Judah Gribetz, Esq.
Richards & O'Neil LLP
885 Third Avenue, 7th Floor
New York, NY 10022
Re: In Re Holocaust Victim Assets Litigation
Dear Special Master Gribetz:

I am pleased to transmit herewith Agudath Israel World Organization's submission in the captioned proceeding, which we respectfully ask you to consider as you develop your forthcoming recommendation to Judge Korman. The submission consists of two parts. The first is in the nature of a legal brief, setting forth the legal, moral and historical bases for inclusion in the distribution plan for the Settlement Fund, to the maximum extent possible, of yeshivos and kehilos which were sought to be destroyed during the Holocaust, and which have rebuilt themselves, in various forms and in various parts of the world, since the Second World War. The second part of our submission, presented as an appendix to the brief, is a progress report on, and excerpts from, the first stage of an historical research project recently undertaken by AIWO to study the centers of Torah learning and chassidus that were destroyed in Europe, and the rebuilding of such centers in the years since 1945. A cautionary note with respect to this appendix, if I may: While Stage One of our Research Project has already yielded a substantial volume of extremely valuable raw material and information that provides significant support for the contentions we advance in our submission, the overall research project is still very much in the nature of work in progress. Thus, while we respect the importance of having submissions made to you posted on the web site associated with the case, should you decide to post AIWO's submission, our preference would be that you limit such posting to the brief itself, and omit the appended supporting material in its current form. AIWO will gladly make the appendix available to interested parties who contact us; our only concern is that this preliminary work in progress not be perceived by the broad masses of casual Internet browsers as a comprehensive final product.

In making this submission to you, AIWO recognizes the historic nature of your work and the weight of the decisions that lie before you. Please rest assured that you carry with you our best wishes in your arduous task, and the sincere hope that you will be endowed with the necessary wisdom and understanding to develop the best and most equitable recommendations.

Sincerely, (Prof) Harry Reicher Director of International Affairs and Representative to the United Nations HR/sk Enclosures cc: Shari C. Reig, Esq. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK Master Docket No.CV-96-4849 (ERK) (MDG) (Consolidated with CV 96-5161 and CV-97-461) AGUDATH ISRAEL WORLD ORGANIZATION SUBMISSION TO SPECIAL MASTER JUDAH GRIBETZ INTRODUCTION: THE HISTORIC NATURE OF THESE PROCEEDINGS It is difficult to imagine a court proceeding operating, at once, at two different levels, more so than is the case in this litigation. (2) At one level, it is a case that has all the normal trappings of litigation in court, inasmuch as documents have been filed, claims are made and monetary relief is sought - the task of the Court being to adjudicate among the competing legal arguments. At the same time, though, one term which appears in the court papers - Holocaust - utterly transforms the case; it leads it to assume historical and moral proportions, and the Court's task is transformed into providing a measure of justice - however small and inadequate - in the widest and deepest sense of that term, in respect of an event in history which itself assumed, and continues to maintain, cosmic proportions. (3) At one level, too, the plaintiffs in the case, as in every litigation, are legal persons recognized by the law and named in the court papers. But in a deeper, metaphorical sense, and to draw on the powerful imagery invoked by Mr. Gideon Hausner, the Attorney General of Israel, when he opened the case for the prosecution in the trial of Adolf Eichmann, six million plaintiffs are, in spirit, looking over the shoulders of the parties and, ultimately, the Court. (4) This submission to the Court, while presented in a form appropriate to the first level, is framed with the deeper level very much in mind. AGUDATH ISRAEL WORLD ORGANIZATION AND ITS ROLE IN THE PROCEEDINGS Agudath Israel World Organization (AIWO) is an 88-year-old confederation of Orthodox Jewish communities in different parts of the world. It has a long and distinguished record in the realm of international human rights, with particular emphasis on freedom of religion, as well as matters relating to culture and education. For over 50 years, since 1948, it has enjoyed consultative status with the United Nations, under Article 71 of the U.N. Charter. AIWO was founded in Poland in 1912, and before the Second World War had active national constituent organizations in a range of European countries. Today, its national organizations function in Israel, the United States, England, Belgium, Holland, Switzerland, Mexico, Argentina, Russia, Austria, Canada, Ukraine and Moldova. In addition, it has representation and/or constituencies in numerous other countries. AIWO is a constituent member of the Conference on Jewish Material Claims Against Germany (colloquially known as "the Claims Conference"), and also of the World Jewish Restitution Organization (WJRO). The latter organization is designated in the Settlement Agreement as both an intervening party as well as a representative of the Settlement Classes, and the WJRO is itself defined to include "all of its constituent bodies" - including, that is, AIWO. In this submission (which is independent of and supplemental to the submission of the WJRO, and reflects the particular perspective of AIWO and its constituency), AIWO advocates as follows: consideration, and inclusion in distribution plans for the Settlement Fund, to the maximum extent possible, of yeshivos (schools and institutes of Torah studies) and kehilos (religious congregations or communities defining themselves by reference to some common geographic, social or religious bond) which were sought to be destroyed during the Holocaust, and which have rebuilt themselves, in various forms and in various parts of the world, since the Second World War. AIWO's purpose in this submission is to explain the significant moral and historical bases which underlie the claim for substantial Settlement Fund distribution to the aforementioned yeshivos and kehilos, as well as those legal aspects of the Settlement Agreement that underpin it. AIWO'S CONTENTION IN THESE PROCEEDINGS AIWO's contention, as elaborated below, is twofold: (a) The first relates to the Looted Assets Class, under the terms of the Settlement Agreement. There is no question that yeshivos and kehilos were targeted by the Nazis for persecution and destruction, and that they had significant tangible assets that were looted by the Nazis, including valuable artifacts of religious life. If the Court holds that, in order to fall within the Looted Assets Class, it is unnecessary to demonstrate a clear evidentiary nexus between specific looted assets and the Releasees, then, it is submitted, yeshivos and kehilos which were sought to be destroyed during the Holocaust and were subsequently re-established after the War - either directly or through successor entities - qualify as members of the Looted Assets Class, and therefore qualify for part of the Settlement Amount on that basis. Further, and alternatively, if any amount of the Settlement Fund remains as a residual, after satisfying the claims of the Settlement Classes, yeshivos and kehilos that were sought to be destroyed during the Holocaust, and have rebuilt themselves in the years since the Second World War, have a profound moral claim thereto. They played a central role in pre-War European Jewish life; they were clearly targeted for persecution and destruction by the Nazis; they have labored assiduously and heroically to rebuild themselves in the post-War era; they play a vital role in contemporary Jewish life; and they serve as a central factor - perhaps the central factor - in ensuring Jewish continuity for generations to come. AIWO'S HISTORICAL RESEARCH PROJECT In conjunction with the recently-formed Committee to Preserve the Legacy of the Pre-War European Yeshivos, AIWO has undertaken a project to research and prepare a major study of the centers of Torah learning and chassidus that were destroyed in the Holocaust, and the rebuilding of such centers in the years since 1945. This project, which began in September 1999 and is scheduled to be completed over a period of a year or so, is at this point still in the nature of a work in progress. We have assembled and consulted with a team of a dozen historians and archivists, and have contacted hundreds of yeshivos, seminaries, synagogues, and kehilos in Israel, the United States, and other countries. To date, as Stage One of the project nears completion, close to 300 submissions have been received from organizations representing over 1,000 institutions around the world. As an appendix to this submission, we are simultaneously submitting more detailed information on this research project, together with a compilation of selected case studies produced by some of the major yeshivos and kehilos that were targeted by the Nazis, suffered tremendous losses during the Holocaust, and have rebuilt themselves after the war. Preliminary findings of the project suggest that: There were as many as 800 yeshivos for boys and young men in pre-War Europe, at elementary, secondary and post-secondary levels (both accredited as well as non- accredited), serving a student population in excess of 200,000; Further, the equivalent network of Bais Yaakov girls' schools encompassed some 250 institutions, with a student population of approximately 40,000 students; There were several million observant Orthodox Jews who affiliated with several thousand European kehilos, and of the individual Jews, in excess of 3 million are estimated to have perished in the Holocaust. The latter figure is based on the expert opinion of the eminent Holocaust historian, Dr. Michael Berenbaum, who concludes that "we can say with certainty that a majority of the Jews who were murdered [in the Holocaust] ¼ somewhere between 50-70 percent ¼ were Orthodox." (Dr. Berenbaum summarizes his findings in a February 23, 2000 letter addressed to AIWO's Professor Harry Reicher, a copy of which is appended hereto as Exhibit A.) (d) Despite the devastating destruction suffered by Jewish communities during the Holocaust, a small group of determined survivors managed to rebuild many of the yeshivos and kehilos that had existed in Europe. In Israel and in the United States, there are today hundreds of such rebuilt institutions serving many thousands of students and kehila members. And in the last ten years, following the collapse of communism, there has been a remarkable rebirth of vibrant Jewish schools and communities in Eastern Europe and the former Soviet Union. THE MORAL BASIS FOR THE CLAIM ADVANCED HEREIN AIWO acknowledges, and fully endorses, the significant moral claim that Holocaust survivors themselves possess with respect to restitution funds. Indeed, many of AIWO's constituents are survivors, and have benefited from various restitution programs administered by such groups as the Claims Conference and the WJRO. This is as it should be. Those who had their possessions taken, their surroundings destroyed and their lives uprooted, and who were forced to rebuild from the ashes, surely stand on firm moral ground in laying claim to restitution. AIWO submits that the same moral principle applies with equal force with respect to yeshivos and kehilos that had their possessions taken, their surroundings destroyed and institutions uprooted, and that were forced to rebuild from the ashes. Indeed, as elaborated below, in certain respects the claim on restitution funding of these yeshivos and kehilos occupies a uniquely compelling moral plane. In this context, an underlying point is critical: Just as the Nazis sought to exterminate all individual Jews (and tragically succeeded to the extent of 6,000,000), so too did they seek to destroy a whole culture, or way of life, as embodied in the educational and communal institutions that promoted that uniquely Jewish way of life. And it is this fact that underpins, in a moral and historical sense, the inclusion of yeshivos and kehilos (among others) in the legal definition of Victims and Targets of Nazi Persecution. Indeed, central to the Nazis' aim of destroying the Jewish people was the object of destroying Jewish learning and education, because they identified the classical Jewish texts as the source of the essential Jewish character. Thus, Hitler's chief ideologue, Alfred Rosenberg, writing in 1930, and searching to locate the underlying character of the Jew, pointed to the Talmud itself, as well as the Shulchan Aruch (code of Jewish law), both of which are central texts at the heart of a yeshiva curriculum. "The honorless character of the Jew", he wrote, "[is] embodied in the Talmud and in Shulchan- Aruch¼" (Rosenberg, The Myth of the Twentieth Century: An Evaluation of the Spiritual - Intellectual Confrontations of Our Age (English translation by Vivian Bird) (Newport Beach, California, 1982), p. 368.) In addition, the Nazis trained their destructive sights on Jewish learning because they perceived in Jewish education, as personified by Jewish educators, the "threat" (i.e. promise) of Jewish survival and continuity. This perception is reflected in a directive issued by the German Highest Security Office, dated October 25, 1940, prohibiting Jewish emigration from occupied Poland on the ground that an influx of Eastern European "Rabbiner", "Talmud-lehrer" and "Orthodox ostjuden" could foster "geistige erneuerung" (spiritual renewal) among American Jewry. (The October 25, 1940 directive is quoted in a November 23, 1940 circular of the Government of the German Governor of Poland to the district governors of German-annexed Poland. A copy of a transcript of this circular, which was discovered by the Israeli historian Moshe Prager, together with a rough translation thereof, is appended hereto as Exhibit B.) The Nazis were evil, but they were not dumb. They understood that, more than anything else, Jewish education would guarantee Jewish continuity and Jewish survival - and, conversely, that their nefarious "Final Solution" objective could be furthered even in a country like the United States, if they could only prevent the rabbis and Talmud teachers from heading a spiritual renewal of the rapidly-assimilating Jewish masses. Sadly, the Nazis' evil insight has proven substantially accurate. Where there has been no Jewish education, there has been rampant Jewish assimilation. Indeed, experience in the United States has shown that intensive Jewish education is the best guarantor of preserving Jewish identity and affiliation; the less rigorous the Jewish educational experience, the less likely the assurance of Jewish continuity. As Peter Beinart observed, in "The Rise of Jewish Schools", in the October 1999 Atlantic Monthly: "¼ [T]he supplementary [after school or Sunday] schools were supposed to inculcate sufficient Jewish identity to prevent intermarriage. Yet in 1990 the highly publicized National Jewish Population Survey made it abundantly clear that they had not. According to the NJPS, more than half of all Jews married between 1985 and 1990 married gentiles, and subsequent research has shown that graduates of supplementary schools are more than twice as likely as graduates of full-time Jewish schools to marry outside their faith." Similarly, a major study by the Louis Guttman Israel Institute of Applied Social Research, Jewish Involvement of the Baby Boom Generation: Interrogating the 1990 National Jewish Population Survey, concluded in 1993 that "Jewish day schools are the best vehicle for implementing Jewish involvement and are the only type of Jewish education that stands against the very rapidly growing rate of intermarriage" in the United States. And the recently-published study, A Census of Jewish Day Schools in the United States, by Dr. Marvin Schick (Avi Chai, January 2000), proclaims, in its opening paragraphs: "After being scorned and spurned for nearly all of this century as anachronistic institutions unsuitable for the American Jewish environment, day schools [a term which encompasses both yeshivos as well as day schools] have emerged as a centerpiece of the communal strategy to promote Jewish identity and ensure Jewish continuity. Everywhere, Federations and private Jewish foundations have placed day school education high on their agenda, at times employing rhetoric about the importance of religious Jewish education that for decades was the exclusive province of Orthodox Jews. "This change in attitude was spurred largely - but not exclusively - by the frightening statistics of Jewish loss conveyed by the 1990 National Jewish Population Survey. The most shocking news was, of course, the report that the intermarriage rate had risen above 50%. Other indicators of identity and commitment pointed in the same direction of Jewish loss. Clearly, there was a need to change course, to seek out and support activities that held the promise that somehow the trend toward Judaic abandonment could be slowed and perhaps, in some instances, even reversed. Not surprisingly, day schools were embraced as institutions that could provide a secure foundation for the Jewish future of young Jews at risk."(p.1.) It is only fitting and appropriate, therefore, as an act of moral symmetry, that the very Jewish education that guarantees survival of the Jewish people should be assisted out of funds paid by way of compensation from economic allies of the Nazis. A decision along these lines by the Court would also constitute a cogent affirmation of education as the underlying guarantor of Jewish continuity. Such a decision would further bring us full circle to the yeshivos and kehilos that were sought to be destroyed. The AIWO research project, even in its current preliminary stage, graphically demonstrates how the yeshivos and kehilos have re-built themselves, in Israel, the United States, in Europe and elsewhere. So much so, that to walk through the streets of Jerusalem and Bnei Brak, Williamsburgh and Boro Park, Toronto and Los Angeles, London and Antwerp, is to walk across a map of pre-War Europe; the names of cities and towns have been re-planted there in the form of yeshivos and kehilos that proudly bear their names, and represent what they stood for. It is in these institutions in these cities, as well as in other cities around the world, that the institutional victims and targets of Nazi persecution can be found today, and that the ultimate victory over Nazi ideology is most eloquently evident. (1) Deserving special note are the many institutions that have been rebuilt in Poland, Hungary, Russia, Ukraine and numerous other places in Eastern Europe where 55 years ago there was only Jewish ruin and destruction. In the former Soviet Union alone, there are now well over a dozen major Jewish schools serving several thousand students; in Moscow, St. Petersburg, Kiev, Odessa and elsewhere, Jewish communal institutions that were twin victims of Nazism and Communism are now being resurrected. Hungarian Jewry, too, has experienced revival through the establishment of yeshivos and Jewish communal institutions; this remarkable development is the subject of one of the case studies in AIWO's historical research project and appears in the appendix submitted herewith. Just recently, as reported in The Jerusalem Post of February 18, 2000, an umbrella organization--the Union of Jewish Religious Communities of Eastern Europe--has been formed to represent the over 300 communities (comprising close to four million Jews) of Russia, Ukraine, Belarus, Georgia, Azerbaijan, Croatia, Yugoslavia, Bulgaria, Hungary, Poland, Lithuania and Uzbekistan. Restitution funding directed at the Jewish citizens of these countries should not overlook the Jewish institutions of these countries. FITTING THE YESHIVOS AND KEHILOS INTO THE SETTLEMENT STRUCTURE: (A) THE LOOTED ASSETS CLASS The second of the five Settlement Classes is described in the Settlement Agreement as follows: "The Looted Assets Class consists of Victims or Targets of Nazi Persecution and their heirs, successors, administrators, executors, affiliates, and assigns who have or at any time have asserted, assert, or may in the future seek to assert Claims against any Releasee for relief of any kind whatsoever relating to or arising in any way from Looted Assets or Cloaked Assets or any effort to recover Looted Assets or Cloaked Assets." (Clause 8.2(b)) The first critical phrase here is "Victim or Target of Nazi Persecution", and this is defined in Clause 1 to mean: "any individual, corporation, partnership, sole proprietorship, unincorporated association, community, congregation, group, organization, or other entity persecuted or targeted for persecution by the Nazi Regime because they were or were believed to be Jewish¼"(emphasis supplied) Taking yeshivos that were destroyed in the Holocaust, and subsequently rebuilt in the post-World War II era (and the same applies, mutatis mutandis, to kehilos, as Stage One of the AIWO Historical Research Project demonstrates): They clearly fall within one or more of the emphasized terms in the definition of "Victims or Targets of Nazi Persecution"; Further, in their post-War incarnations they are at a minimum "heirs", "successors" or "affiliates" of their pre-War antecedent entities. The foundation for (a) and (b) above is that they exhibit all, or alternatively some combination, of the following features of the pre-War entities: (i) the same name; (ii) the same Rosh(ei) Hayeshivah, or Dean(s); (iii) alternatively to (ii), Roshe(ei) Hayeshivah who is/are sons, sons-in-law, lineal descendants, disciples or students of the pre-War Rosh(ei) Hayeshivah; (iv) the same guiding philosophy; (v) the same approach to study; (vi) the same liturgy in prayers; (vii) other common features. (d) In each case, the yeshiva was persecuted, or targeted for persecution, by the Nazi regime, because it was Jewish. Indeed, as noted above, Jewish education was a special target of the Nazis' "Master Plan". Further, for purposes of the definition of the "Looted Assets Class", yeshivos which were destroyed during the Holocaust, and have subsequently been rebuilt in the post-War era, are among those who either have at any time asserted, or assert, or may in the future seek to assert, claims against any Releasee in relation to "Looted Assets" or "Cloaked Assets". The term "Looted Assets" is defined in Clause 1 to mean: "Assets actually or allegedly belonging in whole or in part to Victims or Targets of Nazi Persecution that were actually or allegedly stolen, expropriated, Aryanized, confiscated, or that were otherwise wrongfully taken by, at the request, or under the auspices, of, the Nazi Regime." Yeshivos and kehilos, no less than individuals, owned tangible assets that were looted by the Nazis. Every yeshiva in Europe had, at the very least, and apart from anything else, the basic ritual objects used in the daily, weekly and annual cycles of Jewish religious life and practice - Torah scrolls, holy books, libraries, kiddush cups, candlestick holders, Torah crowns and breastplates, and so on. Many of these objects were made of precious metals and had considerable monetary value aside from their intrinsic religious value. It is accepted that, by virtue of a combination of the definitions of "Looted Assets" and "The Looted Assets Class", it is necessary to demonstrate a nexus between specific assets from (in this case) yeshivos (as well as kehilos), on the one hand, and the Releasees, on the other. That nexus, we submit, need not be established by direct evidence; it can also be established by circumstantial evidence: "Under appropriate circumstances, circumstantial evidence may be given the same weight as direct evidence. In criminal and civil cases, issues may be established by, and verdicts founded on, circumstantial evidence - that is, by inferences from established facts - when no direct evidence is available, so long as there exists a logical and convincing connection between the facts established and the conclusion [inferred]." 29A Am.Jur. 2d, Evidence, Sec. 1434. Here, while there may be a dearth of direct and unambiguous evidence of specific assets that were looted from yeshivos (as well as kehilos), and that directly or indirectly found their way to the Releasees, it is submitted that there is ample circumstantial evidence demonstrating the necessary nexus, as follows: The Nazis Systematically Looted the Property of Their Victims Simply stated, "The leaders of the Third Reich¼ systematically robbed their victims and exploited looted property." Independent Commission of Experts: Switzerland - Second World War, Switzerland and Gold Transactions in the Second World War: Interim Report (Bern, 1998) [hereinafter "Bergier Interim Report"] (Abbreviated version, p.7.) This was a matter of policy for the Nazis, as explained by Ambassador Stuart Eizenstat in U.S. and Allied Efforts to Recover and Restore Gold and Other Assets Stolen or Hidden by Germany During World War II (1997): "The massive and systematic plundering of gold and other assets from conquered nations and Nazi victims was no rogue operation. It was essential to the financing of the German war machine. The Reichsbank itself - the central bank of the German state - was a knowing and integral participant." (p. iv.) Looted Assets Were Shipped to Berlin, Where Silver and Gold Were Melted Down "In Berlin, Reichsbank officials struggled to cope with the mountain of Nazi booty, as vaults and corridors were filled to overflowing with war plunder. It was simple to send looted gold from concentration camp victims to the Reichsbank in Berlin to be melted down, but works of art and jewelry sometimes needed to be sold in their original condition to swell the coffers of the SS¼." Adam LeBor, Hitler's Secret Bankers: The Myth of Swiss Neutrality During the Holocaust (Secaucus, New Jersey 1997), p.43. Much of the Silver and Gold Went Through Banks in Switzerland "As well as supplying Berliners with a supply of cheap looted jewelry and gold and silver valuables, the Melmer system was also designed to sell war booty abroad, and so acquire the vital foreign currency the Third Reich needed to keep the Nazi war machine going. The Reichsbank memo concludes, 'Regarding the large accumulation of foreign exchange expected through sales of such articles abroad, and the not inconsiderable accumulation of gold and silver from smelting of unexported items, prompt establishment of a uniform arrangement for handling these items is required.' That vital foreign exchange would, of course, be purchased through Swiss banks." (LeBor, p 46) (d) Shipping Looted Assets to Switzerland was Critical for the Nazis "Switzerland was essential for the Nazis. It was a warehouse of currency. The Nazis were dealing with the Swiss banks from the very beginning. The main economic collaborators of the German Reich, the bankers, the brokers, the insurance people, were working hand in hand with Swiss entities. The bottom line was that they needed that one thing: hard cash. And there was only one place they could find it, in Switzerland, and they knew they could only get it if they left the Swiss alone.'" (LeBor, p. 56, quoting Marc Masurovksy, consultant historian to the U.S. Senate Banking Committee on Switzerland and looted Nazi assets.) The Bergier Interim Report came to the same conclusion: "Foreign exchange control and economic warfare increasingly restricted international currency transactions so that, in the end, only the Swiss franc remained convertible. Swiss francs which the German government received in exchange for its gold supplies were therefore of great importance for the war economy, diplomacy, and intelligence services." (p. 7.) The chain of logic and historical facts thus furnishes a circumstantial basis for interpreting the Looted Assets Class broadly, without requiring specific evidence of a direct nexus between any given claimant's assets and the Swiss banks. If the Court is inclined to accept such evidence, yeshivos and kehilos must be considered part of the class as well. Alternatively, as a result of hitherto unknown or unrevealed evidentiary material coming to light at some time in the future, yeshivos and kehilos "may in the future seek to assert claims against any Releasee" - again, no less so than any other claimant. THE CLAIM OF YESHIVOS AND KEHILOS TO A SHARE OF ANY RESIDUAL REMAINING AFTER SATISFYING THE CLAIMS OF THE SETTLEMENT CLASSES Whether or not yeshivos and kehilos are deemed to fall within the Looted Assets Class, there are in any event cogent reasons to give them substantial consideration as high priority beneficiaries of any residual funds: As noted above, yeshivos and kehilos are recognized by the Settlement Agreement as being victims and targets of Nazi persecution; But for the destruction of historical records that would demonstrate that significant assets from these yeshivos and kehilos ended up in Swiss banks, yeshivos and kehilos would certainly fall within the Looted Assets Class; The yeshivos and kehilos of today are centrally involved in rebuilding what the Nazis sought to destroy. According to the distinguished Holocaust historian Dr. Michael Berenbaum, whose analysis is referred to above, 50-70% of the 6 million Jews murdered by the Nazis were Orthodox (see Exhibit A). These victims, whose bank accounts and looted assets thus probably form the bulk of what has until now remained in Switzerland, lived and died as observant Jews. It is today's Orthodox institutions of education and communal life that are doing the most to ensure the survival and continuity of the very way of life that those victims, had they been given the opportunity, would have sought to perpetuate. We do not presume to speak with certainty, but it stands to reason that those victims would have wanted a significant portion of their assets to be distributed to these institutions. In this context, it is relevant to note, and take into account, that many other causes and institutions devoted to Holocaust-related activities are already being generously funded by governments, and from other official sources such as the Claims Conference. Yeshivos and kehilos, in contrast, have thus far not benefited from any of the restitution-related funding streams. This failure to include the very educational and communal institutions that occupied such a central role in pre-War Jewish Europe, that have heroically re-established themselves in the post-War era, and that furnish the greatest hope for ongoing Jewish continuity, is both glaring and indefensible. These institutions are at once both the most ignored and yet perhaps the most needy. Dr. Marvin Schick and Jeremy Dauber's study, The Financing of Jewish Day Schools (Avi Chai Foundation, 1997), demonstrated that yeshiva day schools in the United States are severely underfunded in nearly every aspect of their operations, and do not receive adequate assistance from Jewish federations around the country. Dr. Schick's more recent study of Jewish day schools, A Census of Jewish Day Schools in the United States, (Avi Chai Foundation, January 2000), notes that in the years ahead: "¼ there will be a need for thousands of additional [classroom] seats. In the first decade of the century that is about to begin, there likely will be as many as 30,000--and perhaps more--additional day school students, a circumstance that will pose a challenge to school officials and communal leaders. Many day schools--especially the larger institutions--are already operating at or near capacity, and some are above capacity." The same growth pattern, and the same need, are evident in Israel, Europe and other parts of the world where Jews reside and seek to educate their children in a manner that will carry forward the glorious tradition and heritage that was sought to be destroyed in the Holocaust. This Settlement offers the Court an opportunity to help establish the central moral position of yeshivos and kehilos within the overall restitution framework. CONCLUSION By approaching its task in this way, the Court will effectively be addressing, not only the strictly legal dimension to this case, but also, in a significant and meaningful way, the moral and historical dimensions as well. Dated: New York, N.Y. February 22, 2000 Respectfully submitted, Of Counsel: NATHAN LEWIN ALYZA LEWIN Miller, Cassidy, Larroca, & Lewin 2555 M Street, N.W. Washington, DC 20037 (202) 293-6400 AARON D. TWERSKI Professor of Law Brooklyn Law School 250 Joralemon Street Brooklyn, NY 11201 (718) 780-7999 HARRY REICHER Barrister at Law, Australia and England; Adjunct Professor of Law, University of Pennsylvania Law School; Director of International Affairs and Representative to the United Nations, Agudath Israel World Organization 84 William Street New York, NY 10038 (212) 797-9000 DAVID ZWIEBEL MORDECHAI BISER Agudath Israel of America 84 William Street New York, NY 10038 (212) 797-9000

As an organization dedicated to the welfare of a major American faith group and the religiously-sourced values it holds dear, Agudath Israel often takes public positions, both in the courts and the halls of government, on moral issues of the day that manifest themselves in legal and legislative controversies. We view the maintenance of a societal climate that promotes traditional ethical values as essential not only for the flourishing of this country's diverse faith communities, but as well for the morally healthy social fabric on which the future of our Republic depends.

Consistent with this general perspective, Agudath Israel has long opposed the central holding in Roe v. Wade, 410 U.S. 113 (1973), that the right to abortion is "fundamental" and thereby protected against governmental abridgement absent a compelling governmental interest. Agudath Israel has articulated its position on this point in two prior amicus curiae presentations to this Court: in Webster v. Reproductive Health Services (Oct. Term 1988, No. 88-605), and in Planned Parenthood of Southwestern Pennsylvania v. Casey (Oct. Term 1991, Nos. 91-744, 91-902).

The case presently before the Court implicates a related but different aspect of the question of termination of fetal life: the issue of what has come to be known as "partial birth abortion." The procedure may be relatively rare, at least as compared to "typical" abortions, but it raises profound moral concerns whose gravity and centrality for our society cannot be overstated. Agudath Israel's position on partial birth abortion is embodied in the following public statement, issued in 1996:

"Agudath Israel has for many years opposed legalized abortion on demand. Informed by the teaching of Jewish law that fetal life is entitled to significant protection, with termination of pregnancy authorized only under certain extraordinary circumstances, Agudath Israel is of the view that society, through its laws, should promote a social ethic that affirms the supreme value of life. Allowing abortion on demand, in contrast, promotes a social ethic that devalues life.

"This devaluation is most strikingly evident in the context of a partial birth abortion - an abortion in which a living fetus is partially delivered, and then killed prior to completion of the delivery. Indeed, depending on the circumstances, killing a fetus after it has partially emerged from the birth canal may more properly be deemed infanticide than abortion, and Jewish law might not even recognize a "life of the mother" exception that would permit the procedure. It certainly behooves society at large to recognize the enormity of the moral issues surrounding this procedure, and to enact significant if not absolute restrictions on its use.

"Accordingly, while Agudath Israel continues to call for even greater legal protections for fetal life, we welcome as at least a minimally appropriate step the enactment of legislation that would generally prohibit the destruction of life through the practice of partial birth abortions.

"The laws of civilized societies reflect and shape the values of those societies. Laws that allow abortion on demand, or the killing of partially delivered fetuses, are harmful not only because they lead to the taking of innocent and defenseless lives, but because they pollute the moral climateall around us. Let ours be a society that protects and cherishes life."

It is to elaborate upon these societal interests that run counter to the legalization of partial birth abortion that we make this submission.

Pursuant to Rule 37.6 of the Rules of this Court, the undersigned Counsel for Agudath Israel represent that they are the sole authors of this brief, and that no person or entity other than Agudath Israel made any monetary contribution toward the preparation or submission of this brief. (Counsel acknowledge the significant assistance of Moshe Klein, a third-year student at the Columbia Law School, in the research and preparation of this brief.)

In granting certiorari, the Court agreed to decide whether a statute that outlaws the "D&X" procedure places an undue burden -- under the standard announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 876 (1992) -- upon a woman seeking to have an abortion.

An important consideration in this inquiry is whether the "D&X" Procedure may, at times, be the medically preferable option for a woman undergoing an abortion, in which event a "D&X" ban may constitutionally require an exception for instances where that procedure is necessary to protect the woman's health. In this regard, we proceed on the basis of the holding in Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999), that there is a sufficient factual basis for a legislature to conclude that the above-mentioned procedure is not the best medical option in any identified situation.

An equally crucial factor, however, in determining the constitutionality of a "D&X" prohibition is the nature and scope of the governmental interests expressed by such law. And it is precisely the fundamental nature and broad scope of the state interests underlying such statutes that makes states' exercise of legislative oversight regarding this procedure an entirely proper one. Indeed, upon closer analysis, one can discern several distinct, albeit cognate, interests that states may have in outlawing the use of the "D&X" abortion method.

I.

The Court Has Recognized The Right Of States To Advance Their Interest In Human Life Through Regulations That, Like A "D&X" Ban, Seek To Influence Women Not To Undergo Abortions

We begin by reprising the relevant teachings of Casey, supra, the Court's most recent comprehensive treatment of the abortion issue. The Court therein noted that although "Roe v. Wade was express in its recognition of the State's 'important and legitimate interest in . . . protecting the potentiality of human life,'" the trimester framework fashioned in Roe was "incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy." 505 U.S. at 876. The Court rejected that aspect of Roe and subsequent cases which "undervalue[d] the State's interest in the potential life within the woman [by] . . . . treat[ing] all governmental attempts to influence a woman's decision on behalf of the potential life within her as unwarranted." 505 U.S. at 875-76.

Instead, Casey's insistence on "the State's profound interest in potential life" led it to formulate an undue burden standard for judicial scrutiny of state abortion regulations. Under that standard, "[r]egulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn . . . [or that are] designed to persuade her to choose childbirth over abortion" must be upheld so long as they are reasonably related to those goals and do not "place a substantial obstacle in the path of a woman seeking an abortion" of a nonviable fetus. See 505 U.S. at 877-78.

State prohibitions on use of the "D&X" procedure clearly operate to foster "profound respect for the life of the unborn." They further serve to highlight the nature of that and other abortion procedures in a way that may well "persuade [a woman contemplating an abortion] to choose childbirth over abortion." Accordingly, so long as such proscriptions do not unduly burden a woman's right to choose by placing, in specific instances, the medically preferable abortion procedure beyond her reach, they must be upheld as legitimate advancements of the significant interest that states possess in the preservation of fetal life.

While these statutes, due to their focus on one specific method of abortion, may not produce the direct result of saving specific fetal lives, it cannot be gainsaid that their passage has helped highlight in the public's mind the extreme hideousness of the procedure they prohibit. The enactment of "D&X" bans, after extensive public debate, by legislatures across the country and by both houses of Congress, has touched off a firestorm of shock and revulsion among the American public at the existence and use of a procedure that has been described as being "literally seconds and inches away from being classified as a murder by every State in the Union." Partial-Birth Abortion: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong. 39 (June 15, 1995) (testimony of Pamela Smith, M.D.). The resultant public exposure of this practice and its similarities to the "D&E" and other procedures, has, in turn, "cast a bright light on the alternative [abortion] procedures that are equally gruesome .. ... [and] could foreseeably cause mothers seeking abortions to have second thoughts, thus giving the potential life in which the state unquestionably has an interest another chance to live." Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 476 (7th Cir. 1998) (Manion, J., dissenting).

Thus, for the Court to uphold a law banning the "D&X" procedure based on its function of informing expectant women of what an abortion entails, is fully consonant with the holding of Casey that an abortion regulation may legitimately strive to provide women with an informed choice by focusing their attention on the "consequences to the fetus, even where those consequences have no direct relation to her health." 505 U.S. at 882.

II.

A State Law Banning The "D&X" Procedure Advances That State's Significant Interests In Protecting Life By Erecting A Bulwark Against Outright Infanticide And In Expressing The Prevailing Consensus Of Moral Opposition To The "D&X" Procedure

Proscriptions on the use of the "D&X" method may also serve two additional, and related, governmental interests: the creation of a legal and moral bulwark against what a state's legislature may reasonably perceive to be the threat of a creeping social legitimization of infanticide, and the need for that body to give legal expression to the important moral convictions of both the citizenry they represent and society at large.

Recent events in our national life have worked a subtle erosion of the profound, indeed innate, reverence for all human life that has been at the very core of this nation's values since its founding. As this tendency toward the devaluation of life proceeds, states have an ever more vital interest in making clear, by banning abortion procedures that are nearly indistinguishable from actual infanticide, that the latter practice is irreversibly beyond the pale of civilized society.

Standing in symmetry to the battle over the protection of nascent life is the ongoing controversy, at the other end of life's spectrum, regarding the legality and ethics of assisted suicide. See, e.g., Washington v. Glucksberg, 117 S.Ct. 2258 (1997). One state, Oregon, has already given its sanction to this practice, and legal and legislative efforts on its behalf loom in other jurisdictions. One need only read reports of the Contemporary Dutch experience with legalized assisted suicide and the ensuing slide into full-fledged euthanasia, to appreciate just how quickly society can traverse the short distance from state-authorized life-ending procedures to the taking of life in a manner that our society presently equates with murder. See generally Agudath Israel's amicus curiae brief in Vacco v. Quill and Washington v. Glucksberg (Oct. Term 1996, Nos. 95-1858, 96-110).

Nor are societal attitudes regarding termination of the lives of the elderly and infirm of little relevance to the abortion context. Peter Singer, the influential philosopher of ethics who directs Princeton University's Center for Human Values, argues forcefully in his Practical Ethics (2d Ed., Cambridge University Press, 1993) that humans who, although sentient, lack rationality and self-consciousness, should be denied, for moral and legal purposes, the status of personhood. Citing the prevalence of infanticide in ancient Greece as precedent, Singer would legalize the killing of some disabled newborn infants because "infanticide is not necessarily more morally important than abortion, which is morally negligible." (George F. Will, "Life and Death at Princeton," Newsweek, Sept. 13, 1999 at 80.)

It is against this backdrop of an increasing desensitization to the sanctity of life at its most defenseless that the interests that a state may seek to promote through its prohibition of the "D&X" procedure must be evaluated. Casey's affirmation of the role abortion regulations may play in furthering the State's "profound interest in potential life" should properly be understood to encompass state laws that have the purpose of stemming and reversing trends that, if left unaddressed, could result in a wholesale slouching toward, and ultimate sanctioning of, outright infanticide.

Beyond the need to employ the "D&X" proscription in defense of yet-to-be-born lives as a roadblock on the path leading down to infanticide, a state may assert yet another clear interest in prohibiting this procedure: to give voice, through its laws, to those ethical principles that are a matter of broad public consensus and thus constitute indispensable elements in the creation of a cohesive social fabric.

That government has a significant interest in expressing and preserving, through its laws, a moral consensus that exists among its citizens has been recognized by justices of the Court in a variety of contexts, ranging from the marriage laws addressed in Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, J., concurring), to the state anti-sodomy statute upheld in Bowers v. Hardwick, 478 U.S. 186 (1986) as a legitimate expression of "majority sentiments about the morality of homosexuality." id. at 196, to several of the Court's decisions validating state regulation of obscenity as a proper exercise of the state's power to preserve moral standards. See, e.g., Barnes v. Glen Theatre, 501 U.S. 560, 569 (1991).

The case now before the Court deals with a method of terminating fetal Life that, as noted earlier, has been characterized by physicians and political leaders on both sides of the abortion debate as one that is, in Senator Daniel Patrick Moynihan's oft-quoted words, "as close to infanticide as anything I have come upon." Nat Hentoff, Close to Infanticide (Washington Post, Aug. 30, 1996, at A31). Indeed, from the perspective of classical Jewish law, the procedure most likely would in fact be deemed infanticide. Mishna, Ahalot 7:6; see generally J. David Bleich, Abortion in Halakhic Literature, reprinted in Jewish Bioethics (Hebrew Publishing Co. 1979) at 134. Public opinion polls have consistently registered the opposition of the overwhelming majority of respondents to the use of this procedure. The public's sentiment has, in turn, been enacted into law in thirty state legislatures and, several times, by both houses of Congress, only to be vetoed by the President.

It is difficult to find another matter of public controversy in the moral arena on which there exists a comparable level of national consensus. Surely, then, this is an area in which it is highly appropriate for states to pass laws that embody the moral opprobrium that their citizens, as Part of a national majority, have heaped upon a procedure that is Unequivocally "gruesome and inhumane." Evans v. Kelly, 977 F.Supp 1283, 1319 n.38 (E.D. Mich. 1997).

There may, of course, be those, like the majority in Doyle, supra, who fail to comprehend "how a rational legislature could sense a moral difference between [methods] of concededly lawful abortion . . . and the partial birth method that the state forbids . . . . " 162 F.3d at 470. Certainly, on as vexed a moral issue as abortion, reasonable persons can be expected to arrive at differing, even antithetical, conclusions.

Recent events in our national life have worked a subtle erosion of the profound, indeed innate, reverence for all human life that has been at the very core of this nation's values since its founding. As this tendency toward the devaluation of life proceeds, states have an ever more vital interest in making clear, by banning abortion procedures that are nearly indistinguishable from actual infanticide, that the latter practice is irreversibly beyond the pale of civilized society.

CONCLUSION

The Court's ruling in Casey was premised in considerable part on "principles of institutional integrity" and the "rule of stare decisis". 505 U.S. at 845-46. Those considerations are absent here, where the Court is confronted for the first time with a procedure that approaches, or in fact is, infanticide, and where a broad moral consensus has developed in opposition to the procedure. Agudath Israel respectfully urges that the decision below be reversed.

Respectfully submitted,
ABBA COHEN
AGUDATH ISRAEL OF AMERICA
1730 Rhode Island Ave., NW
Washington, D.C. 20036
(202) 835-0414


DAVID ZWIEBEL*
EYTAN A. KOBRE
AGUDATH ISRAEL OF AMERICA
84 William Street
New York, NY 10038
(212) 797-9000
Attorneys for Amicus Curiae
Agudath Israel of America

* Counsel of Record

February 28, 2000