- Associated Press - Friday, December 28, 2012

BERLIN — The case of an 87-year-old Philadelphia man accused by Germany of serving as an SS guard at Auschwitz has largely centered on whether he was stationed at the part of the death camp used as a killing machine for Jews.

Johann “Hans” Breyer — while admitting he was an Auschwitz guard — insists he was never there.

World-War II-era documents obtained by The Associated Press indicate otherwise.

The files provided by the U.S. Department of Justice in response to an AP request are now in the hands of German authorities, and could provide the legal basis for charging him as an accessory to the murder of hundreds of thousands of Jews in the Nazi death camp.

The retired toolmaker told the AP in September, when German authorities confirmed he was under investigation, that he was always at Auschwitz I, a smaller camp used largely for slave labor, and never entered Auschwitz II, also known as Auschwitz-Birkenau, where about 90 percent of the 1.1 to 1.5 million Jews and others killed in the camp were murdered.

The U.S. Justice Department documents tell a different story. One SS administrative document specifically notes that Breyer was an SS guard at Auschwitz II. Another indicates he served with a unit of the SS Totenkopf, or “death’s head,” that was assigned to guard Birkenau.

Kurt Schrimm, the head of the special German prosecutors’ office responsible for investigating Nazi-era crimes, which has recommended charges be brought against Breyer in Germany, would not comment on specific pieces of evidence. But he said his office felt there was a strong enough evidence to prove that Breyer served in Birkenau.

“American authorities have been very cooperative in this case and have turned over a lot of evidence,” he said.

Breyer did not respond to requests for comment; his attorney, Dennis Boyle, said that he was aware of the documents but would not comment on their possible significance. “We are continuing our investigation and have no comment at this time,” Boyle said.

The U.S. Department of Justice used the documents as part of its unsuccessful decade-long legal efforts to have Breyer stripped of his American citizenship and deported. The U.S. case centered upon issues such as whether Breyer had lied on his immigration papers and whether he had obtained U.S. citizenship through his American-born mother. That legal saga ended in 2003, with a ruling that allowed him to stay in the United States, mainly on the grounds that he had joined the SS as a minor and could therefore not be held legally responsible for participation in it.

The German investigation, by contrast, tries to prove that Breyer was a death camp guard, and the documents are now being used to support that case.

The dossier is now with prosecutors in the town of Weiden, near where Breyer last lived in Germany. The prosecutors are reviewing whether there is enough evidence to charge him with accessory to the murder of least 344,000 Jews as Schrimm’s office has recommended, and have him extradited from the U.S.

For decades after the war, German prosecutors were only been able to convict former Nazi guards if they could find evidence of a specific crime. But with the case of former Ohio autoworker John Demjanjuk, the legal thinking changed: Prosecutors were able to successfully argue that evidence of service as a death camp guard alone was enough to convict a suspect of accessory to murder.

Demjanjuk always denied being a guard anywhere. He died in March while appealing his conviction on 28,060 counts of accessory to murder. Breyer, however, acknowledges that he served with SS Totenkopf guard units — although not the one that served at Birkenau — and was stationed both at Buchenwald, a concentration camp located in Germany, and Auschwitz.

“I didn’t kill anybody, I didn’t rape anybody — and I don’t even have a traffic ticket here,” he told the AP in an interview at his home in northeastern Philadelphia in September. “I didn’t do anything wrong.”

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