KyivPost | 12Apr2011 | Herschaft
AP Exclusive: FBI thought
Demjanjuk evidence faked
BERLIN (AP) -- An FBI report kept secret for 25 years said the Soviet
Union "quite likely fabricated" evidence central to the prosecution of
John Demjanjuk -- a revelation that could help the defense as closing
arguments resume Wednesday in the retired Ohio auto worker's Nazi war
crimes trial in Germany.
The newly declassified FBI field office report, obtained by The
Associated Press, casts doubt on the authenticity of a Nazi ID card
that is the key piece of evidence in allegations that Demjanjuk served
as a guard at the Sobibor death camp in occupied Poland.
Throughout three decades of U.S. hearings, an extradition, a death
sentence followed by acquittal in Israel, a deportation and now a trial
in Munich, the arguments have relied heavily on the photo ID from an SS
training camp that indicates Demjanjuk was sent to Sobibor.
Claims that the card and other evidence against Demjanjuk are Soviet
forgeries have repeatedly been made by Demjanjuk's defense attorneys.
However, the FBI report provides the first known confirmation that
American investigators had similar doubts.
"Justice is ill-served in the prosecution of an American citizen on
evidence which is not only normally inadmissible in a court of law, but
based on evidence and allegations quite likely fabricated by the KGB,"
the FBI's Cleveland field office said in the 1985 report, four years
after the Soviets had shown U.S. investigators the card.
It was the height of the Cold War at the time, and the ID card from the
Nazi's Trawniki training camp had not been as closely examined by
Western experts as it has been today. Since then it has been
scrutinized and validated by courts in the U.S., Israel and Germany --
though experts at the current trial left room for doubt, with one
conceding that a counterfeiter with the right materials could have
forged the card and other documents.
The FBI agents argued that the Soviets had an interest in faking the
documents as part of a campaign to smear anti-communist emigres. Those
conclusions contradict the findings of another branch of the Department
of Justice, the Office of Special Investigations, or OSI, which was in
charge of the overall Demjanjuk probe.
A quarter-century later, Demjanjuk, now 90, is standing trial in Munich
on 28,060 counts of accessory to murder, which he denies. A verdict is
expected within a month.
The AP discovered the FBI report at the National Archives in College
Park, Maryland, among case files that were declassified after the
Ukrainian-born Demjanjuk was deported from the U.S. in May 2009 to face
trial in Germany.
It had not previously been seen by defense attorneys in Demjanjuk's
trials in Germany, Israel or the United States, and German prosecutors
also were unaware of the document. It is unclear whether prosecutors in
the U.S. and Israel knew about it.
The FBI report was among more than 8 million pages of records by
federal agencies that were transferred to the National Archives in 1998
under the Nazi War Crimes Disclosure Act. However, the field office
report was excluded from public view by the OSI, which was exempted to
protect ongoing investigations and prosecutions. The AP learned late
last year that partially redacted Demjanjuk files had been opened up,
and recently reviewed them.
Neal Sher, the director of the OSI from 1983 to 1994, called the
Cleveland report "replete with errors that completely undermine its
credibility." He said in an email that "great care was taken to
authenticate any documents" and not one was found to be forged.
But others involved in the U.S. case say it was a key piece of evidence
about which they were previously unaware.
Russell Ezolt, the top lawyer for the U.S. Immigration and
Naturalization Service in Cleveland at the time, said the report could
have influenced the outcome of Demjanjuk's denaturalization trial.
"I never saw that," he said in a telephone interview from his home
outside Cleveland. "This was the key bit to the trial. ... If you take
away his ID card as a guard, what's left?"
Since no known eyewitnesses can place Demjanjuk at Sobibor, the case
largely revolves around Nazi-era documents captured by the Soviet Union
and provided to American, Israeli and now German authorities.
The March 4, 1985, report, on FBI letterhead and marked "SECRET," says
the Cleveland office's investigation "strongly indicated" a Soviet
scheme to discredit "prominent emigre dissidents speaking out publicly
and/or leading emigre groups in opposition to the Soviet leadership in
In dismissing the claim, former OSI director Sher said Demjanjuk was
not an "outspoken dissident" but kept a low profile. He said the first
U.S. judge to rule on the case, as well as an appeals court had
declared they believed the ID card was authentic and reliable.
Norman J.W. Goda, one of two main historians to review the vast volumes
of material from U.S. investigations of Nazi war crimes declassified
over the last decade, suggested both the FBI and OSI could be correct:
The Soviets could have used the evidence for its own purposes, but it
could also be genuine.
"The Soviets did, in fact, use war crimes cases for propagandistic
effect, but it was often the case that Moscow provided valid
information as well," said Goda of the University of Florida.
Demjanjuk's defense attorney in Germany, Ulrich Busch, said German
investigators have received 100,000 pages of Demjanjuk-related
documents from the U.S. for the trial, which began in November 2009,
but the FBI report was not among them. He plans to petition the court
to introduce it as evidence.
"It's completely new," he said.
He noted as particularly important the way the FBI said the KGB
presented evidence to the U.S. Department of Justice: allowing the
material to be viewed only at a Soviet embassy or consulate but not
examined by document experts.
"It's very explicit, and the same thing happened here," Busch said,
noting he could view two Russian-held Nazi "transfer lists" from 1943
only at the Russian Consulate in Munich. The documents indicate a guard
named Demjanjuk was sent to Flossenbuerg concentration camp and to
"The Russians said we could look at them but that we couldn't do
anything with them, couldn't examine them, and then they took them
away," Busch said.
The defense has argued throughout the trial that the ID card is a
clever fake, noting that Demjanjuk's height and eye color don't match
and alleging there are indications the photograph was taken from old
identity papers and glued to the card.
The lead prosecutor in the German case told the AP he also was unaware
of the FBI report, but said he has no doubts about the evidence.
Hans-Joachim Lutz acknowledged the ID card was only shown — not turned
over — to American investigators at the time of the 1985 report, but
said court experts in Israel and Germany later obtained access to the
original, and testified that they believe it to be genuine.
"Now it has been determined to have been genuine, so for us 1985 is
relatively uninteresting," he said.
The OSI in the past has been accused of withholding evidence that could
have cleared Demjanjuk.
Demjanjuk immigrated to the U.S. in 1952. He was extradited to Israel
in 1986, after the Nazi allegations surfaced, and stood trial there on
accusations that he was the notoriously brutal guard "Ivan the
Terrible" at the Treblinka extermination camp.
He was convicted and sentenced to death -- then freed when the Israeli
Supreme Court overturned the ruling, saying the evidence showed he had
been misidentified by witnesses.
In a 1993 review of the American denaturalization hearing that led to
his extradition, a federal U.S. appeals panel concluded that the OSI
engaged in "prosecutorial misconduct that seriously misled the court."
It said the office failed to disclose exculpatory information —
including statements of Ukrainian guards at Treblinka who "clearly
identified" another man as "Ivan the Terrible."
A Department of Justice report from 2008 made public last November said
the OSI's handling of the Demjanjuk case was "the greatest mistake it
Demjanjuk returned to the United States after his Israeli release, and
German prosecutors brought forward new charges that he served as a
low-ranking guard at the Sobibor death camp -- once more based mostly
on Soviet-provided material received from the OSI.
In Germany, Demjanjuk has again claimed to be a victim of mistaken
identity -- a Ukrainian Red Army conscript who was captured in Crimea
in May 1942 and held prisoner throughout most of the war.
The FBI report accuses the Soviets of anonymously feeding names of
emigres to the United States as suspected Nazis. The OSI would then ask
the Soviet Union for evidence from captured Nazi records, and "the KGB
produces a record purporting to tie the accused with the commission of
"In court, the KGB officer thereupon 'shows' the documents to the judge
but does not permit the documents to be presented in evidence or to be
otherwise copied," it adds.
By the time the field report was sent to FBI headquarters in
Washington, Demjanjuk had already had his citizenship revoked and was
facing extradition to Israel.
It is not clear whether it was forwarded to OSI, though agency director
Sher contends it was not.
Calling it "an embarrassment for the FBI," he said in an email: "I
would guess that FBI headquarters felt precisely that way when they
read the memo and accordingly did not do what the Cleveland FBI office
asked them to do: Call OSI about this matter."
The FBI unit chief in Washington to whom the report was addressed,
Storm Watkins, said it would have been his responsibility to pass along
the information to OSI, but that he does not remember whether he did.
"I'm not aware to what extent an investigation was done," he said,
referring other questions to the FBI's public affairs office.
Agent Scott Wilson, now assigned to the Cleveland field office of the
FBI, said: "We will let the document stand on its own and would not
make any further comment."
Attorney John Gill, who represented Demjanjuk in the 1980s, said the
Cleveland field report could have bolstered defense arguments against
extradition -- and possibly put a quick end to what ended up being
another 25 years of legal wrangling.
"Obviously they hid behind the technicalities of two separate
investigations," Gill said by telephone from Cleveland. "It's an
important document in my opinion that would have showed once again that
they've got the wrong guy."
Herschaft reported from
New York and College Park, Maryland.
Lubomyr Prytulak, Guest | 2 days ago at 17:37
This so much resembles John Demjanjuk's Jerusalem trial. At the last minute,
"new" exculpatory evidence is suddenly discovered which forces the court to
release him. Yeah, right! What this playacting covers up is that all concerned
in John Demjanjuk's Jerusalem trial recognized JD's innocence right from the
beginning ( http://www.xoxol.org/dem/blurb.html ) and it is this universal and
long-standing recognition that the "new" evidence served to distract attention
from. Same thing today. The evidence that the Trawniki ID Card is forged has
long been publicly available, but that will not be admitted. What will be
admitted is that new evidence of forgery has just been discovered.
yet, what is the new evidence? How did the FBI know that the Card was forged?
Did the FBI ever examine the Card? I think not. Of what probative value is an
FBI gut feeling that the Card may be forged? Practically none, seems to me, in
comparison with the factual demonstration that it is forged. However, the FBI
gut feeling is being featured today because it can be represented as a "new"
discovery, and so the publicly-available and longstanding demonstration that it
is forged need not be alluded to, and so no blame need be attached to
prosecutors and judges for having made themselves willfully ignorant of the
This strikes me as a behind-the-scenes
manipulation. The "AP Exclusive" means that the powers behind the scenes told
the AP where to look to discover the miraculous new document. Up to now, the AP
has done no research on John Demjanjuk, said nothing original on the subject of
his trial, was content to mainly parrot the accusations against him, and yet
suddenly it makes this miraculous discovery of an FBI document buried under a
mountain of other documents.
And the behind-the-scenes manipulation is
motivated by the growing recognition that a conviction would be unjustified and
unacceptable, would be a stain on German justice just as a final conviction
would have been a stain on Israeli justice. Would have been a WORSE stain, one
has to qualify, as Israeli justice was already stained for having convicted JD
and sentenced him to death, and for having held him for seven years in solitary
confinement, and German justice has already been stained for having extradited
him and held him in solitary confinement for two years or so--in both cases
despite all concerned being aware of his innocence.
The supreme fact
worth remembering and broadcasting is that when John Demjanjuk is found not
guilty, perhaps in May, he will have spent a total of nine years in solitary
confinement in Israeli and German prisons for crimes that everyone concerned with his
prosecution knew he did not commit. This fact will not soon be either forgotten