A federal magistrate judge issued an opinion extraditing a former Nazi guard to Germany to stand trial for mass murder shortly after he died.
Germany sought the extradition of Johann Breyer in June 2013, which sparked the current litigation, but Breyer’s history with the court goes back more than 20 years.
In 2003, the U.S. Court of Appeals for the Third Circuit upheld a district court’s opinion granting him the right to stay in the United States since it found that he was an American citizen by birth and that his service with the Nazis was “involuntary” and therefore not an “expatriating” act.
However, U.S. Magistrate Judge Timothy Rice of the Eastern District of Pennsylvania said in his 31-page opinion granting extradition that the earlier decision “was made in the context of an immigration case, and the court sought only to determine whether Breyer’s S.S. service qualified as an ‘expatriating act’ that could result in the loss of his citizenship. Findings in a civil immigration context, however, do not control a criminal probable cause determination, especially when Germany has offered new evidence.”
Breyer had argued that German law requires voluntary action in order to be found guilty of aiding and abetting murder and the Eastern District of Pennsylvania had already found his service for the Schutzstaffel, commonly called the S.S., had been involuntary.
Breyer’s 2003 case was unique among the former Nazis targeted for deportation by the Department of Justice in those years because his mother was born in the United States and was still an American citizen when he was born.
At the time of Breyer’s birth, federal law provided for the conveyance of citizenship from a father to his foreign-born child, but did not feature an analogous provision for the conferral of citizenship from an American mother unto a child born overseas.
Until 1991, when Breyer was first ensnared in the U.S. court system because the Justice Department had filed a civil suit to strip him of his naturalized citizenship, Breyer was unaware of his possible American citizenship. In the first round of litigation, Breyer argued that his mother’s birth in Manayunk conferred upon him birthright citizenship.
The Justice Department argued that the law provided citizenship only to the foreign-born children of American men. But Breyer won a major victory when the Third Circuit found that such a male-only law would violate the equal protection clause of the 14th Amendment.
The Third Circuit reached that decision in 2000, but sent the case back to the district court to determine if his role as a guard at Auschwitz-Birkenau amounted to expatriation.
The district court found that it didn’t and the Third Circuit later upheld that opinion.
“Breyer claims his advanced age and status as a camp guard, not an officer, impacts this proceeding,” Rice said in a footnote. “Although Germany has delayed Breyer’s prosecution for decades, that issue has no bearing on the limited inquiry I must conduct to certify extradition. Moreover, the mere passage of time cannot diminish the raw horror of the crimes charged.”
Breyer was wanted for his role in the murder of 216,000 Jews at Auschwitz-Birkenau, according to the opinion. He was charged with 158 counts of contributing to murder.
Breyer was arrested June 17 and, on July 21, agreed to forgo further hearings and not present further evidence. Breyer died earlier this week.
(Copies of the 31-page opinion in In the Matter of the Extradition of Breyer, PICS No. 14-1160, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Account holders can use the online form to order.) •