January 15, 1998
Mr. Eugene Harasymiw
Ukrainian Self-Reliance League
Dear Mr. Harasymiw:
Thank you for your letters of Sept. 21 and Nov. 28, 1997, in which you express your organization's strong objections to the prospect that the Department of Justice might engage the services of Mr. Neal Sher as a consultant to assist the Canadian War Crimes Unit's efforts to bring to justice war criminals and others who have committed reprehensible acts during time of war. Mr. Sher, of course, is a former director of the United States Justice Department Office of Special Investigations (OSI). I have read with some care the long article which you have prepared and the Minister had the opportunity to meet with you and two members of the Ukrainian Civil Liberties Association in Edmonton during the month of November. We had already been investigating the matters raised in your letter of Sept. 21st and, following our meeting, the new issues and materials you presented in Edmonton were added to the matters to be considered. One of my officials then conducted a follow-up meeting with you to obtain additional information and articles. While time did not permit us to interview the various persons you subsequently referred us to, we trust that the process followed, involving both meetings and the submission of written materials, afforded you ample opportunity to present the essence of your concerns.
You are quite right to say that, in the Demjanjuk case, something went seriously wrong. What happened in that case ought never to have occurred. The United States Court of Appeals, Sixth Circuit, was clear in holding that OSI lawyers had engaged in prosecutorial misconduct by failing to disclose to the court and to Mr. Demjanjuk potentially exculpatory information in their possession during the US litigation that culminated in Mr. Demjanjuk's extradition to Israel for trial on capital charges.
You go on the say, however, that "it was eventually revealed that OSI had framed Demjanjuk and then covered this up". Although this was alleged before the 6th Circuit Court of Appeal, the Court made no such finding. On the contrary, the Court did not overturn its Special Master's conclusion that the OSI attorneys had acted in good faith. Their error lay in what the Court would find was a reckless disregard of their obligation to provide certain information to the defence. The Court held that OSI lawyers had made a serious mistake, but that they had not intentionally committed a wrong.
In your article, you also say that Demjanjuk's defence attorneys were able to gather enough hard evidence to prove his innocence. It is true that he was acquitted of the charge of being Ivan the Terrible of Treblinka. But, while the Israeli Supreme Court found a reasonable doubt as to Demjanjuk's guilt on that score, it ruled that the evidence before that Court also showed that Demjanjuk was an active participant in Operation Reinhardt -- the Nazi plan for the extermination of Polish Jews -- and hence involved in mass murder. American officials maintain today that Demjanjuk's role in the Holocaust, by virtue of his service at Trawniki, Sobibor and several other concentration camps (all confirmed by thoroughly tested and authenticated war time documents), is not open to legitimate question. The U.S. Dept. of Justice, with the approval of the Attorney General, is therefore continuing to pursue Demjanjuk and is seeking to deport him on the basis of his record during the war, and his misrepresentation and concealments to immigrate to, and become a citizen of, the United States.
While the Demjanjuk case was a serious and unfortunate event, our information does not suggest that it is characteristic of how OSI has carried out its mandate over twenty years. As you note, OSI has now denaturalized some 60 people and removed 48 from the U.S. OSI counsel appear continuously before the courts of the U.S., and are subject to the public scrutiny and challenge that adversarial litigation generates in that country. Given this formidable task it is hardly surprising that they attract some criticism. But they also receive praise from many quarters, including the courts they appear in front of. For example, in the recent decision is US v. Bronislaw Hajda, 963 F. Supp. 1452 (N.D. Ill. 1997), the Court wrote:
To see the U.S. government uncoil its mighty sinews and reach across time and distance to uncover facts is an amazing and frightening thing to behold. Indeed, seeking to discover the acts of a single individual across the temporal expanse of 50 years and a distance of an ocean and half a continent is a daunting task. Yet, through the efforts of the Justice Dept. and the international community, the activities of Wachmann Hajda have come to light. The government believes that the investigation has also demonstrated that the Defendant is Wachmann Hajda.
That court went on to emphasize that it was satisfied that the OSI had met its special disclosure responsibilities to the accused in that case.
The charges you level at Mr. Sher himself, namely that the Demjanjuk "debacle" occurred during his stewardship of OSI and, further, that he is a "corruptor of justice" have also been considered. As to the first of these allegations, Mr. Sher appears to have had a very limited role to play in Demjanjuk. Mr. Sher only became Director in 1983 and served in that capacity until 1994. When the 6th Circuit Court of Appeals re-opened Demjanjuk in 1992, Mr.Sher was in charge of OSI, but the events into which the Court was inquiring were focussed upon the 1977-81 period while Walter Rockler was Director of OSI and Allan Ryan was Deputy Director -- prior to Mr. Sher's tenure. Although the Court cited others in OSI for their failures to perform their duties properly, it found no improprieties to have been committed by Mr.Sher. Further, the US government's Office of Professional Responsibility, which also looked into the Demjanjuk case, found no wrongdoing by Mr.Sher.
As to the second charge, that Mr. Sher is a corruptor of justice, this is a very serious allegation that is not borne out by the evidence and information we have. Rather Mr. Sher's record shows him to be a man with excellent credentials and a vast amount of experience in war crimes matters -- in our assessment a person uniquely positioned to provide advice and insights to our leadership here in Canada.
Accordingly, we decided to retain Mr. Sher to act as an advisor to Canada's war crimes program. We believe that his knowledge of American and international law pertaining to war crimes, and his extensive experience with overseeing OSI will be of great benefit to those responsible for managing Canada's program, and will help us make that program more effective.
In your letter, you raise a number of quite different concerns to which I would like to respond. You argue that the government's present efforts to revoke the citizenship of, and deport, people who lied about their war times activities to enter Canada are unfair and unjust. Moreover, you say that the government has blundered by abandoning the criminal prosecution option in favour of the civil remedies of revocation and deportation, and that this short cut drastically erodes due process.
I respectfully disagree. No principle of law of fairness requires the government to elect to use the criminal law and to attempt to imprison people, if other laws and procedures and different remedies can be equally invoked against them in accordance with all the normal protections of Canadian law. What is alleged against the 14 people against whom proceedings have been begun since 1995 is that they entered Canada, and sometimes obtained citizenship, by fraudulently concealing their wartime status and activities, in breach of Canada's immigration and citizenship laws. Those laws provide sanctions for their violation. If the government can persuade a court that evidence exists to support these allegations, then I believe it is entirely proper to seek to strip Canadian citizenship from such people, and to remove them from this country. All of this is being done in accordance with the highest standards of justice and procedural fairness.
Thank you for taking the time to meet with the Minister in Edmonton, and to write to us about this important subject.
Deputy Minister of Justice