Richard Rashke - Useful Enemies

OSI responded: “All relevant and discoverable documents in the Government’s possession have already been part of the records of these proceedings.”

That wasn’t true.

Denied the undisclosed documentary evidence buried in OSI files, John Martin had lost the denaturalization appeal, Mark O’Connor had lost the asylum plea, Judge Angelilli had ordered Demjanjuk to be deported to the Soviet Union, the Sixth Circuit Court of Appeals in Cleveland had approved Demjanjuk’s extradition to Israel, and Judge Levin had condemned Demjanjuk to death by hanging.

All through these legal battles, the Demjanjuk family and its attorneys never gave up searching for the exculpatory evidence it was convinced OSI was hiding. They got a bizarre break in the early 1980s, while Demjanjuk was waiting for the appeals court to review Judge Battisti’s denaturalization order. Two enterprising Estonian supporters of John Demjanjuk began collecting OSI’s garbage each day from a Dumpster behind the Hamilton Building on K Street in Washington, D.C., where OSI rented office space. Then they packaged the papers they found mixed in with Styrofoam coffee cups and apple cores and sent them to the Demjanjuk family. Some of the papers were stamped CLASSIFIED.

The first two garbage nuggets were a pair of reports describing in detail OSI’s photo identification interview with Otto Horn at his home in Berlin in 1979. Horn was the Treblinka SS officer in charge of burying the corpses taken from the gas chambers. His photo identification of Demjanjuk as Iwan Grozny who operated the gas chamber at Treblinka was especially important because he was a German officer, not a Jewish survivor, and because he had worked side by side with Iwan the Terrible for more than a year. If anyone could identify him, it would be Otto Horn.

One Dumpster report was written by investigator Bernard J. Dougherty Jr., the other by historian George W. Garland. The reports, which complemented each other, proved that Horn’s identification of Demjanjuk as Ivan the Terrible was compromised and suggested that he had committed perjury.

In effect, the two reports completely undermined the credibility of Horn’s entire testimony.

In preparation for the denaturalization trial in Cleveland, Dougherty and Garland had shown two legally correct photo spreads to Otto Horn. Each spread contained eight photos. The Trawniki card photo was in the first batch; Demjanjuk’s visa application photo was in the second. Following OSI rules, both investigators wrote independent reports after the interview.

OSI prosecutor Norman Moscowitz had questioned Otto Horn about the first photo spread during his videotaped testimony for the 1981 denaturalization trial in Cleveland.

“Did you in fact identify or recognize anyone in those photographs?” Moscowitz asked Horn.

“Iwan,” Horn testified without hesitation.

That is not what Dougherty recalled. “Horn studied each of the photographs at length,” Dougherty wrote, “but was unable to positively identify any of the pictures.”

Next, Moscowitz questioned Horn about the second photo spread. “When you looked at those photographs… where was the first [set]?”

Whether Horn could or could not see the first photo of Demjanjuk while he studied the second set of photos was a critical point. If Horn could see the first picture, his identification of the second picture would be inadmissible.

“They were put away,” Horn testified without hesitation.

That’s not what Dougherty recalled. “The first series of photographs,” Dougherty wrote, “was then gathered and placed in a stack, off to the side of the table—with that of Demjanjuk lying face up on top of the pile.” Horn studied both photos, then said they were pictures of the same person. “After a few more moments of careful study,” Dougherty wrote, “Horn positively identified the photographs of Iwan Demjanjuk as being the Iwan he knew at the gas chamber in Treblinka.”

It is not clear how Demjanjuk’s photo ended up on top of the first photo spread pile. Or whether it was placed there accidentally or deliberately.

But because the defense didn’t have a copy of the Dougherty-Garland reports and was not present at the Berlin photo identification session that Dougherty and Garland had conducted with Otto Horn, Martin had been unable to challenge Horn during his cross-examination. As a result, Judge Battisti was impressed with Horn’s pivotal testimony.

“The court finds no aberration in the conduct of these [Horn] identifications,” Battisti had ruled. “Since the Court finds both the pretrial and trial photographic identifications to be reliable, it must conclude that defendant was present at Treblinka in 1942-1943.”

If OSI had not been able to offer Otto Horn’s sworn testimony in court because it was not credible, or if defense attorney John Martin had confronted Horn with the contradictions during his cross-examination, would Judge Battisti have been so sure of himself? And if Martin had received a copy of the two OSI reports in time to submit them to the appeals court as new evidence, would the appeals court have declared a mistrial or ordered a new trial, as it did in the case of Frank Walus?

Not long after uncovering the Horn photo identification reports, the Demjanjuk family discovered two more nuggets in the Dumpster papers. The first was a cable about Feodor Fedorenko sent by the American embassy in Moscow to the State Department in August 1978, while the Justice Department was preparing for both the Demjanjuk denaturalization trial in Cleveland and the Fedorenko denaturalization trial in Fort Lauderdale. OSI had failed to share the cable with the defense.

The cable identified by name six former Treblinka guards who had been interviewed by the KGB. The defense felt that OSI had the legal obligation to reveal the statements of the six Trawniki men because they were potential defense witnesses.

The second nugget was a cable from the Justice Department to the Polish Glovna Komisia (Main Commission) dated July 29, 1981, a month after Judge Battisti had stripped Demjanjuk of his citizenship. OSI already had Soviet-supplied excerpts from eighteen statements by former Trawniki men about Fedorenko and Treblinka. In the cable OSI asked the Polish Main Commission to request the complete statements from Soviet officials.

The defense felt that it was entitled to the eighteen excerpts because it was possible that one or more of the Trawniki men knew the identity of the real Ivan the Terrible. The defense felt it was entitled to interview them as possible witnesses.

If the Demjanjuk family had been suspicious of OSI before it retrieved the Dumpster papers, it was now totally convinced that OSI was deliberately withholding exculpatory reports vital to the defense. The family engaged Washington attorney John H. Broadley and Ohio representative James Traficant to apply to the Department of State and the Department of Justice, under the Freedom of Information Act, for all Demjanjuk-related letters, cables, memos, and reports. If State and Justice refused to release the documents, or if the documents they did release were so heavily redacted as to make them useless, the family authorized the attorneys to take the government to court.

It was a two-year tug of war that took place while John Demjanjuk was on trial in Jerusalem. The Demjanjuk family was forced to sue. It won.

Among the documents the court ordered the Justice Department to release, over the strong objections of OSI, were two items pointing to Iwan Marchenko as Ivan the Terrible. The first item was an article about Treblinka guards written by a member of the Polish Main Commission. The article in the Commission Bulletin contained a list of seventy former Treblinka guards gathered from Polish and Soviet documents and war crimes testimony. Iwan Demjanjuk was not on the Polish list. Iwan Marchenko was.