Richard Rashke - Useful Enemies

O’Connor chose attorney John Gill, an amateur graphologist, as his co-counsel. Both lawyers had represented Frank Walus in his legal fracas with Simon Wiesenthal. Walus sued the Nazi hunter for allegedly forging incriminating documents and orchestrating false testimony against him as a Gestapo agent. Wiesenthal countersued for libel. Walus settled out of court with an apology and an offer to pay Wiesenthal’s attorney fees and court costs.

Demjanjuk’s final deportation hearing began in April 1983, eight years after his name first surfaced on the Ukrainian list and two years after his denaturalization trial. After a series of delays, it ended a year later. The deportation issue was not complicated. Should John Demjanjuk, no longer a citizen of the United States, be allowed to remain in the country as a permanent resident or should he be compelled to leave because he had allegedly violated seven U.S. immigration law statutes?

Demjanjuk’s job was to argue that even though he had lied on his visa application and had been stripped of his U.S. citizenship, he should not be deported. For its part, the government chose to argue its case negatively—destroy Demjanjuk’s arguments through cross-examination of the defense witnesses without offering witnesses of its own. In lieu of witnesses, the government placed into evidence the entire denaturalization case of more than two thousand pages of transcripts and a mountain of exhibits and documents.

Administrative Judge Adolph Angelilli didn’t make it easy for Demjanjuk. He ruled that the denaturalization decision of Judge Battisti was final (collateral estoppel), meaning that the defense was not allowed to challenge either Judge Battisti’s ruling or his courtroom conduct. In effect, John Demjanjuk stood before the court irrevocably stripped of his U.S. citizenship.

U.S. immigration law allows a respondent in a deportation hearing to choose the country he would like to be deported to should he lose his case. If a respondent declines to pick a country, the government selects one for him. When Demjanjuk waived his right to choose, the government requested his deportation to the Soviet Union, should the court find Demjanjuk deportable. Judge Angelilli granted the government’s request.

The thought of a war crime trial in the Soviet Union was sobering and chilling. To avoid facing a judge in a communist country, Demjanjuk took the only avenue left open. He pleaded for asylum under the Refugee Act of 1980 for religious, political, and security reasons. The only place in the world where he would be safe from the vindictive arm of the KGB, he argued, was the United States of America. The plea was a gamble and the stakes couldn’t have been higher.

For John Demjanjuk, it would either be life in the United States or death in the Soviet Union.

Mark O’Connor opened the defense with a humanitarian argument that bordered on a deliberate lie. He argued that Demjanjuk was too sick to be deported. In response, the government subpoenaed Demjanjuk’s medications and sent them to a pharmacologist for a certified analysis. There were only two prescriptions. The pharmacologist certified that one was for mild pain, and the other was for moderate colitis. As a result, Judge Angelilli ruled that Demjanjuk was healthy enough to face the court and, if found deportable, healthy enough to be deported.

Having lost the red-herring argument, O’Connor wove a seamless defense around the concept of Demjanjuk’s fear. He argued:

• Demjanjuk had lied on his 1951 visa application out of real and justifiable fear either that the United States would deliver him to Soviet agents if they knew he had been a POW and a soldier in Vlasov’s army, or that the Soviets would get a copy of his U.S. visa application and kidnap him. Soviet spies were everywhere in Western Europe after the war, especially among the interpreters hired to process refugees. Interpreters could be bought or blackmailed into providing the names and camp locations of Soviet citizens.

• Unable to find Demjanjuk in a DP camp, Moscow assumed he was dead until Danilchenko swore in 1949 that Iwan Demjanjuk served with him at Sobibor. The KGB immediately placed him on a secret most-wanted list of one hundred Trawniki men.

• Sometime during the 1950s, the KGB learned from Demjanjuk’s letters to his mother that he was living in Cleveland.

• In 1975, the KGB began to frame Demjanjuk with the forged Trawniki card in order to trick the United States into deporting him to the Soviet Union.

• To send Demjanjuk back to the Soviet Union would be a death sentence. The communists would execute him for any one of three reasons—he had been a POW (desertion), a soldier in Vlasov’s army (treason), and a truck driver for the U.S. Army after the war (collaborating with the new Cold War enemy).

• The KGB had a long history of assassinating former Red Army soldiers whom they considered traitors. The only country safe from Moscow was the United States of America.

There was a major flaw in O’Connor’s argument. Feodor Fedorenko chose to be deported to the Soviet Union so that he could be reunited with his first wife and son. When he arrived in Ukraine, Moscow didn’t arrest and execute him for being a former POW and a self-admitted Nazi collaborator at Treblinka. He was alive and free, even as O’Connor argued his case.

To get around that fact, O’Connor reasoned that the KGB was too smart to arrest Fedorenko while Demjanjuk was still free. Trying and executing him before Demjanjuk’s deportation to the Soviet Union might bias Judge Angelilli in Demjanjuk’s favor. Why take a chance? Once Demjanjuk arrived safely in Ukraine, O’Connor argued, the Soviet Union would shoot or hang both him and Fedorenko with a double drumroll.

O’Connor called his first witness—John Demjanjuk.

Unlike Judge Hoffman in the Frank Walus trial and Judge Battisti in the Demjanjuk trial, Judge Angelilli gave O’Connor, an aggressive attorney, wide latitude to explore and develop the tightly woven arguments of fear and frame-up. But Angelilli made it clear from the opening rap of his gavel that he was no pushover.

“Don’t tell me my job,” he scolded O’Connor during an early bench argument. “You do yours. ”

And when O’Connor moved from his designated place in the courtroom, Angelilli stopped him cold. “This is my courtroom and I’ll tell you where you can and cannot stand,” he scolded again. “If you want to move, ask!”

O’Connor began his brief direct examination of Demjanjuk, whom he planned to recall later, by dragging out an old argument—that Demjanjuk had lied on his visa application out of fear. But O’Connor pushed the issue further than John Martin had during the denaturalization trial. He argued that Demjanjuk’s fear of forcible repatriation was both real and justified.

“At the time you were still residing in Germany,” O’Connor began, “what made you believe that these repatriations were happening—that people were being sent back to the USSR for trial?”

It was a question John Martin did not ask during the denaturalization trial.

“The Soviet mission was traveling from one camp to another to enlist people,” Demjanjuk said through an interpreter. “At night [they were kidnaping] people for deportation.”

“Were you aware of this directly … or did you hear about it?” O’Connor asked.

It was another question Martin hadn’t posed.

“We were afraid even to sleep in the camps. We used to leave… at night and sleep outside.”

On his visa application, Demjanjuk swore that he was born in Poland, not in the Soviet Union. O’Connor needed to establish that emigration personnel had encouraged Demjanjuk to lie to avoid being forcibly repatriated.