EDITORIAL: The Demjanjuk case revisited (03/22/98)

EDITORIAL

The Demjanjuk case revisited

It was a month ago that a federal judge ruled that John Demjanjuk's U.S. citizenship should be restored, marking yet another chapter in that drawn-out case - "a 21-year legal nightmare," as Mr. Demjanjuk's son-in-law Ed Nishnic described it.

The latest ruling reversed Mr. Demjanjuk's 1981 denaturalization on the grounds that U.S. prosecutors, i.e., the Justice Department's Office of Special Investigations, had won its case against Mr. Demjanjuk by virtue of fraud. Judge Paul R. Matia of the U.S. District Court for the Northern District of Ohio, Eastern Division, wrote that the OSI had "acted with reckless disregard for their duty to the court and their discovery obligations" in failing to disclose exculpatory evidence to the Demjanjuk defense.

The February 20 ruling was the latest in a series of landmark defeats for the U.S. government's Nazi-hunting unit, the Office of Special Investigations.

In 1992, perhaps as a foreshadowing of what was to come in 1993 and thereafter, the National Law Journal (December 28, 1992) sarcastically cited the Demjanjuk case among its "Great Moments in the Law" for 1992 and gave its "Ollie North Abuse of Power Award" to then Attorney General William Barr and his predecessor Richard Thornburgh for "serious lack of leadership in three cases," including "the investigation of John Demjanjuk, wrongly accused by the Justice Department of being the infamous Nazi death camp guard, Ivan the Terrible."

Soon thereafter, in July 1993 came the verdict of Israel's Supreme Court: Mr. Demjanjuk was found not guilty of the Nazi war crimes committed by the Treblinka death camp guard known as "Ivan the Terrbile." Then, in November 1993 - citing fraud as well as "prosecutorial misconduct" - the 6th Circuit Court of Appeals overturned the 1986 extradition order against Mr. Demjanjuk. In October 1994 the Supreme Court refused to hear the Justice Department's appeal of that ruling.

Today, as a result of the latest ruling in the strange case of John Demjanjuk, the former Cleveland autoworker is back to square one. His extradition and denaturalization have been reversed. The Justice Department has clearly and convincingly lost the most important case in its history - its show case.

But is the ordeal over for Mr. Demjanjuk, now age 77? We'll know in another month, as the Justice Department was given 60 days to appeal the February ruling. The OSI, you see, could still seek to reopen the case against John Demjanjuk and, as Judge Matia wrote, "attempt to prove its allegations on a level playing field."

In the meantime, there are serious questions that need to be addressed - questions that have serious implications for the justice departments of both the U.S. and Canada.

Will the OSI suffer any sanctions as a result of its repeated misconduct? Will anyone at the Justice Department be held responsible for the travesty of justice that occurred in the case of John Demjanjuk? And, will Allan A. Ryan Jr., OSI director in 1980-1983 - who described Demjanjuk in his 1984 book "Quiet Neighbors" as a Nazi war criminal (even before Mr. Demjanjuk was extradited to Israel to stand trial for those crimes) - feel any consequences?

And what of Neal Sher, Mr. Ryan's No. 2 man and his successor as OSI director? (According to Mr. Ryan's aforementioned book, he, as OSI director, and his deputy, Mr. Sher, supervised OSI prosecutors in the Demjanjuk case.) Will Mr. Sher, who has been hired as a consultant by the Canadian government, be allowed to do in Canada what was done in the U.S.: use any and all methods needed to win a case, in other words, follow the "win at all costs" approach applied so recklessly in this country?

Already there are signs that Canada is following the U.S. approach. After years of prosecuting war crimes in Canadian criminal courts, the Canadian government has now lowered its standards in order to be more "successful" in pursuing war criminals. Canada now pursues suspects via denaturalization and deportation proceedings in civil courts, where a much lower standard of proof is applied. The Bogutin ruling (see story on page 1) applied the "balance of probabilities" standard (even less stringent than the previously used "high probability" standard), rather than the highest "beyond a reasonable doubt" standard required in criminal cases. And, John Sims, Canada's assistant deputy attorney general at the Ministry of Citizenship and Immigration, said of the victory in the Bogutin case: "We're delighted"; "it's an important example of the effectiveness of our program."

Isn't this bizarre? At the same time that the U.S. Nazi hunting methodology is being discredited in its own courts, the Canadian government is moving full speed ahead - with reckless disregard - to adopt the U.S. approach. Hasn't anyone learned anything from the Demjanjuk case?