Yossi Melman   Ha'aretz   14-Nov-1997   Lied through their teeth
Who lied about Demjanjuk?

Friday, November 14, 1997

If it were not for the Demjanjuk affair, Gilbert Merritt would probably be a U.S. Supreme Court Justice.  Yossi Melman traces the career of the judge who ruled in 1985 that John Demjanjuk was in fact Ivan the Terrible, and ordered his extradition to Israel

NASHVILLE, Tennessee Aside from John Demjanjuk, who endured a tortuous eight years of legal proceedings that nearly led him to the hangman's noose, and his close family members, the most prominent victim of the Demjanjuk case was Gilbert Merritt.  He is the federal judge who in April 1985 upheld the ruling years later proven to be incorrect that Demjanjuk was Ivan the Terrible, the notorious, sadistic guard who operated the gas chamber at the Treblinka death camp in Poland, and ordered Demjanjuk's extradition to Israel.

At the time, the rulings by Judge Merritt were acclaimed by major Jewish organizations in the United States.  However, after the Israel Supreme Court found Demjanjuk innocent of the charges against him in 1993, Judge Merritt expressed remorse for his erroneous decisions.  He also sharply criticized the Jewish organizations.  His expression of regret and critical remarks ended up costing Merritt the highest position that an American jurist can hope to reach.

Before Damjanjuk, Merritt's star had shone bright.  He had extensive experience and a sterling reputation, and was a Democrat with a liberal world view.  Yet, despite being a leading candidate to fill a vacancy on the U.S. Supreme Court, and his prodigious judicial and civic skills, Merritt was never offered the sought-after appointment.  His friends, including Judge George Paine of the Federal Bankruptcy Court in Nashville, explain that Jewish organizations, and primarily B'nai Birth, the Anti-Defamation League, the World Jewish Congress and the Simon Wiesenthal Center, carried out a lobbying campaign in Congress and the White House against his elevation.  They hinted that Merritt was anti-Semitic and was not suited to the position of Supreme Court justice.  President Bill Clinton buckled under the pressure of the Jewish lobby and opted to appoint Ruth Ginsburg to the post four years ago.

I met Gilbert Merritt, now 61, two weeks ago in his office in Nashville, Tennessee.  In spite of his disappointment, he is not bitter.  "I am just a lot more sober," he says.  What provoked the Jewish reaction was Merritt's statements denouncing the American Department of Justice, the Israeli Foreign Ministry and the Jewish organizations, all of whom had insisted that John Demjanjuk was Ivan the Terrible.  Today, Merritt feels that what began in the early 1980s as an inquiry by the Justice Department Office of Special Investigations (OSI) eventually snowballed into a conspiracy against Demjanjuk.

According to Merritt and others familiar with the affair, the OSI, which was set up to bring war criminals living in the United States to justice, was at the time subjected to heavy pressure by Congress and senior Justice Department officials.  The office had been criticized as being inefficient and unable to fulfill its tasks.  OSI directors were told in no uncertain terms to "deliver the goods:" either expose Nazi war criminals and collaborators who had found refuge in America, or lose some or even all of its budget.  This was the background for the accelerated investigation against Ivan Demjanjuk, an American citizen of Ukrainian descent who lived in a suburb of Cleveland, Ohio.  The investigation showed that after World War II Demjanjuk had entered the United States on false grounds, having failed to reveal the truth about his past on the immigration questionnaires.  Based on that, American authorities stripped him of his citizenship.  Simultaneously, Jewish organizations and the OSI began to place heavy pressure on the Israeli government through Ephraim Zuroff, the OSI representative in Israel at the time, who is now director of the Wiesenthal Center in Jerusalem to request Demjanjuk's extradition to Israel.  The national unity government headed by Shimon Peres was not delighted at the prospect, but the pressure finally paid off and Justice Minister Moshe Nissim filed for the extradition of John Demjanjuk.

The Sixth U.S. Circuit Court of Appeals met in Cincinnati to hear the petition.  Judge Merritt headed the panel.  Representatives of the OSI and the Justice Department introduced documents apparently indicating that Demjanjuk was in fact Ivan the Terrible from Treblinka.  Judge Merritt and his colleagues were convinced, and in April 1986 the court ruled for Demjanjuk's extradition.  Demjanjuk was brought to Israel, found guilty of the crimes of which he was accused in the Jerusalem District Court, but in 1993 was cleared on appeal by the Supreme Court of the charges against him.

"Today we know," says Merritt, "that they the OSI, the prosecution in the case and the State Department lied through their teeth.  Even then they knew without a doubt that Demjanjuk was not Ivan the Terrible, but they hid the information from us.  I am sorry that I did not have the information at the time.  If I did, we would never have ruled in favor of his extradition to Israel."  Merritt claims that what happened in his courtroom was "nothing short of a witch hunt.  In retrospect, it reminds me of the witch trials in Salem, Massachusetts 300 years ago.  The prosecution, counseled by the OSI, presented documents and witnesses whose testimony was based on emotions and hysteria, but not hard evidence.  To my regret, we believed them.  This instance is a prime example of how justice can be distorted."

Despite the disdain and rage Merritt feels for the prosecution, the OSI and the State Department, he is full of praise for the Israeli judicial system, and especially the prosecutor in Demjanjuk's trial, Michael Shaked.  "Your prosecutor was brave and honest enough to admit to the doubts that arose regarding Demjanjuk's identification as Ivan the Terrible.  It was these doubts that eventually resulted in freeing Demjanjuk from the hangman's noose.  And the credit for this goes to your prosecutor, who I consider to be a noble man with the highest of principles, quite unlike our own liars."  As for the allegation that Demjanjuk was in fact a collaborator of the Nazis who worked as a guard in a different camp, Merritt responds, "Yes, I heard about that and it might even be true, but so long as evidence has not been introduced to the court, it's impossible to find him guilty of other crimes.  A person can only be guilty if convicted of the crime of which he is accused.  Demjanjuk was put on trial for being Ivan the Terrible, but it became clear that he is not Ivan the Terrible."

Once the truth emerged at the Supreme Court in Jerusalem, and word of it reached Judge Merritt in Cincinnati, he filed a complaint and demanded an investigation of the OSI and its director at the time, Allan Ryan, on suspicion of violating the constitutional rights of John Demjanjuk.  The judge's claim was backed up by findings brought to light by the Demjanjuk family and their legal advisers, who searched through trash bins near the OSI offices in Washington and unearthed documents which indicated that the prosecution in the original Cincinnati trial did not provide the defense with all the material in its possession, as is required by law.  "My moral and legal obligation, as a human being and as a judge, is to the constitution and to rule of law.  This was also the obligation of the officials in Washington to submit all the information they had to the court."  The investigation of Judge Merritt's complaint is still underway.  Gilbert Merritt's curriculum vitae is impressive, to say the least.  Born in Nashville, Tennessee in 1936, he took his bachelor's degree at Yale, and then attended graduate school at Vanderbilt University in Nashville.  He later completed a law degree at Harvard.  After being accepted to the bar, Merritt became a law school lecturer and worked as a lawyer at one of the largest firms in Nashville.  In 1966, at the age of 30, Gilbert was appointed as a public prosecutor in Nashville, becoming the youngest federal prosecutor in the United States.  In this position, he waged legal fights to enforce the federal equal rights and civil rights laws to improve the situation of the black minority of one of the most racist southern states.

In 1977, President Jimmy Carter appointed him to the Federal District Court in Cincinnati, and in 1989 he was promoted to chief judge of the court.  This fast-track judicial career path seemed to be leading toward a Supreme Court appointment, an opinion that was shared by President Clinton and the Democratic Party.  But the Jewish community could not forgive him.

"Various Jewish organizations attacked me for lodging my complaint and my demand for an investigation," he dryly notes, his voice devoid of emotion.  "They accused me of anti-Semitism.  I never imagined what power these organizations could have."

Merritt's friends in the Nashville Jewish community came to his aid.  They strongly condemned the attacks against him, spoke out in his support and explained that he by no means harbored any racist opinions.  Still, the all-powerful lobby of the East Coast Jewish establishment was undeterred.  Today, Merritt is still a judge in the Sixth U.S. Circuit Court of Appeals, dividing his time between his judge's chambers in Cincinnati and Nashville.

"At least now I have more time to devote to my hobbies golf, tennis, bicycle riding, and my numerous public functions as a trustee of several universities."  As for the fate of Demjanjuk, it is still the subject of a legal struggle with the U.S. Immigration and Naturalization Service.  The authorities are opposed to restoring Demjanjuk's American citizenship, on the grounds that when he originally filed for immigration, he misled them regarding his past.  If Demjanjuk's appeal is rejected, he will be deported to the Ukraine, the country where he was born.