No satisfaction in Demjanjuk case

Cleveland auto-worker John Demjanjuk, at age 91 with a failing memory and a smorgasbord of health problems (including leukemia), has been sentenced to five years in prison by a German court, for being a guard at the Sobibor death camp in the Second World War.

Judge Ralph Alt released him, pending appeal, which could take six months. Hopes are that he dies before his prison time begins.

For some 30 years the Demjanjuk case has festered -- and for most of that time I've periodically written, scolded, argued and berated the process that seemed more akin to persecution than prosecution.

Guilt was mostly assumed, not proven.

There is nothing about the Demjanjuk case that invokes either pride or satisfaction. He is being called "the littlest of little fish" -- the lowest ranked prison guard ever convicted of war crimes. Superiors were acquitted.

There is no living witness who could testify to his presence as a camp guard at Sobibor -- an allegation he denies, and which caused delays in the 18-month trial when FBI documents indicated that some Demjanjuk's identify papers were forged by the KGB.

Demjanjuk was in the Soviet Red Army when captured by the Germans in 1942, who trained him and used him as a concentration camp guard from March to September in 1943.

He claims that he joined the Vlasov army towards the end of Second World War -- so named after Gen. Andrey Vlasov, one of the heroes of the Soviet defence of Moscow who was taken prisoner by the Germans, and eventually used to form an army of Russian PoWs who wanted to rid Russia of Stalin and Communism.

At the war's end, Vlasov sought to surrender to the Americans, but was taken by the Soviets, tortured, and hanged.

Demjanjuk attended his Munich trial in a wheelchair or on a stretcher, refusing to take part. No evidence was presented that he abused prisoners, just that he was a guard at Sobibor, where some 28,000 Jews were executed in gas chambers.

The Demjanjuk case is significant because it highlights one of the most egregious miscarriages of justice in the United States -- exacerbated because the justice system knew it was doing wrong, but continued on a course it hoped would result in Demjanjuk being executed.

But for the integrity and courage of the Israeli supreme court, the vendetta would have succeeded.

The U.S. Office of Special Investigations (OSI), set up some 30 years ago to track down Nazi war criminals and extradite them to Israel, decided that John Demjanjuk was, in fact, a sadistic guard at Treblinka extermination camp.

He was believed to be a guard known as "Ivan the Terrible," who on occasion hacked at naked prisoners with a sword.

An FBI report in 1985 noted in the charges against Demjanjuk that "justice is ill-served in the prosecution of an American citizen on evidence which is not inadmissible in a court of law, but based on allegations quite likely to be fabricated by the KGB."

The OSI ignored such concerns.

Extradited to Israel, Demjanjuk was tried, found guilty, and sentenced to hang.

Prior to the trial, his frustrated Israeli lawyer, Dov Eitan, committed suicide under mysterious circumstances.

A retired judge, he jumped from a 15th storey window, but left no suicide note.

The lawyer who then defended Demjanjuk, Yoram Sheftel, recalled Eiten getting death threats "and maybe he was pushed mentally to commit suicide."

At Eiten's funeral, Sheftel had acid thrown in his face, which caused an 18-month trial delay.

Such were the passions about Demjanjuk.

During that time, helped by extraordinary efforts of Demjanjuk's son-in-law, Ed Nishnic, and investigators, it was discovered -- and confirmed -- that Demjanjuk was not "Ivan the Terrible," had not been a guard at Treblinka, and that the "real" Ivan the Terrible (one Ivan Marchenko) had died a natural death in Trieste.

All aging Ukrainians tend to look alike, and Demjanjuk was mistakenly identified and wrongly accused.

To it's great credit, the Israeli supreme court reviewed the conviction, assessed the new evidence, and ordered Demjanjuk's release and return to America.

Otherwise, a wronged man would have been executed.

In his resulting book on the case, Defending Ivan the Terrible: The Conspiracy to Convict John Demjanjuk, Sheftel blames two former OSI directors, Allan Ryan and Neal Sher, for "the worst coverup in concealing evidence in a major case taken by an American public prosecutor in modern history and the Second World War."

Back in America, Demjanjuk's citizenship was reinstated in 1998 -- to be revoked again in 2004, when the OSI determined he'd been a guard at Sobibor.

He was deported to Germany as a "stateless" citizen.

A U.S. appeal court authorized an investigation of "prosecutorial abuses" in the Demjanjuk case, and found the OSI had "acted with reckless disregard of the truth," and had carried out "proprietorial misconduct that constituted a fraud on the court."

Sher was disbarred in 2002.

None of this benefitted Demjanjuk.

The OSI justified its stand by saying that if Demjanjuk was wrongly accused of being a guard at one camp, he was certainly a guard at another camp, so his guilt was undeniable.

Except that there's no evidence that Demjanjuk ever abused anyone.

As a Ukrainian war prisoner, he'd never have been fully trusted by the Nazis.

There was no evidence he'd committed a specific crime, but the state argued just being there was evidence of guilt -- the first time such a legal argument has been used in a German court.

Curiously, higher ranking German officers and guards at Sobibor have been acquitted, making Demjanjuk the lowest ranking guard ever convicted.

After Demjanjuk and the decline of living Nazis, the OSI shifted to seeking war criminals from Bosnia, Serbia, Rwanda, and the like, who may have taken up residence in the U.S.

Last year, the OSI -- which never wavered in its determination to "get" Demjanjuk -- was merged into something called the human rights and special prosecutions section of the justice department.

It seeks to prosecute cases of genocide, torture, use of child soldiers, and immigration fraud when such perpetrators seek sanctuary in the U.S.

As for Demjanjuk, two possibilities loom: Either his case marks the end of prosecutions of suspect Second World War criminals nearly 70 years ago, or that the hunt will shift to small fry suspects who were ignored in the past.