Richard Rashke - Useful Enemies

When the courtroom circus finally ended, the immigration hearing officer found Malaxa guilty on all counts and ordered him to be deported. Malaxa took his case to the Board of Immigration Appeals. BIA overturned the ruling because, it claimed, the evidence was insufficient to support alleged Nazi-Guardist ties and the hearing officer had inferred too much from Malaxa’s silence.

Nixon, now vice president, didn’t want to take any chances. What if the INS challenged the BIA ruling? What if Malaxa was deported after all and leaked the hundred-thousand-dollar bribe out of revenge? Nixon knew the scandal would kill him politically. To protect his presidential ambitions, he asked his friend and advisor, Attorney General William Rogers, to intervene. As final arbiter in INS cases, Rogers upheld the BIA ruling.

Insulated with a warm blanket of cash, Nicolae Malaxa lived out the rest of his life in his luxurious Fifth Avenue apartment. He took his hundred-thousand-dollar secret to the grave in 1965. The INS didn’t fire Schiano as Malaxa had predicted in his courtroom outburst. Instead it ordered him to report to his new assignment—the INS regional office in Alaska. Schiano quit in disgust. To him, the Malaxa legal fiasco was about more than losing a case he had clearly won. Something smelled terribly rotten. Washington was protecting Malaxa, a Nazi collaborator living illegally in the United States. Why?

There was no way Schiano could have known in the early 1950s that Malaxa was a double agent. He was working for communist Romania’s interests in the United States. As a 1953 U.S. Navy communiqué to the FBI put it: “Mr. Malaxa is undoubtedly one of the top communist agents in the country.” At the same time, Malaxa was operating undercover for the Naval Intelligence Agency on a project so sensitive that the navy hid it from both the CIA and the FBI.

When J. Edgar Hoover got wind that Naval Intelligence had a valuable Romanian source, the FBI director wanted to borrow him. He made his request to Rear Admiral Carl F. Espe, director of Naval Intelligence, who replied: “In view of the fact that an operation is involved which must not be jeopardized, I cannot disclose [the name of] this source [Malaxa] without his concurrence.”

Malaxa had the last laugh. What Hoover didn’t know was that the Navy’s nameless secret agent was already an FBI informant.{The FBI refused to release Malaxa’s classified file under my Freedom of Information Act request. And the U.S. Department of the Navy said that its records do not go back to the 1950s. It suggested a review of CIA files. Under the circumstances, one can safely conclude that Malaxa’s extended trip to Argentina was an undercover intelligence mission for the U.S. Navy.}

Nicolae Malaxa still stuck in Schiano’s craw nearly twenty years later, when he rejoined the INS and got the Braunsteiner case. Like DeVito, he found the agency blocking his every move. First, there was the budget—just enough to “buy coffee and doughnuts for the visiting press.” Then there was the office phone. Or rather, the lack of one. Schiano had to use the pay phone in the building or the one outside across the street. Next, there was the oppressive office he and DeVito shared.

“We were placed in a cubicle which shrunk from week to week,” Schiano later testified before the House Subcommittee on Immigration. “For two of us to occupy that office, one of us would have to climb over the desk. This is where we interviewed the witnesses, and also the representatives of foreign governments.”

At first, Schiano was baffled. In other cases, his boss Sol Marks usually gave him whatever he asked for, and without argument. The first day on the Braunsteiner case, Marks was enthusiastic and told Schiano to forge full steam ahead. The next day he “rescinded the order.” And when Schiano asked Marks for a team to help build the case against Braunsteiner, all he got was DeVito.

Since the eyewitnesses on DeVito’s list were critical to prosecuting Braunsteiner, Schiano began making phone calls to U.S. embassies in Bonn, Warsaw, and Vienna for help in locating the witnesses. One day, Europe simply stopped returning his calls. It was obvious to Schiano that Washington had warned the U.S. posts not to help him any further. In one instance, the INS wouldn’t even pay the hotel bill of an eyewitness. Schiano and DeVito had to pass the hat.

The roadblocks continued. The Polish government had sent a package of Braunsteiner documents to the INS in Washington earmarked for Vincent Schiano. Someone returned the package to the Polish embassy as unneeded.

Finally, there was the leak of a CIA document vital to Schiano’s case. Austrian police had arrested Braunsteiner after the war on charges of beating female prisoners at the Ravensbrück subcamp. She was tried, convicted, and sentenced to three years in prison. When she had applied for a visa to the United States, she failed to disclose her prior conviction. Under American immigration law, she could be deported if she had obtained her visa illegally or fraudulently. To prove either, the INS would need a copy of her conviction record. Vienna was reluctant to release it, citing privacy reasons.

Schiano and DeVito found a way around the Viennese stonewall. They convinced a covert CIA agent to get the record of Braunsteiner’s conviction for them. In return, the INS found a way around Schiano and DeVito. Someone leaked the conviction record to the Braunsteiner defense team. Now its lawyers were preparing to argue that the document was inadmissible because it was obtained illegally.

If supplying both the gun and the ammunition to the other side wasn’t obstruction of justice by the INS or the Justice Department or whoever, what was?

When Vienna eventually relented and gave the INS a certified copy of Braunsteiner’s conviction record, she knew she was in trouble. She cut a deal. She would voluntarily surrender her U.S. citizenship—no hearings, no witnesses, no public trial—if the government promised not to deport her. The government agreed and Hermine Braunsteiner went home to Queens.

As far as Schiano and DeVito were concerned, the “deal” was a fix, and both the INS and the Justice Department were in it up to their elbows. In effect, they had said to the defense team: “Go ahead and consent to denaturalization. We’ll go through a superficial deportation hearing. Your client will be granted a waiver. Deportation will be suspended and she’ll be able to regain citizenship several years later.”

If that was the plan, the government grossly miscalculated the media and public response. The Braunsteiner deal only added more wattage to the spotlights already focused on her case. Americans finally seemed to be getting the message. How could a woman accused of stomping women and children to death be allowed to stay in the United States?

Under renewed media pressure, the INS once again reopened the Braunsteiner case. Eyewitnesses from Queens, Brooklyn, and Warsaw publicly testified about the steel-studded boots of the “Mare from Majdanek.” The open-and-shut case dragged on until West German prosecutors lobbed a grenade into the Brooklyn courtroom. West Germany was preparing to try a group of Majdanek guards, mostly women, for war crimes against humanity. One of them was Hermine Braunsteiner. West Germany asked the United States to extradite her for trial. To grease the wheels of justice, German prosecutors gave the INS an additional three hundred pages of information about Braunsteiner and her crimes.

The evidence was overwhelming. On May 1, 1973—nine years after the first Times article appeared—Judge Jacob Mishler ruled that Braunsteiner should be deported to West Germany.

DeVito was shocked. After all the interference, harassment, and obstruction, the INS actually won the case it was trying to block. Maybe it was his imagination, but when DeVito returned to his office he was greeted with stone-faced silence. No handshakes or congratulations. No slaps on the back. No pink champagne or Kentucky bourbon in paper cups. Just hostile silence. He felt like he had walked into “an enemy camp.”