A brief look at Operation Safehaven, 1944-1949

by Marc Masurovsky
The purpose of this presentation is to place the search for and recovery of Nazi looted art on the European continent in the context of broader Allied policies framed to disentangle the postwar world from the vicissitudes generated by years of Nazi policies of persecution, exploitation and extermination. One of the most brazen efforts aimed at severing the postwar world from the clutches of Nazism was Operation Safehaven, an Anglo-American program whose goal was to neutralize and eliminate any evidence—physical and corporate—of Nazi influence, defined as broadly as possible, worldwide, but mostly in war-torn Europe and, in particular, in the so-called “neutral” countries, the non-belligerents of WWII—Portugal, Spain, Switzerland and Sweden.

Neutral countries (in tan) during WWII

With regard to the specific campaign of plunder waged by Nazi agents and officials across occupied Europe, Safehaven’s natural targets encompassed looted cultural objects, regardless of value and significance, and their possessors, traders, and recyclers, the orchestrators of these crimes, who were fit to be considered as “enemy agents” involved in abetting Nazi post-defeat plans in a liberated postwar world.

While the Safehaven program came into being in the summer and fall of 1944, three art commissions were established to assess and address the problem of cultural damage across Europe and more precisely assess cultural losses suffered by institutions and individuals and remedy them as well and equitably as possible.

Various Allied declarations against Axis looting in occupied Europe laid the groundwork for the Safehaven program and its treatment of neutral countries:

January 5, 1943 Inter-Allied Declaration against Axis Acts of Dispossession; 

February 22, 1944, declaration on looted gold by the US Treasury; 

Resolution VI on looted assets in neutral countries, July 20, 1944 at the Bretton Woods Conference.

Resolution VI set the diplomatic stage for the Safehaven program and its focus on the neutral countries—Sweden, Switzerland, Portugal, and Spain.

To be fair, Safehaven being ostensibly an Anglo-American program, it was burdened, from the outset, by historic and often virulent rivalries and mutual enmity between the United States and Great Britain. The Safehaven program evolved in an environment of acute economic competition and rivalry between the the US and Great Britain which influenced the policy-making process underlying Safehaven. As an example, viewed from the British side, the Safehaven program was the American government’s Trojan Horse aimed at breaching the protectionist barriers of British Imperial trade preferences surrounding its Empire.

Nevertheless, the Safehaven program arose from a legitimate security concern expressed by the Allies over a possible continuation of Nazi activity in the post-war era, using commercial covers, neutral benevolence, and significant pro-Axis sentiment in the neutrals, liberated countries and some of the United Nations. Overall, the Americans were far more strident on this point than the British.

Although Safehaven was outwardly a security-based program designed to neutralize Nazi strongholds in the neutral countries, it morphed into an instrument of foreign economic policy aimed at establishing American pre-eminence in the post-war world. If Pax Anglo-Americana prevailed during the interwar years, the goal of the American government, in the words of Henry Morgenthau, Treasury Secretary uner Franklin D. Roosevelt, was to establish a “Pax Americana” at war’s end. 

Henry Morgenthau, courtesy of USHMM

                 Samuel Klaus

The British government was keenly aware of this possibility, which explains its reluctance to join in the Safehaven program. Moreover, Samuel Klaus, the American official who "thought up" Safehaven, was an anti-trust and anti-cartel specialist/activist at the Foreign Economic Administration (FEA), the main American agency responsible for the US economic warfare strategy. Its British equivalent was the Ministry of Economic Warfare (MEW). Klaus’ worldview was shaped by the anti-monopolist, anti-corporate combination mentality of the New Deal. And so were those of many of his colleagues 

at the Treasury Department under Morgenthau’s stewardship.

Safehaven was initially anchored in economic warfare measures, but gradually transformed itself into an economic security program wrapped into a foreign policy initiative shepherded by the State Department aimed at asserting American influence in the neutral countries, at the expense of the British government. The defeat of Morgenthau's Plan for Germany in late September 1944 allowed the State Department to step in as the de facto articulator of American foreign policy regarding the postwar world, however unprepared it may have been to tackle this task, especially in the field of economic policy. 

Ultimately, inter-departmental Safehaven policy within the US government evolved in the context of postwar treatment of Germany and its former allies, while Allied Anglo-American Safehaven policy unfolded in the context of strained Anglo-American relations, characterized by British reliance on American aid at the end of the war, and Anglo-American commercial rivalry in Latin America and Europe. It became clear to American officials that Allied economic policy could not apply equally to all neutrals. It should serve as a basis for discussion among the Allies. The problems involved cloaking of enemy assets by neutrals and profit-taking from these during WWII with Germany, Italy and other Axis countries serving as customers. The American government set specific goals in their approach to neutral countries, including effective measures to stop “enemy-owned” property, and assist in the restitution of looted assets and so-called flight capital. These were the basic tenets guiding the Allied treatment of the neutral countries after 1945, which the State Department issued on December 28, 1944. [Document D-90/44 of Executive Committee on Economic Foreign Policy (ECEFP) dated 12/28/44 stamped SECRET, 4 pages, entitled "US proposal regarding Allied economic policy towards neutral countries", 4 page attachment entitled "Attainment of Allied objectives in neutral countries." Enemy assets, confiscation of enemy property by neutrals, the Proclaimed List and supplies are discussed in the attachment. RG 169 Entry 231 General Counsel Box 1159 Committees – Economic Foreign Policy.]

In the field, the challenges faced by Safehaven were most noticeable in Spain, led by a military dictator, Generalissimo Francisco Franco.  

Francisco Franco

The British opposed any direct approach to Spain on matters regarding the presence of Nazi looted assets. Furthermore, they did not want to discuss openly with Franco’s aides the fact that Nazi and Fascist escapees were transiting through Spain on their way to Latin America. When American officials in Washington presented to the British on October 18, 1944, evidence of these Safehaven-related activities in Spain, they doubted their authenticity. 

However, the British and American ambassadors in Madrid agreed that conventional economic warfare pressures against Spanish businesses were sufficient to preclude the systematic smuggling of looted assets, including art, through Spain and the Canary Isles to Latin America.[C 14665/129/41 FO 371 39721 CENTRAL 1944 Top Secret from Bowker (BritEmb, Madrid) to F.K. Roberts, FO 10.18.44. It was equally difficult for the British and the Americans to agree on the wording of messages to neutral governments. For instance, British officials from Treasury, Trade With the Enemy Department (TWED) and the Foreign Office (FO) tried to convince their American counterparts to delay sending instructions to their Missions on the subject of looted gold. The Americans feared that the State Department would be piqued over such delay tactics.“We [the British] eventually agreed to get off (as a token of goodwill) instructions to our Missions in neutral countries as soon as possible, not to be acted on without confirmation... [The American] instructions to their Missions are to "urge" the neutrals to accept our policy. What we do not know is whether this means that if they get silence or a putting off answer in reply they will wish to carry the matter further. One thing which worries the Americans is delay. They are extremely anxious to get this off tomorrow morning....”[UE 1717/23/77 FO 371 40998 ECONOMIC AND RECONSTRUCTION 1944 To Coulson (FO) from Playfair (Treasury) 10.16.44 re approach to neutrals on looted gold.]

The future of Safehaven lay in the collection of reliable raw intelligence from the field—continental Europe still in the throes of Nazi and Fascist control and occupation—requiring extensive coordination with espionage agents, clandestine operatives, and informants operating under cloak. Once collected, where were the data concentrated? Analyzed by whom? Distributed to whom? Such considerations, logistical, bureaucratic, and political, compelled a semblance of coordination and centralization of responsibilities where no such centralization existed since the very nature of Safehaven was polycratic—multiple agencies in two nations, the US and Great Britain, dividing up responsibilities to manage a program with no head, over which they were already bickering as to its extent and impact on both countries and their allies.

Amongst the thousands of pieces and bits of intelligence collected from the field were leads and documented instances of looting and circulation of looted art from the point of confiscation and seizure to sites, most often located in neutral countries. How to tease out that information efficiently was an overwhelming challenge which rendered the information, more often than not, stale and worthy of simply being carded and indexed.

Safehaven required timely and unified action between the Allies and with the neutral countries, predicated on reliable, prima facie evidence to convince the neutrals to adhere to a vision of post-war Europe where America replaced Great Britain as the preeminent economic power. However, the tribulations involved in information sharing between American and British officials compounded the challenge of enforcing an effective countervailing plan against the threat of Nazi post-defeat planning. Whereas Treasury officials in Washington and London were only too happy to work together and cooperate, the same could not be said for their diplomatic colleagues at State and FO who eyed each other with a mix of disdain and suspicion. And rightly so. This level of discord and discomfort was deeply rooted on both sides of the Atlantic.

The success of Safehaven rested on the full cooperation of the governments of the neutral countries where property and valuables under German control were thought to be invested or concealed. To attain this goal, the United States government needed to persuade the leaders of the neutral countries to enact laws and issue orders to uproot those assets that the American government had identified as of “enemy” origin, which were subject to seizure and liquidation. In effect, the Allies were asking the neutrals to surrender some aspects of their neutrality without sacrificing their sovereignty.

Safehaven required a complete political and economic purging of Nazi holdovers worldwide. That meant different things to different people. For idealist Allied officials, for example, the purge of Nazism through Safehaven was the ultimate goal; for the pragmatists and realists, any Safehaven settlement with the neutrals was a step in the right direction, even if it meant that they had to compromise the Safehaven program’s principles in order to reach a binding agreement with the governments of neutral countries. American policy-makers used Safehaven as a litmus test for renewing trade relations with the neutral countries. It goes without saying that the British and the Americans could not and did not see eye to eye on the postwar economic vision set forth by American planners. Neither could Great Britain subscribe to and join in the political pressure exerted by the US on the neutral governments with which Britain had enjoyed close ties for decades.

On the art front, French (Vaucher), British (Macmillan), and American (Roberts) art recovery commissions, had been established between 1942 and 1944 to locate and return looted works of art in territories under the control of the Axis powers and especially in Western and Central Europe. Their mission overlapped in several ways with the objectives of the Safehaven program.

1/ Safehaven viewed art as a fungible commodity able which was easily transferable from one location to another and easily converted into cash or as an investment which would cloak enemy assets, therefore subject to seizure and transfer to an Allied agency by the government of the nation where the looted item was located.

2/ the Allied art commissions sought to locate and recover specific categories of looted art and return to their countries of origin. A rare case where Safehaven aided art recovery missions concerned Alois Miedl, one of Goering’s main agents in German-occupied Holland, who spirited to Spain over 30 Old Master paintings and who became the subject of an international quest for the seizure of the paintings, their return to the Netherlands, his arrest by Spanish authorities and his transfer to Allied authorities who all vied for a piece of him—French, Dutch, American, and British.

3/ both Safehaven and these commissions sought to locate these looted objects and ensure that they were safely removed from enemy hands. Safehaven findings on the wartime activities at the Fischer Gallery in Lucerne, Switzerland, combined with American and British intelligence reports about the dozens of art works looted from France and other German-occupied nations, recycled through that gallery into the Swiss art market and beyond.

However, Safehaven and the Allied art missions diverged over the treatment of individuals involved in looting activities or profiting from them:

Safehaven officials viewed the possessors of looted cultural objects as aiding and abetting Nazi post-defeat planning. If these individuals were found in neutral countries, Safehaven officials wanted them investigated for their wartime activities, and possibly arrested by the government of that nation, the art in their possession forcibly removed as enemy assets, and, if of German nationality, sent back to Germany through an Allied-sanctioned repatriation program of “obnoxious individuals.”

Allied art commissions held a more lenient view towards those dealing in looted art and benefiting from looted art in the same fashion as Safehaven operatives. Their concern was to recover the objects.

Jurisdictionally, the Allied art missions operated mostly in the Allied zones of occupation and recently liberated territories, while Safehaven operations were largely focused on the neutral countries for diplomatic and geostrategic reasons. Zones of overlapping interest included most notably Switzerland.

There is no available and explicit evidence that Safehaven matters were routinely discussed amongst officials in the various Allied art missions in terms of coordinating their agendas and programs with the directives of the Safehaven program. However, many Safehaven bulletins and memos regarding looted art and those who possessed it or traded in it, especially as of 1944, were shared with the three Allied art missions. In the case of Fischer Gallery and Alois Miedl, they were already the targets of Allied economic warfare measures and thus prevented from dealing in any way with Allied individuals and entities.

Despite the production of an astounding amount of raw and analyzed intelligence through the Safehaven program regarding looted assets and in particular looted cultural goods, the Allied art missions operating in the Zones of occupation of Germany and Austria became intensely focused on the task at hand, which was the removal of what they identified as looted art from those areas and their repatriation to the countries of origin.

The application of Safehaven principles to the post-Nazi, post-Holocaust art world, would have been a complete fiasco. Most players in the wartime art markets were still present in the late 1940s, resuming business with their former enemies. Many had received official reprimands from their postwar governments; at least this was the case in Western Europe. Licenses were gradually handed out to individuals seeking to work on the art market in the various Allied zones of occupation of Germany and Austria. And soon enough, the art trade resumed as an international economic and commercial activity in the form of exports to the Americas and the resumption of international exhibits.

The Safehaven program petered out by 1949 as an ambitious attempt to mark a clear and unquestionable break between the horrors of the Second World War and the postwar world, through a redress of economic injustice and an as complete neutralization of Nazi attempts at restructuring economic, commercial and financial capabilities amid the chaos of the immediate postwar years. The reasons for the ultimate defeat of Safehaven are manifold: an incipient Cold War pitting former allies against one another, intense economic rivalries among the Western Allies, pressure to rehabilitate formerly occupied lands as quickly as possible, the reluctance of the Allied military to insist on restitution and to allow for easy fixes characterized by reparations policies aimed at compensating those who had suffered minor or major economic and personal losses during the Nazi years.

Similar pressures produced mixed results in the location, recovery and restitution of looted cultural objects and the punishment of those who participated in, orchestrated and/or benefited from those thefts against Jewish victims.

In the US, State Department officials were anxious to resume the transcontinental art trade, following the closing down of the Roberts Commission in July 1946. The Commission’s justification for putting itself out of existence reflected the ambient mood of the time, reflective of those who favored a “soft peace” with Germany. They preferred to allow the art trade to resume and not be held hostage by the horrors of WWII, arguing that the public wanted and needed access to great art from Europe. Even dealers victimized by the Nazis and reestablished in New York clamored for an immediate resumption of the trade with Europe.

The end result? Much as in the economic sphere where old partnerships between Axis, allied and neutral interests resumed under different guises to generate new sources of revenue in the postwar era, so did relationships in the art world between American, British, French, German, Austrian, Belgian, Dutch and other art specialists, dealers, curators, historians and other fixture of the art world, regardless of what they had “done” or not “done” during the Nazi years and the years of Axis occupation and control across Europe.

The norm called for moving forward and letting go of the past.

The Safehaven Program and Allied efforts to locate and recover looted art demonstrated that there remained in civil society elevated ideals of justice and—as it turned out—utopian visions of a postwar and post-Holocaust world which did not square with the cynical reality and demands of daily life. The fact that Safehaven and these efforts did take place testifies to our capacity to embrace a more just and equitable world, then, and now, regardless of the often meager results that these efforts carry with them.

Thoughts about Americans and the Third Reich

by Marc Masurovsky

Volumes could be written about this vast and complex topic. Here are some elements to think about and jump-start the discussion:

1/ the United States and Germany have been joined at the hip since at least World War I. Lawyers, scholars, businessmen, entertainers, artists, art historians, museum directors, curators, government officials, religious figures, bankers, diplomats—their mutually beneficial ties and exchanges have run deep before, during and after the Third Reich (1933-1945). That might explain why J. Edgar Hoover, legendary former director of the FBI, was paranoid (he was about everything, actually) that a fifth column of spies, agitators, and subversives could easily form on American soil without being bullied into serving the Reich. (Note: this line of thinking applied just as well to the perceived "communist threat") In his view, there were more than enough volunteers who would either remain neutral or engage in activities that would support National Socialist policies. In a state of war, that was potentially treasonous behavior. Henry Morgenthau, Franklin Roosevelt’s Secretary of the Treasury, thought alike. Well aware of the interlocking interests that bound American and German businesses, Morgenthau was convinced that the American private sector would have to be held on a tight leash to prevent it from aiding Nazi Germany and from profiting from its discriminatory policies.

2/ American banks and companies have invested heavily in Germany. At Hitler’s rise to power, there were well over 300 American companies active on German soil. By the time the United States entered WWII in December 1941, that number may have dropped somewhat but not by much, many businessmen preferring to “wait it out” and hope for the best. That display of business pragmatism towards National Socialism allowed those companies to continue producing for the Reich either as wholly owned subsidiaries of the American parent or as companies with a majority German interest on their boards. Since the German government forbade profits from being repatriated to the US—the enemy--, those profits were set aside or, in some cases, cleverly concealed and transferred with the connivance of German officials to holding companies established in “neutral” countries where the American company held an interest. After WWII, these same American businesses sent their representatives into the various Allied zones of occupation to inspect their subsidiaries and tally up accounts receivables. Business as usual.

3/ No one knows exactly how many American citizens remained in Europe after 1933 and especially after September 1939. The State Department, through its consular offices, received thousands of requests for exit visas, most of which were not honored for quota reasons. What happened to what we believe were thousands of Americans from all walks of life stuck in every country that fell to the Nazis and their Fascist allies? Special camps and detention facilities were established for Allied enemy nationals—British and American—in France (Vittel is the most well-known) while the concentration camp of Gross-Rosen had a sub-camp where American actors, singers, and musicians were deported to, most of whom were African-American. If you look closely enough, you will find the names of American citizens typed on deportation lists from Western Europe, Italy, Austria, and Eastern European nations.

4/ for those American citizens who remained relatively free of movement throughout the years of Nazi rule, we know very little about their activities. However, we do get hints of what they were up to, like in France, where some frequented the Paris auction house of Drouot and acquired art objects which were later donated to American museums. American banks like Morgan and Chase invested in joint ventures involving the French real estate market under Vichy as it was being aryanized.

5/ In the postwar years, the discourse on Americans and the Holocaust has been a truncated, highly sanitized story. American soldiers and officers, traumatized, returning from the front, have testified about the horrors they witnessed, or rather, their aftermath as their units liberated one camp after another.

6/ After 1945, US government officials might have been upset about the role that American businesses played during WWII, but it was essential, especially in light of the incipient Cold War, to keep the nation on an even keel and not penalize opportunistic businessmen too harshly, or at all, for their dalliances with Nazis and Fascists. That might explain why no American CEO or company was brought to justice in the postwar years for acts of collaboration and abetting plunder. Those whose behavior was most conspicuous received private reprimands, but no more (Chase Bank and Morgan, for instance.). In liberated countries of Western Europe, American subsidiaries might have incurred fines for “wartime illicit profits.” Coincidentally, no sooner than WWII had ended that American intelligence priorities (equal to those of the British and the French) focused in part at using the private sector as a Trojan horse of sorts against real and perceived threats, making businessmen and entrepreneurs, partners in intelligence collection.

7/ And what of non-Jewish American survivors of internment in Nazi concentration camps, prisons and makeshift "confinement centers" set up in Axis-occupied territories? It would be fascinating and very moving to hear the stories of the many jazz and blues musicians who endured and survived the nightmare of Nazi concentration camps.

8/ By the end of 1946, the US had lifted all of its wartime restrictions on trade with Europe and the Far East. By the early 1950s, the Allies had settled financial scores with the neutral countries for having profited from trade with the Axis powers, especially as pertains to the recycling of gold looted by the Third Reich. And then, business resumed.

And so it goes…

“The Portrait of Walli”: The Case that Will Not Go Away

Portrait of Walli, by Egon Schiele
Source: Bloomberg

In an odd twist of events that allows Egon Schiele’s “Portrait of Walli” to resurface as a magnet for attention, Robert E. Roistacher, former chairperson of the Manhattan Solid Waste Advisory Board, and a 1968 graduate of Columbia University, filed a “demand for judgment” against Andre Bondi and Edith Southwell, the heirs of Lea Bondi Jarai, the late rightful owner of “Walli” whose painting was returned to the Leopold Foundation in Vienna, Austria, in exchange for 19,000,000 $. [the complaint was officially filed, right? Is there a public source to the info?]

Mr. Roistacher is asking for $4,500,000 in professional services that he rendered to the family which include “developing a plan to restrain the property…from leaving New York County, New York, and the jurisdiction of United States courts, until restitution was made therefor.” Roistacher argues that he introduced the Bondi Jaray family members to “legal counsel” and helped in the recovery of the painting.

The demand represents a quarter of the settled value of the painting, and was filed in the United States District Court for the Southern District of New York on November 14, 2011.

The “Walli” case has an original aspect to it. You might recall that the painting was identified in late 1997 as being the property of Lea Bondi Jaray’s family while on display at the Museum of Modern Art of New York, loaned for that purpose by the Leopold Foundation in Vienna, as part of a major retrospective of Egon Schiele’s works. Ronald S. Lauder, former US Ambassador to Austria, and chairman of the Board of MOMA, was instrumental in facilitating this keystone exhibit of the Austrian Secessionist’s provocative and sensual works.

Robert Morgenthau, former District Attorney of Manhattan
Source: Zimbio

Once “Walli” was fingered as possible looted cultural property, a mad scramble ensued to keep the painting from returning to Austria after the exhibit had ended its run at MOMA. The painting, wrapped and crated, was slated to depart in the first week of January 1998. On the eve of its departure, however, then District Attorney of Manhattan, Robert Morgenthau, son of the late Henry Morgenthau, Franklin D. Roosevelt’s Treasury Secretary from 1933 to 1945, called in the cavalry in the form of New York’s “finest men in blue”—the Police Department—and had the painting seized in order for the aggrieved parties to be given a fair hearing on the matter of the ownership of “Walli.”

The seizure represented Phase One of the case. Phase Two dragged on for twelve long years until a settlement was reached with the Leopold Foundation in July 2010, which was brokered by the law firm of Herrick Feinstein acting on behalf of the Lea Bondi Jaray estate.

The question raised by this new twist appears to be: what exactly happened during Phase One? It was sufficiently complex that a serious history of that period may need to be written. Until then, we will see what unfolds with Mr. Roistacher’s claim.

Letter to Marilyn Henry concerning the return of 'Portrait of Wally' by Egon Schiele

Note: This letter was sent to the late Marilyn Henry in an effort to articulate complicated thoughts pertaining to the unsettling resolution of a decades-old battle to recover the 'Portrait of Wally' by Egon Schiele from the clutches of Mr. and Mrs. Leopold.  It constitutes mostly an attempt to sort out conflicting emotions and to restore a semblance of historical truth to an international story of racially-motivated theft, punctuated by a half-century of injustice towards a Viennese family whose sole crime was to be Jewish.

August 17, 2010

Dear Marilyn:

I debated even writing this note regarding the return of Wally to Vienna—the scene of the crime, as it were.

The ceremony on July 29 was emotional. After all, we did wait for 12 years to see a case closed that, had cooler, pragmatic, and ethical heads prevailed, would have been resolved a long time ago.

But, there were none of the above at the time of the ‘event’, the seizure of Wally at the Museum of Modern Art on that fateful Wednesday afternoon, in early January, on the eve of its planned departure for Europe. Had Wally left the United States, there would have been nothing to discuss, no strategies to implement. More to the point, there would have been no restitution law in Austria, of the kind that we now see today being implemented, albeit in a limited way, but in a more efficient manner than in most other countries that boast similar laws.

Indeed, not only would there have been no restitution law in Austria, but Randy Schonberg would not have recovered Maria Altmann’s fabled Klimt paintings which set astronomically high records at auction. Randy would still be wondering exactly how to approach the Austrian government and would be haunting the halls of the State Department looking for someone with enough spine to go and rattle a diplomatic saber at an indifferent Austrian government.

Worst of all, Dr. Leopold and his wife would continue to enjoy in apparent indifference to the suffering of Holocaust victims and their families, the pride and joy of their collection—so many Schieles with provenances that would make one’s hair raise on one end, to defy logic—in an unholy alliance with the Austrian government’s representatives on the board of the Leopold Foundation.

And, yet, most of the above did not come to roost because Wally did not go home in January 1998, as it was supposed to like an obedient child whose estranged biological relatives were clamoring to keep it in the US so that they could have their day in court and assert their rights to it.

I made the mistake of sitting in the same row as Frau Leopold and her coterie of dowagers. She snickered through the entire ceremony not four seats away from me. The same woman who together with her late husband, Dr. Leopold, prevented the Bondi family for more than 12 years from recovering Wally, on legal, moral and ethical grounds with the Anschluss and the Holocaust as the historical backdrop.

On July 29, my stomach turned while I saw the glitterati of New York City and of our own Federal government fawning over Frau Leopold, she who kept justice at bay for 12 years. Some might say that the time had come for reconciliation. Well, perhaps, we should just shake hands with former war criminals and collaborators and call it a day. Let bygones be bygones, right? After all, what is done is done, and so we should all move on. America loves stories of redemption, but they should not apply to the Holocaust.

My two heroes on the 29th of July were Andre Bondi and Robert Morgenthau. Andre because of his steadfastness and his family’s persistence in seeking what was rightfully theirs, in the face of total indifference to their cause in the late 1990s, except for one small group of irreverent folks based in Washington, DC. Those who comprise the Holocaust Art Restitution Project or HARP.

More on that later…

Robert Morgenthau will always remain an outsized mensch in my personal pantheon of individuals to look up to, true mensches. He inherited the best genes in the world, those of his father, Henry Morgenthau, one of the few in Franklin Delano Rooselvelt’s cabinet who stood up in explicit terms against National Socialism and Fascism when it was not fashionable to do so. Decades later, Robert stood up against the American museum establishment, the art world, complacent Jewish organizations, and a meek, passive Federal bureaucracy, more interested in accommodating America’s allies than standing up for a single citizen over a single painting that turned out to be property stolen during the Holocaust. Robert did the right thing. What he called a Hail Mary pass, was actually a calculated moment that did not come out of left field , but the outcome of a thoroughly well-rehearsed strategy that would not have been put into motion, had everyone else done their job to safeguard Wally and the rights of American citizens like the Bondi’s.

First off, the Departments of State and Commerce who, instead of considering the possibility that the Bondi Affair was worthy of note and thinking a bit harder about the implications of an inquiry with the Austrian government over property looted during the Holocaust, whose true owners are American citizens, chose to place the overarching national interests of the United States over those of its citizens. Granted, the logic is well entrenched in customary international law, but such logic has been mercilessly applied as a foil against Holocaust victims seeking redress since the late 1940s. In other words, the Federal government was simply being consistent with its stated policy not to intercede on behalf of Holocaust victims and their families in a forceful and meaningful manner.

While State and Commerce were not willing to modulate what was fast becoming an international incident, the Senate Banking committee leadership, under Senator D’Amato, had voiced its concern over the fate of Wally and contemplated some drastic action that would require the painting to remain in the US until its provenance could be sorted out in the interest of justice for Holocaust victims and their families. There too, the will to act quickly vanished, presumably under pressure from some unnamed notables close to the Museum of Modern Art and who also bankroll the World Jewish Congress. With State, Commerce, and the Senate Banking Committee running for cover, there was no one left to support the Bondis in their plea to keep the painting in the United States, at least long enough so that their side of the story could be heard in a fair and objective manner.

Except for HARP. Founded by Willi Korte, Ori Soltes, then director of the Klutznick Museum at B’nai B’rith in Washington, DC, and myself in September 1997, HARP’s mission was and continues to be to document the historical cultural losses suffered by Jewish owners during the 12 year reign of the Nazis. The Bondis had contacted Willi Korte and asked him to dig up the historical documentation surrounding the illegal seizure of Wally by Friedrich Welz and its subsequent wartime and postwar fate, which landed it in the hands of Dr. Leopold. Willi then turned to HARP for assistance and asked HARP to use whatever means possible to create sufficient pressure to keep the painting in the US.

Meanwhile, in late December 1997, Judith Dobrzinsky wrote a lengthy article for the New York Times on the Schiele exhibit and the brewing controversy surrounding Wally and another painting, Night City III, which was being claimed by the Reifs. However, in the same article, Judith also wondered whether venality had played a role in the Bondis’ decision to seek the return of Wally since they knew that the painting was then worth an estimated 2 million dollars.

With that type of adverse publicity, the Bondis had very few people to whom they could turn. Certainly no one in the Federal and legislative branches were willing to assist them. Jewish groups were pretending that they didn’t exist. And what was a District Attorney of Manhattan to do?

HARP, in the mean time, was seeking an accommodation with MOMA, a middle ground which would form the basis for a dialogue over the fate of the painting, as long as they could remain in the US. The general counsel of the Museum of Modern Art issued a terse rebuff—the reply to HARP’s request for dialogue and postponement of the shipment of Wally to Europe was: “Come and sue us if you want to prevent the painting from leaving. You have until Thursday.” Or something to that effect.

Without the painting in hand on US territory, the Bondis had no case. Fortunately, there were a number of legal issues that surrounded the Schiele exhibit’s hasty entry into the United States. Those legal issues provided a minimal opening for the District Attorney’s office to contemplate an aggressive move against MOMA to secure the painting and protect the rights of the Bondis on the suspicion that the painting might in fact be stolen property.

But the District Attorney’s office could not consider any form of drastic action against MOMA. It waited for the federal government to act. On the Monday preceding the expected departure of the painting, the Federal and legislative branches pulled their pins out of the game. Morgenthau was truly alone. But he was ready, whether he admits it or not, to launch his action.

And so, Robert did what he normally does, but which stood out as an outrageous exercise of bravura against the caste of Brahmins, symbolized by the tier one museums of New York and their friends and sycophants and followers and admirers. It was more like the 7th Cavalry charging when all hope had faded. As he explained it to us—Willi, Ori, and I—he doesn’t tolerate stolen property in his jurisdiction, especially if it is tainted by crimes against humanity.

Wally was saved. All hell broke loose. New York Museums instantly vilified Robert Morgenthau as a villain who was about to rain an economic calamity onto New York City. This message was delivered in unison by every major cultural institution in Gotham.

Morgenthau contacted HARP and asked if we would supply him with an affidavit in defense of his action to safeguard the rights of the Bondis. We complied with pleasure. Ori Soltes did the honors as chairman of HARP. We sat in Robert’s rickety conference room under the watchful eye of his late father, Henry. We were in good company. As it turns out, HARP is the only group that provided such an affidavit in defense of Morgenthau’s action.

This is basically the story of HARP’s involvement in preventing Wally from leaving the United States and securing the rights of the Bondis to a fair hearing of their claim. Wally did not mysteriously stay in New York by some act of divine inspiration that befell Robert Morgenthau. Without plenty of assistance, he could not have acted without knowing what we knew about the already-emerging complexities of the case. What had started as a simple request to modify the provenance of a painting in MOMA’s catalogue of the Schiele exhibit turned into a nightmare, both for the museum community, the US government, the Austrian government, and, the Bondis.

The rest is history. But on that fateful Wednesday afternoon, history was made as a result of a month of intensive lobbying, all-out pressure, and persistence from a small group of individuals who simply wanted Wally and Night City III to remain in New York so that their origins could be sorted out in the name of justice for Holocaust victims and their families.

I am relieved for the Bondi family, but the relief is bittersweet.

The only outcome that we had envisioned as just was restitution, assuming that there would have been no systemic failings.

I commend Larry Kaye and Howard Spiegler of the law firm of Herrick, Feinstein, for having found the best possible result to allow for closure to a very unpleasant and painful and trying ordeal, prompted initially by a racial crime perpetrated against a Jewish woman who loved her Wally. At least, Wally returns to Vienna with a price tag attached to its frame. But at what cost?

Regards,
Marc Masurovsky

Historical backdrop of postwar restitution politics

The following is an excerpt from a November 18, 1998, presentation on looted art given at Clark University, Worcester, Massachusetts. A bit dated and dusty but still relevant...

There is ample precedent in recent history for the United States government to engage in a policy of restitution of looted works of art. It is rooted in wartime experiences and rejection of the Nazis' genocidal program and policy of wholesale plunder. At its heart stand the principles enacted in Article 3 of the Hague Convention of 1907 which condemned wartime plunder of cultural property from public and private collections in times of war and made the governments of those responsible for the thefts liable for compensation. In the throes of the Second World War, the beleaguered Allied powers denounced through the so-called London Declaration of January 1943 all acts of dispossession in occupied territories by the German occupation forces and their local acolytes. In February 1944, American Treasury Secretary Henry Morgenthau, flanked by representatives from a dozen nations, warned the Nazis not to steal gold from occupied countries and promised full retribution at war's end. The statement was a not so veiled warning aimed at the complacent neutrals only too eager to benefit from Axis transactions in fungible assets stolen from occupied Europe. In the summer of 1944, at Bretton Woods, where economists and government planners from around the world met to lay the foundations of the post-war international financial system, a Resolution passed known as Resolution VI which condemned all transfers of plunder from the Third Reich to neutral nations and warned the neutrals--Sweden, Switzerland, Spain, Portugal, and Turkey--that they would be held liable for harboring such ill-gotten wealth, including stolen cultural property. At Chapultepec, Mexico, similar pronouncements were made in March 1945 to sensitize Latin American nations that hoarding of illicit wealth was anathema to the Allied nations and would be viewed as an attempt to aid and abet the Nazis in the post-war era. The Potsdam declaration of August 1945 confirmed the Allies' pledge to ferret out loot in neutral countries, whereby the Soviet Union ceded all such assets found in Western and Central Europe to the Americans, the British, and the French. The Soviets' jurisdiction extended east of the Oder River, wherein all looted works of art were looked upon as in-kind payments and absorbed into State collections, a predicament which reverberates ever more intensely today.

At the onset of the International Military Tribunal in Nuremberg in 1946, the Allies enshrined as a crime against humanity all racially, politically, and religiously, motivated acts of spoliation and dispossession aimed at civilian populations. Therefore, the act of plunder was placed on par with the commission of atrocities and not subject to any legal prescription in the post-war era. However, the governments of recently liberated countries of Western and Central Europe faced the politically unsavory task of ferreting out collaborators, and punishing them, while trying to compensate their own citizens for wartime losses. The short-lived and grossly inadequate purges of wrongdoers in the private sector failed to cleanse the ranks of the art world of the men and women who fueled the bustling, Nazi-sponsored art trade of the occupation years. Kinship ties, business and political relations between those who plundered Jewish collections, those who benefited from the plunder, and those officials who achieved a remarkable transition from collaboration to post-war reconstruction governments because they played the resistance card at the opportune moment, made any effective overhaul of the art market an impossible goal to attain. To deal with the question of restitution, post-war governments passed laws requiring claims to be filed within a 3-year period, and, by 1947-1948, most claimants were shut out of any attempt at recovery.

In the United States, museum directors and art dealers alike were exerting substantial pressure on the State Department to eliminate wartime measures aimed at preventing loot from entering the country illegally. Arguing that there had been few documented cases of actual loot being intercepted by Customs agents, museum officials and their allies in the private art market, worried about the consequences of these regulatory measures on the art trade, succeeded in persuading the State Department to lift all existing barriers that screened the flow of art into the United States. The real nut of the argument lay in the following rhetoric put forth by Lamont Moore, a government official who presumably worked at Customs: "Hundreds of works of art are coming in at present and they are increasing all the time. And is it proper to exert government control over a private industry? Is it right to put that much control over private business? ... to maintain such controls is bad business.,, The Germans have not transferred any hoards of art to foreign countries; the situation has been met; and the Treasury Directive is no longer necessary..." Obviously, this official echoed the back-to-business mantra of the art world and its conservative allies in the Federal bureaucracy.

The Treasury Department balked but conceded and on June 30, 1946, cancelled the relevant Directive #51072 that prevented works of art that had been confiscated from Nazi victims or illegally acquired by the Nazis from entering the United States. Restitution experts at State and Treasury who had lobbied against the lifting of these regulatory instruments, complained that the elimination of the directive contradicted America's international commitments to ferret out and restitute looted works of art. They also worried that the inflow of looted works into the United States would grow exponentially in the coming years, since the American market was the only one that had the resources and the infra-structure to absorb high-quality, museum-quality works from Europe. These same officials resorted to secret audits of importations of works of art and antiques by New York galleries like Wildenstein and Brummer, between 1946 and 1954, in order to smoke out suspicious shipments. There is no information on the outcome of these investigations, but they do cover several thousand objects. French cultural officials even warned their American counterparts in 1946 that the outflow of art from France to the United States had grown at an alarming rate since the fall of 1944. In a number of cases, Liberty military transport ships were used to smuggle paintings from France into the US. Although officials at State and Treasury pressed for a new set of directives aimed at thwarting the importation of loot into the United States, their efforts went largely unheeded in the changing climate of the post-war, where restitution gradually took a back row seat to geopolitical containment, European reconstruction, and business-as-usual.

In Europe, Allied officials in the occupation zones of Germany and Austria, already burdened with returning thousands of works to governments that placed competing claims on them, had to contend with American dealers and museum officials bidding for works with suspicious provenances on the black market or lobbying local government and military officials to relax export licensing laws and allow dealers to gain access to the thousands of works of art that had not been claimed by survivors or their families. Sadly enough, a number of notorious German art looters and Nazi purchasing agents like Bruno Lohse and Gustav Rochlitz who belonged in the defendants' dock at Nuremberg were shielded by the very museum directors and curators in charge of Allied restitution efforts who later on lobbied for a general relaxation of the international art trade. By the late 1940s, local laws in Germany and, to a lesser extent, in Austria, were liberalized to allow gallery owners and art dealers to resume trade with the outside world, and, especially with the United States.

Confronted by the realities of post-war business opportunities presented by thousands of high-quality works of art of dubious provenance available for sale at unbeatable prices, American restitution officials worked out a legal and political framework that would preserve the American government's commitment to the identification and restitution of stolen works of art to their rightful owners, A treaty was signed to that effect in July 1946, called the Tripartite Agreement. The co-signatories were the United States, Great Britain, and France. 14 nations endorsed the agreement, Its purpose was to uphold the principle of restitution as policy and for each government to ensure that looted works of art would not reach safe harbor on their shores and that every effort would be deployed to return these works to their legitimate owners. As part of its obligation under the Agreement, the State Department sent to 72 American museums, 57 New York galleries and 2 Boston-based galleries, and close to 40 colleges and universities, a series of consolidated lists of art losses compiled by various European governments. These lists served as the only bulwark of defense against looted works of art entering private and public collections in the United States. Whether or not they were ever consulted is subject to debate. In the words of Ardelia Hall, Arts and Monuments Adviser to State: 'The Tripartite Agreement is an outstanding contribution of our Government for the eventual recovery of objects lost in World War II and still missing. It is important that this policy be effectively carried out in the United States, as this country is, today, the chief market for valuable objects. Enormous sums of money might be involved ... this policy will contribute to the good name of our country, to the foreign policy of the Department, and win the gratitude of foreign nations, for cultural objects are always cherished." She went on to say the policy was "founded on international law and international agreements to which this Government is obligated.." But above all, she argued, it is based "upon the principle of respect for the inviolability of art and the integrity of cultural institutions, upheld by this country long before there were any formal obligations to require it." Alas! No one today comes close to Ardelia Hall's commitment to art restitution.

The American government also issued a directive aimed at restituting objects brought into the United States by returning servicemen. This directive, called SWNCC 322, barred servicemen from bringing back to the United States any items that had been illegally obtained in Europe, or, if acquired legitimately, had been plundered from Nazi victims. The War Department was charged with the investigation of these cases, in collaboration with State and other Federal agencies. Before putting itself out of existence in the spring of 1946, the American Commission for the Protection and Salvage of artistic and historic monuments in war areas--known as the Roberts Commission--staffed by luminaries of the museum world like Francis Taylor, director of the Metropolitan Museum of Art, had issued in support of SWNC 322 a strong reminder to museums, art and antique dealers and auction houses, with respect to looted works of art, that "It is, of course, obvious that no clear title can be passed on objects that have been looted from public or private collections abroad. We believe, therefore, that it is to the advantage of both public institutions and the trade... that any specific examples of looting of works of art or cultural materials be brought to light as soon as possible."

With the able assistance of Ardelia Hall, the Arts and Monuments Adviser at State, but actually, the pillar of art restitution in the post-war era, several hundred items were eventually found and returned to their rightful owners, including a Durer print taken to the US by a young Brooklyn College student named Raul Hilberg. Whether or not we are speaking of the eminent Holocaust historian, I do not know. But this peppy graduate student insisted that the work not return to Germany, but be placed in an Americn museum. The State Department threw the book at him and the Durer print was promptly returned to the depository from which Mr. Hilberg had removed it. 

The American commitment to art restitution lasted for as long as Ardelia Hall remained at the State Department. After her departure in the early 1960s, which was bemoaned by French restitution officials, and in particular her counterpart, Rose Valland, the American government essentially forgot about its post-war commitments towards potential art loss claimants as did most other nations. Without Ardelia Hall, government-sponsored art restitution in the United States came to a screeching halt, but the principles remained and live on to this day. Principles, that is. Not policies.

Meanwhile, the Allied military authorities and their several hundred Monuments and Fine Arts advisors were busy collecting close to 2 million looted works of art from Germany and Austria, sorting them and trying to match them with a prewar owner. The task was made all the easier by ascribing the main responsibility of restitution to the governments of the countries from which the items were forcibly removed or illegally acquired. By 1948, the American occupation authorities had decided to close down the bulk of its investigations, and by 1951, the main collecting points closed their doors and the residual works still in place were shipped to governments requesting them as part of their national treasure. By the mid-1950s, all avenues for claimants were effectively closed and the only hope of recovery lay in the cash settlements offered by the Federal Republic of Germany, which released the German government from any future claims filed by an individual for material losses.