Richard Rashke - Useful Enemies

On the other hand, since we cannot now prove with clear and convincing evidence that Demjanjuk was at Sobibor, and we do not believe he was at Treblinka, this choice is a simple ruse to skirt the ethical problems of Option A.

In the past, I opposed amending the pleading to include a reference to Sobibor and Trawniki because I believed that Demjanjuk could not have been both Ivan the Terrible and the Sobibor guard described by Danilchenko. And in the past, OSI has opposed the dismissal of the case despite gnawing doubts about its veracity.

I recommend we perform radical surgery on our pleading. And I recommend that we make a decision about which path to follow within the next couple of weeks.

OSI director Walter Rockler called a meeting two weeks after he got George Parker’s memo. Besides himself and Parker, present at the meeting were his deputy Allan Ryan and Norman Moscowitz, an OSI attorney helping to prepare the Demjanjuk case for trial. Rockler got right to the point.

“If he [Demjanjuk] was at Sobibor, is he still subject to denaturalization under the law?” he asked. Ryan, Parker, and Moscowitz all concluded that he was.

Rockler then asked Moscowitz whether he agreed with Parker that Sobibor and Treblinka were “irreconcilable.” Moscowitz said he didn’t see the two as “contradictory.” The SS could have rotated Demjanjuk from one camp to the other as needed.

During that short meeting of ten to twenty-five minutes, the four attorneys did not discuss the ethical issue Parker had raised in his memo, and Parker did not bring it up. Rockler leaned toward dropping the case. His experience as a Nuremberg prosecutor had taught him not to give too much weight to eyewitness accounts without documentation to support them. Since the Ivan the Terrible case was based on eyewitness testimony without documentation, it should not go to trial. And to try Demjanjuk as a Sobibor guard instead of as Ivan the Terrible of Treblinka wasn’t worth OSI’s time and effort. There were other more important and better-documented cases waiting to be investigated. If Demjanjuk belonged anywhere, it would be close to the bottom of OSI’s list of alleged Nazi collaborators.

When Rockler returned to his law practice at Arnold & Porter, he left the final decision about the Demjanjuk case to his successor, Allan Ryan. Rejecting Parker’s recommendation to delay the trial, Ryan chose the status quo option—try John Demjanjuk as Ivan the Terrible.

Ryan’s decision fed Parker’s dissatisfaction. He had been upset when the Justice Department fired Martin Mendelsohn as OSI deputy director and hired Ryan over the “intense opposition” of Elizabeth Holtzman and others. Parker had been part of Mendelsohn’s inner circle, where his opinion was sought and respected. Once Ryan took over the reins, Parker felt left out. The meeting over his memo only served to strengthen that feeling. Besides, Parker never intended to make government service his life’s work. Ryan’s decision to take OSI down what Parker considered an unethical path gave him the nudge he needed.

Parker quit.

There is no evidence to suggest that Ryan was miffed or upset by Parker’s decision to return to a poorly paid job in legal services. He pressed forward on the theory that Demjanjuk served as a guard at both camps.

Danilchenko’s alleged statement, which OSI had, was part of his 1949 war crimes trial testimony. It was useful as a lead but worthless as evidence and certainly inadmissible in court for a number of reasons. Even though Danilchenko may have sworn to tell the truth, it was possible that the KGB tortured or threatened to torture him if he didn’t say what it wanted to hear. The KGB could have prepared his “testimony” and ordered him to sign it, or else. Or he could have lied hoping to get a better deal. The fact that his twenty-five-year sentence was commuted to eight years for no apparent reason tended to support the perjury theory.

Natalia Kolesnikova, who had prosecuted Danilchenko and others in the 1949 Kiev trial, admitted as much. “All the men had invariably done worse things than they would admit,” she said. “And they tried to protect themselves—sometimes by accusing others to reduce the risk to themselves.”

If Danilchenko was to be of any use in the Demjanjuk trial, OSI would have to depose him as well as videotape his testimony in case he couldn’t or wouldn’t testify in America. As a first step in its promised cooperation with OSI, the Procuracy of the USSR—equivalent to the U.S. Department of Justice—assigned Kolesnikova to take Danilchenko’s sworn statement to assist OSI in its investigation and prosecution of John Demjanjuk. A certified copy of Danilchenko’s testimony, as well as statements from several other witnesses, arrived in Washington in January 1981, just weeks before the Demjanjuk trial was scheduled to open. The Danilchenko Protocol, as it was called, made the government’s case stronger.

But which case? And could it be trusted?

As the prosecutor who tried Danilchenko in 1949, Natalia Kolesnikova knew a lot about Sobibor. Part of her interview strategy with him was to look for contradictions between what he said at his trial in Kiev and what he would tell her now. She was also hoping to hear more details about who Iwan Demjanjuk was, what he looked like, and what he did at Sobibor. Anything to help the Americans.

Kolesnikova would later tell writer Gitta Sereny that the Procuracy of the USSR was no longer interested in Danilchenko. “We only wanted to question him as a courtesy to the American prosecutors who wanted to know more about his connection to Demjanjuk and Sobibor.”

Before beginning her interview in Tyumen, Siberia, in November 1979, Kolesnikova explained to Danilchenko the responsibility of a witness under the Soviet Criminal Code and the penalty for making false statements, refusing to give a statement, or being evasive. Danilchenko signed a statement that he understood and accepted this responsibility.

The interview began.{What follows is not a literal transcription or translation.}

The gas chamber at Sobibor in camp three was camouflaged, secret, and guarded by a special detachment of SS guards. During the first six months of my service at the death camp, one or two trainloads of Jews arrived daily. Each train had approximately twenty-five cars with fifty to sixty Jewish men, women, and children in each. Sobibor also had a fleet of five or six trucks that it used to transport Jews from neighboring ghettos.

As a rule, all the Jews were killed on the day they arrived. That made Sobibor nothing more than a factory for mass murder. During the six months I worked there, it gassed fifteen hundred Jews a day until fall 1943, when fewer and fewer trains arrived.

The Germans organized the company of Sobibor guards into four platoons with approximately thirty men in each. The platoons were based on height. A German officer was in charge of the company. A Volksdeutsche led each platoon. Since I was just over six feet tall, I ended up in the First Platoon—the tall man platoon.

Demjanjuk was already at Sobibor and in the First Platoon when I arrived. I don’t know when he came there or from where. But I did know he trained at Trawniki because he told me.

Demjanjuk was taller than me. He had gray eyes, light brown hair, a receding hairline, and was stocky. He wore a black uniform with a gray collar and always carried a loaded rifle except when he guarded the outside perimeter of the camp. Then he carried a submachine gun to shoot any prisoner who tried to escape and to prevent unauthorized personnel from entering the camp.