Professor Harry Reicher is wrong about John Demjanjuk and wrong about the U.S. Justice Department's Office of Special Investigations (which he mistakenly calls the Office of Special Prosecutions). ["Demjanjuk deportation: a milestone," NLJ, June 8.] The U.S. government has indeed pursued John Demjanjuk for more than three decades. The old adage "justice must be seen to be done" is a good starting point.
For the first decade and one-half, that pursuit consisted of the DOJ committing fraud on the courts of the United States and Israel. This fraud, documented by the U.S. Court of Appeals for the 6th Circuit, consisted of the DOJ failing to disclose documents that showed that Demjanjuk was not "Ivan the Terrible," a brutal Treblinka guard. Based on the fraudulent evidence, Demjanjuk was extradited to Israel and sentenced to death. His family uncovered the truth, and the Israel Supreme Court acquitted him. Israel's attorney general said that the acquittal barred prosecution for other offenses, including the ones now being pressed in Germany. Ironically, at that time, the Office of Special Investigations (OSI) allowed Jacob Tannenbaum, a 77-year-old admitted brutal Jewish kapo, to live out his life at home in the United States due to age and health reasons.
Despite the Israeli result, and two independent U.S. court findings of fraud, the OSI has never apologized to anyone, let alone Demjanjuk and his family, nor offered compensation. Nor were the perpetrators of the fraud punished or even reprimanded. Today, with a blind eye to the case history, Professor Reicher hails these perpetrators of fraud as heroes.
Turning to the German prosecution, one irony is that, in the earlier prosecution, one fraudulent act of the U.S. government consisted of inducing a German citizen who had worked in the death camps to give false testimony implicating Demjanjuk. In the meantime, the allegations now being made against Demjanjuk have been reviewed in Poland, the site of the death camps, and that government has pronounced the evidence insufficient and closed the investigation. Demjanjuk, now 89 years old, has always and continues to maintain his innocence.
Professor Reicher cites a civil judgment against Demjanjuk as somehow showing that he is guilty in Germany (he refers to Demjanjuk as "the perpetrator"). That judgment does not establish the elements of a criminal violation of German law, did not require proof beyond a reasonable doubt and did not respect the presumption of innocence. It is understandable that journalists might misunderstand basic legal principles. It is not excusable for law professors to do so.
The German prosecution is being pressed by political and journalistic elements in Germany who want to shift the blame for the Holocaust from the Nazi government to Ukrainians, Poles and Czechs. In the case of Ukrainians, this was a people who less than a decade before had suffered Stalin's forced famine genocide of more than 10 million innocent lives. This was Demjanjuk's childhood trauma just eight years before he was conscripted into the Red Army and sent to battle, where he was hit by German artillery fire and nearly killed.
So these elements have decided to claim that prisoners of war from these countries who were compelled to serve as guards on pain of death bore major, if not principal, responsibility for exterminations. These political elements have been churning out this sort of propaganda for decades, as the revelations about how Germany failed to take meaningful steps against Nazi criminals became public knowledge.
This stateless old man, suffering from severe medical ailments that were worsened by his unjust imprisonment, is more a victim of the Nazis once again and another expedient pawn in the game.
Michael E. Tigar
Durham, N.C.
John H. Broadley
Washington
John Demjanjuk Jr.
Cleveland
Michael E. Tigar, Professor of the Practice of Law at Duke Law School and professor emeritus at American University Washington College of Law, and John H. Broadley, a partner at Broadley and Associates, represented John Demjanjuk in the deportation case brought against him by the U.S. government. John Demjanjuk Jr. is his son.
