Chapter 7—
Blaming the Victims:
The Kasztner Trial

[S]acrificed, abandoned, and betrayed, delivered to the invader and left to face him alone, we were ignored by everyone but the enemy. He alone paid attention to us.
—ELIE WIESEL, describing the liquidation of the Sighet Jewish community, a provincial town in Hungary, in All Rivers Run to the Sea.

Kasztner's List

"This trial takes us back to the days of the Holocaust." The simple words that opened Agranat's Kasztner opinion concealed the most explosive material in Jewish history since the destruction of the Second Temple. A dramatic j'accuse shook Israeli society and exposed a tortured, pained, divided, and confused people. Between 1953 and 1958, Jewish activity during the Holocaust occupied the front pages of newspapers and the deliberations of the Knesset, the cabinet, and the courtroom.

Rudolf Israel (Rezho) Kasztner was a journalist involved in Zionist affairs in the provincial town of Kluz, Hungary. His political ambition and Zionist activity brought him to Budapest, where he lived throughout World War II. In March 1944, four months before the Allies invaded Normandy, Adolph Eichmann, commander of the Gestapo Department Four, in charge of the organized mass murder of Jews, arrived in Budapest. His targets were 800,000 Hungarian Jews. Eichmann had ordered the reactivation of the Auschwitz crematoria, prepared the cattle cars, and locked the Jews in ghettos. As elsewhere, he used the local Jewish leadership to facilitate the operation. Kasztner, a hitherto small functionary

in the communal life of Hungarian Jewry, either found himself, or orchestrated, a position as the chief negotiator with the Nazis on behalf of Hungary's Jewish community. During his negotiations with Eichmann he enjoyed privileges that set him apart from other Jews. He kept his automobile, he was allowed to travel, his telephone was not disconnected, and he was not required to wear the yellow Star of David. In less than a year, almost two-thirds of Hungarian Jews would be murdered. Among the survivors was a group of 1,685 Jews that became known as the Bergen-Belsen transport. Like Noah's ark, the group constituted a cross section of the Hungarian Jewish community—termed by the Nazis the Jewish Biological Nucleus. But the list of survivors also included a disproportionate number of Kasztner's friends and relations. In the summer of 1944, after nerve-wracking negotiations between Kasztner and Eichmann, all persons whose names were on the list left for Switzerland. By that time, most of Hungary's rural Jews had been turned into ashes.

After the war Kasztner presented a report to the Zionist Congress in Basel. It soon became clear that his was only one version of the events and that some viewed him as a cynical opportunist who had deceived, misled, and ultimately sacrificed the multitude in order to save himself and his family. The congress established a committee of inquiry, but it failed to reach any conclusions.^[1] Kasztner's accusers were survivors and relatives of those who had perished, as well as Hungarian Jewish leaders who believed that he had usurped their power in negotiating with the Nazis.

Kasztner and his family immigrated to Israel and settled in Tel Aviv. He climbed the political ladder in MAPAI, was included in the party list of candidates in the second elections,^[2] and by 1952 served as spokesman for the Ministry of Trade and Industry.

Malchiel Gruenvald was seventy-one years old when the trial began. A native of Hungary, he had been a devoted member of the Ha-mizrahi, the religious wing of the Zionist movement. In 1938 he settled in Jerusalem and became active in the right-wing circles of the Jewish underground. A highly controversial figure, he was possessed by a zeal for cleansing the government of corruption, even if it took some tarnishing of individual reputations. His weapons were pamphlets, which he would write, publish, and circulate himself. Kasztner, a member of the ruling party—Gruenvald's political nemesis—was an irresistible target. Gruenvald also had a personal ax to grind with Kasztner—only six of his fifty-eight immediate relatives survived the Holocaust. The last in the series of his pamphlets against Kasztner opened with the following paragraph:

FRIENDS, MEMBERS OF HA-MIZRAHI FROM HUNGARY:

Dear Friends:

The smell of a corpse scratches my nostrils!

This will be a most excellent funeral!

Dr. Rudolf Kasztner should be eliminated!

For three years I have been awaiting this moment to bring to trial and pour the contempt of the law upon this careerist, who enjoys Hitler's acts of robbery and murder. On the basis of his criminal tricks and because of his collaboration with the Nazis (see my letter no. 15 [sic ]). I see him as a vicarious murderer of my dear brothers.^[3]

The pamphlet proceeded to expose Kasztner's crimes, denounce MAPAI, and demand Kasztner's purge and the appointment of a commission of inquiry to investigate the events that led to the decimation of Hungary's Jews. At first Kasztner maintained his silence, but soon his superiors informed him that the attorney general insisted that he either sue Gruenvald for libel or resign from his government post.

The Attorneys:
Cohn and Tamir

Haim Cohn, Israel's attorney general through the 1950s, was Gruenvald's complete antithesis. Young, educated, savvy, and charming, he was a fixed star in Israel's political and legal establishment. Born in Germany in an ultra-Orthodox home, he arrived in Palestine in the early 1930s as an anti-Zionist and joined the Yeshivah of Rav Kook, who was then developing a synthesis of religion and Zionism. Slowly he "converted from Orthodoxy to Zionism,"^[4] and eventually he turned into a firm secularist and a close associate of Prime Minister Ben-Gurion.

Why Cohn insisted that Kasztner either sue Gruenvald for libel or resign, why he later decided to prosecute Gruenvald for criminal libel, remains unclear. It could have been simply lack of political and legal culture from which he could draw guidance. After all, the state of Israel was only four years old, and its leaders may not yet have been aware that fighting zeal with more zeal is not always the best strategy. Perhaps Cohn, too, believed that the essence of Zionism was the rejection of galut and perceived old Gruenvald as a symbol of everything Israel should reverse in Jewish history. The mistrust of government, the refusal to recognize the achievements of official institutions, the whining—always emphasizing the downside—seemed embodied in the person of Gruenvald. Perhaps

Cohn's hoch kultur background made him allergic to Gruenvald's vulgar accusations. Perhaps he believed that a prosecution for libel would purge such calumny from the new society. Perhaps he indeed believed that this would be a simple case expeditiously processed, in which it would be categorically proved that the public officials of the new state were honorable men.^[5]

In any event, Cohn, who a few years later would join the Supreme Court and acquire a reputation as a civil libertarian, was at that time a loyal servant of the government, filled with high-minded intolerance and loyalty to a single cause. Even though he was never prepared to admit that he had erred in prosecuting Gruenvald, it is clear that Cohn had at least failed to foresee the pandemonium Shmuel Tamir was planning as a part of Gruenvald's defense.

In Tamir, Cohn had found his equal. Younger than Cohn, Tamir was a relatively unknown lawyer and politician, burning with hostility toward Ben-Gurion and MAPAI, which he called the "regime of darkness."^[6] Unlike Cohn, Tamir immediately understood the scandalous potential of the trial. His deal with Gruenvald gave him a free hand in developing the trial strategy. Tamir's defense trumpeted the common theme in the Israeli understanding of the Holocaust in the early 1950s—that there were only two ways of reacting to the Nazi assault: the way of the Judenrat (the Jewish councils established by the Nazis), which meant cooperation, collaboration, and ultimately destruction, or the way of resistance, epitomized by the Warsaw ghetto uprising. The defense also insisted that, in collaboration with the British, Ben-Gurion and his associates deliberately withheld help from the Jewish community in Hungary.

If Cohn was the antithesis of Gruenvald, Tamir was the antithesis of Kasztner. Kasztner, balding and bespectacled, epitomized the stereotypical Jew in Zionist literature—conscious of his vulnerability, deferential to Gentiles, always in search of a gimmick to help him get by. Tamir (the word means tall in Hebrew and replaced the original family name, Katznelson), the sabra, fair, blue-eyed, and exuding self-confidence, represented the "new" Jew. A loyal adherent to the teachings of Hadar (Jewish glory) expounded by Jabotinsky (founding father of right-wing Zionism), Tamir would neither defer nor make concessions, he would fight back. In the 1940s, when Kasztner was negotiating with Eichmann, Tamir was organizing acts of sabotage against the British in Palestine, as a member of the right-wing underground. He was subsequently deported to a detention camp in Kenya. The contrast between homeland and galut reached its symbolic peak during cross-examination, when the young

Tamir's fluent, rich Hebrew, spoken in a perfect Israeli accent, mercilessly exploited Kasztner's confused and self-contradictory testimony, delivered in broken Hebrew and in a thick Hungarian accent.

And so the two attorneys, one representing the state, the other representing the political opposition, locked horns before the district court about everything that mattered to a Jew and a Zionist. Both thrived when a crusade was at hand. Both nurtured a fervent commitment to the national honor and would relentlessly pursue those who dared defile it. They differed about who the villains were and what patriotism actually inspired.

On 22 June 1955 Judge Benjamin Halevy, sitting as the sole judge in the case,^[7] held that by choosing the way of negotiations Kasztner "had sold his soul to Satan." With some premonition about the meaning of this trial, Halevy alluded to Kasztner throughout his 234-page opinion as K, thereby making the Jewish leader anonymous and indistinguishable from other members of the Judenrat throughout occupied Europe. If Halevy entertained a doubt about his judicial course, it could only be found in the unconscious link between the K of Kasztner and that other famous K —Kafka's antihero in The Trial .

Outside the courtroom, the defeated Kasztner declared that the injustice done unto him was no less than that visited on a fellow Jew: Alfred Dreyfus. It was a potent analogy. The Dreyfus trial confirmed Theodor Herzl's conviction that anti-Semitism would not be cured unless the Jews had a state of their own. Herzl founded Zionism as a response to anti-Semitism. Could Israeli Zionists, in their zeal to explain the Holocaust, fall into the trap of an anti-Semitism no different from that of the French court?

In March 1957, thirteen years after he had started negotiations with Eichmann in Budapest, while his appeal was pending before an all-Jewish court in Jerusalem, Rudolf Kasztner was assassinated. Three men, linked to the right-wing, ultra-nationalist circles of LEHI, would be convicted of Kasztner's murder.^[8]

"Kasztnerism" and the Elections to the Third Knesset, 1955

Agranat was aware of the drama. The district court was in the same building as the Supreme Court, and one could scarcely ignore the army of reporters and crowds of curious citizens eager to watch the trial. One could not read a newspaper without encountering the amazing

twists and turns in the trial, where Holocaust survivors testified alongside the top leadership of the Yishuv and the international Zionist movement. It is difficult to believe that the justices did not raise an eyebrow at the spectacle as political passion shook the district court.

The judgment—that Kasztner "had sold his soul to Satan"—was delivered a month before the 1955 elections. For the first time in the eight years of Israeli history, the judicial system became the focus of national attention. The country was torn between those who hailed the judgment and demanded that Kasztner be immediately prosecuted as a Nazi collaborator and those who observed with dismay that the judge seemed to have fallen prey to Tamir's intoxicating rhetoric.^[9]

Immediately after the trial, a contentious debate in the cabinet ended with a decision to leave the question of whether to appeal to the minister of justice and the attorney general. In the Knesset, both the right-wing Herut and the Communist Party asked for a vote of no confidence in an Israeli government "which defends collaborators." There followed an acrimonious parliamentary debate. Charges that the official decision to appeal was designed to cover up MAPAI's involvement in the collaboration met with indignant assertions of good faith and insistence on due process of law. A record ninety members were present as the centrist General Zionists, among them Tamir's mother, abstained from the vote, even though their party was a partner in the coalition government. The Knesset defeated the move to topple the government, yet Ben-Gurion tendered his resignation. A few days later a new coalition was formed, excluding the General Zionists. Cynics observed that the abstention of the General Zionists was the first shot in the election campaign. The Center Party was trying to avoid a situation in which it would become a scapegoat for Herut.

The five weeks between the decision of the district court and the elections were consumed with issues related to the Holocaust. Herut's campaign advertisements portrayed Kasztner as the devil; the posters warned voters not to support a party that espoused "Kasztnerism." The Left parties, whose ranks included some of the partisans who had led the Jewish resistance against the Nazis, joined the Right in denouncing Kasztner as the symbol of the Judenrat and collaboration. MAPAI found itself defending the policies of the Jewish Agency in the 1940s and the rule of law, both symbolized by Cohn's decision to file an appeal. Holocaust history, not Israel's future, loomed large in the election of 1955.^[10]

That same year Agranat was appointed chairman of the Central Elections Committee, in charge of overseeing the elections to the third Israeli Knesset. For the first time he actually associated with politicians.^[11] He

also recalled developing a more sober view of MAPAI's machinations to retain power, which reminded him of the practices of Chicago's political bosses he had encountered in the 1920s. But there was no escaping the Kasztner affair. Two days before the elections a bomb exploded next to the home of Israel Rokah, a leader of the General Zionists Party who, as minister of the interior, had opposed the appeal of Kasztner's verdict.

The day before the elections, in a radio speech—Israel had no television—Agranat proudly emphasized that the third elections proved Israel's commitment to the democratic process and that the campaign showed that the opposition parties were free to criticize the government. He urged his listeners to treat voting as a duty, not a right.^[12] They did. In the end, MAPAI won forty seats in the Knesset, down from forty-four, and Herut doubled its vote, gaining fifteen seats. Kasztner had lost in the court of Israeli public opinion.

When the appeal reached the Supreme Court sometime in 1956, Chief Justice Olshan appointed a panel of five (instead of the usual three) judges, among them Agranat. Hearings began in January 1957 and lasted six months. On the heels of Kasztner's assassination, the police began to fear for the lives of the justices. For the first time in his life, much to the delight of Ronnie, his youngest son, Agranat found himself escorted by an armed police guard.

Appeal

The year following the election campaign was a mixed one for Agranat, from which he emerged strengthened and confident. In 1955 his mother, Polya, died in Haifa after a long battle with cancer. With both of his parents dead, Agranat was now the senior member of his family. In March 1956, the twenty-sixth anniversary of his immigration to Palestine, his sadness was mixed with joy as he became grandfather to Orit, firstborn to his oldest son, Israel. Simon was fifty years old.

Shmuel Tamir, urging the Court to sustain the judgment against Kasztner, was about the same age as Simon had been when he arrived in Palestine a quarter of a century earlier and published his Chizik eulogy. That eulogy emphasized the distinction between old and new Jewish heroes, the passive martyrs—products of galut —and the new fearless fighters—modern Maccabees.^[13] Like Agranat, Kasztner was born in 1906. Three years after Kasztner was conducting his controversial negotiations with the Nazis, Agranat was a magistrate in Haifa, petrified by the sight

of the bleeding victim of Arab snipers early one morning at the entrance to the court. "Caution is the better part of valor," he then advised himself and stood still.^[14] By what standard should Kasztner, operating in Nazi occupied Budapest, be judged?

Agranat remembered his months of studying the record as some of the most traumatic of his life. Personally he was not affected by the Holocaust; all of his and Carmel's relatives had left Europe before Hitler launched his war against the Jews. As a young lawyer Agranat had occasionally tried to obtain immigration certificates for clients whose families were left behind. He particularly remembered a Haifa kiosk owner whose wife and son were trapped in Poland. Agranat had tried, unsuccessfully, to persuade the British to issue the life-saving certificates for the two. That man never saw his family again. But the hair-raising details of the Nazi persecution—the hunger and the thirst, the trains and the crematoria, the terror, the helplessness, the depths of desperation—Agranat encountered in 1956 for the first time. The shock was so numbing, the burden of deciding so heavy, that he retreated more and more into himself. He became like a ghost in his own home, silent and aloof. His young daughter-in-law, a house guest until she and Israel moved to their own home, thought he disliked her or was simply antisocial. But he was agonizing over the need to give legal meaning to the terrible facts. What was a Jew to do?

Mindful of Agranat's intellectual bent and analytical skills, Chief Justice Olshan asked him to be the first to write an opinion, even though Agranat was not the most senior member of the Kasztner panel. At the end of six months, he produced a 194-page opinion. He found that in three out of the four counts Gruenvald had indeed libeled Kasztner. A majority of the Court, Chief Justice Olshan, Deputy Chief Justice Cheshin, and Justice Goitein, joined Agranat in his conclusions. Justice Silberg, whose parents had perished in the Holocaust, dissented, partially endorsing the district court's conclusions.

Like all of Agranat's major decisions of the period, his Kasztner opinion was ahead of its time. His version of the history of the Holocaust of Hungarian Jewry, which he carefully detailed, declined to echo popular opinion. Today Agranat's version is widely considered standard history.^[15] His opinion differed from that of the lower court and of Justice Silberg in another important aspect. Whereas the condemnation of Kasztner injected adrenalin into the veins of an already highly agitated public, Agranat was on hand with some Valium. His prescription was low-keyed, avoiding passionate rhetoric and providing a sense of perspective and civ-

ilized respect for all the parties involved. He even refrained from stating that Kasztner was assassinated and referred to him as "having passed away."^[16] Although he reversed the lower court in almost every respect, Agranat began and ended his opinion by praising the "reasoned, detailed and most impressive" opinion delivered by Halevy. Similarly, he thanked attorneys Cohn and Tamir for "the great effort they invested in this complex appeal and the extensive and talented way in which they presented their arguments."^[17] Only the length of the opinion, coupled with the almost compulsive repetition of some points, revealed the tension within him. His categorical rejection of the Tamir-Halevy version showed what he really thought of the entire affair.

It was bitterly cold in Jerusalem, and the elaborate security arrangements reminded the press of the British trials of the Jewish underground in the mid-1940s. Every person who entered the building in the Russian compound was searched. Armed policemen could be seen on the rooftops surrounding the courtroom. In accordance with custom, Agranat started reading the Court opinion. He read for seven hours.^[18]

The opinion contained three parts. First, Agranat recounted the history of the destruction of Hungarian Jewry, stating that "it is imperative to judge Kasztner's behavior critically within the framework of the events in Hungary at the time, since these were the events which affected the lives of the Jews in that state in general and were reflected in Kasztner's public behavior in particular."^[19] Agranat thereby implicitly rejected the position that one may divorce a legal question from its context and render judgment in a historical vacuum. This position became explicit in the second part of his opinion, in which he set forth the basic premises that had guided him in evaluating the record. In the third part he examined the charges and found that Kasztner could not be characterized as a Nazi collaborator, that he could not be charged with laying the groundwork for the mass murder of Hungarian Jews, and that he did not collaborate in the embezzlement committed by Nazi official Kurt Becher. Only on one count did the Court find that Gruenvald had spoken the truth: Kasztner did attempt to rescue Becher from justice after the war.

The Legal Framework

Much of Kasztner's legal fate depended on which rules would apply to his situation. In criminal trials, the prosecution must prove guilt beyond a reasonable doubt. In civil litigation, the standard is less

stringent. Plaintiffs are expected to show that a preponderance of the evidence favors their side, no more. As the prosecutor, Cohn urged the Court to apply the criminal standard. He said that Kasztner had been the true defendant in this trial, accused of no less than "indirectly assisting in the mass murder of Hungarian Jewry." Tamir urged the Court to see the trial for what it technically was: a civil libel suit. True to the American Progressive tradition that he had already highlighted in Kol ha-Am ,^[20] Agranat sought to resolve the dilemma by balancing the interests represented by the two opposing approaches: the interest in flexibility in civil litigation and the interest in defending individual reputation. The Kasztner case, he said, did not fall neatly into either category. Hence the Court should be creative and design a rule of its own. The gravity of the charges, he ruled, required that Gruenvald submit "strong and clear" evidence, capable of persuading the Court that Gruenvald's allegations were in fact true.^[21]

Another important legal rule concerned the role of the appellate court. In common law, appellate courts were expected to defer to factual determinations made below, both for purposes of efficiency and out of deference to the judge who had the first impression of the witnesses. Upholding this rule would necessarily require deference to Judge Halevy's finding that Kasztner "had sold his soul to Satan," a finding Agranat declined to endorse. "It was never impossible for this Court to intervene in the evaluation of the evidence, when such evaluation is founded on ungrounded considerations," he wrote.^[22] Here the district court had failed to give weight to certain significant factors. Furthermore, Agranat said, the Israeli Law against the Nazis and Nazi Collaborators explicitly permitted deviations from the ordinary rules of evidence, if such deviation were necessary to discover the truth and do justice.^[23] Even though this trial was not governed by that statute, he held, its spirit should serve as guidance. Justice, not formalities, should serve as a compass in the Kasztner trial.^[24] But how could justice be distilled barely a decade later from this murky history of the Holocaust?

Truth and History

"The greater the truth the greater the libel" was the premise of the medieval English law of defamation. With the advent of the Enlightenment, truth became a major value and an important defense in libel law. If a defendant proved that statements were true, the plaintiff lost

the case. Because the case was technically about Gruenvald libeling Kasztner, the issue of truth became central to the trial. Tamir wanted to "open the wound and apply bitter, hard, cruel" medicine in order to teach the nation the truth about the Holocaust.^[25] Indeed, he managed to persuade the district court to expand the trial beyond the contents of Gruenvald's pamphlets, even beyond the activities of Kasztner himself. In the aftermath of the affair, one of Israel's prominent journalists declared: "[T]o the extent that the trial contributed to the exposure of a part of the cruel truth, to the extent that it shook the nation and forced it to search for the entire truth—it was inevitable."^[26] There was a naive, almost primitive belief that a ruthless act of exorcism was necessary and would put to rest, once and for all, the demons of the Holocaust. To Agranat, studying the record with the eye of an experienced judge, Tamir's version of the truth was so ideological, so partisan as to blur the conventional distinction between truth and libel.

Rarely does one find a judicial opinion in which the judge candidly acknowledges the danger of ideology lurking behind the seemingly objective application of legal rules. It was unfortunate that Agranat buried his insights into the tension between truth and prejudice in the middle of the lengthy opinion, for these insights provide a fine example of humane jurisprudence. Agranat identified three factors that might affect the judge's task in pursuing the truth: one emerging from the philosophy of history, one deriving from the limits of the judicial enterprise, and a third related to the specific difficulties associated with treason trials.

The task of the historian, he explained, citing G. M. Trevelyan and Isaiah Berlin,^[27] is to collect, select, and interpret historical facts. The process of determining which facts are particularly significant demands a certain bias—the worldview of the historian always affects his work. Indeed, although a professional historian, carefully sifting and evaluating the evidence, can reduce the effect of the bias on his interpretation, a thoroughly objective rendition of historical events remains impossible. Agranat wished to make a subtle point: setting straight the historical truth is not within human power. Even historians, in command of their materials and conscious of the process of evaluating the past, do not arrive at the truth, only to a particular version of it. The truth about Jewish behavior during the Holocaust, then, would resist reduction to the activities of one or another individual.

In the Kasztner case, Agranat proceeded, the difficulties that would lead historians to different interpretations were compounded by the very nature of the judicial process. The judge in the courtroom differs from the

historian in one fundamental aspect: he is not in charge of the research. The parties decide which materials are presented. The attorneys, as professional and ethical as they may be, are driven by the desire to win. Thus they are bound to present only those arguments that support their own position. Agranat was confident that the Kasztner affair, as well as the larger issue of the international Jewish leadership's involvement in the effort to save Jewish lives in the Holocaust, was not dispassionately and methodically explored by the litigants. Hence, he concluded, a court could not possibly render a truthful version of the Holocaust. Given the fervent ideological flames that surrounded the trial, he said, "we should be extra careful about drawing conclusions" related to Kasztner's public activities.

Agranat's analysis of the viability of inviting a court of law to determine historical truth had ramifications that extended beyond the Kasztner case. It amounted to a challenge to the claim of judicial objectivity and an attack on the sacred cow of the adversarial process and its ability to yield "a truth"—both very daring steps in Israel of the 1950s. The inspiration for his insights into the subjectivity of the legal and historical processes was American legal scholarship, but it was daring for Agranat to have made these statements in legally formalistic Israel.^[28] Agranat introduced his observations on objectivity in order to lower the expectation that "legal science" could bring the issue to rest. He was trying to raise awareness of the value judgments underlying the decision, thereby sensitizing the public to the enormously complex problem at hand.

Having exposed the limited perspectives of the parties, Agranat turned to himself. "We should beware not only of the prejudices of others, but also of our own prejudices," he wrote. In dealing with contemporary history, one must necessarily "suffer from the lack of perspective." It is therefore extremely difficult for a judge not to view the event through the prism of his own views and emotions. Agranat concluded that the main flaw of the lower court's opinion was Judge Halevy's use of historical hindsight, his own subsequent knowledge of how the events in Hungary of 1944 had unfolded, in order to evaluate Kasztner's actions. Halevy's prejudices, feeding on such hindsight, hindered justice. A judge, Agranat said, must strive to "put himself in the shoes of the participants themselves; evaluate the problems they faced as they might have done; take into consideration sufficiently the needs of time and place, where they lived their lives; understand life as they understood it."^[29]

Finally, Agranat addressed the feverish climate in which the trial took place. People tend to associate collaboration with betrayal and treason, he warned. But treason trials, by their very nature, excite passion, en-

courage an atmosphere of totalistic prejudice, and lead the public to expect a clear-cut conviction or acquittal. Again he drew on his roots in American jurisprudence. Invoking the authority of yet another great American, Chief Justice John Marshall, he cautioned both the Israeli press and the judiciary of the perils inherent in succumbing to such passions, "lest we ourselves become its victims."^[30]

It was, probably, Agranat's finest hour as a judge. He penetrated the psychological and philosophical difficulties of delivering judgment and exposed the hardships of taking a stand. Avoiding reductive relativism, the sort that would justify anything, he based his analysis on the foundations of humble wisdom. His analysis rested on his effort to come to grips with the tension between the social construction of reality and the struggle to achieve objective justice. It was wise in its recognition that, within these limitations, one must strive nevertheless to achieve a comprehensive understanding to the best of one's abilities. Then, with his awareness heightened and his human vulnerability acknowledged, he proceeded to examine the charges.

Pact with Satan?

Kasztner made contact with the Nazis within days of their arrival in Budapest. Initially he and Joel Brand, his partner in the negotiations, offered Eichmann 2 million dollars in return for the lives of Hungary's Jews. Eichmann took the ransom money, indicated a willingness to discuss sparing of 100,000 lives, and proceeded to hammer the nails into the Jewish coffin. Toward the end of April a desperate Kasztner realized that rapid ghettoization was under way and that mass deportation to Auschwitz would soon begin.

From the viewpoint of the trial judge, the crucial date was 2 May 1944, when the alleged signing of a pact with Satan occurred. On that day the Nazis offered a concession: 600 Jews would be allowed to leave Hungary for a safe haven (the number eventually was raised to 1,685). Was this a shrewd and cynical ruse designed to deflect the energy of the Jewish leadership away from the likelihood of death awaiting the multitude and onto the narrow escape awaiting the chosen few? Had Kasztner fallen into the trap set for him by the experienced Germans? Did he become so obsessed with the possibility of saving his kin that he was willing to sacrifice the majority of Jews? Or was he pursuing the reasonable and sane course: take whatever offer the Germans would give and keep negotiating, in the

hope that more lives would be saved in the process. The district court, endorsing Tamir's interpretation, held that by accepting the offer Kasztner had fallen into the trap of collaboration; from then on he was at Eichmann's mercy.

The fate of the 18,000 Jews of Kluz, Kasztner's hometown, became the major proof of Kasztner's collaboration. In Tamir's version, the masses of Kluz were kept ignorant of the meaning of deportation and were encouraged to believe that they were being transferred to a labor camp, because their leaders were among the 388 "prominents" to board the Bergen-Belsen train. If Kasztner were not in the debt of the Nazis, he could have organized resistance. He could have encouraged more attempts to smuggle refugees across the nearby Romanian border. He could have agitated for every possible means to sabotage the Nazi plan. Kasztner's initial choice, as well as his behavior throughout that period, made him the "greatest Jewish agent in Nazi service in 1945 Europe."^[31]

It dawned slowly on Agranat that this was a grossly slanted perspective, reflecting moralistic rectitude rather than a balanced view of the reality of the time. For months he studied the facts, the concept of collaboration, the history of the period, the philosophy of history, and the body of criminal and libel law. His opinion wove together his American jurisprudential orientation, his deepening expertise in criminal law, and his Zionist ideology.

From a strictly legal point of view, the theory that Kasztner entered into a pact with Satan rested on a series of fictions. The major premise was that Eichmann the Nazi commander and Kasztner the chairman of the Jewish rescue committee were equal partners in a freely conducted negotiation. Two minor fictions proceeded from that major premise. The first was that Kasztner's knowledge of the impending catastrophe was tantamount to criminal intent to assist the Nazis in murdering the Jews. The second was that Kasztner's failure to share his knowledge with his fellow Jews made him a collaborator, because "a person is presumed to will the consequences of his actions" and because the consequences of withholding information meant death to the majority of Jews.

Tamir portrayed Eichmann and Kasztner as two free agents, standing on equal footing: Kasztner "signed" the "contract" with Eichmann out of free will and in full comprehension of his options. American legal philosophers of the 1920s and 1930s would have called this interpretation "mechanical jurisprudence" or legal formalism.^[32] It was a conception of law as a phenomenon independent of society and of the individuals inhabiting the legal world as atomistic beings, rational, possessed of free

will, unaffected by circumstances and time. American scholars of criminal law criticized this view of human affairs: "Historically . . . our substantive law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice of doing right and wrong and choosing freely to do wrong."^[33]

In analyzing Kasztner's behavior, Agranat reasserted his rejection of legal formalism and his insistence on adopting its rival perspective, sociological jurisprudence. He introduced a more subtle, less judgmental, and fuller understanding of Budapest in the spring of 1944. He attempted to enter Kasztner's psyche during these crucial months, in order to reinterpret, soften, and contextualize the set of legal fictions that together formed Kasztner's alleged intent to negotiate with the Nazis. Thus Agranat came to paint an alternative picture of a Jewish leader at the gates of hell.

The major premise, that Kasztner and Eichmann were equal partners, was repeatedly rejected in Agranat's opinion. Agranat took his cue from an exchange between the Nazi and the Jew. In one of their meetings, Eichmann reportedly said: "You seem extremely tense, Kasztner. I am sending you to Teresienstadt for recovery; or would you prefer Auschwitz?"^[34] It is important to remember, explained Agranat, that a Jew, albeit a leader and in possession of privileges, could never feel like an equal partner in these negotiations. Kasztner was under the control of the Gestapo, who subjected him to abuse and even to occasional imprisonment.^[35] Sensitivity to the terror growing within Kasztner—Kasztner's awareness of his own vulnerability between April and June—was essential to the resolution of the case. Agranat's insistence on giving meaning to legal events in the context of the time and place opened a fresh evaluation of Kasztner's state of mind.

Legally, Agranat could analyze Kasztner's intent from two different perspectives. The "hard" perspective would focus on the extreme gravity of the charges, thereby requiring that Kasztner's behavior be judged by the standards of the criminal law (even though Gruenvald was the defendant) before the truth of Gruenvald's charges was validated. The "weaker" perspective would forgo the technical categories of criminal law and ask whether an ordinary person might have considered Kasztner a collaborator. The district court blurred the two perspectives, and Agranat decided to separate them and subject each to careful scrutiny.

If Kasztner were to be considered an accessory to the crime committed by the Nazis,^[36] an offense of which he was blamed by the lower court (he was not legally convicted, he was not formally indicted), then there must be proof of his intent. But not even Gruenvald had claimed that Kasztner had actually intended to have Jews murdered. Thus criminal

intent had to be artificially construed, determined by an application of a legal fiction unrelated to the complex motives that actually propelled action. Here Agranat walked a tightrope. On one hand, he had already expressed skepticism about the adequacy of such a legalistic analysis when he insisted that Kasztner could not be viewed as a free agent. On the other hand, he was reluctant to abandon the world of legal fictions, lest his exoneration of Kasztner be linked to a radical, rather than a mainstream, view of the law. Legal scholars suggested that if an accessory knew with certainty that the principal had a foul goal,^[37] that knowledge would count as intent. Agranat focused on the requirement that the knowledge of that foul goal be certain. In the first week of May, after the alleged pact with Satan took place, did Kasztner have "full and certain knowledge" of the impending deportations? When answering this question, Agranat warned, the Court should be careful not to attribute the knowledge acquired in hindsight to Kasztner in May 1944.

Agranat had these facts: on 3 May, after realizing that deportation might be imminent, Kasztner hurriedly obtained a permit to visit his already cordoned-off hometown of Kluz, in order to meet with the Nazi officer Dieter Wisliceny. On his way, he saw a trail of Jews en route to concentration centers. Wisliceny refused to confirm the "Auschwitz news" and, while expressing pessimism, suggested that he could not communicate any information before conferring with Eichmann in Budapest. It was not until 8 May, when the visit with Wisliceny finally took place, that the truth was confirmed. Under these circumstances, Agranat concluded, one could only say that Kasztner understood that deportation was a high probability, not that it was certain. Hence the certainty required to transform knowledge into intent was not present, and in a criminal court Kasztner could not have been convicted of a crime.

By 8 May, Kasztner had learned that Auschwitz was the destination of the trains leaving the ghettos. Did Kasztner possess criminal intent from that day onward? Again, Agranat combined sensitivity to Kasztner's circumstances with mastery of the legal materials. In the case law he found an exception to the fiction that identifies knowledge with intent: if "the accessory assisted the criminal with utter reluctance and under the pressure of the circumstances and—and this is the crucial factor—while hoping or expecting that the criminal will nevertheless fail to achieve his foul goal," then the knowledge of that accessory cannot be equated with intent, and he should not carry criminal responsibility.^[38] On 8 May, as Wisliceny confirmed the Auschwitz news, Joel Brand received Eichmann's offer of "trucks for blood," exchanging Jewish lives for Western trucks. On 15 May, Eichmann promised Brand "to keep the deported Jews on

ice" (to postpone their execution) until Brand had returned from Turkey, where he was to negotiate with the British. Meanwhile, Hungarian officials kept promising that they would not permit the deportation of "their Jews." The Russian army was pressing against the Hungarian border. The Allies were flexing their muscles. German defeat was inevitable. In the vortex of despair, could Kasztner hold to the Brand mission as a thread of hope, at once ephemeral and real? Was it totally unreasonable, under these circumstances, to keep negotiating, hoping against all odds that something might happen and that lives would be saved? Viewed through this lens, Agranat decided, even after 8 May Kasztner could not have possessed the required intent.

Agranat believed that he had to emphasize Kasztner's lack of intent. Public agitation was strong to prosecute Kasztner under the Law against the Nazis and Nazi Collaborators rather than to appeal the judgment in the libel case. It was imperative to hold that such prosecution could not have been successful.

Yet this analysis was a Band-Aid applied to a minor cut compared with the ugly wound that Agranat knew he had to treat with all his skill and mental powers: the poisoned heart of the Jewish people.^[39] For the Kasztner affair sprang from an overwhelming sense of betrayal. The Jews had been betrayed by the Germans: who would have believed that the children of Mozart and Goethe would starve, torture, shoot, gas, and burn the children of Mendelssohn and Heine? The Jews had been betrayed by their neighbors: who would have believed that the Hungarians, hitherto good neighbors and fellow citizens in an enlightened society, would hand the victims over to their murderers? Had the Jews also been betrayed by their own leaders? The chorus of Gruenvald, Tamir, and Halevy was chanting, "Et tu, Kasztner!" When you failed to share the Auschwitz news, when you failed to organize a resistance, to encourage escape, when you begged for one more permit and yet another, while Jews were being slaughtered at the rate of 500 persons per hour, you, Rudolf Israel Kasztner, betrayed your people who put their trust in you.

Was Kasztner a collaborator?

A Game of Roulette and Moral Duty:
Was There "A Right Way"?

Surely "not every act of cooperation should be termed collaboration, and not every person who had maintained contacts with the Nazis, and extended assistance to them, could be denounced as a

'collaborator.'" Thus began Agranat's analysis of this fearful question. He accepted the position that the trial was concerned not with the question of whether Kasztner violated the criminal code but, rather, with the question of whether he was commonly perceived as a collaborator. Still, Agranat insisted on an examination of the meaning of collaboration. His starting point was that the fulfillment of objective elements—the subordination of the local population to Nazi occupation, the extension of actual assistance to the occupier and the resultant harm to one's own people—would not suffice to make a person a collaborator; proof that his motives were commonly considered evil or illegitimate had to precede a determination of collaboration.^[40]

The hidden dilemma, unmentioned in the text, was the standard against which the "commonly considered evil or illegitimate motives" should be judged. Should popular perception serve as a guide, or should detached moral meditation apply? The opinion suggests that this question never occurred to Agranat. From his perspective there was no dilemma. The question of what would commonly qualify as an "evil or illegitimate motive" was not to be answered by counting heads in the squares of jerusalem but by considerations from moral philosophy.

"When Reuben shoots Shimon and kills him, his very action testifies . . . of Reuben's will to bring about [Shimon's death]. On the other hand . . . if Levy, standing on the banks of the river, sees that Judah is about to drown and does not hasten to his rescue—then [Levy's] inaction does not necessarily prove his intent to see Judah die."^[41] This was a law professor's attempt, in as detached and analytical a manner as he could muster, to make the statement that the Kasztner case was analogous not to Reuben's shooting Shimon but to Levy's failure to save Judah. Agranat wished to emphasize that the core of Kasztner's alleged collaboration lay not in his actions but in his inaction: his failure to disseminate the Auschwitz news.

Agranat's distinction between action and omission amounted to an application of advanced American criminal-law scholarship to the problem.^[42] At that time American scholars were insisting that law should display extra sensitivity to the state of mind of one who had failed to act, because "failure to act often is not accompanied by external manifestations which allow accurate conclusions on the defendant's state of mind. The motives for his inactivity may spring from an interplay of forces."^[43] In the absence of "external manifestations," how could the Court decipher a state of mind? American scholars advised an inquiry into the defendant's moral duty to the victim. Agranat proceeded to reflect on the nature of Kaszt-

ner's moral duty to his community. In his report to the Zionist Congress after the war, Kasztner commented on the politics and morality of his plan to negotiate with the Germans in order to buy lives with money: "This was not a matter of merely saving a few hundreds of Jews from the countryside. If here and now Eichmann would not be forced to give up [on his plan to cancel the Bergen-Belsen transport] then the Rescue Committee, which has put its card on the German number in this game of roulette in human lives, would be the innocent loser, just like many before us in occupied Europe. Then the millions we have paid were a crazy action. The loser in this game would be also called a traitor."^[44] From this Agranat gathered that Kasztner had understood the enormous political stakes involved in his choice of policy and that he concluded that it was reasonable to continue the negotiations with the Nazis.

The district court was ready to declare Kasztner—the loser—a traitor. For Judge Halevy, Kasztner's collaboration was captured not by the metaphor of the gambler but by the metaphor of the watchman. In the small hours of the night the watchman is surprised by the enemy:

The enemy informs the watchman that the compound is surrounded by a powerful force, determined to destroy the entire camp, and all attempt to alert the soldiers is doomed to failure. The enemy gives the watchman an offer: a few of the guard's chosen friends will be saved if the guard does not alert the remainder of the camp and makes no effort to save them. The watchman gives the enemy a list of his best friends and refrains from alerting the rest. The enemy destroys the entire camp, sparing only the watchman's friends. The watchman has committed treason against his fellow soldiers and has betrayed his duty. His action amounts to a collaboration with the enemy and to assistance in destroying the camp.^[45]

"[T]his metaphor is . . . completely irrelevant,"^[46] said Agranat, choosing to place his reaction to the watchman metaphor at the end of his lengthy analysis of the charge of collaboration. Kasztner's duty to his community was not analogous to the watchman's. Under no theory could the guard have discretion as to whether to alert his fellow soldiers to the attack. The watchman's duty, in legal terms, was ministerial, not discretionary.

What was the nature of a leader's discretion? Agranat rejected the position of the district court on that issue. For Judge Halevy, a leader's duty to treat equally all members of his constituency translated into an obligation to each member individually. Kasztner therefore was expected, in keeping with this theory, to disseminate the Auschwitz news to as many individual Jews as he could reach, letting each determine for himself or

herself whether to board the trains, resist, or risk escape. Agranat did not accept this theory of leadership. A leader does not owe a duty individually to each member of his constituency. Rather, a leader owes a duty to the community as a whole. This, he hastened to add, does not necessarily mean that "a leader is permitted to sacrifice . . . the lives of the 'few' in order to save the 'many.'"^[47] Rather, "if a leader is to choose between two opposing ways of action, one likely to save the majority, but not all, of the community, the other geared to save each and every one but likely to save only the few—then his public office requires—and this is also his moral duty— . . . that he follow the first way."^[48]

In hindsight, Agranat's conception of the leader's duty amounted to utilitarianism with a human face, reflective of Socialist Zionism and contrasting with the district court's atomistic conception of society. From this perspective, Kasztner acted reasonably in withholding the Auschwitz news from the Jewish masses. It was not unreasonable for Kasztner to assume that gambling on the "German number" and continuing the negotiations, coupled with a general warning to the ghetto leadership that the situation was very grave and that escape should be encouraged, were more likely to save lives. For Agranat, the following exchange concerning negotiations with the Nazis, between Kasztner and representatives of the American Jewish Joint Distribution Committee, captured Kasztner's state of mind when he decided to withhold the Auschwitz news:

Joint Representative: Do you really believe it [the plan of buying Jewish lives with money] will work?

Kasztner: Why shouldn't I believe? What else is left to us? Do you have any other, better ideas of rescue?^[49]

Kasztner was hoping the negotiations would either succeed or be rendered moot by the Allies' victory. From this perspective, the Bergen-Belsen transport was only one plan among several negotiated by Kasztner during the spring of 1944.^[50] What animated him throughout the period was the same spirit that had kept the Jewish people alive: hope. "Ha-Tikvah [The Hope]" is the title of Israel's national anthem. The lyric, "Our hope is not yet lost," is its heart. Agranat echoed this Jewish disposition in his description of Kasztner's state of mind during the awful months of April and May: "[T]he hope was not yet lost, to stop, through negotiations with the Germans, the impending deportation and annihilation."^[51] He thus resisted the conclusion that Kasztner's behavior could be morally justified.

Agranat's opinion did not exculpate Kasztner. He only held that, within the context of Nazi occupation, it was not unreasonable for a Jewish leader

to do what Kasztner had done. One question persisted: from the perspective of Zionist ideology, what was a good Jew to do?

The Poisoned Heart

The context of the trial, held in Israel shortly after Independence and with all the participants adhering to one or another version of Zionism, was based on the premise that a good Jew was also a Zionist. Had Europe's Jews heeded the Zionist warning and immigrated to Palestine, there would have been no Holocaust. Tamir fired the first shot in this battle when he portrayed Kasztner as the rotten product of galut . There was poetic irony in Tamir's position, because if any of the characters in this drama resembled the stereotype of a galut Jew in Zionist literature (borrowed from anti-Semitic descriptions), it was the man Tamir himself was representing, Malchiel Gruenvald. With his beard and yarmulke, old, heavy, and shabby-looking, Gruenvald could serve as a model for any anti-Semitic casting of Shylock. Kasztner, on the other hand, was the quintessential modern Jew, educated, secular, well dressed, and well mannered. But then, Kasztner fit precisely into the Zionist perspective that informed Tamir. The corrupting conditions of galut could not be reduced to external attributes. Galut shaped Jewish consciousness and was evident in the Jewish worldview. Galut ossified the Jewish arteries by breeding what Tamir denounced as "the anti-militarist mentality." At best, galut produced naive and cowardly Jews who walked like "lambs to the slaughter"; at worst, galut produced collaborationists. In Tamir's analysis, Kasztner was turned into a collaborator, not so much by the reality of Nazi occupation as by the conditions of Jewish life in exile. This was why he chose to gamble on the German number in the game of roulette in human lives.

Tamir's strategy, however, was aimed at much larger fish than Kasztner: the entire MAPAI leadership, Israel's ruling party, were his targets. He accused the Zionist leadership—David Ben-Gurion, Moshe Sharett, and the Jewish Agency, the organization they headed during the calamitous years prior to Israeli statehood—of failing to come to the rescue of Jews in Europe. As Tamir saw it, MAPAI's loyalty to the British, conditioned as it was by their subservience to colonial authorities, hardened their hearts to the plight of their brethren in Europe. It led MAPAI's leaders to silence news of the Holocaust and encouraged them to oppose the Irgun's resistance in Palestine. After Independence it led them to instruct

the attorney general to cover up the truth. This was the reason they insisted on defending Kasztner at all costs.^[52] For Tamir, the story of the Holocaust was a drama with good Jews and bad Jews. Against Kasztner and the leadership of the Yishuv he juxtaposed both the Israeli members of the Irgun and LEHI, who pursued violent resistance in Palestine and the Jewish partisans in occupied Europe. The uprising of the Warsaw Ghetto had already become a glorious symbol of Jewish resistance.^[53] Tamir urged the court to uphold the rebellion at the Warsaw ghetto as the model of "correct" Jewish behavior under Nazi occupation, as the only way that, if it did not save lives, would at least save Jewish honor. His rhetoric struck a powerful chord with the Israeli public.

It was typical of the Israeli political scene of the 1950s that the right-wing Tamir found a staunch ally in the left-wing MAPAM leadership. MAPAM, from whose ranks had come many of the Jewish partisans, also hailed violent resistance as the only option to Jews during the Holocaust. The glorification of the Warsaw uprising was not only about the past, about crafting an alternative Jewish history that would tie the heroic partisans to the Maccabeans. It was also about the present and the future. It enabled Israelis to cure the shame of their own flesh and blood "marching obediently to their deaths." The populist rhetoric in which that version of the events was cloaked, the claim that but for villainous leaders like Kasztner the Jewish masses would have revolted, thereby saving both themselves and Jewish honor, was attractive. Most importantly, Tamir's version was pregnant with a crucial lesson for the young: Jews should live by the sword, to defend themselves against a hostile, anti-Semitic world. Auschwitz was the alternative to self-defense, and Auschwitz must never happen again—that was the crucial significance of the lesson to be drawn.^[54]

The district court accepted Tamir's version. One could envision the ghetto Jews, "among them strong and healthy men who had good hands to hold a gun, a knife, an ax, a stone . . . veterans of Zionist and Socialist movements, children and grandchildren of experienced revolutionaries and rabbinical martyrs," defending their right to live had they only known the truth.^[55] It was a paradoxical rejection of galut . For according to this version of events, not all galut Jews were meek and servile; only the leadership was. How could one argue, then, that the culture of galut itself shaped the Jewish psyche in a negative way? Despite the contradiction, it was a comforting version of history.

On appeal, Justice Silberg, representing the religious-nationalist school of Zionism, fortified the district court's position with a twist of his own. In a paragraph strategically placed at the very end of his opinion, Silberg

provided the ultimate proof, from his perspective, of Kasztner's lowly character. Kasztner, said Silberg, valued everything, human life included, only in pengos (the Hungarian currency). Silberg summed up Kasztner in three words, borrowed from Kasztner's own report: "[W]e paid less." Kasztner was referring to the fact that during the war many nations had to make financial concessions to the Nazis in order to retain their territorial integrity. Wrote Silberg: "'[W]e paid less'—less than the Turks and less than the Swedes. They were coerced to sell . . . their chrome and steel. We—No! . . . [Kasztner] knows—and certainly his heart aches—that during this very period Hungarian Jewry lost 600,000 lives . . . and nevertheless 'we . . . paid less,' our [sic ] operation was also successful from the financial perspective. . . . [H]erein lies the key . . . to understanding Kasztner's personality and public activities."^[56]

The reduction of the Jewish psyche to pecuniary considerations is the historical heart of anti-Semitism. In the whirlwind of condemning Kasztner and the Judenrat for facilitating the Holocaust, even Zionists like Silberg could not resist Shylock's allure.

Agranat was immune neither to the Zionist ethos of rejecting galut nor to the reverence for Jewish physical power. In his 1931 eulogy for Chizik he had made clear his preference for the "new Jew."^[57] He always expressed admiration for the young men and women who formed the backbone of Israel's Defense Forces. But he was now the head of a large family. Experience had shown him both the paralysis that springs from fear mixed with responsibility for loved ones and the hope that somehow the very worst would not happen. He developed a theory that contrasted Jewish action in the Diaspora and Zionist action in the homeland:

The heroism of the rebels of the Warsaw ghetto added . . . a glorious chapter to the history of the Jewish people; it became an inseparable part of our national saga; it will return to influence the national spirit and strengthen, among those who need it, the sense of national honor. But . . . the position that even in Galut—and not only in the homeland —Jews should be willing to "sacrifice lives for purposes of self defense"—and do so "without intricate calculations"—this position is relevant only to the general Jewish welfare in the long run; . . . it is only within this perspective—that one may ask the clearly political question—whether Hungarian Jewry should have followed in the footsteps of the Warsaw ghetto uprising. The question before us was much narrower in scope.^[58]

Agranat expressed the theory tentatively. Earlier in the opinion he had already asserted, as a matter of fact, that Hungarian Jewry had been terrorized into submission and was not in a position to resist. Perhaps at this

stage in his life, Agranat had come to accept the notion that the fervent Zionist goal of "becoming a normal people," if translated into the admiration of sheer physical prowess, was itself a sign of abnormality. The emphasis on honor, physical power, and valiant resistance came at the price of insensitivity to the tragedy of the human condition and to the vulnerability of Jews in the face of Nazi terror. Perhaps the best sign of normality was a coming to terms with the past, an empathizing with rather than a judging of the millions of victims. Humility, not fiery rhetoric, was needed. Agranat attempted to provide all of these in his long, repetitive, and careful opinion.

Yet, even in the 1950s, Israelis were exhibiting signs of normal national behavior. The sovereign Jewish state had its own soccer team, just like England and France, and, "like every normal nation," was competing in the 1958 World Cup series. On the morning of 17 January 1958 Agranat read his opinion before a packed Court. After lunch, when he returned to resume reading, the courtroom was almost empty. A soccer fan himself, he was only mildly surprised. In Wales, that afternoon, Israel's team was playing against the Welsh team, and the country's ears were glued to radios that transmitted the game live. It was evidently a sign of "normality" that the press preferred to follow the game rather than the learned arguments in the Kasztner affair. Israel lost, 0–2. "Two defeats," quipped a member of the Tamir legal team, "but both well reasoned."^[59]

It was dark and bitterly cold that evening, when a messenger from Kasztner's widow delivered a bouquet of roses to Agranat's home, in gratitude. The chapter of Jewish self-blame for the Holocaust had come to an end.