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Robert Gillette   28-Apr-1986   Soviet Aide Warned U.S. on War Crime Evidence

Robert Gillette   Los Angeles Times   28-Apr-1986   The main witness was a joke
Soviet Aide Warned U.S. on War Crime Evidence

Probers Rejected Report That Moscow Coached Witnesses Against Accused Ex-Nazis in America

By ROBERT GILLETTE, Times Staff Writer

WASHINGTON — A Soviet official, in an apparent act of conscience, warned the United States nearly three years ago that Moscow was trying to deceive the U.S. Justice Department through evidence it has supplied against alleged Nazi war criminals now living in the United States.

According to informed government sources, the official confided to an American diplomat that some Soviet witnesses were being coached in their testimony for days before being allowed to give depositions to U.S. prosecutors, apparently to make their testimony more credible and incriminating.

The sources, who asked not to be identified by name or agency, said this information was relayed immediately to the Justice Department's Office of Special Investigations in the summer of 1983.

However, the Office of Special Investigations, whose mission is to ferret out and deport suspected war criminals, dismissed the warning as insignificant and without substance and suggested that the official was merely "disgruntled."

U.S. prosecutors have continued to accept Soviet and captured German documents as authentic evidence and to travel to the Soviet Union to collect eyewitness testimony.  In an interview, one government source with direct knowledge of the incident expressed dismay that the Justice Department had ignored the Soviet official's warning and failed even to disclose it to the defense lawyer involved in the specific case in which it arose.

The source said there was no reason to doubt the accuracy of the information or the sincerity of the Soviet official, who took a personal risk in passing it privately to a U.S. diplomat based in Moscow.

In doing so, the informant was said to have asked the diplomat in disbelief, "How could you Americans be taken in like this?"

Since 1980, the Office of Special Investigations has worked under a unique agreement with Soviet judicial authorities in its investigation of wartime refugees who are suspected of having persecuted Jews, Communist Party members and other civilians in Nazi-occupied areas of the Soviet Union and Eastern Europe.

In the process, Justice Department attorneys and U.S. courts have relied partly on the product of investigations in the Soviet Union by the KGB security and intelligence agency.

The Office of Special Investigations continues to assert its faith in the underlying trustworthiness of evidence the Soviets have supplied against hundreds of alleged war criminals who came to the United States among an estimated 400,000 "displaced persons," as they were formally designated, at the end of the war.

Most of these refugees, who later became naturalized American citizens, fled from the Soviet Union in the closing months of the war.

In nearly seven years of operation, the Office of Special Investigations has succeeded in revoking the citizenship of 19 emigres from the Soviet-controlled Baltic states and the Ukraine.  Fourteen have been ordered deported, and nine have actually been expelled from the United States, according to figures supplied by the Justice Department agency.

Returned to Soviets

One deportee, Feodor Fedorenko, who acknowledged having been a guard at the Treblinka extermination camp in Poland but claimed he was forced to work there, voluntarily returned to his family in the Soviet Union last year and has since lost contact with his American lawyer.  Several other alleged war criminals currently face possible deportation to the Soviet Union.

Investigations of about 600 others have been dropped for insufficient evidence, or because of the deaths of witnesses or the suspects themselves.  The Office of Special Investigations is currently investigating another 300 former refugees, most of them from the Soviet Union, while about 35 cases are currently in the courts, according the agency's director, Neil M. Sher.

Since 1980, agency attorneys have taken testimony from about 100 Soviet witnesses.  The agency acknowledges, as one of its annual reports put it, that these videotaped depositions, along with copies of hundreds of wartime documents supplied by the Soviets, have played a "crucial" role in its pursuit of suspected war criminals.

Often, captured German documents supplied by the Soviets show that defendants worked for a local German-controlled police force, for example, but fall short of showing that they actually took part in persecuting civilians.  Witnesses are then produced to link them to atrocities.

The importance of Soviet evidence stems from the fact that persecutions and atrocities at the core of these cases took place largely in occupied Soviet territory, and little or no corroborating evidence is available from any other source.

Some defendants have admitted serving as concentration camp guards but maintain that they were forced by the Germans to choose between being guards or prisoners.  Others have admitted that they worked in local police units controlled by Nazi occupation forces, usually as clerks, but insist they took no part in persecuting or killing civilians.

Despite the agency's repeated expressions of confidence in the reliability of Soviet evidence, its use against naturalized Americans has spawned a bitter controversy in recent years that has sharply divided American ethnic communities whose roots are in the Soviet Union.

On one side of the controversy, Baltic, Ukrainian and some Polish groups have accused the Justice Department of naively lending itself to the political aims of the Soviet regime, which has long tried to sow dissension among traditionally anti-Communist emigre groups in the West, and to discredit them in the eyes of Soviet citizens.

In turn, the American Jewish community, spearheaded by the Anti-Defamation League of B'nai B'rith and joined by some Polish-American groups, has staunchly defended the Justice Department and accused its critics of anti-Semitic motivations.

In a report published in June, 1985, the Anti-Defamation League dismissed the critics' fears of fraudulent Soviet evidence as no more than a "smoke screen" designed to conceal their real purpose, which it said is "to hamper and frustrate the OSI — and eventually to kill it."

Similarly, Sher said in a recent interview that while some of his agency's critics seem driven by reflexive anti-communism, "there is something more to this: They want to close us down."

The controversy took a violent turn last year, with twin bomb attacks — one of them fatal — on two former Soviet refugees who had been cleared of war crimes charges.  A spokesman for the FBI in Washington, Lane Bonner, said the bureau is continuing an intensive investigation into the two bombings and believes that the militant Jewish Defense League may have been responsible.

Last Aug. 15, Tscherim Soobzokov, 67, whom the Office of Special Investigations had sought unsuccessfully to deport, was lured out of his home in Paterson, N.J., at 4:30 a.m. by a ruse — a fire set in his car — and suffered massive injuries to his lower body as a bomb exploded at his doorstep.  His wife, daughter, 4-year-old grandson and a neighbor were also injured.

Accused by the Office of Special Investigations of having served in the German Waffen SS, the combat arm of Hitler's elite security force, Soobzokov had been a target of protests by the Jewish Defense League after the Justice Department dropped its charges for lack of evidence.  Friends of the Soobzokov family have explained that he belonged to a small, persecuted ethnic minority and accepted a Waffen SS uniform as a ploy to escape the Soviet Union with retreating German forces.

Another Bomb Blast

Then on Sept. 6, the day Soobzokov died, a similar bomb detonated at 4:30 a.m. in the Long Island community of Brentwood, N.Y., damaged the home of Elmars Sprogis, 70, a retired construction worker exonerated by a federal appeals court in 1984 of persecuting Jews in his native Latvia.  Sprogis was not hurt, but a passer-by, who apparently was attracted by a fire set in Sprogis' car as a lure, was seriously injured.

Shortly after the explosion, the Long Island newspaper Newsday received a telephone call in which an apparently recorded voice reportedly said: "Listen carefully.  Jewish Defense League.  Nazi war criminal.  Bomb.  Never again."

The FBI has since warned defense attorneys involved in war crimes cases to be alert to the possibility of further violence and to urge their clients to take precautions against reprisals.

In public statements, both the Office of Special Investigations and Jewish organizations have stressed the lack of concrete proof that the Soviets have actually falsified evidence in war crimes cases.

In its report last June, for example, the Anti-Defamation League said, in a passage underlined for emphasis: "For all their claims and charges, the emigre activists have been unable to document a single instance, over the past 40 years, of forged evidence or perjured testimony being obtained from the Soviet Union for use in Western trials of accused Nazi war criminals."

The 40-page report did not mention that several U.S. district and appeals courts in the last three years have cited troubling indications that some Soviet testimony supplied to the government has been falsified.  These courts have expressed concern that Soviet authorities may have engaged in a broad practice of tailoring evidence to suit OSI's needs.

In a May, 1984, speech to the Anti-Defamation League that has become the OSI's standard reply to its critics, Sher said: "There is today a concerted and extremely vigorous campaign by segments of the Eastern European emigre community questioning the appropriateness of our methods....  Their claim in a nutshell: OSI and the Justice Department have become the dupes of the KGB.

"The charge of knowing use of false evidence is the most serious allegation that can be leveled against a prosecutor.  It accuses him of abuse of office and a perversion of the entire system of justice.

"These accusations are simply untrue," Sher said.  "Our evidence is in fact legitimate and ... the charges against us are not valid."

Evidence Emerges

According to the government sources, however, direct evidence of manipulated testimony emerged in July, 1983, during a session in the Ukrainian city of Cherkassy in which OSI attorneys took depositions from five Soviet citizens.

The case concerned a retired, 75-year-old Ukrainian-born factory worker now living in the eastern United States whom the Soviets accused of taking part in a massacre of Jews in the Ukraine in 1942.

The defendant was not present at the hearing but, in keeping with a standard practice accepted by the Soviets, his attorney was present to cross-examine the witnesses.  In addition, a Soviet prosecutor presided over the videotaped hearing.

The attorney, John Rogers Carroll of Philadelphia, asked that his client not be identified by name in view of the two bomb attacks last year.

The sources said the two OSI attorneys at the Cherkassy hearing were delighted with what the prosecutors called the "high quality of the Soviet witnesses, whose recall of events seemed remarkably clear despite the passage of 40 years."

Carroll, however, said he remembered the witnesses — one in particular — as some of the least convincing he had encountered in a long career of trial practice.  The main witness, who claimed to have survived the massacre as a child, was a "joke," Carroll said in a telephone interview.

"He was as absurd a witness as I have ever heard testify.  He was so bad, and the KGB guy sitting next to him was so embarrassed by his oratory — he sounded like someone at a Soviet trade union congress — that he told the guy to pipe down and just answer the questions."

Carroll said that only one of the five witnesses was asked to identify his client from photographs, producing an equivocal response.

"One has to wonder why," Carroll said.  "They were witness to atrocities by someone in that village, but they were never asked to establish who.  It left a substantial evidentiary gap."

Carroll said he left Cherkassy as soon as the depositions were completed, partly to escape what he called an "unbearably oppressive atmosphere."

"The Soviets kept referring to me as the ‘private advocate of the Nazi murderer,'" he said.  "Defense attorneys are not made to feel welcome."

The day after Carroll left, however, a Soviet official involved in the hearing approached an American diplomat who was serving as a liaison between the team from the Office of Special Investigations and local authorities.

Speaking privately and with some emotion, one source said, the official disclosed that the five witnesses had not been brought to Cherkassy the day before the hearing began, as the Americans had been told, but had been confined in the town for well over a week of intensive coaching and rehearsals of their testimony.

Tailoring the Testimony

This source, who was fully informed of the incident that summer, said the official was unable to specify to what extent their testimony was actually perjured — that is, false or misleading.  But the official made it clear that the Soviet aim in drilling the witnesses on their stories was to tailor them to the needs of the American prosecutors, making the testimony as incriminating as possible.

It was in this context that the official asked in disbelief how the Americans could allow themselves to be "taken in" by what was, in fact, a staged performance.

"Don't you people know that we remember what we are told to remember, that we say what we are told to say?" the informant was reported to have said.  He reportedly went on to describe Moscow's purpose in essentially the same political terms used by OSI's critics in the United States.

"This is the way the (Soviet) regime tries to legitimize itself in the eyes of Ukrainians, by discrediting the emigres," the official was quoted as saying.

The U.S. Embassy in Moscow promptly reported the incident to the Justice Department.  Several weeks later, the American diplomat was flown to Finland, where representatives of the Office of Special Investigations — among them the current director, Sher — spent about 90 minutes debriefing him in the security of the U.S. Embassy in Helsinki.

In an interview with The Times in January in which this incident was not mentioned, Sher said there was no evidence that the Soviets have ever dictated how witnesses were to testify to OSI attorneys or in any similar war crimes cases.

"There is no indication that the Soviets have said (to witnesses), ‘You have to say this or you have to say that,'" Sher said.  He added that if at any time the KGB had "spoon-fed a witness," then this "would show up on cross-examination....  Our system provides the means to detect it."

Asked in a more recent interview how he reconciled this with the Soviet official's statement in Cherkassy, Sher acknowledged that he had debriefed the American diplomat in whom the Soviet official had confided but said the OSI concluded the incident had no significance.

"We looked at it very carefully," Sher said.  "It was clear to us that there was no hard evidence about anything, that these witnesses were not compromised."

He said that he did not recall any reference to the coaching of witnesses.  "It was clear to us that what was said was an offhand remark, nothing hard to it, a comment by someone who may have been disgruntled," he said.

However, a U.S. diplomat who served in Moscow and was familiar with the incident said this characterization was not correct.  He said that although any Soviet official who would dare to make such a disclosure would be disgruntled almost by definition, this did not impugn the accuracy of remarks that seemed carefully considered, informed and sincere.

The official's point, the diplomat said, "was to let us know we were being misled."

Out of Court Settlement

Sher said the case was later settled out of court, not because of concern about compromised testimony but out of consideration for the defendant's poor health.

Carroll, the defense attorney in the case, said he was never told about the incident, although it would have substantially affected his handling of the case.  "As for telling me anything about the coaching of witnesses — never," Carroll said in a telephone conversation.  "Why would they?  I was the other side."

He said the case lay dormant on the docket of U.S. District Judge E. Mac Troutman of the Eastern District of Pennsylvania for more than two years, from 1983 until last October.  Then Troutman, impatient with the Justice Department's lack of action, prodded the Office of Special Investigations to settle it out of court.  To his amazement, Carroll said, OSI agreed to settle without trial, but offered no plausible reason for its action.

"I keep close track of these things, but this was one of only two cases I had ever heard of in which they agreed to settle," he said.  "They said they did it out of consideration for the guy's health, but that's patently false.  They never do anything for anyone's health."

He noted that the Justice Department deported 86-year-old Andrija Artukovic to Yugoslavia last December on a stretcher to stand trial on charges of directing the execution of thousands of civilians during World War II.

Other attorneys have complained that OSI continues prosecuting two other suspected war criminals even though they were hospitalized with terminal cancer and closed the cases only on receipt of death certificates and photographs of the bodies.

Under the settlement offered by the Office of Special Investigations, Carroll said his client agreed to surrender his American citizenship in return for permission to continue living in the United States as a stateless person, in effect, a man without a country.

Carroll said the man maintains his innocence and wanted to clear his name in a trial, but his family persuaded him that his history of heart disease made it unlikely that he could withstand the stress.

Apart from the implications of the Soviet official's statement for other cases, Carroll said it might have substantially changed the outcome of this one, had the Justice Department told him about it.

"I thought all along that they (OSI) were holding off because they perceived some weakness.  This might have been the straw that broke the camel's back," he said.

At a minimum, he said, he would have obtained a deposition from the diplomat involved in the Cherkassy matter that "would have directly impeached the testimony."

And, he added, "I certainly would not have advised my client to hand over his certificate of naturalization."