Brandeis: Break Laws to Rescue Jews

By: Dr. Rafael Medoff

Seventy years ago this week, David Ben-Gurion sat down to write a long letter to Louis D. Brandeis, the recently-retired Supreme Court justice, elder statesman of American Zionism, and one of the most influential Jews in America. That Ben-Gurion was updating Brandeis on the latest developments in British Mandatory Palestine was routine. That Ben-Gurion was briefing Brandeis specifically on recent efforts to smuggle European Jews into the country, in defiance of British immigration restrictions, was more than a little unusual.

Since 1937, Ben-Gurion’s rivals, the Revisionist Zionists and their Irgun Zvai Leumi allies, had been engaged in “aliya bet,” or unauthorized immigration. Irgun emissaries in Europe had been sending boatloads of European Jews to Palestine, landing late at night at deserted coastal locations, out of view of British patrols. Recently, the Labor-affiliated Mossad l’Aliya Bet had joined the effort and organized its own ships.

By contrast, most American Zionist leaders opposed taking any steps that might upset America’s ally, Great Britain. Veteran U.S. Zionist leader Rabbi Stephen Wise told Ben-Gurion that he (Wise) was urging American Jews “to march shoulder to shoulder with England in the war against fascism,” and he could not deviate from this position even if the Zionist cause suffered.” Wise’s Emergency Committee for Zionist Affairs claimed that the Irgun’s aliyah bet ships “resemble co ncentration camps.”

Ben-Gurion, too, aimed his share of barbs at the Revisionists. In his June 1939 letter to Brandeis, he claimed that the food and hygiene on the Irgun’s ships were unsatisfactory and that Mossad l’Aliya Bet was doing a much better job. He described how it was using small motor boats to meet the ships several miles out in the Mediterranean and then taking the passengers to shore in small groups.

But if American Zionist leaders were opposed to aliyah bet, why was Ben-Gurion offering Brandeis all these details of the operations? The standard biographies of Brandeis make no mention of him breaking from the rest of the Ameri can Jewish leadership on the aliyah bet issue.

The recent discovery of Ben-Gurion’s letter to Brandeis prompted my colleagues and I at The David S. Wyman Institute for Holocaust Studies to dig deeper into the question. Our findings were surprising and significant.

Another clue that galvanized our search appeared in the published letters of Brandeis, edited by Prof. Melvin Urofsky. In a letter to his American Zionist colleague Robert Szold on May 23, 1939 –just eight days after the publication of the British White Paper, severely restricting Jewish immigration to Palestine– Brandeis wrote: “The landing of the 308 ‘illegal’ immigrants was a dramatic event, coming at this time.” Brandeis’s use of quotation marks around the word “illegal” hinted that he did not regard them as illegal at all.

An additional hint may be found in the 1981 memoirs of Yitshaq Ben-Ami, an Irgun activist who was deeply involved in the aliyah bet operations. Ben-Ami described a meeting between an Irgun supporter and Brandeis, in Washington in early 1939. According to Ben-Ami, Brandeis, after hearing a report on the aliyah bet effort, remarked, “If I were a young man like you, I would be with you.”

The smoking gun turned up in the papers of the late Isadore Breslau, the American Zionist movement’s chief representative in Washington in 1939. The document, composed by Breslau, recounts a private meeting between Brandeis and six veteran American Zionist activists, at Brandeis’s home, on July 31, 1939. Breslau wrote:

“Speaking on the question of immigration [Brandeis] said that Jews would continue to immigrate regardless of te White Paper. When someone suggested that it was illegal, he said that the Jewish people considered it legal in view of the fact that any attempt to curtail immigration was in violation of the terms of the Mandate; that it may be considered illegal by Great Britain but that we Jews considered it to be legal.”

Thus one of the most distinguished and widely-respected jurists in America, a man who had devoted his life to upholding the law, was embracing an activity that America’s closest ally regarded as criminal–and which even fellow-Zionists such as Stephen Wise opposed.

To understand this seeming paradox, one needs to recall that as a rising young legal star in Boston in the early 1900s, Brandeis earned the nickname “the people’s attorney,” because of his commitment to helping the disadvantaged and his heartfelt interest in how the law affected the lives of ordinary people. To him, the law was not just a collection of words on paper, but had to relate meaningfully to real life. The British policy of keeping most Jews out of Palestine was “legal” only in the dry, technical sense; it was not legal in any sense that had to do with what was happening in the real world. A law that helped doom millions of innocent Jews could not be truly legal, not in the sense that Brandeis understood the law. And the modern day ‘Underground Railroad’ that was taking Jews out of the Nazi inferno and smuggling them to freedom and safety, could not be truly illegal.

June 2009