A Long Memory for Murder

Next week, in a federal court in Brooklyn, a judge will ponder the wartime role of the Socit Nationale de Chemins de Fer. The plaintiffs say the Nazi machine would have broken down if the French railway had not supplied the cattle cars.

Sumner Moore Kirby, a Protestant American citizen, was arrested by the Gestapo in Nice, France on June 6, 1944, D-Day, the day of the Allied invasion of Normandy. Kirby was arrested together with two members of the Maquis underground. The three men were moved to Toulouse and detained in a facility of the Nazi secret police.

On July 3, 1944, Kirby was placed on "Shipment No. 81," consisting of American and British political prisoners and POWs, who were loaded on a railcar of the French national railroad and sent to Buchenwald, the concentration camp. It was the last train of deportees to be sent from Paris to Buchenwald. Kirby was murdered on April 11, 1945, the day the camp was liberated.

Cassandra Kirby Freund, a granddaughter of Kirby's who lives in Marathon, Florida, was watching a television show nine years ago about the Nazi occupation of Toulouse. Suddenly she saw her grandfather's name flash on the screen, as the camera focused on some documents relevant to the investigation.

This revelation lit an unstoppable desire to trace her grandfather's wartime history, from the outbreak of World War II until his tragic end in a concentration camp. She has scoured far and wide for documents, eyewitnesses and bits of information. What she learned from the 2,000 or so documents and certificates she has amassed has convinced her to join hundreds of other men and women in the United States and other countries, including Israel, who have brought a class-action suit against the French national railroad (SNCF), which was recently filed with the federal court in Brooklyn, New York.

"My grandfather was 48 when he was deported to Buchenwald," she says. Cassandra Kirby Freund, now 50, is a granddaughter of Sumner Kirby, the daughter of his first wife. She believes her grandfather was murdered because he was American, and that the camp guards were especially hostile toward him, because of Germany's imminent defeat by the Allied forces. "He was transported to his awful fate by the French national railroad, in railcars meant for transporting cattle," says Cassandra Kirby, sounding quite certain of the factual basis of her claim.

In a phone conversation, Kirby states that she has visited Nice and the site of Buchenwald concentration camp, and interviewed people to which she had been referred during her search for information about her grandfather. She plans to present the results of her research at the trial.

She uncovered, she says, an astonishing story, and plans to sum up the results of her inquiry in a forthcoming book. Sumner Kirby, son of a well-connected Pennsylvania family, moved to France in the 1920s after having fallen out with his father. While living in Paris, he grew close to the Russian emigre community and married Leonida Romanov, a former duchess who was related to the former czar. In documents and certificates unearthed by Cassandra Kirby, her grandfather's name appears among deportees from Paris aboard "Shipment No. 81." She also found his name on a list of Buchenwald prisoners, and was able to turn up testimony about the circumstances and date of his death.

The camp guards had ordered a 17-year-old communist political prisoner to beat the American to death.

Based on a study of documents she found in an archive in Washington, Freund assesses that prior to his arrest, her grandfather acted as a spy for an American intelligence service.

The only document that Cassandra was not able to find - one for which she is still searching - is the Gestapo warrant for her grandfather's arrest in Nice. The fact that the document has vanished leads Cassandra Freund to believe that it was her grandfather's third wife, the former duchess, who turned her husband in to the Gestapo. Cassandra reasons that her grandfather's wife was trying to save their daughter's life.

Leonida Romanov is now 86 years old, and lives in Moscow. Cassandra's suspicions grew after she met with the ex-duchess two years ago. Leonida was evasive when asked about her former husband's arrest and deportation.

Yet Freund claims that her grandfather's third wife was not the only party that collaborated with the Nazis. "The Germans would not have been able to murder my grandfather in Buchenwald if the French national railroad would not have transported him there," charges Cassandra Freund.

Escaping arrest at age 13

Raymonda Abrams did not think twice about joining the class-action suit. "My entire family was simply erased," she says. Abrams, 71, lives in Brooklyn. She distinctly remembers how her parents Adolf and Helena Geller, and her brother Jacques, were arrested. The three were held at Drancy, the transit camp near Paris. On November 20, 1943, they were loaded aboard "Transport No. 62," sent to Auschwitz and subsequently murdered.

Abrams relates that she, a 13-year-old girl, managed to escape her parents' and brother's fate by finding shelter in orphanages. She was shuttled from one orphanage to another, spending a long period at one in particular, which was run by Catholic nuns.

"No one put a gun to the heads of the railroad directors and the higher-ranking workers," says Harriet Tamen, the lawyer who has filed the suit. "The services provided to the Gestapo by the railroad, carrying out the deportations to the concentration camps, were supplied knowingly and in a premeditated fashion, and even with enthusiasm, to serve and collaborate with the occupation authorities. They did this even though they knew what sort of fate the deportees would meet," says Tamen. "There is proof that the directors and workers of the company cleaned and disinfected the railcars after each deportation, and carefully maintained them and prepared them for the next shipment."

The suit charges that the SNCF collaborated with the occupation authorities and complied with the instructions and directives of the Gestapo, in a tradeoff for payment and profits. The company is accused of directly aiding in the deportation of 72,000 Jews and thousands of other "undesirable" civilians to concentration camps, primarily Auschwitz.

The first transport of deported Jews headed for Auschwitz left Paris on March 27, 1942; the last train was on August 17, 1944, one week before Paris was liberated. Between these two dates, the SNCF operated more than 72 trains with deportees on board. Documents that have been appended to the lawsuit reveal that fewer than 3 percent of the deportees actually survived the concentration camps to which SNCF had transported them.

The upcoming case forced Harriet Tamen to give up her summer vacation. She is busy preparing for a pre-trial hearing to be held on August 30 in front of Judge David Trager, at the federal court in Brooklyn. The hearing is highly significant, since the judge will be ruling on a request made by the opposing side to dismiss the lawsuit.

The SNCF, say its lawyers, enjoys the sovereign immunity that derives from its status as a government-owned company. They ground their arguments on the Foreign Sovereign Immunities Act of 1976, passed by the U.S. Congress. The attorneys assert that even if the law was passed long after the events described in the lawsuit took place, Congress intended the law to be retroactively binding and enforceable.

Tamen is not particularly worried about the upcoming hearing. "Our contention is that the railroad is an independent commercial and economic entity," she says. "In the same way that you can sue the MTA [Mass Transit Authority] in New York for damages, or sue an airline for losing a suitcase, there is no legal impediment to bringing suit against the SNCF. It is one of the 500 largest companies in the world, and maintains business contacts in New York."

Unlike the legal struggles against the Swiss banks in the matter of the dormant accounts of victims of the Nazis, and against German companies on the issue of compensation for slave laborers, the class-action suit against the SNCF has drawn hardly any media coverage. The behavior of New York's Jewish leadership has also been a little peculiar. Several of these leaders, who spent long years engaged in contacts with representatives of the Swiss banks and the German companies, are demonstratively evasive when asked for comment on the current class-action suit. They manifest an atypical reserve when asked what might be expected in the upcoming fight with the SNCF.

The feeling one gets from off-the-record conversations is that the Jewish organizations that gained so much experience while navigating the legal morass against Swiss banks and foreign governments that were sued for restoration of Jewish assets or establishment of restitution funds, prefer - at least for now - to keep a low profile. They will wait for Judge Trager's initial rulings in the case, which should provide a sign of the lawsuit's chances.

Knowledgeable sources in New York say that the pre-trial skirmish that begins next week should be fascinating. One sticking point might be the financial settlements arrived at with the French government, during the effort to compensate victims of the Nazis and compensate the Holocaust survivors. The French government agreed to establish a fund that will total $760 million, from which survivors will be paid compensation and reparations. The fund will also underwrite commemoration and memorial projects. The agreement with France had been interpreted by at least some of the parties involved in it as handling all of the possible claims related to acts committed by the French during the Nazi occupation. "This will not make it easy to persuade the court of the justification for a class-action suit against the railroad," comments one New York jurist.

Seeking a legal precedent

Conversely, Harriet Tamen claims that the agreements reached with the French government pertain to settling claims against the banks, and are an attempt to regulate the affairs of certain specific sectors. "We are suing the railroad, not the French government."

Tamen stresses that the class action suit represents a legal precedent in the United States.

It is the first lawsuit in the American justice system to be brought against a foreign-owned company, in which the company is accused of aiding in the execution of war crimes and crimes against humanity.

The authority to make such accusations derives from Principle No. 7, in the "List of Principles" that was approved at the Nuremberg Trials. No. 7 defines "collaboration in the execution of crimes against peace, war crimes or crimes against humanity" as "crimes according to international law."

Based on the lawsuit, a chilling and familiar picture is taking shape, of a well-oiled and meticulous German bureaucracy that carries out procedures and routines in the effort to commit mass murder of human beings.

The plaintiffs have presented a detailed and documented description, much of which has not been widely known about the role played by the SNCF in deporting the Jews of France. The lawsuit describes the complete compliance and goodwill displayed by the railroad with the orders and instructions received from Gestapo headquarters in Berlin. "We do not know of even a single instance in which the railroad tried to delay a transport of deportees, or avoid, through any pretense whatsoever, compliance with every instruction it received from the Gestapo," claims Harriet Tamen, in an interview held in her Manhattan office.

"On not a single occasion did the directors of the railway try to evade the task through some excuse, perhaps saying there were no trains available just then, or that they did not have enough railcars." Adopting an ironic tone, the attorney adds, "Not to mention that no one in the railroad even considered a proposal to carry out sabotage or mine the train tracks on the way to Auschwitz, along the lines of the underground's actions against trains that transported German troops or military equipment."

Senior railway officials used to accompany the deportee transports, getting off the train at the border. "As in other countries, the shipments of deportees in France proved to be a significant factor in the success of the final solution," reads the lawsuit.

On July 2, 1944, for example, a train left Paris carrying 2,166 deportees, who were termed "passengers" on the manifest. By the time it reached Dachau concentration camp three days later, 536 of the "passengers" - one-quarter of the deportees on the train - were found dead.

The suit also alleges that the SNCF "related to the shipments of deportees and treated them, in a commercial and routine manner. The deportations carried out by the railroad - like the destinations of the trains - were not classified as secret since the company operated the transports as regularly scheduled trains, which were planned and scheduled ahead of time."

Similarly, "every request to prepare a train for deportees that was received from Gestapo headquarters, was handled like an ordinary request." The Gestapo paid a set price to the SNCF for every "passenger" according to the ordinary cost of a passenger seat, and the payment procedures were similar to normal company practice. "The railroad was paid by the head and by the kilometer. The railroad managers made an effort to provide the best cattle cars, thereby preventing any possibility of escape."

Harriet Tamen claims that after the war, not only did the SNCF not make an effort to compensate those who survived or the relatives of those whom the railroad transported to the concentration camps and who died there, but the company even asked for compensation for its wartime role.

A final reply brief submitted by SNCF attorneys on May 16 states that "the version of the plaintiffs of what happened during WWII, is incomplete, to say the least." Furthermore, they allege that "from June 1940 onwards, the train tracks in France were under control of the German occupation army. Nevertheless, "the railroad workers carried out numerous acts of resistance" and nearly 9,000 of them died in the war. The attorneys state that the SNCF was one of four entities that received highest honors in France after the war.

Jean Jacques Frankel is an engineer who lives in Victoria, British Columbia. He was the first to take legal steps against SNCF. In October 1999, Frankel registered a legal complaint in a Paris court in which he accused the railroad of crimes against humanity. In addition, he demanded that the company open its archives in order to determine who was responsible for its actions during the occupation years. Frankel's complaint was rejected out of hand, with the court deciding that it was simply inadmissible.

"I decided to join the class-action suit in New York," Frankel now says.

In a telephone interview, he relates that his father, Roger Frankel, a famous dentist who was a member of the Legion of Honor for his service to France, was arrested on November 12, 1942, and was on the first deportation train to Auschwitz on the following March 27.

His mother, Wolfa Frankel, fled to Nice and joined the Maquis resistance. She was captured in November 1943, sent to Auschwitz on December 7, and was killed a few days afterward.

Frankel and his sister survived, he says, thanks to a Christian family that hid them in their home. Frankel, now 70, is an international consultant on medical equipment. He is preparing to return to Paris, where he plans to work on restoring Jewish property.

"My father was 35 and my mother 28 when they were sent to Auschwitz," he says. "If the railroad had not cooperated, the Germans would not have been able to deport all the Jews," Frankel claims.

Lillian Lichtenstein lives in Jerusalem. Her parents were placed on a transport in Paris and were killed in Auschwitz. Lichtenstein joined the class-action suit in New York with the goal of "reminding France that it is not innocent as regards its behavior during the occupation." Simultaneously, Lichtenstein wants to prove that "the conventional assertion in France that the railroad workers were an important part of the anti-Nazi underground may be true - but they did not help the deported Jews.

"The French underground fighters sabotaged the trains that carried German soldiers," confirms Harriet Tamen, "but avoided any actions that might have delayed or hindered the movement of the trains that carried Jews to the concentration camps."