Richard Rashke - Useful Enemies

Testifying in his own behalf, Fedorenko stole much of the government’s thunder. He frankly admitted that he had been a perimeter guard at Treblinka, but denied he volunteered for the job. The SS had drafted him, he said, and he would have been executed had he refused to serve. He knew that prisoners were being gassed at Treblinka because, one day, he was posted to camp two, where the gas chambers were located. What he saw, he said, so sickened him that he refused to work there again. He never beat or killed anyone. The only time he ever fired his rifle, he testified, was when the SS ordered him to shoot during the uprising, quickly adding that he fired over the heads of the fleeing prisoners.

Fedorenko also frankly admitted that he had lied on his visa application. Not to deceive the office of the U.S. consul, he said, but out of fear for his life. If he admitted he had been a POW, he would have been turned over to the Soviets for repatriation and executed as a deserter. And if he admitted he had been a guard at Treblinka, the Soviets would have executed him for collaborating with the enemy, an act of treason.

Judge Roettger, who presided over the juryless civil trial as mandated by Congress, was clearly sympathetic toward Fedorenko. In his written decision, he described the case as a David and Goliath legal battle. Four attorneys with an oversized budget sat at the prosecution table. That much legal firepower, he pointed out, was generally reserved for Mafia dons, serial killers, and drug lords. A single attorney sat at the defense table, and he was one attorney more than Fedorenko could afford. The retired welder was living on Social Security and a modest pension. He didn’t own a home or a car and had only five thousand dollars in the bank. The only thing the man actually owned, Roettger noted, was a cemetery plot.

Roettger went on to condemn what he called the “Hollywood spectacle” staged outside his courtroom. He noted that the Jewish Defense League advertised in Miami newspapers offering free chartered bus rides to Fort Lauderdale for the trial.

If Roettger was harsh on the crowd outside his courtroom, he was merciless on the prosecution inside. In essence, he disemboweled the government’s entire case because, he ruled, it failed to prove the case without a doubt. Since the government did not offer any documentary evidence that Fedorenko had committed crimes as a Treblinka guard, Roettger observed, witness identification was “the heart” of the trial. And witness identification relied on a photo spread that Roettger characterized as “impermissibly suggestive [and that] did not pass muster under American law.”

After noting that only three of the six eyewitnesses positively identified Fedorenko in court, Roettger went on to say that the three identifications were tainted because their testimony and body language suggested that the survivors had discussed the case among themselves and had been coached. Both indiscretions violated the rules of the court.

Roettger also attacked eyewitness testimony about Fedorenko’s alleged shooting and beating of prisoners. He found the survivor testimony both disturbing and heartrending and never doubted that they were at Treblinka and suffered horrors there. But he characterized their identification of Fedorenko as a brutal guard at Treblinka as inconsistent and, therefore, unconvincing. And he found the testimony of former U.S. vice consul Kempton Jenkins unconvincing as well. Although Jenkins told the court that every camp guard he had ever interviewed claimed he did not volunteer for the job, Roettger did not consider that unsupported statement as proof that Fedorenko lied when he testified that the SS had drafted him for guard duty.

If he was hard on the prosecution, Roettger went easy on the defense. As a judge, he prided himself on being a keen observer of courtroom body language and vocal innuendos that he used to help determine witness credibility. He found Fedorenko a credible witness. Unlike his survivor-accusers, who were “combative, hostile and intensive,” he said, Fedorenko was calm and guileless and spoke with a firm, sincere voice. In the absence of any specific evidence to the contrary, he believed Fedorenko when he said he did not volunteer for guard duty at Treblinka.

Roettger further pointed out that the defense had drawn an un-contested picture of Fedorenko as a model American citizen. Fellow foundry workers and union bosses testified that he was hardworking and reliable, and that he never filed a single grievance with the union or had one filed against him. Neighbors testified that he was a gentle man without any apparent prejudices. And his attorney presented evidence that he had no criminal record and only one traffic ticket after twenty-nine years in America.

In the end, Judge Roettger ruled that the government failed to present “clear, unequivocal, and convincing” evidence that Fedorenko had committed any crimes against civilians, or that he had volunteered for guard duty at Treblinka, or that his lie masked material facts or was an act of “willful deceit.”

Roettger also wrote that there were two “equitable considerations,” or extenuating circumstances, critical to the case and his decision: 1) if Fedorenko had refused to serve at Treblinka, the SS would have executed him; 2) if Fedorenko had told visa officials the truth, his life would have been in danger. Roettger therefore ruled: “Because the Government failed to meet its burden of proof, judgement is entered for the defendant. Under the circumstances of this case equitable considerations would also require the same result.”

Fedorenko cried. The JDL fumed.

Chant leader Brett Becker told the press: “This decision is indicative of the fact that Nazi war criminals will be allowed to live in America in comfort. This decision strengthens our belief in the philosophy of the JDL, which states there is no justice for the Jew, except that which he takes himself.”

In New York, Bonnie Pechter, the national director of the JDL, said: “We are going to start a large campaign against this judge and… demand a new trial. There is no prosecution for Nazi war criminals in America.”

Morton Mattel, a Treblinka survivor never called to the stand, expressed his shock at Roettger’s decision. “How can it be that he goes free as you and me,” he told a reporter. “I was with him for four months. I can’t forget. I woke up last night screaming.”

Mattel, who lived near Fort Lauderdale, had been prepared to testify that Fedorenko beat him with his whip and that he had a scar on his scalp to prove it, but prosecutors never called him to the stand. Arguing that six eyewitnesses were enough, Roettger asked the government not to call any more. The government agreed.

Although Roettger’s decision appeared cold and uncaring, the trial had affected him deeply. “It was the most gruesome testimony I’ve ever heard,” he told the Fort Lauderdale News. “I just couldn’t get it out of my mind. The testimony kept creeping into my dreams. I dropped a couple of pounds because I couldn’t eat. Food had no taste.”

The government didn’t waste any time filing an appeal, which it won. And Fedorenko wasted no time filing a counterappeal to the U.S. Supreme Court, which he lost. Attorney General Benjamin Civiletti himself argued the government’s case before the High Court, sending a clear message to America and the rest of the world that the era of protecting Nazi collaborators in the United States was over. Civiletti argued: “armed guard service, with a uniform, with epaulets, with a black tie, with boots, with a pistol, with a rifle in a death camp… was such conduct that it amounted to assistance of the enemy in the persecution of civilian population.”

For the High Court, the Fedorenko case was a simple application of the Displaced Persons Act of 1948 (DPA). Congress had passed the law, as was its right under the Constitution. Congress could have stipulated that assistance to the enemy had to be voluntary to warrant exclusion from the United States, but it deliberately chose not to do so. Therefore, the justices ruled, involuntary forced service was not a valid consideration.