September/October 1993, Page 65

Jews and Israel

By Sheldon Richman

American Jews Debate Demjanjuk Acquittal

The Jewish American reaction to the Israeli Supreme Court's acquittal of Ukrainian-American auto worker John Demjanjuk on charges that he was "Ivan the Terrible," a sadistic gas chamber operator who slashed and maimed many of his victims before killing them at the Treblinka death camp, was summed up by an anonymous Jewish-American leader who told the Reuter news service: "If this had come from any other court but the Israeli Supreme Court, I would have accused them of anti-Semitism."

Those hoping for Demjanjuk's conviction may have been briefly cheered by the Israeli decision to hold him while the authorities decide whether to try him on other charges. They were disappointed, however, when a U.S. federal appeals court ruled that Demjanjuk must be readmitted to the United States while the American courts re-examine the orders that stripped him of his citizenship and extradited him to Israel.

In making its ruling, the U.S. appeals court agreed with Demjanjuk's defense attorneys that previous U.S. court proceedings were premised on the accusation that he was Ivan the Terrible of Treblinka, precisely the charge of which he was acquitted by the Israeli high court. Jewish groups called on the Clinton administration to appeal the ruling.

"This is a terrible decision," said Rabbi Marvin Hier of the Simon Wiesenthal Center. "It has tremendous implications. It casts Holocaust survivors in the role of being aggressors and perpetrators as being victims. It's misplaced compassion."

In the weeks before Demjanjuk's acquittal, Forward, a widely read New York Jewish newspaper, followed the case closely with stories implying that in the end the prosecution would prevail. It reported that Jewish groups had applauded a federal judge's finding that the U.S. Justice Department had not engaged in willful misconduct in its handling of the case, which goes back to the late 1970s. U.S. District Judge Thomas Wiseman Jr., appointed as a special master in the case, found that the Office of Special Investigations (OSI) committed no misconduct and used no fraud in the Demjanjuk case. But he also concluded that in evaluating the charges against Demjanjuk, OSI lacked skepticism and withheld exculpatory evidence from Demjanjuk's attorneys. .

Wiseman nevertheless found that Demjanjuk's 1985 extradition to Israel was justified because there was sufficient evidence that Demjanjuk was trained as an SS guard. However, Wiseman acknowledged that there also was substantial evidence that Demjanjuk, 73, was not Ivan the Terrible of the Treblinka death camp. The only issue at trial in Israel was whether Demjanjuk was Ivan. The Israeli Supreme Court ruled that there was a reasonable doubt about that.

Jewish organizations expressed satisfaction with Wiseman's finding. "We are pleased and not surprised," said AntiDefamation League national chairman Melvin Salberg and national director Abraham Foxman. "OSI deserves considerable credit for the success it has had through the years in identifying, denaturalizing and deporting Nazi war criminals who entered this country illegally. " World Jewish Congress executive director Elan Steinberg said of the charge that investigators withheld exculpatory evidence from the defense that "Demjanjuk's lawyers owe an apology to the government."

The defense will have a chance to rebut Wiseman's report in early September before a three judge panel.

Forward reported intense concern by national Jewish organizations that federal Circuit Court Judge Gilbert Merritt, a member of the panel, has tilted toward the defense. "Concern was so intense," wrote Forward writer David Twersky, "that President Clinton removed Judge Merritt from a short list of nominees to the Supreme Court after three major Jewish groups protested his possible elevation."

White House counsel Bernard Nussbaum had met with Merritt while he was under consideration for the Supreme Court. Protests about Merritt came from the Anti-Defamation League, World Jewish Congress and the Simon Wiesenthal Center, the Forward reported.

"The chief judge of the Sixth Circuit Court of Appeals is accused of displaying an 'insensitivity' to the Holocaust and harboring antipathy to the OSI," Twersky wrote of Merritt. It was Judge Merritt who reopened the Demjanjuk case last year.

Twersky pointed out that most of Judge Merritt's critics have insisted on anonymity. Those critics say that their concerns about Merritt began before his Demjanjuk decision. They were disturbed by his 1991 blocking of the deportation of an alleged Nazi slave-camp guard, Leonid Petkiewytsch, on grounds that he had not actually persecuted Jews, but merely assisted.

Merritt is also viewed with suspicion for having chosen not to return the Demjanjuk case to the judge who heard the denaturalization and extradition proceedings, Chief Judge Frank Battisti of the Federal District Court for the Northern District of Ohio. Since Battisti was most familiar with the matter, the critics said, he would be the natural choice to investigate the charge of misdeeds by the prosecution.

Twersky wrote that Merritt was said to have asked Battisti if a Vanity Fair article about the case had persuaded him of misconduct. Battisti said no and asked that he be allowed to review the case. Merritt, however, gave the task to Judge Wiseman, seemingly reversing an earlier Sixth Circuit judgment that "judicial economy is served" by choosing a judge familiar with the case.

The Forward reported that Merritt denies he had a conversation with Battisti before he appointed Wiseman. Battisti would not comment. Forward said "sources close to" Battisti called the appointment of Wiseman "ludicrous." (The selection of Wiseman was challenged and upheld by the Sixth Circuit.)

A Forward editorial written before the Israeli Supreme Court acquittal of Demjanjuk disputed the argument that the entire case hinged on the identification of Demjanjuk as Ivan the Terrible of Treblinka and that whatever he did at the Sobibor camp, where disputed documents have placed him, is irrelevant.

"The death sentence that was handed down by the lower courts is for the crimes at both camps," Forward editorialized. "Israel's indictment against John Demjanjuk covered his actions throughout the entire period of the Holocaust, during which time he was recruited to serve the SS and was trained at the Trawniki Camp as part of the Nazi's auxiliary force. . .We now know from documentary evidence—including new evidence entered during the appeal—that Demjanjuk served at the Sobibor extermination camp. . . To spare Demjanjuk, the high court would have to clear him of deeds at both Treblinka and Sobibor, or to find some technicality that requires a new proceeding." (The defense has labeled the Sobibor document a forgery, a position reinforced in August by an article in a German magazine.)

The editorial concluded, "A good deal has been made recently of the importance of Holocaust museums, including by President Clinton, but while there are still living Nazis guilty of war crimes, it is the courtroom that is required for justice. We feel sure the Israeli court understands this and will no doubt know what to do."

The Israeli Supreme Court's 405-page ruling disagreed: "The main issue of the indictment sheet filed against the appellant was his identification as Ivan the Terrible, an operator of the gas chambers in the extermination camp at Treblinka. . . By virtue of this gnawing [new evidence indicating mistaken identity] . . . we restrained ourselves from convicting the appellant of the horrors of Treblinka. Ivan Demjanjuk has been acquitted by us, because of doubt, of the terrible charges attributed to Ivan the Terrible of Treblinka. This was the proper course for judges who cannot examine the heart and mind, but have only what their eyes see and read."

Sheldon Richman is a Washington, DC-based regular contributor to the Washington Report.