What’s a Little Bill of Attainder Among Friends?

Two Senate Democrats, New York’s Chuck Schumer and Pennsylvania’s Bob Casey, are proposing what looks an awfully lot like a constitutionally prohibited bill of attainder.

The story broke recently that suspected Nazis were receiving Social Security benefits (although apparently the issue has had some low level notice for some time). Reportedly the Justice Department has used the retention of SS benefits (how drolly appropriate) as leverage to get suspected Nazis to skedaddle out of the U.S. If they were convicted they would lose the benefits, but if they voluntarily agreed to deportation without being charged, or simply fled before being charged, they’d still be eligible for benefits. The Justice Department has denied this, but reportedly the State Department and the Social Security Administration previously have argued with Justice about this.

Of course no one likes Nazis, and who in their right mind could defend them? But the problem I see here is that precisely because these men left–whether surreptitiously or through an agreement negotiated with Justice–all remain suspects only: none have been convicted of a crime, and so none can legitimately be punished.

Article 1, section 9, paragraph 3 says very explicitly, “No bill of attainder or ex post facto Law shall be passed.” Speaking precisely, a bill of attainder refers only to bills meting out capital punishment, and similar bills meting out less punishment were called bills of pains and penalty. But in Cummings v. Missouri the Supreme asserted that

It has been decided that bills of pains and penalties, which inflict a milder degree of punishment, are included within bills of attainder.

Justice Joseph Story described the problems with bills of attainder.

In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.’

For all that we despise Nazis as the worst of the worst, the Constitution has no worst-of-the-worst exception. But how many lawmakers will receive more credit from their constituents for standing up for constitutional rights for Nazis than they will for punishing Nazis?

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42 thoughts on “What’s a Little Bill of Attainder Among Friends?

  1. Maybe I should be thankful for Chuck Schumer. He makes it much easier for me to understand how conservatives and libertarians see the Democratic Party.

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    • Explain more pleas and see LeeEsq’s stance below. He knows of what he speaks because he is an immigration lawyer. We never let ex-Nazis in officially (unless they helped us win the Space Race and Cold War). So these are people who lied about their actions during WWII to get into the United States and many of there actions are not great.

      I don’t see why this is an issue to be snide with the Democratic Party on.

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  2. There’s a lot about the underlying story I just don’t understand. Why would the DOJ have an interest in not prosecuting the alleged ex-Nazis? Why would it–or the State Department–want to give them a break like that?

    As for the Bill of Attainder issue, the OP is probably right, here, but it might depend on the details, on how it is done. Presumably if these ex-Nazis had made it into the US in the first place, they did so by lying about their Nazi past. And my understanding is that immigrants generally have fewer due process rights when entering the country than others do, and there’s a lower bar to denying entry. Maybe that’s not how it should be, but if it is that way, then this denial of benefits could be more an extension of immigration law.

    Not that I’m trying to defend or deny the bill-of-attainderness of this proposal. I also think that the US has the obligation to respect the due process rights of people under its jurisdiction or people who are affected by its laws.

    I guess I’m just confused more than anything. (Not an unusual occurrence, mind.)

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  3. Ever since or at least close to the end of World War II, immigrants to the United States were required to say whether or not they participated in the Axis powers during World War II on the form that is necessary to receive permanent residency. I am not sure if the naturalization form says this but I imagine it does in order to find ex-Axis that they missed in the first round.

    The law is that ex-Nazis should not receive any sort of status in the United States. If the United States government finds that a naturalized citizen concealed the truth about being a Nazi or supporting the Nazi party in some way than they move to denaturalize and remove this person. Its been US policy for decades.

    I’m not really sure if what Schumer or Casey are proposing falls under a Bill of Attainder because it complies with past legislative treatment of former Nazis by the United States government.

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    • That’s mostly my thinking, too, and what I was getting at in my comment above about immigrants having fewer due process rights when entering the country. (I’ve read those “I agree I am not a WWII era war criminal” clauses in forms when I’ve come back from out of the US). My only reservation is that as far as I know, they are alleged to have lied, and their lie hasn’t been proved in open court. Should there be a formal procedure for proving it in open court? Should there be some other procedure that may not be a court trial, but respects process? Or should the DOJ’s (apparent) determination that they’ve lied (or perhaps it was an admission on their part that they’ve lied) be taken as proof enough and be used to deny the benefits?

      I obviously don’t know the answer, nor do I have a good sense on what’s been established as fact and what’s in dispute. For all I know, these alleged ex-Nazis signed something admitting to their past and are therefore no longer “alleged,” and for whatever reason got off with this sweet deal. So maybe it’s not a bill of attainder, or not as obviously one.

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  4. The current situation seems analagous to an informal plea bargain: get the hell out of the US, and we won’t formally deport you and thus strip you of all your rights and benfits. If Congress wants to pass a law preventing the INS from making that kind of deal, that seems well within their power of oversight.

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    • But it seems to me the question is, in part, whether Congress, in doing so retroactively and when the facts of the crime have not been stipulated to, is bill-of-attaindering. But as I note in my response to Lee’s comment above, much of this hinges on what exactly was stipulated to and on what is established as the facts of the matter and what is in dispute.

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      • Now you’re saying that we can’t discuss this intelligently without knowing the facts. It’s like you’ve never heard of blogs.

        Actually, if the bill were (hypothetically) limited to “make no more such agreements”, there’s no attainder involved. And if it went on to say “and no longer honor existing agreements”, then the INS would have to, in each case, either press on with a full deportation hearing or let the alleged Nazi come back to the US. Still no attainder, and everyone gets full due process.

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      • To be less snarky about it, I’ll say two things:

        First, my insistence on knowing the facts isn’t some sort of apologetics for Nazis disguised as a concern for due process. It’s stating that my position on this hinges on what happened. If the US/INS legally had the authority to expel these people in the first place, without any finding of guilt, then a decision by the US to deny any further social security benefits is not really problematic at all.

        Second–and again, this depends on certain facts I don’t know–if someone who is entitled by law to social security benefits can move out of the country and continue to receive them, then it seems to me the government can’t deny that entitlement without due process. And yes, your solution (which as far as I know is actually what the Schumer bill requires) would probably ensure due process without attainder. Maybe.

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      • I thought at the time that my first paragraph was clearly a sarastically-phrased way of agreeing with you that it’s hard to form any conclusions without more facts that we have. I guess I’m out of practice. Anyway, at no time did I consider you soft on Nazis.

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      • 250am

        Now you’re saying that we can’t discuss this intelligently without knowing the facts. It’s like you’ve never heard of blogs.

        I literally laughed out loud when I read this.

        Go Royals ;)

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      • I thought at the time that my first paragraph was clearly a sarastically-phrased way of agreeing with you that it’s hard to form any conclusions without more facts that we have. I guess I’m out of practice. Anyway, at no time did I consider you soft on Nazis.

        Not that it matters, but it was crystal clear to me.

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    • . If Congress wants to pass a law preventing the INS from making that kind of deal, that seems well within their power of oversight.

      Sure, although it might be pragmatically difficult to ensure no _informal_ agreements take place. But it doesn’t sound like that’s what they’re limiting themselves to.

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      • I honestly can’t tell what the hell they’re doing. Though, applying some simple arithmetic, no one born before 1927 has any real moral responsibility for Naziism, and there can’t be enough 87-year-old war crminials drawing Social Security benefits for that situation to be much of a problem.

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      • there can’t be enough 87-year-old war crminials drawing Social Security benefits for that situation to be much of a problem.

        Apparently we’re talking about several thousand people, and of course we can expect that number to dwindle steadily and fairly quickly. Whether that counts as “much of a problem,” is, I suppose a very subjective issue.

        I remember a few years ago there was a small hoopla when the last survivor of the WWI Christmas truce died. I wonder if there’ll be a news story sometime in the next 20-30 years about the last remaining known Nazi dying?

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      • OK, so I went back and re-read the AP’s original investigative journalism story.

        It says thousands of Nazis, with a top end estimate of 10,000, emigrated to the U.S. after WWII. But then it says,

        In newly uncovered Social Security Administration records, the AP found that by March 1999, 28 suspected Nazi criminals had collected $1.5 million in Social Security payments after their removal from the U.S.

        Which is more than you and I can count together on both hands, I guess, but still isn’t a huge amount. I suppose whether that’s enough to be a problem may depend on one’s “but Nazis!” factor.

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      • I’m not sure at this point–and I’m not blaming you for my confusion–whether you’re saying “it’s only a handful of people, so Schumer and Casey are making a big deal about nothing,” or if you’re saying, “it’s only a handful of people, so Hanley is making a big deal about nothing.”

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  5. how many lawmakers will receive more credit from their constituents for standing up for constitutional rights for Nazis than they will for punishing Nazis?

    Less than the number of unmanned drones needed to blast them to smithereens.

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  6. Common James, the constitution is just a scrap of paper!

    It’s a living document so it means whatever the hell those in power decide it means.

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  7. “how many lawmakers will receive more credit from their constituents for standing up for constitutional rights for Nazis than they will for punishing Nazis?”

    Perhaps one day I will be very wealthy. At that time, I will commission a significant psychological and neurological study which analyzes what separates adamant civil libertarians from the rest of the population. This isn’t a knock against you but people who join work for the ACLU and as Public Defenders rarely make it to high appointed or elected office. Or at least more rarely than prosecutors. I think people who care about civil liberties would do themselves a lot of benefit if they thought about this division sincerely instead of with being snide and self-righteous. Though I think civil libertarians might just like being ornery and self-isolating sometimes and have visions of dying like martyrs with their backs against the wall.

    The simple truth is that most people don’t want anything to do with Nazis. The Nazis were violent thugs and their successors are also violent thugs and often go at lengths to make themselves look physically intimidating and like someone you would want to keep 500 miles away.

    My brother brings up a good point. These are people who very well could have committed fraud to get into the United States and the fraud involved covering up their complicity in some of the worst crimes of the 20th century.

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    • But it’s ok when the the US gov’t commits fraud upon itself to bring back Nazi scientists who built the V rockets, so the US can use them to research better weapons and keep them from the Soviets?

      You’re appropriately outraged by that as well, yes?

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    • Part of the issue is what has been established. James isn’t defending Nazis. He suggesting that it first needs to be proven that the people in question are indeed Nazis.

      For all I know, that question is indeed settled. (Hence my repeated statements above about needing to know the facts.) But if it’s not settled, then as of now, they are, as James said in response to Lee, alleged Nazis.

      As for snide self-righteousness, well, we’re all guilty of that. See, for example, my hyperdefensiveness to Mike Schilling’s comment above.

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    • The simple truth is that most people don’t want anything to do with Nazis. … These are people who very well could have committed fraud to get into the United States

      “Could.” Yes, indeed, could. “Could” references possibility, not certainty. Are you suggesting people should shrug at denial of due process when someone “could” have committed a crime? Are you suggesting there’s something wrong with civil libertarians for not shrugging at that and for being angry at people who do? Are you suggesting that despite Schumer and Casey having sworn an oath to uphold the Constitution that it’s ok for them to propose a bill of attainder, or that there is a could-be-Nazi exception to the constitutional ban on attainders?

      What your comment looks like to me is an attack on civil libertarians who think the Constitution’s due process protections matter. What I’m not seeing in your comment is an argument that this law is not an attainder, or that there should be a could-be-Nazi exception to the Constitution.

      Your comment strikes me as just a re-wording of conservative complaints about the ACLU and drug dealers getting off on technicalities when evidence from illegitimate searches is suppressed.

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  8. Lets consider an example of Hans Bösemann, who in 1937 was “voluntold” to enlist in the army and join the Party, lest his family suffer privations in the coming Kampf. He wound up as a guard at Dachau. Bösemann surrenders when Dachau is liberated, and permitted to “melt back in to the countryside” as were a lot of lower-level Nazis and guards. So Bösemann is sort of a willing collaborator and sort of a low level guy. Certainly not a big enough fish to have been a focus of attention at Nuremburg.

    Now, flash forward to 1948. Bösemann emigrates to the USA to start a new life. He signs forms saying that he was not in the Nazi Party and had only been regular army. These statements are lies. But either no one investigates them or for some reason they turn a blind eye to them, Hans Bösemann moves to rural Wisconsin, becomes Hank Bose, converts to Lutheranism, and thereafter commits no crimes. He keeps his new American family in the dark about his true past. He starts drawing social security in, say, 1980. So in 2014, he is of very advanced years and only through the accident of his granddaughter’so genealogical research is the truth discovered.

    My thinking is as follows.

    1. Was it a crime in 1948 for Bösemann to lie on the naturalization form? Probably, although we haven’t established that.
    2. If it was a crime, what is the limitations period for that crime? Almost certainly expired.
    3. As Hank Bose, he’s been an upstanding citizen. He’s worked and paid his taxes and contributed to our society. And he’s in no position today to commit any crimes of significance at all. But he has paid in to our social welfare system and been told to rely on the promise that if you pay in now, you get benefits when you’re elderly.
    4. Where is he to go? Beck to Germany? (Maybe we don’t care, because though we are generally compassionate as a people perhaps we have no compassion for ex-Nazis like him.) we do not have exile as a form of punishment for any crime on the books.

    This likely seems like Due Process formalism. Maybe it is. But part of the point of Due Process is to force prosecutors and judges to think about what they are doing. Prosecuting Hank Bose today serves what benefit exactly? Maybe it’s better to, as did the Nuremburg prosecutors in the wake of the war, just let him go. Maybe not — I’m open to an argument to a contrary result if you have one to offer. But my initial position is that it seems to me that the benefit of harming Bose today is minimal indeed compared to the harm that would result.

    Part of what makes the Attainder proposed by Senators Schumer and Casey so pernicious is that it derails precisely that sort of dialogue; it eliminates the deliberation that is supposed to be the hallmark of the American governmental process. It is the articulation in law of a popular passion — the very sort of abuse of democratic power against which the Founders structured a government incorporating checks and balances against.

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    • Burt,

      2. If it was a crime, what is the limitations period for that crime? Almost certainly expired.

      How would your analysis need to be changed if the answer turned out to be, “not expired”? I’m not really trying to challenge you here. In fact, I think I agree with what you’re saying (but then I’m not one of the victims of the aggression in which he played a partially willing, partially coerced part). I’m just curious how things change if that’s the case.

      Also, that situation you bring up seems a little disanalogous to what the DOJ or DOS supposedly had done: make a deal with such people. Would acceding to the deal imply any concessions on the part of the former guard in this case?

      Again, I think I agree. I’m just curious about what has happened.

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    • 1. Yes, it’s perjury, and that’s a serious crime (unless it’s a Supreme Court justice lying under oath about never having discussed Roe v. Wade with anyone).

      2. Perjury has a statue of limitations. Genocide does not.

      3. People serving time in prison after being convicted of crmes don’t collect Social Security while serving their sentences. (I just looked this up.) Many are in the same situation of having paid into it without receiveing benefits.

      4. If he’s done anything in his life to make amends, rather than lying, hiding, and denying, I might find some compassion for him. Might. Otherwise, I honestly don’t give a shit.

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      • Lying on a government form is not necessarily perjury. Depends: in some cases it is defined as being perjury, but by default it is not. Often, specific sorts of lies on specific forms are specific sorts of crimes, sometimes felonies, sometimes not (e.g. filing a false police report). I think Burt was pointing out that without some more detailed research, which perhaps somebody has done, the legal status of Hans Bösemann’s lies on his 1948 and later forms is an open question.

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      • is right: I’m trying to underline that a person like the hypothetical Bösemann is presently in an indeterminate legal status but at the moment within the presumption of innocence, and the likelihood of his being found guilty of a crime is at least questionable, and there may be at least some room for forgiveness. I deliberately structured the hypothetical to get at what points out: while he hasn’t committed any further crimes, he also hasn’t done anything to try to atone. Perhaps out of fear of scorn and rejection, perhaps out of shame, perhaps out of lingering moral indifference to or a lifetime of internally rationalizing away the moral culpability of his role in the historic atrocity.

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    • Burt,

      Again, I don’t necessarily disagree with much of what you’re saying. But there’s more about the situation you note that needs to be fleshed out a bit. Being in the SS is different from being in the army, and my understanding is that “voluntold” in that situation was less “told” and more “volunt.” There is also Browning’s finding that in at least in the case of one battalion (regular army, as I understand it, and not ss, so maybe it’s a different dynamic), one’s participation in genocide was mostly optional. Maybe that finding is generalizable or not, but it can affect how we assess Boeseman’s actions.

      Again, though, and few people have addressed the issue, he hasn’t yet in your scenario or in what others are bringing up, been convicted of violating the law, whether it’s perjury, lying on an immigration form, or war crimes. So I agree with you. The Schumer bill, at the very least, bypasses the difficult discussions–and prosecution–that may need to be had, and jumps right to the punishment. At least that’s how it seems to me, and those who are pushing back haven’t really been addressing that part of James’s (and your) point.

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    • For the purposes of my OP, I purposely avoided this particular wrinkle in the issue, for a sharper focus. But I was thinking along these lines also, and am in full agreement with you.

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