In re Breyer

• Decision Date: 23 July 2014
• Docket Number: Misc. No. 14–607–M.
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: In the Matter of the EXTRADITION OF Johann (John) BREYER.

32 F.Supp.3d 574

In the Matter of the EXTRADITION OF Johann (John) BREYER.

Misc. No. 14–607–M.

United States District Court, E.D. Pennsylvania.

Signed July 23, 2014.

Andrea Foulkes, U.S. Atty's Office, Philadelphia, PA, for Plaintiff.

Dennis E. Boyle, Boyle Litigation, Camp Hill, PA, Kenneth E. Raleigh, Boyle Litigation, Philadelphia, PA, for Defendant.

CERTIFICATION OF EXTRADITION AND ORDER OF COMMITMENT

TIMOTHY R. RICE, United States Magistrate Judge.

Pursuant to its treaty with the Federal Republic of Germany, the United States seeks an extradition certification for Johann (John) Breyer based on Breyer's role, as a Nazi “Death's Head Guard,” in the murder of 216,000 European Jews at the Auschwitz II–Birkenau death camp. For the following reasons, I will grant the United States' request and certify Breyer's extradition to stand trial in Germany for mass murder. Like other accused war criminals, Breyer must submit to the judgment of law for his alleged role in Nazi atrocities against humanity. No statute of limitations offers a safe haven for murder.¹

I. INTRODUCTION

As noted by Justice Robert H. Jackson, the chief prosecutor at the Nuremburg war crimes trials, crimes such as those alleged here are “so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.” Nuremberg Opening Statement, Nov. 21, 1945, cited in Tusa, The Nuremberg Trial, (1st Am. Ed.1984), at 155. Although Breyer claims he was unaware of the massive slaughter at Auschwitz, and then that he did not participate in it, the German allegations belie his claims. Given Breyer's role as an elite S.S. armed guard at a camp designed and operated almost exclusively as a killing center for Jews, Germany has established probable cause of Breyer's complicity in the mass murders at Auschwitz.

An understanding of three things is essential to evaluate the charges against Breyer: (1) the structure and purpose of the camp; (2) the mechanics of processing, murdering, and cremating the victims; and (3) the role of the S.S. death guards in camp operations. As outlined by Germany, a death camp guard such as Breyer could not have served at Auschwitz during the peak of the Nazi reign of terror in 1944 without knowing that hundreds of thousands of human beings were being brutally slaughtered in gas chambers and then burned on site. A daily parade of freight trains delivered hundreds of thousands of men, women, and children, most of whom simply vanished overnight. Yet, the screams, the smells, and the pall of death permeated the air. The allegations establish that Breyer can no longer deceive himself and others of his complicity in such horror.

A. Camp Operation and Set Up

Concentration camps were first set up in 1933, and were initially used to silence political opponents without the obstacle of constitutional protections.² Certified translation of 6/17/13 Arrest Warrant (“War.”) at 124, 126; Grunberger, Hitler's S.S. (1st Am. Ed.1971) ( “Grunberger”) at 21. From the very beginning, the camps were staffed by the special “Schutzstaffel,” or “S.S.,” and the Gestapo. Grunberger at 21, 24. The Gestapo was the Nazi's secret political police force. Grunberger at 25.

The S.S. began as an armed wing of Hitler's political party, its “staff guard.” Grunberger at 12, 21, 30. The “S.S.” was separate from the regular German military—army, navy, etc.—that fought against the United States in World War II, although by the end of the war it did have units that fought on the front. Grunberger at 31, 65–70. The concentration camps' guards were all members of the “S.S.-Totenkopfsturmbann,” i.e. the S.S.' “Death's Head” unit. War. at 124; Grunberger at 23.

During World War II, the camps' functions grew to include housing prisoners of war, foreign civilians, and those the Nazis considered “asocial,” like homosexuals, and Jews. War. at 126; Grunberger at 24. On January 20, 1942, the infamous “Wannsee Conference” took place in Berlin, and the national leader of the S.S., Heinrich Himmler, was charged with ethnically cleansing all German territories.³ War. at 124, 157; Grunberger at 83; see translation of Protocols of the Wannsee Conference, re-printed in Berenbaum, ed., Witness to the Holocaust; an Illustrated Documentary History of the Holocaust in the Words of its Victims, Perpetrators, and Bystanders (HarperCollins 1997) at 165. From then on, the S.S. and Gestapo used the concentration camps to implement Hitler's “final solution” to the Jewish question, i.e. the extermination of all Jews living in territories under Nazi control. War. at 124; Grunberger at 72.

The original plan was to exterminate the Jewish people by working them to death. War. at 124, 132; Grunberger at 85.⁴ After occupying a country, the Nazis would segregate the individuals to exterminate through various means, like imprisonment or ghettoization. Berenbaum at 168 (Wannsee Protocols). Once contained in one place, the victims would be “relocated” by train to concentration camps, including Buchenwald in Germany and Auschwitz in Poland. War. at 125; see Berenbaum at 217 (translation of July 22, 1942 Order for “Resettlement” of Jews in Warsaw ghetto). Upon arrival by train to Auschwitz Concentration Camp (whose motto, “Work Makes You Free,” was inscribed on the gate), workers underwent “selection” and were found either fit to work or not. War. at 151; Exp. Rep. at 363; Grunberger at 85. Those not fit to work long hours on starvation rations were murdered on site. Id.

Both Auschwitz and Buchenwald grew significantly over the course of World War II, and Auschwitz grew at one point into three administratively separate camps. War. 127; see also Breyer v. Meissner, No. 97–6515, 2002 WL 31086985, at *8 (E.D.Pa. Sept. 18, 2002). Auschwitz I, the oldest part, was used primarily as a forced labor camp, although it also was the site of the original experimentations with mass gas poisonings, and it had one crematorium in which victims were gassed between 1940 and July 1943. War. at 128; see also Breyer, 2002 WL 31086985, at *8. Auschwitz II (a.k.a. Auschwitz–Birkenau), was originally intended to house Soviet prisoners for forced labor, but later primarily served as a death camp, at one point maintaining six working gas chambers. Map at 411; see also Breyer, 2002 WL 31086985, at *8. Auschwitz III (a.k.a. Auschwitz–Monowitz) was intended for more forced labor at sites owned by private industry. War. at 126; see also Breyer, 2002 WL 31086985, at *8. Based on the Nazi regime's needs at any given moment, e.g. for slave labor or more troops at the front line, the size of the inmate population and staff at Auschwitz grew and contracted.See, infra, at § IV.B.3.b.2. At all times, however, it was guarded by the Death's Head guard unit, War. at 124; Grunberger at 23, in which Breyer served.

B. Mechanics of Murder

After a “relocation” train ride in which large numbers of passengers died from the inhumane conditions on the train itself, victims arriving in Auschwitz would be unloaded. Exp. Rep. at 355 (citing pictures of the unloading process maintained at Yad Vashem Photo Archive). Early in the war, trains were unloaded only at night, so that spotlights could be used to ensure no prisoners escaped during the unloading process, and the packed trains would sometimes sit for an entire day before the passengers could disembark. Id. at 374 (citing 1960 statement from former Death's Head guard). No later than the spring of 1944, however, the rail-line was extended inside the barbed wires of Auschwitz II–Birkenau, and the unloading then took place during the day as well. War. at 131; Exp. Rep. at 374.

Inside Auschwitz II–Birkenau, two cars could be unloaded at once, directly onto ramps where high-ranking S.S. members, usually camp doctors, would pick out those fit for work, which was limited to a small number of women and able-bodied men over 13 (sometimes 16), ranging from five percent to 40% of the total passengers.⁵ War. at 131–32; Exp. Rep. at 376–77. During this “selection” process, the armed S.S. guards would form a ring around the trains, preventing the passengers from escaping or hiding. War. at 131; Exp. Rep. at 376 (displaying photo of S.S. guards during selection). Those not selected for forced labor, including all women with small children, the sick, and the elderly, were told to leave their luggage for later, that they were going to be bathed and fed immediately. War. at 131; see also Berenbaum at 182 (translation of an excerpt from the memoir of Rudolph Hoss, who served as commandant of Auschwitz). They were told to completely undress, and then packed into rooms with multiple (fake) shower heads. Id. The doors were locked behind them and they were suffocated with poisonous gas. Id.

The gas used, Zyklon B, contained hydrogen cyanide, which causes internal suffocation leading to death.⁶ War. at 127–28.

In small doses, hydrogen cyanide causes nausea, vomiting, anxiety, confusion, dizzy spells, and headaches. War. at 128. In medium doses, it causes irregular breathing and heart trouble. Id. In large doses, hydrogen cyanide causes sweating, protuberant eyeballs, seizures, bloody mouth foam, involuntary urination

and defecation, and finally loss of consciousness, coma, and death. Id. The Zyklon B took varying amounts of time to distribute lethal doses of hydrogen cyanide throughout the gas chambers, so although most people within the chambers died within 15–20 minutes, the killing process was only ended after 20–40 minutes. Id. Some people located farther away from poisonous gas sources took longer to ingest a lethal concentration, thereby suffering more symptoms as well as previewing their own deaths in the bodies of those around them. Id. The screams and cries of the victims could be heard outside the gas chambers, and when all victims had died and the chamber was opened to be cleared for the next round of murders, some bodies were found trampled by others who had...