Richard Rashke - Useful Enemies

“We have no choice but to let him go,” Judge Gabriel Bach said.

Reaction to the final decision of the Supreme Court of Israel was immediate, emotional, relieved, reasoned, and hateful. “You bring shame to the Jewish people!” a woman shouted from the rear of the courtroom. “Shame on you!”

“I had two acids. Thirty-two percent and one hundred percent,” Yehezkeli said. “I’m sorry I didn’t use the one hundred percent.” He then tore his shirt as a sign of mourning and, with outstretched arms, shouted at the journalists: “I want to die. Kill me!” Then he collapsed.

“We will make justice,” vowed Kach leader Baruch Marzel. “Demjanjuk will one day be killed by good Jews and not by corrupt Jews like we have in the High Court…. If not in Israel, then somewhere else.”

“As far as I am concerned, the question is not whether John Demjanjuk is an innocent person,” said Efraim Zuroff, director of the Simon Wiesenthal Center in Israel. “But is John Demjanjuk Ivan the Terrible, or another terrible Ivan?”

“I am very sad,” said a Sobibor survivor. “How can he leave alive from the Jewish state that grew from the mourning of the children of the Shoah [Holocaust]?”

“[Israelis] are fed up with the case,” said Auschwitz survivor Noah Klieger. “A Jewish State can be fed up with a Nazi murderer? How is such a thing possible?”

“Preposterous,” said Rabbi Marvin Hier, founder of the Simon Wiesenthal Center in Los Angeles. “We may be losing sight of who the real victims are in this case. They are not John Demjanjuks.”

Meanwhile, in Cleveland, the U.S. Sixth Circuit Court of Appeals, which had upheld the lower court’s decision both to strip Demjanjuk of his U.S. citizenship and to extradite him to Israel, ruled that Demjanjuk could return to the United States. The court argued that he had been tried in the United States and extradited to Israel as Ivan the Terrible, not as a guard at Sobibor. Furthermore, the Justice Department’s prosecution of Demjanjuk had been careless and sloppy. And finally, given that Demjanjuk’s life was in danger, the humanitarian thing to do was to allow him to come back to the United States, where he would be “safe.”

John Demjanjuk was finally free to come home.

Wearing bulletproof vests under their sweaters and jackets, Johnnie Demjanjuk, his brother-in-law Ed Nishnic, Ohio congressman James Traficant, and two burly off-duty police officers flew to Israel to escort John Demjanjuk back to Cleveland. The vests were not a grandstand play for media attention. Jewish extremists had repeatedly threatened to assassinate “Ivan the Terrible,” and the Demjanjuk family didn’t want to take any chances, especially after the suspicious death of Dov Eitan and the acid attack on Yoram Sheftel.

When El Al commercial flight 001 landed at New York’s JFK Airport on September 22, 1991, a crowd of reporters shouting questions and demonstrators burning effigies of John Demjanjuk were waiting. Wearing a natty white Panama hat, striped shirt, and blue jacket, John Demjanjuk greeted the crowd with raised fists, as he had often done in the Jerusalem courtroom. Then his security team hustled him into a Cessna turbojet paid for by Demjanjuk supporter Jerome Brentar.

The Cessna wasted no time taking off for Cleveland’s Hopkins International Airport, where a crowd of protesters and friends eagerly waited. At the same time, protesters led by Rabbi Avi Weiss were holding vigil outside Demjanjuk’s home in Seven Hills. Cluttering the lawn next to them were TV cameras and booms, walkie-talkies, Nikons, and reporters chatting on mobile phones.

Demjanjuk fooled them all. Just as the Cessna was approaching Hopkins Airport, the pilot radioed the tower with a new flight plan. He was going to land at the small Medina Municipal Airport a few miles south, he said. And when the plane taxied to a stop on the Medina runway, Demjanjuk’s escorts hurried him into a Lincoln Continental, which whisked him away to an undisclosed location for an undisclosed period of time to keep him safe.

It was not the welcome home that John Demjanjuk had dreamed about for eight years in his small cell in an Israeli prison.

The U.S. Sixth Circuit Court of Appeals had been following the unfolding Marchenko drama in Jerusalem with great interest and concern. Did OSI know or suspect, the court asked itself, that Iwan Marchenko was Iwan Grozny when it tried John Demjanjuk on immigration fraud charges as Ivan the Terrible?

To get to the bottom of its own question, the appeals court, like the Israeli Supreme Court, committed an act of courage. It reopened the denaturalization issue and appointed an independent judge (special master) to investigate OSI on the court’s behalf. What did OSI know? When did OSI know it? Did OSI commit prosecutorial misconduct? Did OSI perpetrate fraud on the court?

The answers were sitting inside a Dumpster.

Ever since Judge Battisti had stripped John Demjanjuk of his U.S. citizenship in 1981, the Demjanjuk family and its attorneys suspected that OSI was withholding documents they were entitled to under the law. OSI had written to Moscow, Berlin, Jerusalem, and Warsaw asking for any and all documents relating to Iwan Demjanjuk. And OSI investigators had traveled to the Soviet Union, Israel, Germany, and Poland looking for and interviewing potential witnesses. As a result, OSI received several information packets from overseas. But in spite of all the international traffic and investigative flurry, OSI had given the Demjanjuk defense team very few documents and only a handful of names of potential witnesses who might clear Demjanjuk’s name or strengthen his defense.

OSI confirmed defense suspicions when it deliberately withheld Soviet-provided statements from five former Trawniki men until after Judge Battisti found Demjanjuk guilty of lying on his visa application. The statements were a mixed bag. None of the witnesses recognized the name Iwan Demjanjuk, and four of the five witnesses did not recognize photographs of him. Those four Trawniki men supported the defense. The fifth witness swore that he had trained at Trawniki with the man in the photos. He supported the prosecution.

Feigning outrage, Demjanjuk’s defense attorney John Martin accused the government of prosecutorial misconduct because it failed to inform the defense of potential new witnesses before the trial, as required by the U.S. Code of Criminal Procedure. It was a sneaky attempt to withhold evidence from the defense, Martin argued. The government knew that the five reports would have “an impact on the Judge’s decision.” He asked Battisti to declare a mistrial.

Martin was half right. Judge Battisti found that the government was indeed at fault when it failed to disclose in a timely manner the identity of one witness who had positively identified Demjanjuk’s photo. On the other hand, he found that the government did not breach any rule when it withheld the identities of the other four Soviet witnesses, because they had denied knowing Demjanjuk at Trawniki and failed to identify the photos.

Battisti concluded that the sworn statements of the five witnesses, either as individuals or as a group, would not have changed his decision in the case in any way. Therefore, Demjanjuk was not entitled to a new trial.

The five-document flap was not a futile and meaningless legal maneuver because it raised a critical question. If OSI had withheld one set of documents that the defense was entitled to, how many more documents was it hiding from the defense?

Immediately after Battisti’s ruling, Martin demanded that OSI deliver all its Demjanjuk-related documents, including those it had received from West Germany, Poland, Israel, and the Soviet Union. He needed them, Martin argued, to prepare the defense’s denaturalization appeal.