1993: THE YEAR IN REVIEW

A year of victories for John Demjanjuk

For John Demjanjuk, 1993 was a year of victories, as Israel's Supreme Court acquitted him of all war crimes charges and the U.S. Court of Appeals for the 6th Circuit reversed its own extradition order and ruled that the Office of Special Investigations, the Justice Department's Nazi-hunting unit, had committed fraud upon the court by withholding exculpatory evidence in the case. Mr. Demjanjuk returned home a free man on September 22. The homecoming was marred, however, by protests of Jewish groups insisting that Mr. Demjanjuk was a Nazi war criminal and demanding that the U.S. deport him. The U.S. Justice Department, in turn, vowed to pursue the case and to see to it that Mr. Demjanjuk is deported from this country.

The year began with Mr. Demjanjuk awaiting the Israeli Supreme Court's ruling on his appeal, while former U.S. government lawyers defended their work on the case in testimony before Judge Thomas A. Wiseman of the Federal District Court in Nashville, Tenn. Judge Wiseman had been appointed special master to hold hearings on whether there had been prosecutorial misconduct on the part of the OSI.

On January 14 and 15, Norman A. Moscowitz and John Horrigan both said they never doubted that John Demjanjuk was "Ivan the Terrible" of Treblinka. Mr. Moscowitz, an OSI attorney, conceded there was information from other war crimes inquiries and testimony of guards taken in the USSR, Poland and Germany that raised questions about survivors' identification of Mr. Demjanjuk as the notorious "Ivan." But, he said, somewhat disingenuously, "I didn't have the feeling then or at any other time that we were sitting on information that would hurt our case and would help the Demjanjuk defense." Mr. Horrigan, an assistant attorney general in Cleveland at the time the denaturalization case against Mr. Demjanjuk was being heard, said he first saw some of the potentially exculpatory documents in the possession of the OSI after Mr. Demjanjuk had already been stripped of his citizenship. He testified that he didn't think he read those documents, "because the case was over for me."

Both lawyers said they felt the Demjanjuk case, as a civil proceeding, was not subject to the same rules of disclosure as criminal cases. As a result, if defense lawyers were not able to pinpoint a document when asking for evidence in the OSI's possession, they were not shown it, or if a document did not specifically mention John Demjanjuk, though it did deal with Treblinka or "Ivan the Terrible," it was not turned over to the defense.

It was Allan A. Ryan's turn to be grilled on January 29 in Judge Wiseman's court. During four hours of questioning, the former director of the OSI denied any knowledge of the withholding of exonerating evidence from the Demjanjuk defense. He stated and restated his contention that he did not see certain protocols, did not receive letters from the Demjanjuk defense, and did not recall meetings held to discuss the case. He further stated that he did not receive a 1980 memorandum written by OSI attorney George Parker, which raised serious doubts about evidence in the Demjanjuk case and raised the question of ethics in proceeding with a case in which the OSI's own evidence showed contradictions. He went on to say that he did not recall a meeting with Mr. Parker and another former director of the OSI, Walter Rockler, at which Mr. Parker said the issues noted in his memo were discussed.

In general, Mr. Ryan said that as director of the Nazi-hunting unit he did not have time to concern himself with each and every detail of the Demjanjuk case - despite the fact that this was the most celebrated case pursued by the office - and that he had full confidence in his staff attorneys. Despite pointed questioning from Mr. Demjanjuk's attorney, Michael Tigar, who noted that documents proving that the OSI was concealing exonerating evidence had been found in the Justice Department's trash, Mr. Ryan stuck to his story. Judge Wiseman concluded the hearing by stating: "O.K. We have a credibility issue."

Soon thereafter, on February 5, another OSI attorney, Bruce Einhorn, also denied knowledge of any exculpatory documents that were withheld from the Demjanjuk defense. He was the final OSI employee called to testify before the special master.

Meanwhile, in Washington, Rep. James Traficant, the lone voice speaking out about the Demjanjuk case in Congress, on February 2 announced that an investigation by his staff had found that the real "Ivan the Terrible," now in his 80s, was alive in Eastern Europe. The Ohio congressman said he hoped to bring Ivan Marchenko to justice and released two new documents: recently obtained statements by two women who had been prisoners at Treblinka who said Marchenko was the brutal guard known as "Ivan the Terrible."

In early March, John Demjanjuk, who still was awaiting the Israeli Supreme Court's ruling on his appeal of the 1988 conviction and death sentence handed down by an Israeli District Court, went on a three-day hunger strike to protest further delays in his case and focus attention on his situation. The beginning of his hunger strike, March 1, also marked the seventh anniversary of his extradition to Israel.

On April 7, Mr. Demjanjuk was visited in his cell at Ayalon Prison by Dr. Yuriy Shcherbak, Ukraine's ambassador to Israel. Mr. Demjanjuk said he would appeal for restoration of his Ukrainian citizenship in addition to seeking reversal of the U.S. denaturalization order.

At about the same time, the U.S. Justice Department announced its new theory regarding the identity of "Ivan the Terrible." In an 80-page document summarizing Demjanjuk case documents, which had been requested by Judge Wiseman as he was preparing his report to the Sixth Circuit Court of Appeals, the department said there were two Ukrainian "Ivans" who took turns running the gas chambers at Treblinka: John Demjanjuk and Ivan Marchenko. Apparently, said the Justice Department document, Marchenko filled in when Mr. Demjanjuk had the day off. John Demjanjuk Jr. reacted thusly: "It's really stretching. Nobody has ever said there were two 'Ivans' before. My God, three operators of the gas chambers, and two of them were 'Ivan.' [The third is alleged to be a guard named Nikolai.] That's preposterous."

On April 30, Judge Wiseman concluded his fact-finding hearings in Nashville, culminating eight months of investigations. In his final arguments before the court, Mr. Demjanjuk's attorney Mr. Tigar said the OSI had purposefully concealed evidence that could be helpful to the defense, sarcastically noting at one point that the OSI "had a distressing habit of filing its documents in the alley dumpster." He said the government's responses to discovery requests were "disclosures calculated to mislead - not to inform." He also questioned the credibility of OSI staffers' testimony, particularly that of OSI Director Ryan, commenting that it was "incredible to believe that he just lay back and did nothing," while his senior legal staff decided how to present the most important OSI case by themselves.

The U.S. government countered by stating there was no "clear and convincing" evidence of any deliberate misconduct or fraudulent intent. Surprisingly the government's attorney stated that the U.S. did not challenge the authenticity of the Parker memo, admitting that the memo existed. Judge Wiseman seized the moment: "How do you rationalize the differences in testimony between Parker and Moscowitz - without concluding that one of them is lying?" Patti Stemler, the government's attorney, could reply only that all OSI attorneys were "conscientious and acting in good faith."

Sensing that they were fighting a losing battle, two former OSI attorneys sought a Supreme Court order halting the 6th Circuit Court of Appeals investigation into alleged prosecutorial misconduct. The Washington Times reported on May 25 that Messrs. Parker and Moscowitz argued that the Circuit Court had no jurisdiction once Mr. Demjanjuk was extradited to Israel in 1986. They further noted that even if the Circuit Court had such authority it should have sent the Demjanjuk case back to a federal judge in Cleveland. The Supreme Court, however, refused to halt the inquiry.

Soon afterwards, on June 8, it was reported by The New York Times that the judge who had ordered the investigation into the OSI's conduct of the Demjanjuk prosecution, Chief Judge Gilbert S. Merritt of the 6th Circuit Court of Appeals, was among the three or so candidates being considered by President Bill Clinton for appointment to the Supreme Court. News of that possibility drew fire from at least one Jewish organization, the Simon Wiesenthal Center, which severely criticized Judge Merritt for reopening the case.

Finally, on June 30, Judge Wiseman released his report to the 6th Circuit Court, concluding that there is "substantial doubt" that John Demjanjuk was "Ivan the Terrible." Judge Wiseman noted: "The statements of former Treblinka guards and laborers recently obtained from the Soviet Union constitute an harmonious chorus which inculpate a man named Ivan Marchenko as the Ivan who worked at the gas chambers, and thus exculpate Mr. Demjanjuk from those specific crimes."

Judge Wiseman also reported that U.S. government prosecutors had "failed to challenge the evidence they possessed, and this led them to abandon leads which contradicted their interpretation of the evidence." He noted the OSI's neglect in not releasing evidence to the defense: "The government ... did little or nothing to ensure that the materials it received from the Soviet Union on Mr. Demjanjuk's behalf represented what the government itself had received and had withheld." However, Judge Wiseman said federal prosecutors did not break the law or intentionally conceal evidence that would have cleared Mr. Demjanjuk. He recommended that the orders issued in the Demjanjuk case stand and that the appeals court close the case.

While the 6th Circuit Court of Appeals was still reviewing Judge Wiseman's report before issuing its own ruling, there was a stunning reversal in Israel. The Supreme Court on July 29 unanimously acquitted John Demjanjuk of all war crimes charges and ordered the 73-year-old former Clevelander set free. The five-judge panel said Mr. Demjanjuk is not "Ivan the Terrible," thus supporting his steadfast claim that he was a victim of mistaken identity, and overturned his 1988 death sentence. The court said there is "reasonable doubt" that Mr. Demjanjuk was "Ivan" due to recently unearthed evidence that implicates Marchenko as the brutal watchman. Mr. Demjanjuk was acquitted also of all other charges, including allegations that he was a guard at other Nazi camps. The court ruled that these were not the main charges and that Mr. Demjanjuk had not had a chance to defend himself against those accusations. However, the court did find the controversial Trawniki ID card to be authentic and determined that Mr. Demjanjuk belonged to a Nazi guard unit "whose purpose was murder." Nonetheless, the court rejected the option of ordering a new trial, since that would mean "an additional extension of the hearings beyond an acceptable limit."

Reacting to the decision, John Demjanjuk Jr. said he was "glad to see that they [the judges] actually had the courage to stop the injustice." He commented angrily, however, on the court's determination that his father had been a Nazi camp guard: "This nonsense should stop right now. Our family has been through hell... It would be unthinkable to say that now, after 16 years of proving his innocence, he should be left with a label that has never been tried in a court of law."

The August 2 issue of Der Spiegel, a German weekly newsmagazine, carried an article about the Trawniki ID card, the central piece of evidence used by the Demjanjuk prosecution. The article traced the origins of the ID and concluded that it is an outright forgery.

Though he was ordered freed, it remained unclear where Mr. Demjanjuk, a stateless person, having been stripped of his U.S. citizenship in 1981, would go. His family insisted he would come home to Seven Hills, Ohio. "The U.S. has a moral obligation to restore his citizenship and to allow him to return," said his son.

The Wiesenthal Center and other Jewish groups reacted quickly, sending messages to U.S. Attorney General Janet Reno to demand that Mr. Demjanjuk be barred from returning to this country. New Jersey-based UNCHAIN (Ukrainian National Center: History and Information Network) promptly sent telegrams to President Clinton, Attorney General Reno and Sens. Bill Bradley and Frank Lautenberg, to argue that Mr. Demjanjuk be allowed to return home.

Five days after the acquittal in Israel, the 6th Circuit Court of Appeals in Cincinnati held a hearing on August 3 on whether Mr. Demjanjuk should be allowed to reenter the U.S. The U.S. Justice Department had argued that Mr. Demjanjuk's acquittal should have no bearing on whether he should be allowed to return to the United States inasmuch as there is evidence he had been a Nazi guard at Sobibor and other camps. Mr. Tigar argued that all prior U.S. proceedings against his client are now thrown into question because they were based primarily on accusations that he was "Ivan the Terrible."

Ten minutes after it heard arguments, the Court of Appeals issued its ruling that Mr. Demjanjuk must be allowed to return to this country. The court also questioned how Attorney General Reno could have supported the legal position that Mr. Demjanjuk should be barred from the U.S. even as federal courts were reconsidering their earlier decision to denaturalize him. The court, which had reopened the Demjanjuk case in 1992 based on what it said was its power to grant relief for "after-discovered fraud," ruled that: "Our previous order in this case [extradition] was expressly subject to the understanding that Demjanjuk was to be tried only for the changes in the warrant against him and under which he was extradited, that is, charges based upon the allegation that he was Ivan the Terrible of Treblinka." Clearly irritated with the Justice Department's attempt to end its inquiry and with the Clinton administration's position that it alone should decide Mr. Demjanjuk's fate, Judge Pierce Lively said the Justice Department should "put no obstacle in the way of Mr. Demjanjuk's return to this country." The court's opinion also stated that international law "forbids him from being tried on any other charges" in Israel.

Meanwhile, in Israel, the far-right Kach party and Holocaust survivors, as well as the World Jewish Congress, were filing petitions arguing that Mr. Demjanjuk should be prosecuted for allegedly serving at the Sobibor death camp. On August 1, just two hours before Mr. Demjanjuk, his son and son-in-law, Edward Nishnic, were to board an Air Ukraine flight for Kyyiv, the family learned about a 10-day delay in Mr. Demjanjuk's release due to a hearing on the aforementioned petitions set for August 11.

On August 11, Israel's attorney general recommended to the Supreme Court that Mr. Demjanjuk should not face new charges as proposed by eight separate petitions filed with the court. Attorney General Yosef Harish said there could not be a new trial unless there was a new extradition order from the U.S. and that in any case there is a "public interest" in avoiding a new trial because it is not certain that Mr. Demjanjuk would be convicted. The Supreme Court, however, delayed its decision on whether to try the former U.S. citizen. On August 18, a three-judge panel of the court rejected 10 appeals for a new war crimes trial and ordered Mr. Demjanjuk deported.

Then on Thursday, August 19, Chief Justice Meir Shamgar ordered a 15-day delay in issuing his decision on whether there should be a new trial. Speaking before the chief justice, Mr. Demjanjuk's lawyer, Yoram Sheftel, said, "eight judges of this honorable Supreme Court have decided there is no point in putting the defendant on trial again. There is no precedent in the State of Israel where five judges on the Supreme Court have acquitted a person and he is still sitting in prison three weeks later, and there is no indictment pending against him."

In the United States, Holocaust survivors attempted to file a lawsuit with the federal court in New York City to bar Mr. Demjanjuk's return. However, District Judge Leonard Sand dismissed the suit during an emergency session, saying his court had no jurisdiction over the higher Appeals Court in Cincinnati, which had found Mr. Demjanjuk must be permitted to return. Jewish leaders requested Attorney General Reno to ask the Supreme Court to prevent Mr. Demjanjuk's return. A delegation that included representatives of the American and World Jewish congresses, the Anti-Defamation League and the Wiesenthal Center and was led by New York City Comptroller Elizabeth Holtzman, who as a congresswoman authored the law that paved the way for the OSI's creation, met with the solicitor general to ask him to file an emergency request with the highest court in the land to bar Mr. Demjanjuk.

At the same time, a Sobibor survivor was reported to have identified Mr. Demjanjuk as a guard at that death camp, but just one day later, the AP reported that Esther Raab's testimony would not stand up in court as she had previously failed to identify Mr. Demjanjuk. Next came allegations from the Wiesenthal Center that it had evidence linking Mr. Demjanjuk to the Maidanek death camp.

In Ukraine, Demjanjuk supporters picketed the Israeli Embassy for several days during August and September to protest continued delays in his release.

Finally on September 1, the Justice Department announced it was dropping its fight to keep John Demjanjuk out of the U.S. However, the department pledged to continue its fight to have Mr. Demjanjuk deported on the grounds that he was a war criminal and lied on his immigration application. The New York Times reported that the Justice Department had been sending letters almost daily to all 14 judges on the Cincinnati Court of Appeals in an attempt to have the full court overturn the previous ruling by its three-judge panel. On August 31, the court announced it would not reverse the order permitting Mr. Demjanjuk to return.

On September 3, the three-judge panel of the 6th Circuit Court of Appeals convened to hear arguments of the Demjanjuk defense and the U.S. government concerning the inquiry concluded by Judge Wiseman. Each side repeated its earlier arguments, and the Justice Department's lawyer was subjected to some intense questioning about the "disappearance" of certain documents and the failure to provide exonerating materials to the defense.

As the defense awaited the 6th Circuit Court's ruling, Mr. Demjanjuk returned to the United States on September 22 amid extremely tight security. His return to the U.S. followed the Israeli Supreme Court's ruling on September 19 rejecting all appeals for a new trial. Upon disembarking a regularly scheduled El Al flight to New York, Mr. Demjanjuk was whisked away to an undisclosed location aboard a privately chartered airplane. His arrival was met with angry protests in New York and Cleveland. During an exclusive interview with The Weekly at John F. Kennedy International Airport, Mr. Nishnic, spokesman for the Demjanjuk family and president of the John Demjanjuk Defense Fund, said the family was elated to be welcoming Mr. Demjanjuk back home and that a private reunion was planned. He also was asked: How did Mr. Demjanjuk hold up in prison in Israel for seven years? He replied: "Mr. Demjanjuk is a survivor," who endured the Great Famine, World War II, forced repatriation. "He's got the typical survivor mentality. That cell became his world. And the worst thing we could do is go in there and bring family pictures, because then you've intruded on his world as he knows it. And it was so painful that we just stopped it after a while. We talked, but it was always case, case, case, case, case. That was his world. That cell and the case."

The Demjanjuk case came full circle less than two months later, on November 17, when the 6th Circuit Court of Appeals ruled that U.S. prosecutors had perpetrated fraud on the court and "acted with reckless disregard for the truth" in their handling of the John Demjanjuk case. "The attitude of the OSI attorneys toward disclosing information to Demjanjuk's counsel was not consistent with the government's obligation to work for justice rather than for a result that favors its attorneys' preconceived ideas of what the outcome of legal proceedings should be," said the decision. As well, the ruling cited the OSI's "win-at-any-cost attitude" and its interest in maintaining "very close relationships with various interest groups because their continued existence depended on it." The court unanimously decided to overturn the 1986 extradition order that permitted Mr. Demjanjuk to be tried, convicted and sentenced to hang in Israel. The three-judge panel found that its order had been a mistake because the Office of Special Investigations had concealed exculpatory evidence from both the defense and the court

[It was truly fitting then, and a foreshadowing of what was to come in 1993, that the National Law Journal of December 28, 1992, had cited the Demjanjuk case among its "Great Moments in the Law Awards for 1992." "The Ollie North Abuse of Power Award" went to outgoing Attorney General William Barr and his predecessor, Richard Thornburgh, "for serious lack of leadership in three cases," including "the investigation of John Demjanjuk, wrongly accused by the Justice Department of being the infamous Nazi death camp guard Ivan the Terrible."]

The Circuit Court's ruling did not vacate the 1981 denaturalization order against Mr. Demjanjuk, but its finding of prosecutorial misconduct paves the way for Mr. Demjanjuk, now 73, to regain his citizenship, which family spokesmen said was indeed the next step. In addition, Mr. Nishnic stated, "We are trying to get these cases brought by the OSI against suspected war criminals criminalized - not just for John Demjanjuk - but so that no one else will have to face the same nightmare." He added, "These 17 years have shattered the lives of the Demjanjuk family."

The Justice Department said it was nonetheless determined to "effect Demjanjuk's prompt removal from the United States as soon as his legal status is resolved." And, demonstrators in the Cleveland area continued to demand Mr. Demjanjuk's deportation by demonstrating near the family home in the suburb of Seven Hills, where Mr. Demjanjuk has now returned.

At year's end, a judge of the Common Pleas Court ruled on December 16 that the ban on picketing in residential areas imposed by the city of Seven Hills was unconstitutionally broad. The judge did leave in place a limit on picketing hours and reduced the number of protesters allowed from 30 to 25. Rabbi Avi Weiss, leader of the demonstrators, commented: "This for us has been a great victory because Demjanjuk is imprisoned within his own home."

Copyright © The Ukrainian Weekly, December 26, 1993, No. 52, Vol. LXI

| Home Page |