Controversy over hiring of former OSI chief brings issue before Parliament committee (05/03/98)

Controversy over hiring of former OSI chief
brings issue before Parliament committee

by Andrij Kudla Wynnyckyj
Toronto Press Bureau

OTTAWA - The Parliament of Canada's Standing Committee on Justice and Human Rights devoted its 58th meeting, held on April 28 in Room 371 of the West Block Building here, to address questions surrounding the hiring of Neal Sher, a former director of the U.S. Justice Department's Office of Special Investigations (OSI), as a consultant to the Canadian Justice Department's Crimes Against Humanity and War Crimes Section (WCS).

The meeting was requested by the Official Opposition's justice critic, Jack Ramsay of the Reform Party, in response to protests over the hiring of Mr. Sher.

Mr. Sher appeared as a witness before the committee, accompanied by Assistant Deputy Attorney General John Sims, a senior member of the Justice's Department legal operations sector, head of legal services at the Ministry of Citizenship and Immigration, and a senior WCS official.

Mr. Ramsay said he called Mr. Sher before the committee because of the heavy volume of correspondence had received complaining about the OSI's handling of individual cases, in particular the case against retired Cleveland auto-worker John Demjanjuk.

Besides addressing the particulars of Mr. Sher's work with Canada's war crimes unit, much of the session centered on a re-examination of the Demjanjuk case, and of the fraud committed by the OSI attorney in preparing for Mr. Demjanjuk's denaturalization (since reversed) and extradition.

Members of the Liberal government in attendance included Committee Chair Shaughnessy Cohen (from the Ontario riding of Windsor-St. Clair), Paul DeVillers (Ontario, Simcoe North, also parliamentary secretary to Stéphane Dion, minister of intergovernmental affairs), John Maloney (Ontario, Erie-Lincoln, the committee vice-chair), Derek Lee (Ontario, Scarborough-Rouge River) and Andrew Telegdi (Ontario, Kitchener-Waterloo).

Justice Minister Anne McLellan's parliamentary secretary, Eleni Bakopanos (Québec, Ahuntsic), did not attend, nor did the parliamentary secretary to Solicitor General Andy Scott, Nick Discepola (Québec, Vaudreuil-Soulanges), nor former Secretary of State for Multiculturalism Sheila Finestone (Québec, Mont Royal).

From the opposition there was Mr. Ramsay (Alberta, Crowfoot), Progressive Conservative Justice Critic and House Leader Peter MacKay (Nova Scotia, Pictou-Antigonish-Guysborough) and New Democratic Party Justice Critic Peter Mancini (Nova Scotia, Sydney-Victoria).

Committee Vice-Chair Paul Forseth (British Columbia, New Westminster-Coquitlam) and Garry Breitkreuz (Saskatchewan, Yorkton-Melville), both members of the Reform Party, as well as the two MPs from the Bloc Québecois (Michel Bellehumeur, Bertheir; Richard Marceau, Charlebourg) on the committee did not attend.

Ms. Cohen's late arrival cut about 15 minutes from the scheduled two-hour hearing, which could not be extended because of a crucial vote that evening in the House of Commons.

Particulars of the hiring

Mr. Sims led off the session by explaining "why we decided to hire a consultant at all, why we picked Mr. Sher, what we've asked him to do, and, perhaps as importantly, what he is not doing."

Mr. Sims said that "only a few years remain to deal with those who were engaged in reprehensible conduct during the second world war" and that the pursuit of such individuals is "a highly specialized business." He added that the U.S. is an "obvious source" of people involved in the effort, the OSI in particular, and that "this led us to Mr. Sher."

The Justice Department official said Mr. Sher was hired as a consultant to Paul Vickery, director of the WCS, and to himself. "Mr. Sher's wise counsel keeps us from reinventing legal arguments ... and helps us to search through archival material we might have overlooked or not delved into deeply enough."

Mr. Sims said that upon Mr. Sher's hiring on December 12, 1997, the U.S. attorney had been signed to an open-ended contract providing for a fee of $200 (U.S.) an hour with a ceiling of $75,000. Mr. Sims said this was a standard rate for counsel retained in such matters, and that at this rate he expected the WCS to avail itself of Mr. Sher's services for the remainder of this year, with a possible extension if permitted.

Mr. Sher offered that his normal billing rate at his Washington law firm of Schmeltzer, Aptaker, Shepard, PC, was much higher.

Mr. Sims said the consultant has been in Ottawa an average of three to four days a month. Mr. Sher volunteered that in addition to consultancy done while in Ottawa, he also did work for Canada's WCS at his Washington office.

Mr. MacKay asked if Mr. Sher is currently under contract to any agency or organization which "might create the appearance of conflict of interest," and the U.S. litigator affirmed that he is not.

Mr. Sims said that "erroneous speculation" about Mr. Sher's role had come to his attention. He said the U.S. attorney is "not the boss of the war crimes unit, nor does he question witnesses, act as court counsel or decide on our litigation strategy. In fact, Mr. Sher doesn't decide anything. He is an advisor." Mr. Sims reiterated that Mr. Sher is "not an employee of the Department of Justice," but a paid consultant to its officials.

Mr. Sims suggested that Mr. Sher's hiring raises the WCS's prestige. "It is important to know that our efforts are in the same league [as those of the OSI]," he said.

Mr. Sher began by expressing his pleasure and honor at being asked to assist the WCS and to appear before the Standing Committee on Justice. "Presumably I was retained because of my 15 years' experience with the OSI," he said, which included 11 years as its director. "My expectation, my belief, my hope was to share some of what I learned at the OSI," he said.

Mr. Sher said that during his stint at the OSI he became familiar with "the types of cases the Canadian office was working on," and had "met the people involved in the Canadian effort."

The former OSI director said the problem of pursuing war criminals "was not unique to the U.S. or Canada ... The people who committed the crimes ... went all over the world. Many came to America, many came here to Canada, many went to Australia," the Nazi hunter said.

Mr. Sher said he is not an expert on Canadian law and doesn't pretend to be. "My role is to advise, make suggestions on how the American experience might be of assistance here ... Mr. Sims and Mr. Vickery are free not to take my advice," the consultant said.

Mr. Sher complimented the Canadian WCS, saying, "I have been impressed with the vigor of its staff," adding that it is "reminiscent of the atmosphere at OSI. I find this very heartening."

Soviet evidence 100 percent reliable

Mr. Sher said he is familiar with allegations that the Soviet regime, the KGB in particular, supplied Nazi hunters with phony evidence. "I personally interviewed a KGB officer who was alleged to have fabricated evidence," the former OSI official said, "and it became clear that the evidence [the officer was offering] was legitimate." Mr. Sher said the KGB officer told him "he knew of no instance where phony documents were sent to the West to be used in trials."

He continued by noting that in the 1950s and 1960s Germany's prosecutors of Nazi war criminals "relied on Soviet-sourced evidence and found it to be 100 percent reliable."

For Mr. Sher, "the inherent difficulties of proof that can arise in these cases [in which Soviet evidence is used] is something I've had experience with." At any rate, he suggested that "admissibility ... is something for [Canadian] courts to decide."

The newly appointed advisor said the search for evidence was made dramatically easier since the fall of the USSR, since the countries of the former Soviet Union have proven willing to assist investigators of war crimes and have opened up their archives to Western officials.

"My reputation at OSI was that I was a tough prosecutor but a fair one," Mr. Sher said, adding that people had misunderstood him when he described himself as having "fire in the belly." The former OSI director explained that this meant he understood the importance of the task at hand and the constraints of time placed upon it.

Regarding the criticism surrounding his appointment as advisor to the War Crimes Section, Mr. Sher said "it comes with the territory," saying he had joked to Mr. Sims about it to the effect that, "it made me feel like a much younger man, because I had been under criticism 15 years ago when I was at OSI."

Mr. Sher recalled that he'd "closed hundreds of cases, even though I had very good reasons to believe the individual was involved" in war criminality, but his sense of responsibility as a prosecutor led him to pursue only those cases that he was certain would result in convictions or the appropriate court orders.

Mr. MacKay, who said he is also a former prosecutor, took Mr. Sher to task for this attitude, saying that he had merely outlined the basic responsibility incumbent on any officer of the court. The Tory MP also alluded to other self-characterizations by Mr. Sher (which have appeared in the Canadian press) that he found troubling.

The PC Justice critic criticized Mr. Sher's use of phrases such as "fire in the belly," "imaginative law enforcement" and "personal involvement" (attributed to Mr. Sher by various media), which Mr. MacKay suggested were not attributes that Canadian prosecutors consider to be appropriate.

Mr. MacKay said that in his country crown attorneys "have an obligation to be fair and impartial." Referring to the findings against the OSI by Sixth Circuit Court Judge Gilbert Merritt, the Nova Scotia MP said prosecutors "must always disclose exculpatory evidence."

Mr. Sher explained that by "imaginative law enforcement" he had meant qualities that he looked for "in any junior attorney considered for appointment" to an office where he has worked, but agreed that "having said that, one has to abide by whatever rules binding the conduct of a prosecutor."

The New Democratic Party's Justice Critic, Peter Mancini Sydney-Victoria, Nova Scotia) told Mr. Sher he had received letters from members of the Ukrainian Canadian community who are concerned that the former OSI director's presence as an advisor might contribute to overzealousness in prosecution.

Mr. Sher replied that "he would not have concern, seeing the way [the Canadian war crimes] office is operating and has operated."

Mr. Sher added that the effort to prosecute alleged war criminals "is not directed at any particular community. The fact that an individual has been brought up on charges is not a reflection on the entire community."

The Washington-based attorney said both Canada and the U.S., are nations of immigrants, and immigrants "from Eastern Europe, Central Europe, Western Europe, Asia, all over, have made significant contributions to their newfound homelands."

"Under no circumstances should any prosecution be seen as an effort directed at a particular group," he stated.

Not aware of certain Canadian inquiries

Mr. Sher referred to the report of the Deschenes Commission of Inquiry into the Presence of War Criminals in Canada, by referring to the recommendation that described denaturalization and deportation as an "appropriate and justified approach" to the problem.

However, Mr. Sher professed not to know about recent commissions of inquiry into wrongful convictions in Canada, such as those into the Donal Marshall case in Nova Scotia (which issued a report in 1991) and the Guy Paul Morin case in Ontario (which issued its report on April 9). Messrs. Telegdi, Ramsay and MacKay joined in encouraging Mr. Sher to acquaint himself with their work.

Mr. DeVillers asked whether any OSI prosecutors might be subject to criminal proceedings, or whether Mr. Sher was subject to any disciplinary action. Mr. Sher replied that he was not and that no such proceedings are pending against officials of the OSI.

Later in the hearing, Mr. Ramsay raised the matter of an investigation being conducted by the U.S. Department of Justice Office of Professional Responsibility (OPR) in connection with Mr. Sher's prosecution of the late Andrea Artukovic, a high-ranking official of the pro-Nazi wartime regime in Croatia deported from the U.S. to Yugoslavia and convicted of war crimes.

Mr. Sher said that Mr. Artukovic's son had accused him of perjury, but that OPR officials had recently assured him that "the allegation against me is totally unsubstantiated." Mr. Sher added: "Anybody can make an allegation. Thirty-two cents American, you put it in an envelope, you make the allegation and then it gets leaked."

Regarding other allegations in the Artukovic case complaint, Mr. Sher said, "among volumes of statements of witnesses, there were a few that were inconsistent."

Mr. Ramsay asked Mr. Sims if he was aware of the OPR investigation at the time of Mr. Sher's hiring, and the Assistant deputy attorney general replied that he was not and that Mr. Sher had informed him of it a few days before the April 28 hearing.

Mr. Sims added that he was satisfied with Mr. Sher's assurances in this regard, but conceded he might have made further inquiries had he known about the allegations prior to Mr. Sher's hiring.

Mr. Sims said he knew the Demjanjuk case had been referred to the OPR, but had been assured "the matter had been disposed of."

Mr. MacKay suggested that Mr. Sher should be more sensitive to the fact that in cases of prosecutorial misconduct, the question of individual guilt becomes moot in the eyes of the law. The PC justice critic said the prosecution bears an additional burden of responsibility.

Mr. MacKay asked the Washington-based lawyer if he was aware of the potential conflicts with the Canadian Charter of Rights and Freedoms inherent in the pursuit of Canada's present prosecution policy. Mr. Sher averred that he was not.

Mr. Sims interjected that he and Mr. Vickery, as well as other members of the WCS staff, would make determinations on whether any policy or legal move was in agreement with the Charter, and repeated assurances that Mr. Sher has not been and would not be a consultant on matters of substantive law.

Demjanjuk case revisited

Mr. Sher maintained he wanted to raise the Demjanjuk case because it appeared to be of central concern for those opposed to his appointment.

Mr. Sher asserted that the Israeli Supreme Court both overturned the death sentence imposed on Mr. Demjanjuk and implicated the man in participation in the massacre of thousands of Jews by referring to him as "Wachmann [Guard] Demjanjuk," and by saying that he was likely to have been at the Sobibor death camp.

Mr. Sher said that there are "indications" another U.S. prosecution of Mr. Demjanjuk will be pursued based on "non-Treblinka evidence."

"Anyone who doubts that [Mr. Demjanjuk] has blood on his hands," Mr. Sher said, should consider "the decision of the Israeli Supreme Court that set him free." This statement, and inferences that Mr. Demjanjuk is "a mass murderer," elicited reaction from Mr. Ramsay that he "deeply troubled" and "very concerned" about Mr. Sher's "respect for the rule of law" and "respect for the presumption of innocence."

Mr. Sher also catalogued a long list of evidence suggesting that Mr. Demjanjuk could have referred to himself as "Marchenko" (the surname established as that of "Ivan the Terrible" of Treblinka) and that he had also been a guard at the Sobibor death camp, among others.

Mr. Ramsay pointed out that Yoram Sheftel, Mr. Demjanjuk's Israeli defense counsel, "refuted [Mr. Sher's] approach to certain points" and had obtained 85 documents attesting that Mr. Demjanjuk was not Ivan the Terrible of Treblinka in his book on the trial. Mr. Sher countered that Mr. Sheftel "is a very colorful lawyer" and that Israeli prosecutors "would take exception" to their colleague's "characterizations and statements of fact."

Mr. MacKay said that Mr. Sher had made "a compelling case for another prosecution of Mr. Demjanjuk," but that this did not mitigate the gravity of allegations of prosecutorial misconduct in the original proceedings in the U.S.

In response to Mr. Mancini's query, Mr. Sher assured the committee he is not presently acting as a consultant or attorney for the U.S. government in the conduct of litigation against Mr. Demjanjuk.

Assessment of OSI fraud

Turning to the decision by Judge Thomas Wiseman, the special master assigned to investigate the OSI's conduct of its case against Mr. Demjanjuk, Mr. Sher said "a lot of people" had characterized it as having found the OSI guilty of "good faith fraud."

The former OSI director also asserted that he respectes, abides by, yet disagrees with Judge Merritt's decision that the OSI had perpetrated a fraud upon the Sixth Circuit Court in the course of its effort to denaturalize and deport Mr. Demjanjuk.

Mr. Ramsay raised the issue of an article printed in the Israeli newspaper Haaretz, in which Judge Merritt is quoted as saying that "the OSI lied through their teeth" to secure a decision against Mr. Demjanjuk.

Mr. Sher responded by questioning the publication's integrity. "I don't know if the quote is accurate, because it's coming from a newspaper," he said, to the amusement of the committee members. The former prosecutor commented that for a U.S. federal judge to make such statements was "extraordinary."

Central questions not asked

Though much of the hearing dealt with the Demjanjuk case asked the direct question: was Mr. Sher directly responsible for the handling of the Demjanjuk case and thus how much responsibility does he bear (or accept) for the "fraud on the court" Judge Wiseman and Judge Merritt found to have been committed by the OSI's attorneys?

Mr. Sher offered some oblique statements in this regard, conceding only that as OSI's director and deputy director "I bear a certain overall responsibility for what happened," but that "the office had about 30 cases going at any one time and our lawyers did not always bring all documents to the front office."

Mr. Sher said: "Mistakes were made that I wish hadn't been made."

Mr. Sher also asserted that it was not until 1991 that he first saw the exculpatory documents not offered to Mr. Demjanjuk's defense counsel and that one of the documents (a list of known concentration camp guards which did not include Mr. Demjanjuk, compiled by Polish authorities) was obtained by the Justice Department in 1978, before the OSI was formed, and then used in a different case.

The former OSI official did not respond directly to Mr. MacKay's request that he comment on allegations that exculpatory evidence was found in a dumpster behind the OSI's offices.

Mr. Sher claimed that the OPR investigated the instances of fraud and "rejected contentions that I had done anything improper, or that anyone at OSI had done so." The former prosecutor affirmed that "even Demjanjuk's lawyers did not personally attack what I had done."

Mr. Sher continued to contend that he "oversaw" the Demjanjuk case and yet was innocent of any prosecutorial misconduct in pursuit of it.

In closing the hearing, Ms. Cohen asked "If you're not dealing with substantive law or procedure, actual court room stuff, I take it your expertise is in what kinds of evidence can be obtained, how to get it and how to package it?"

Mr. Sher answered: "Yes."