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A federal government ban on Holocaust survivors suing to collect on European insurance policies from that era may be on a shaky legal footing, according to memos accidentally released by the Justice Department in a Freedom of Information Act (FOIA) request. The department wants the memos back and is trying to keep them from circulating.

However, the documents were used in Congressional testimony last month by Samuel Dubbin, an attorney representing Holocaust survivors and their families, and full copies were entered into the official public record.

The memos relate to a federal lawsuit Dubbin lost earlier this year when a federal appeals court rejected a U.S. citizen’s attempt to collect on insurance policies his father purchased in Europe before surviving imprisonment in Auschwitz and Dachau during World War II.

That court ruled Dubbin’s client, Dr. Thomas Weiss, could not bring his case to court. The decision was based, in part, on the Justice Department’s assertion that U.S. foreign policy requires special, non-adversarial agencies be used as the “exclusive forum” to help victims recover such claims.

The memos that Dubbin obtained in his FOIA request were intended as private correspondence among department officials discussing what advice to give to the court to clarify U.S. foreign policy. They reveal the Justice Department had some reservations about whether or not that policy could pre-empt a domestic lawsuit.

Justice Dept. wants copies destroyed

In a Sept. 24 e-mail to Dubbin, Deputy Assistant Attorney General William Orrick III, said the department had “inadvertently and erroneously” sent him the memos in response to his FOIA request. Dubbin gave a copy of the e-mail to the Center for Public Integrity.

The e-mail landed in Dubbin’s in-box two days after his Sept. 22 testimony in front of a congressional subcommittee hearing on a bill that would make it easier for victims and their families to file suits. A stack of the photocopied documents sat on a table inside the hearing room, available for anyone attending to take.

The Justice Department e-mail instructs Dubbin to “immediately cease using or disclosing the above documents; return the documents to the Department of Justice; and destroy all copies of these documents in your possession.” It also orders him to retrieve any copies he may have circulated and advises him to ask a Holocaust survivors group to remove them from their web site.

Dubbin has refused to return the documents despite the Justice Department’s argument that the documents are confidential under the attorney-client privilege and that he has an ethical obligation to give them back. The department did not respond to Center requests for comment.

Lucy Dalglish, the director for the Reporters Committee for Freedom of the Press advocacy group, says it’s rare for a government agency to revoke records it has already released in a FOIA response. That’s especially true for the Justice Department, she added, because “they very seldom give out any documents.”

Memos show misgivings

The memos illuminate some of the discussions — and misgivings — department officials had about their response to the New York-based Second Circuit Court of Appeals before it ruled in Dubbin’s case earlier this year.

On behalf of the State Department, the Justice Department sent the appeals court two separate memos, one in 2008 and another in 2009 to explain the U.S. foreign policy issues underlying the case. Its position changes from one to the next. The mistakenly released documents come from internal department discussion before each was sent.

The 2008 memo said that the State Department policy cannot necessarily pre-empt a court case. The 2009 memo was much firmer and told the appeals court that it was “in the foreign policy interests” of the United States for an international commission “to be the exclusive forum for the resolution” of Holocaust survivors’ claims against European insurers.

Among the documents that the government wants returned is a memo written by former assistant to the Solicitor General, Douglas Hallward-Driemeier. He wrote it before the 2008 memo was sent to the court, and it says that he had “reservations about the legal theory” underlying the advice that citizens cannot sue. A year later, before the 2009 memo was sent, Hallward-Driemeier wrote to his department colleagues that the Justice Department lawyers “should refrain from addressing the question whether the government’s foreign policy provides a basis for holding the plaintiffs’ claims preempted.”

Hallward-Driemeier, now a partner with the law firm Ropes & Gray, says he “can’t comment on attorney-client memos that should never have been released.”

Early this year, the Second Circuit ruled in favor of the Italian insurance company Assicurazioni Generali and rejected Dubbin’s attempt to help his client collect on a life insurance policy held by a Holocaust survivor. Dr. Thomas Weiss, a Miami Beach opthamologist born in 1949, has spent years trying to obtain the insurance benefits for a policy purchased by his father, Paul Weiss, in 1937 from Generali.

The appeals court’s ruling “was a direct result of the fact that DOJ hid the ball,” Dubbin told the House committee in September.

Special panel handles European insurance claims

Why can’t a U.S. citizen go to court to fight a European insurer over an insurance policy benefits? The answer is rooted in an agreement the United States entered into with Germany in 1999. The two countries decided at that time that it would be better to settle these insurance disputes through an international agency funded by European insurance companies, the International Commission on Holocaust Era Insurance Claims (ICHEIC).

As part of that arrangement, the federal government agreed that when cases of U.S. citizens suing German companies came up, it would file briefs with the judges informing them of the foreign policy interest. The agreement was not a treaty and doesn’t carry the force of law, so the U.S. cautioned the European governments that whether or not the cases would be thrown out would still be up to the courts.

These claims are particularly difficult because few death certificates were issued in extermination camps and Nazis routinely confiscated or destroyed contracts, deeds and other records. ICHEIC agreed to relax its standards for evidence, but it closed in 2007, the year before the Weiss suit arrived in federal court. Supporters of the commission say that other non-adversarial avenues still exist and site agreements from the insurance companies that participated in ICHEIC to voluntarily continue to process such claims.

When faced with the Weiss case, the Second Circuit Court of Appeals wanted to know if ICHEIC was still the forum for resolution, or if policy-holders were barred from even suing in US courts. It asked the State Department to clarify, kicking off the discussions accidentally disclosed to Dubbin this summer.

This month, the U.S. Supreme Court declined to hear the case. A dozen law professors specializing in international and constitutional law filed a brief with the high court in support of the case, including American University law professor Steven Vladeck.

“While not affirmatively misrepresenting the government position,” Vladeck says, the memos that the Justice Department gave the court “obfuscated it in a way that made it difficult for the court to know what’s going on.”

CORRECTION — 10/19/10: In an earlier version of this story, we incorrectly reported that Lucy Dalglish was the former director of Reporters Committee for Freedom of the Press. Dalglish is still director of the group.

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