justice Department attempted to solve those objections by saying if this doesn't work out --

REP. GREEN: Let me intercede. I have one more question that I have to ask Mr. Zabludoff.

Is that correct? Am I pronouncing your name correctly, sir? Please forgive me.

You mentioned congressional -- pardon me -- that claims that do not have -- cannot name an insurance company -- you spoke about that and how they would be rejected.

Would you, if -- and this is my final question, so could you please explain that again for me?

MR. ZABLUDOFF: Sure. Yeah.

In the case of Germany, Germany did publish a lot of names -- 400,000 names. Three hundred sixty thousand names were from the German accord and was published by the German authorities. Another 40,000 came from ICHEIC archives. So you have about 400,000 policies altogether.

Now, the real problem is that when you look at that list, it doesn't list the company. So, you know, if you have to name a company, the GDV -- which is the German overall company, overall regulators of companies -- they basically said you have to name a company. But the list doesn't show the company, so how could you do that?

And we know from ICHEIC experience that two-thirds of the people who sent in claims did not -- you know, this is years and years before -- did not know the name of the company, so how could you expect a claimant to know the name of the company?

REP. GREEN: My time is up, sir.

I have to yield back.

MR. : Can I have 15 seconds? Because Congress did in 2003 pass the Foreign Affairs Authorization Act of 2003 which required the State Department to get reports from ICHEIC about its performance, and for four years, ICHEIC refused to provide the State Department anything, even though statutorily mandated by Congress.

REP. FRANK: Mr. Green, you want to finish up with it?

REP. GREEN: Thank you, Mr. Chairman. I'll yield back.

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