UNFORGIVEN: Michael Gruber Can Never Escape His Nazi Past.

Katherine Marsh is a contributing editor at Rolling Stone

[Krindija, Croatia, 1942] It was September 1942, harvest time in the village of Krindija, when the draft notices arrived. Four hundred souls lived there, farming potatoes, corn and sugar roots, plowing with horses, living lives much the same as their great-grandparents had a century before. They were ethnic German peasants, living in what had become a puppet state of Germany. When the notices arrived, some couldn't read them. But the names were carried across the village square, in the gossip of wives and as the townspeople filtered out of Mass. Josef Goldschmidt, Peter Riegl, Josef Kertz, Michael Gruber and others, off to the German army. The men were ordered to report to the town of Ossiec, 20 miles away. And then where? The farmers didn't know, but one other name, ominous, crackled across Krindija's one radio in the village store, unsettling the entire town: Stalingrad.

Michael Gruber was supposed to have been a full-time farmer; his grandparents and parents had given him 25 acres of land, two horses, a calf and a milking cow. But the shifting armies of southeastern Europe kept intruding. He had married his parents' goddaughter, 17-year-old Katharina Feldi, in 1936, but was drafted into the Yugoslavian army for nine months shortly after and missed the birth of their daughter, Anna. In the spring of 1942, he was drafted into the Croatian army and sent to fight Serb partisans during World War II. The Serbs killed his brother Martin, who was serving along with him in the mountains of Bosnia. After three months, he returned home, having missed the birth of their second child, a son, Peter.

That summer, the mood in Krindija was tense. At night, bands of Serb partisans roamed the woods; no one knew when they would attack. Gruber wanted to stay home and take care of his family and farm, but there was nothing he could do. A veteran of two armies at 27, he had only a fourth-grade education. But he understood that when the authorities told you to do something, you didn't say no. You did it and prayed that God would keep you alive long enough to come home again.

*

[Moscow, Russia, 1991] In the waning days of the Soviet Union, an American historian named Patrick Treanor was sorting through wartime documents in the Moscow Special Archives. They were amazing things, these records of deaths and captures, of armies moving across a Europe that no longer existed and was in the midst of changing its shape yet again. Like many Western historians, Treanor had dreamed of getting into the archives for decades. But it was only now, as fledgling democrats and hard-line coup plotters fought over the future of the Soviet Union, that he was granted access to the past.

One day Treanor came across a 1944 list of German soldiers who were transferred from the Sachsenhausen concentration camp, outside of Berlin, southeast to a military training camp in Kurmark, Germany. These were not ordinary soldiers but members of the Waffen SS, the Third Reich's infamous military unit. Among the names on the transfer list was Michael Gruber's.

Treanor was not on a mission to satisfy his academic curiosity. When he found documents that revealed the names of Nazi officials, or even low-level concentration camp guards, he sent them to the Office of Special Investigations in Washington, D.C.

The OSI had been established as the Department of Justice's Nazi hunting unit in 1979. As the years passed and the unit exhausted available archives, the number of cases against suspected Nazis in the United States dwindled. But the collapse of the Soviet Union enabled historians such as Pat Treanor to access valuable World War II archives, an 11th hour boost for the OSI.

The Nazi hunters were able to open new cases against high- and low-ranking officials, men whose complicity in the crimes of the Holocaust was undeniable. As the decade wore on, however, the majority of new cases were filed against low-level soldiers living in the United States, many of whom were ethnic Germans and Slavs who had worked as armed concentration camp guards. In many of the cases there was no evidence that these guards shot anyone. But the OSI argues that such low-level guards sustained the Third Reich by confining prisoners to concentration camps and that they should be prosecuted to the fullest extent of the law.

Nearly a half-century after the war, the odds that any of the 701 men on Treanor's transfer list had immigrated to the United States and were still alive were fairly slim. But the OSI officials continued their search. Every once in a while, fate conspired and they actually found someone.

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[Washington, D.C., 1994] Inundated with thousands of documents from the former Soviet Union, the Immigration and Naturalization Service took three years to get back to the OSI about Patrick Treanor's transfer list. The agency reported that one of the names on the now-50-year-old list matched their immigration records. That name was Michael Gruber.

Gruber had immigrated to the United States from Austria in 1956 and worked for 20 years at Volkswagen in Queens, N.Y., as a mechanic. He was now retired and living just north of New Jersey in the semi-rural town of New City, N.Y. OSI historians brought their findings to Eli Rosenbaum, the group's then-39-year-old director. It was Rosenbaum who had exposed the Nazi pasts of Arthur Rudolph, the former director of NASA's Saturn V rocket program, and Kurt Waldheim, the onetime U.N. secretary-general. The historians met in Rosenbaum's office, which was cluttered with three-foot stacks of wartime documents and decorated with a photo of the Nuremberg Trial. In addition to the transfer list, another historian, Dean Scott McMurry, had dug up a personnel card from the Russian archives that stated that Michael Gruber had been a guard at the Sachsenhausen concentration camp.

When he saw the personnel card, Eli Rosenbaum believed he had a case. The Third Reich kept meticulous records, and history had shown that they were largely accurate. He immediately sent two OSI lawyers, Kenneth Misrok and David Lavine, to interview the then-79-year-old Gruber.

On Dec. 5, 1994, Misrok and Lavine met Gruber in White Plains, N.Y., and confronted him about his past. Although he admitted to having served in the Waffen SS, in broken English he claimed that he wasn't at Sachsenhausen.

Over the course of the interview, Gruber mentioned the names of several men--Josef Goldschmidt, Peter Riegl, Josef Kertz--from Krindija who had served with him in the SS. Misrok and Lavine carefully recorded these names and passed them on to McMurry, who began researching their lives. During the next few years, McMurry contacted Russian and German archivists who dug up Sachsenhausen camp personnel cards for some of the men. McMurry then set out to find and interview them. But here the investigation stalled. The men lived in Austria, which refused the OSI requests to conduct interviews. Rosenbaum was frustrated with this development, but he also was accustomed to obstacles and literal dead ends. Over the years, suspected Nazis had died, fled the country, sunk into the fog of Alzheimer's and even committed suicide. He could only hope that the situation in Austria would be resolved before Gruber died or grew too feeble to stand trial.

Rosenbaum had spent almost all of his professional life hunting Nazis. In fact, he would eventually bill himself as the longest-serving Nazi war crimes prosecutor in the world. He is well suited to his work: whereas other lawyers may find pursuing genocidal cold cases futile or emotionally draining, Rosenbaum's passion for his work and faith in its importance have never waned. He spends long days on the job, drinking eight cups of coffee per day. On occasion he has listened to opera--ironically, he has a fondness for Wagner--while poring over 50-year-old orders of executions, sometimes in tears.

In many ways, Rosenbaum embodies the OSI. In 1978, as aging Holocaust survivors became more vocal about their experiences, Congress passed the Holtzman Amendment. It mandates the deportation of anyone who "ordered, incited, assisted or participated in the persecution of persons because of race, religion, national origin, or political opinion in conjunction with the Nazi government." Shortly after, the U.S. attorney general established the OSI to enforce it. Rosenbaum, then a student at Harvard Law School, called up, begging for a summer job.

Before the creation of the OSI, the INS was responsible for investigating the half million immigrants who had been admitted to the U.S. after World War II. Although the government suspected that as many as 10,000 of them had lied about their wartime activities, between 1946 and 1978 the INS deported only two suspected Nazis. Over the next 20 years, the OSI would deport 54 Nazis, denaturalize 64 others and open more than 1,000 investigations. Eli Rosenbaum, ho rose in the ranks to become OSI's director in 1994, would be responsible for a large number of these cases.

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[New York, N.Y., 1998] On the morning of Aug. 3, 1998, two OSI lawyers, Robert Groner and David Folts, sat down to re-interview Michael Gruber, then 83, at the INS office in downtown Manhattan. Dean Scott McMurry, the OSI historian who had been researching Gruber's wartime past, listened via telephone conference call from the OSI office in Washington, D.C. The interview lasted just over three hours. Gruber again insisted that he had not been at Sachsenhausen, but he said he had guarded a weapons-transport train being loaded by prisoners in Oranienburg, a town outside of the camp. He claimed that they were ordinary criminals, not concentration camp prisoners, and he still denied knowing about the concentration camp or having been inside.

Although a German interpreter was on hand, the interview progressed slowly. Gruber got confused about the chronology of events, the meaning of some questions and the exact interpretation of some words.

But the lawyers had a trump card. That past May, Austria had decided to cooperate with the OSI and McMurry had finally been able to get into the country and interview Josef Goldschmidt, one of the men from Gruber's village who also was listed as being in his SS unit. Goldschmidt acknowledged that he had been a guard at Sachsenhausen and that Gruber had been in his unit, but he could not confirm that Gruber had been at the concentration camp, as the Russian records showed.

Gruber also had acknowledged that he served in the same unit with Goldschmidt. That admission, combined with the documents from the Moscow Archives and the interview with Josef Goldschmidt, convinced Rosenbaum and his team that Michael Gruber had knowingly assisted in persecution by guarding Sachsenhausen prisoners as they loaded a transport train in Oranienburg. Despite the fact that they had no evidence that he had ever fired a shot, the OSI believed that Gruber was a war criminal and should be removed from the United States. Two years later, they would go to the Immigration Court in New York to prove it.

*

[New York, N.Y., 1999] On Dec. 14, 1999, 84-year-old Michael Gruber sat down in a small office in Chinatown to tell his story to Robert Murtha, an immigration lawyer who had agreed to take on his case. For more than an hour, Gruber described the notice that changed his life 57 years ago in Krindija. After kissing his wife and children goodbye, he had traveled with the others to Ossiec, Croatia, and from there by train to a training camp in Breslau, Germany. There Gruber was given a dark gray uniform with an SS insignia on the lapel. This comforted him, he said. The SS insignia meant that he wasn't going to Stalingrad but would have a much safer assignment. In January 1943, Gruber, along with his Waffen SS unit, was transferred to Zhitomir, a German occupied area of the Ukraine where he guarded Russian POWs.

Life was pleasant. The men were entertained by traveling theater troupes and fed salami, and even a little fresh fruit and wine. In fact, Zhitomir was a far safer place to be in 1943 than Gruber's hometown of Krindija. In September of that year, Gruber received a letter from his wife informing him that Serb and Muslim partisans had burned their village to the ground and she had fled with the children to the nearby city of Ossiec. Gruber's 21-year-old sister had been killed in the attack as had other members of their extended family. He rushed home on emergency leave, but there wasn't much left of Krindija when he finally reached it. The fire had been so fierce that people had seen the smoke from as far away as Hungary. The church and his house were in ruins.

In January 1944, Gruber said he was called back into the SS and sent to Oranienburg, the town near Sachsenhausen. His first assignment was to accompany a supply convoy to Riga, Latvia. On his return to Oranienburg, he said that he was given a rifle and ordered to guard a weapons-transport train as prisoners loaded it with ammunition. They would arrive in the morning, escorted by other SS guards, and work quietly in groups of 25 men. Gruber was ordered not to talk with them. At the end of the day, the prisoners were escorted away from the area. It took them several weeks to load the train, at the end of which Gruber was ordered to accompany it to its destination, the city of Turshau.

Gruber remained at Oranienburg until September 1944. As the tide of battle turned, he was sent to Kurmark, Germany, where he was given a machine gun, grenades and a hasty basic training course before being transported to the German front in France. Two months later, he was captured by American soldiers and sent to a French POW camp, where he remained until 1948.

Michael Gruber had safely survived the war, but he would never make it home. His family had immigrated to Austria. Krindija lay in ruins. Croatia had been enfolded into Communist Yugoslavia. He would have to start a new life for himself.

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[New York, N.Y., 2000] The trial of Michael Gruber began at 9 a.m. on the morning of June 1, 2000, in a small room of the Immigration Court in downtown Manhattan. The government--Eli Rosenbaum, OSI trial lawyers David Folts, Robert Groner and William Kenety, two assistant district counsels and historian Dean Scott McMurry--occupied one side of the tiny courtroom. Gruber's immigration lawyer, Bob Murtha, occupied the other.

The only person missing from Michael Gruber's trial was Michael Gruber. He had been diagnosed with kidney cancer earlier in the year, and on the day of his trial he was undergoing preoperative testing. Rosenbaum and his attorneys questioned Gruber's timing in scheduling the testing and suggested that he was trying to delay the trial by exaggerating his ill health. Murtha said Gruber was unable to attend because he was taking the pain medication Percoset and was too weak.

Immigration Judge Robert D. Weisel ruled that the hearing would be conducted as scheduled with the defendant in absentia. Rosenbaum was disappointed. Despite having worked on the case for more than six years, he had never seen Gruber in person. More important, Gruber's absence--the trial of an empty chair--symbolized the possibility of defeat. Rosenbaum expected that he would win the case, but the victory would be lost if Gruber died before he could be removed from the country.

In his opening statement, Groner argued that by serving as an SS guard at Sachsenhausen, Gruber had knowingly assisted in persecution and thus was subject to removal from the United States. Although the Holtzman Amendment never explicitly equates service at a concentration camp with assistance in persecution, legal precedent largely supports this interpretation.

Murtha accused the OSI of misapplying the Holtzman Amendment and argued that Gruber had persecuted no one. "Mike Gruber is guilty of no wrongdoing," he argued in his opening statement. "The OSI can never prove he was personally actively involved in persecutorial efforts."

Over the course of the trial, the OSI called three witnesses: Rudolf Herz, a Jewish survivor who described a severe beating he received at the hands of an SS guard at Sachsenhausen, but who did not know Gruber; McMurry, the OSI historian who testified on the authenticity of the transfer list and personnel card; and Ronald Smelser, a professor of German history at the University of Utah, who testified that the documents proved Gruber had been a guard at the concentration camp and involved in the prisoners' confinement. Smelser also described the conditions at Sachsenhausen, where prisoners were routinely worked to death, subjected to medical experiments in which they were burned to test healing salves, and murdered, shot in the back of the neck through a hole in the wall as they stood to be measured in the infirmary.

The prosecution argued that Gruber "could not have but been aware that awful things were being done to human beings at Sachsenhausen." By 5 p.m., the trial of Michael Gruber was over. It was, according to Rosenbaum, the shortest trial in OSI history. After presenting the case they had spent more than six years piecing together, Rosenbaum and his team returned to Washington to await the judge's decision. On Aug. 11, 2000, Judge Weisel ruled that Michael Gruber was guilty of persecution because he had "assisted in confining prisoners to an area in which they were regularly subjected to extreme deprivation, brutality and arbitrary shootings." In his conclusion, Weisel stated: "The German Third Reich was an aberrant state, murderous in its political objectives. Those that created it, and those that sustained it, shall be consigned until the end of human history as the ultimate in the personification of total evil."

At the end of the 55-page decision, Judge Weisel ordered that Michael Gruber be sent back to Austria.

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[Washington, D.C., 2001] Despite his victory in court last August, Rosenbaum has not really won the case against Gruber. A year after Gruber was ordered out of the country, he is still living in New City, N.Y. Last fall, Murtha filed an appeal, hoping to buy Gruber enough time to die in the United States.

Rosenbaum is disappointed by what he sees as the world's ambivalence. He is upset by recent criticism of so-called 11th hour prosecutions. In 1996, Ruggero Aldisert, a federal judge in the 3rd Circuit Court of Appeals in Philadelphia and a World War II veteran, criticized the government in his dissent in the appeal of Jonas Stelmokas, a former commander of the SS guards at the Jewish ghetto in Kovno, Lithuania. Aldisert, who felt that too much time had passed to have a fair trial, wrote: "With the passage of time, witnesses disappear and memories fade. To continue the prosecution of octogenarians is, to be sure, a political decision."

This past January in France, Robert Badinter, a former justice minister and Jewish intellectual whose father died in a German concentration camp, argued that Nazi war criminal Maurice Papon, now 90, should not be made to complete his 10-year prison sentence. In 1998, Papon was convicted of shipping thousands of French Jews to death camps during the war. "There is a point where humanity must prevail over the crime," Badinter said, adding that Papon is "just an old man now."

But Rosenbaum argues that the survivors of the Holocaust are still suffering today. "The passage of time has not lessened the gravity of the offenses," he says. He also cites Philadelphia U.S. District Judge Stewart Dalzell's response to Aldisert in his decision last summer in the case of another low-level SS guard, Theodor Szehinskyj. "Such prosecutions," Dalzell wrote, "involve more than 'a political decision.' Memory, after all, involves the difficult enterprise of not forgetting. If the government were to forget, it would be forgetting the millions of victims of the greatest moral catastrophe of our civilization."

Although Rosenbaum admits that there are levels of complicity, he still believes that a man like Michael Gruber shares in the responsibility for the Holocaust. "The raison d'etre of concentration camps was to persecute human beings," he says, "so anyone involved at any level in the operation of a camp is guilty."

Rosenbaum and the OSI currently have 16 cases in litigation-- some of the last Nazi cases that will ever be tried in the United States. In recent years, the agency has been broadening its scope, helping to recover assets stolen by the Nazis, such as artwork, books and gold. There is legislation working its way through Congress that would give the OSI authority to pursue war criminals in the United States not only from Nazi Germany but from killing fields such as Cambodia, Rwanda and Yugoslavia. There may be a second life for the OSI, but the days of Nazi-hunting are nearing an end.

"Some people I meet socially say flippantly, 'Are you still doing that? Is anyone still alive?' " says Rosenbaum. "We're racing the clock because even if one persecutor is alive, justice can still be served."

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[New City, N.Y., 2001] On a Sunday afternoon earlier this year, Michael and Katharina Gruber sit in the den of their two-bedroom ranch house to talk about "their troubles." Gruber, who wears a green vest over a red plaid shirt, sits beside a table holding his cane. Until recently, he played cards once a week at a senior citizens center in neighboring Valley Cottage. This past December, he suffered a heart attack and, shortly after, his remaining kidney began to fail. Gruber is a small man with a broad, peasant's face and oversized hands. "You don't feel so good when this happen," he explains in halting English. "You feel not guilty because you don't do anything wrong."

On this day, the soldier from Krindija looks tired. As his wife drags out a plastic bag of medications and worries that he will not be able to afford them if he loses his Social Security and is sent back to Austria, he gazes out the window, smiling absently. When asked about the war, Gruber denies he persecuted anyone.

"Me never touched prisoners," he declares. "You had to be a big shot to do that." He insists that he had no choice when it came to serving in the Waffen SS. "If you didn't go, they shoot you," he says, adding, "For us, there was a Holocaust too. Our village was destroyed. There were a lot of people killed."

There have been only a few cases in which judges have decided that there is insufficient evidence to prove persecution according to the Holtzman Amendment. In 1995, a court ruled that George Lindert, an ethnic German living in Romania who served as a guard at the Mauthausen concentration camp, should not be deported because there was no evidence that he ever "touched, threatened or shot at a prisoner." And in the 1984 appeal of former Latvian police chief Elmars Sprogis, judges said that his acts had been a form of "passive accommodation" to the Nazis, and therefore he should be allowed to remain in the United States.

Eli Rosenbaum and Bob Murtha, who recently received the transcript of Michael Gruber's trial, are preparing paperwork so the appeal can proceed. With the OSI's track record and resources, it is likely that if Gruber remains alive his appeal will be denied and he will be sent back to Austria.

It's difficult to measure the cost of justice. The OSI, whose 34-member staff spent about $4.7 million last year, does not keep figures on the cost of individual cases. But over the past decade, five lawyers, two historians, two deputies, three secretaries and a paralegal have worked on Gruber's case. Labor has included correspondence with foreign governments, certification work on documents and the writing of briefs. The OSI has paid for the services of an interpreter, a translator, an expert witness and a physician to appraise Gruber's health. The unit's historians traveled to Austria and Russia, and members of the legal team made three trips to New York. The case has consumed hundreds of man hours.

Michael Gruber is still living in New City, receiving dialysis three times a week. He has paid Murtha a total of $19,634 for his services so far. When he was in better health, Gruber helped out at a nearby farm, growing corn and tending his garden, bringing vegetables to the senior citizens center on Tuesdays. Although life as a farmer in Krindija eluded him, he is still happiest when his hands are in the earth.

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