Michael Warder   Ukrainian Weekly   05-Dec-1993   Communists should be targeted

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On judging John Demjanjuk

Speech delivered by Michael Warder, executive vice-president of The Rockford Institute, on October 30 at the annual meeting of the John Randolph Club San Mateo, Calif.

The trial of John Demjanjuk is, quite simply, the trial of the century.  The war crimes of which he is accused and the subsequent legal proceedings span three continents and 50 years.  Think of it!  Half a century!  Mr. Demjanjuk was swept up first in Stalin's Red Army during World War II when his country was attacked by Hitler's Nazi Germany.  Captured by the Germans, Mr. Demjanjuk then was placed in prison.  Years later, in a legal proceeding that is now 18 years old and filled with the passionate emotion of Communism, Nazism and war crimes, we the public are invited to sit in judgment on a man and what he did in 1942 and 1943.

John Demjanjuk would most likely be dead now, were it not for his faith and the passionate support of his family and the Ukrainian American community.  Indeed, this simple sentence may be most telling for those of us who would seek justice.  Innocence and hiring a good lawyer may no longer be enough, if they ever were.

In 1986, at the time of his loss of American citizenship and deportation to Israel, Mr. Demjanjuk was positioned in the media as the Adolf Eichmann for a new generation.  Through the testimony and evidence presented in Jerusalem at his trial, the historical facts and the lessons of the Holocaust would be preserved, renewed and passed on.  Mr. Demjanjuk, the Ukrainian peasant-turned-Cleveland-autoworker, would be given a fair trial and then hung.  Amazingly, the wheels of injustice ground to a halt, while the wheels of justice began to turn.

It is also to the credit of the Israeli judicial system that Mr. Demjanjuk was finally set free.  True, it is a curious freedom, since he now lives under a death threat and with the continual protection of our FBI.  Mr. Demjanjuk's enemies know where he and his family live.  Still, the Israeli Supreme Court, under tremendous pressure, on July 29, overturned an April 1988 verdict of an Israeli court that had found Demjanjuk guilty of war crimes.  After seven years in solitary confinement in a cell lit 24 hours a day, with a video camera always watching, Mr. Demjanjuk was set free.

Perhaps even more amazing than the decision of the Israeli Supreme Court was the unanimous ruling a few days later of a U.S. Federal Appeals Court in Cincinnati.  This court found that the Justice Department's prosecution of the Demjanjuk case was, and I quote, "careless at the very least."  The implication to this curious use of language was that if the prosecution was "careless at the least," then, at the most, the Justice Department, and more specifically its Office of Special Investigations, was guilty of deliberately concealing evidence from the defense and from the court.  The evidence of professional misconduct in this case is tangible, recent and compelling.  Indeed, the pattern of behavior of the OSI over the years cries out for congressional oversight.  However that may be, the Federal Appeals Court ruled that Mr. Demjanjuk must be allowed to return to the United States because of his questionable prosecution in front of this same court back in 1986.

The Clinton administration, and most specifically its attorney general, Janet Reno, opposed the decision of the court.  Their representatives argued in front of the Cincinnati federal judges that even if Mr. Demjanjuk was not the notorious "Ivan the Terrible" who maliciously tortured Jews on their way to the gas chambers, then the Israeli trials showed that Mr. Demjanjuk was likely a prison guard at other camps.  These are, of course, totally different accusations.  Since Mr. Demjanjuk allegedly concealed his role as a camp guard on his immigration forms more than 40 years ago, they said he should not be allowed re-entry.

Chief Judge Gilbert Merritt could not believe Ms. Reno had actually taken a position in opposition to the motion of the court.  Apparently Ms. Reno hasn't quite got it straight about the relation between the three branches of government.  There is much, apparently, that she hasn't got straight.

Time does not allow a review of the long tangled trail of evidence and testimony behind this case. Nonetheless, a few points must be made.  The United States does not try war criminals.  Instead our government tries some people for lying on their immigration forms when they enter the country.  These are civil proceedings and the government is not required to read a suspect his Miranda rights or to provide an attorney.  Mr. Demjanjuk and his family, for instance, had to raise millions of dollars for his defense.  Nor is the accused entitled to a trial by jury.  Despite the fact that these are civil proceedings, there are no statutes of limitations for lying on the immigration forms.  Nonetheless, a finding of guilt may result in a subsequent sentence of death in a third country.

It has been the stated position of the successive directors of the OSI, notably Allan Ryan and Neal Sher, that they never seek to convict someone for simply lying on a form 40 years ago.  Rather, the crimes in question in this instance are war crimes committed between 1933 and 1945 and involve aiding Hitler's Nazi Germany in waging aggressive war and in committing "crimes against humanity."  It is, of course, a great paradox that the Soviet Union signed a pact with Hitler in 1939 that led in the next two years to an enormous loss of life in Poland, the Baltics and much of Eastern Europe.  This Soviet action, and the specific tortures and deaths that followed between 1933 and 1945, were never considered for war crimes trials, nor for subsequent legal action since the establishment of the OSI in 1978.

Allan Ryan in his book, "Quiet Neighbors," freely admits that, in addition to catching war criminals, part of the rationale for the establishment of the OSI was that an older generation of Jews wanted to teach a newer generation of Americans about the Holocaust.  The idea of catching war criminals dovetailed neatly with Soviet concerns as well.  The Soviets gave death sentences to former members of the Red Army who surrendered to the Nazis and who went to the West after the war.  They were especially interested in finding former soldiers who took up arms against the Soviet Union in the later stages of the war, like the Georgian father of the current head of the American Joint Chiefs of Staff, John Shalikashvili.

Mr. Demjanjuk's name was first given to the U.S. Justice Department in 1975 by Michael Hanusiak, editor of Ukrainian News, a pro-Soviet publication for Ukrainian exiles in the U.S.  It was one of 73 names he gave after visiting the Soviet Union where he received the list.  How convenient!  In fact, the Soviet Union provided much of the evidence and testimony surrounding this and other cases.  Paul Zumbakis in his book, "Soviet Evidence," describes in detail the dubious nature of much of this evidence.  In receiving the notorious identification card purportedly issued to Mr. Demjanjuk, the court never established the specific time, place or circumstances under which the Soviets came into its possession.  Suffice to say that card, the one piece of physical evidence, was riddled with contradictions and controversy.  So too was the testimony of survivors in the initial proceedings in America as well as the trial in Israel.

There were approximately 13 million members of the Nazi Party in Germany.  Less than 10,000 were imprisoned for war crimes, and all together only about 100 were executed.  Indeed, only 12 of the 21 Nazi leaders in the initial Nuremberg trials were executed.  Being a Nazi, in and of itself, is insufficient grounds for a war crime.  Despite all of the hoopla surrounding Mr. Demjanjuk, he was not a Nazi.  He was a Slav, and a Slav could never be a member of the "master race," let alone a member of the party.  In fact, Himmler called for the execution of 30 million Slavs as a means of subduing the East and using the remainder as drones to support the Reich.

Mr. Demjanjuk stated he was a POW during the war after his capture.  But even if he were a guard at a camp, that is not grounds for conviction.  The question becomes: did the particular camp guard willingly and without coercion commit atrocities?  Starvation, disease and the cold in the POW camps led to the death of 3 million captured Soviet soldiers in a war that claimed 55 million lives.  Some became guards to survive.  It is nearly impossible to go back 50 years and assess motivation in those circumstances.

Isaiah Trunk, in his book "Judenrat," points out that the 1950 Nazi Collaborators Law of Israel makes a crucial distinction between a willing and unwilling collaborator.  Many Jews, for instance, participated in ghetto police established by the Nazis.  Some even assaulted other Jews, or helped to get Jews on the trains which led to the death camps.  But even these actions by Jewish collaborators need not necessarily result in conviction, if it can be shown that the accused operated under threat to his life, or if by collaborating the accused could have prevented a greater evil from occurring.

If we are to prosecute suspected war criminals, I have two recommendations.  First, Communists suspected of war crimes should be targeted.  After all, from 1939 to 1941 the Soviets were partners in crime with the Nazis.  Second, Congress should pass legislation so the accused can have the option of a criminal trial in the United States.  In this way these citizens can have the same rights as the thugs who are now terrorizing our neighborhoods.  Frankly, I can't think of anyone worse to prosecute alleged war criminals than smart young Washington attorneys in the Justice Department of Bill Clinton and Janet Reno, two people who, to put it kindly, lack any sense of history and ethics, multicultural or otherwise.  At least if these were criminal proceedings instead of civil proceedings, the accused might have a little better chance of justice.

Nonetheless, armed with faith, his family, the support of the Ukrainian community and other citizens of good will, it seems as if John Demjanjuk may yet prevail after 15 years of struggle in the trial of the century.