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Among the three classes of cases which must be brought before the U.S. Congress, in hearings on the pattern of systematic prosecutorial abuse by the permanent bureaucracy at the U.S. Department of Justice, are those carried out by the so-called Office of Special Investigations (OSI), the so-called ``Nazi-hunters.'' Two of these cases--the one brought against former Austrian President Kurt Waldheim and the one against Ukrainian-American autoworker John Demjanjuk--were presented at the Independent Hearings to Investigate Misconduct by the U.S. Department of Justice, held with the aid of the Schiller Institute, in the early fall of 1995.
The other two classes are the cases against African-American politicians, known as ``Operation Fruehmenschen,'' and those against associates of prominent U.S. statesman Lyndon LaRouche.
There is one respect in which the Demjanjuk case is the most damning of the three. For it was this case in which a U.S. Court of Appeals found that the Justice Department carried out an outrageous, and nearly fatal, fraud on the court. Yet, to this very day, the Department of Justice, all the way up to Attorney General Janet Reno herself, has continued to defend the OSI's misconduct, and sought to reverse John Demjanjuk's right to live as a U.S. citizen in this country.
It was not until Demjanjuk was appealing his death sentence in Israel before the Israeli Supreme Court, that the evidence came into the public that he was not Ivan the Terrible. In the early summer of 1992, the Sixth Circuit Court of Appeal ordered a review of the case, and appointed a Special Master, Judge Thomas Wiseman, to supervise the review.
While Judge Wiseman was carrying out his review, the Israeli Supreme Court--on July 29, 1993--acquitted Demjanjuk, thus sparing his life and creating the situation where he could be freed.
As a result of the Wiseman investigation, on Nov. 17, 1993, the Federal Court of Appeals for the 6th Circuit issued its decision. Among its findings:
``The OSI attorneys acted with reckless disregard for their duty to the court, and their discovery obligations in failing to disclose at least three sets of documents in their possession, before the proceedings against Demjanjuk ever reached trial.''The court concluded:
``Thus, we hold that the OSI attorneys acted with reckless disregard for the truth, and for the government obligation to take no steps that prevent an adversary from presenting his case fully and fairly. This was fraud on the court in the circumstances of this case.Despite efforts by the DOJ to get a review of the Sixth Circuit decision, it was unsuccessful. On Oct. 3, 1994, the U.S. Supreme Court rejected a Justice Department appeal of the Sixth Circuit's ruling. Eventually, Demjanjuk was allowed to return to the U.S., and in early 1998, had his citizenship reinstated.``And finally, as a result of all this, for the reasons set out herein, we vacate the judgment of the District court, and the judgment of this court, in the extradition proceedings on the grounds that the judgments were wrongly procured, as the result of the prosecutorial misconduct that constituted fraud on the court.''
Despite all of this, Attorney General Reno, at the urging of Mark Richard and other Criminal Division bureaucrats, is, to this day, pursuing a new denaturalization case against Demjanjuk. Does this case not show that the Department of Justice cannot be trusted to enforce its own standards?
I will in my presentation, focus on that case; but specifically, I will focus on the misconduct of the Office of Special Investigations, a branch of the Department of Justice in the United States.
The Demjanjuk affair started as a Soviet plot in the very beginning of 1976, through a Soviet crony named Michael Hanushak. Hanushak was an editor of a Ukrainian communist newspaper published in New York, the Ukrainian Daily News. The affair began with an attempt to implicate Demjanjuk as a guard in the notorious death camp of Sobibor. Sobibor was a death camp, where between spring of 1942 and autumn of 1943, 600,000 Jews were slaughtered, in front of the allies, who knew exactly what was happening, and who didn't lift a finger to save even one Jewish child from the holocaust, which took place in Sobibor.
The allegations were that Demjanjuk was a guard in that death camp. This was the Soviet plot in the Demjanjuk affair.
A few months later, in the state of Israel, an extremely suggestive photo spread was shown to Israeli holocaust survivors, mainly from Sobibor and Treblinka. Demjanjuk was wrongly identified as ``Ivan the Terrible'' from the death camp of Treblinka, a death camp where between the July 27, 1942 and August 2, 1943, 870,000 Jews were slaughtered.
Ten years later, this case of mistaken identity case deterioriated, in the state of Israel, to one of the worst showtrials of the century. Demjanjuk was tried in a theater hall, in the one and only ever televised case in the history of the land. The television was invited by the court and the prosecution. And, at the end of these proceedings, on April 25, 1988, as everyone could have anticipated when they began, Demjanjuk was sentenced to death.
The Demjanjuk affair became one of the worst cases of coverup in modern history. This was due to the enormous, unprecedented misconduct of the U.S. Department of Justice, and, most specifically, its Office of Special Investigations.
The lawsuit to revoke Demjanjuk's American citizenship, was brought to the Cleveland federal court, in September 1977. Although the sole evidence against Demjanjuk was identification from an extremely suggestive photo spread, there was no doubt that the Justice Department genuinely did believe in September 1977 that Demjanjuk was that monster from Treblinka, known as Ivan the Terrible.
Less than a year after this indictment was presented to the federal court in Cleveland, the OSI received, through the American embassy in Moscow, a telegram, with hundred pages of documents, which had been requested by the OSI, in connection with another case, a case which the OSI conducted and lost, in the matter of Fyodor Fedorenko.
That information that the OSI received, also contained information about the real identity of Ivan the Terrible. There were four Treblinka guards: Ivan Shevchenko, Pavel Leleko, Alexandr Yegor, and Sergei Vasilienko, who all stated, that the man known in Treblinka as Ivan the Terrible, the one that operated the gas chambers in Treblinka, that gassed 870,000 Jews, was one Ivan Marchenko.
I want to read to you a small part of the statement of Vasilienko in order to demonstrate how clearly the evidence, which in August 1978 was already in the hands of the OSI, showed that Demjanjuk could not be, under any circumstances, Ivan the Terrible.
``Marchenko Ivan, the operator of the motor of the gas chambers in Treblinka camp. The Jews in the work crews called him Ivan the Terrible. He was noted for his cruelty to the people, during the process of their extermination. He beat them with obvious enjoyment, and whatever came to his hand, however he wanted.''Vasilienko was also presented with a picture, of two Treblinka guards, and was asked to tell who these two guards were. And looking at this picture, Vasilienko said that the picture showed guards of the SS forces in the Treblinka camp. He referred to one, who is holding a pistol in his hand, as Takchuk. Next to Takchuk was the operator of the motor of the gas chamber: Marchenko, Ivan.
That is to say, on the 12th of August 1978, the OSI is in possession of a picture of the real Ivan the Terrible; a picture which has no similarity whatsoever to Demjanjuk.
Now, in October 1991, due to endless efforts by Congressman James Trafficant (D-Ohio), the telegram was revealed. But, the names of the people were taken off. And, only his persistent demand to get the entire telegram, finally produced this telegram, which is a clearcut proof, that they had the statements of these four Treblinka guards as early as 1978,
In December 1991, two months later, another telegram was revealed. This was a telegram that was sent by the OSI to the Polish Main Commission, a commission to investigate Nazi crimes in Poland on July 29, 1981.
They say the following:
``OSI also has several statements by Soviet citizens, witnesses. However, since these statements are not of public record, because they are hidden, OSI suggests that the Main Commission contact the Soviet authorities directly for these statements.''And here is the list of 15 testimonies; of them nine, we know, are Treblinka guards' testimonies, relating directly to Ivan Marchenko as Ivan the Terrible.
One would expect the OSI to review its position in the case, due to the new material which they now had in their possession, which, of course, proved beyond any doubt that Demjanjuk couldn't be Ivan the Terrible. The OSI didn't do it. They also didn't terminate the case. They decided to continue with it, as if nothing happened; as if this material were not in their possession. They decided to continue with the case, to revoke Demjanjuk's American citizenship for being a man [who] they knew, very well, at this stage, that he wasn't. They decided to proceed with the case.
But, this doesn't end the misconduct. Towards the middle of 1979, the OSI got additional material from the Soviet Union. This time, we are talking about two statements, one of a Treblinka guard, Nikolai Malagon, and the other from a Sobibor guard, Ignet Donilchenko. Malagon categorically excluded Demjanjuk as ever having set foot in Treblinka. And specifically, he said that this is not the face of the person known in Treblinka as Ivan the Terrible, the operator of the gas chambers. And, he also specifically named Ivan Marchenko as the real Ivan the Terrible.
Donilchenko pointed to the same picture all the survivors pointed to, the picture of Demjanjuk, and said, ``This person was with me in the death camp of Sobibor.'' It was exactly at the very same time, that the Jewish survivors said he was with them in Treblinka. What the OSI has now in its hands a clearcut alibi, because the same face is identified to be in a different place, more than 100 miles away.
What did the OSI do with this material? It didn't reveal it, not to Demjanjuk's lawyers, and not to the courts which later tried his case. Only in 1986 was this material turned over to the defense as a result of a court order. Meanwhile, Demjanjuk had been stripped of his American citizenship, and extradited to the state of Israel for being Ivan the Terrible. And, this material was deliberately concealed from his lawyers, and from the courts in this country.
Towards the end of 1979, the OSI went to Germany, to interview an SS sergeant from Treblinka, Otto Horn, one of the most brutal murderers in Treblinka. We know from internal memos which were revealed to us, years later, that the OSI attached tremendous importance to the fact that Demjanjuk would be identified as Ivan the Terrible, not only by Jewish survivors, but by one of the SS murderers of Treblinka. Therefore, they went to Germany to secure the identification of Demjanjuk as Ivan the Terrible, by that SS sergeant Otto Horn, who lived in West Berlin at the time.
On Nov. 14, 1979, Otto Horn was interviewed by the OSI. It was a complete failure. The OSI showed him the picture of Demjanjuk and he failed to identify him as Ivan the Terrible, or even as a guard from Treblinka, or as someone he knew from the time he served within the SS forces.
The following day, George Garant, one of the three OSI people who took part in this interview (the other two are Norman Moskovitz and Bernard Duarte), wrote a memo describing exactly what I just told you.
When this memo arrived at OSI headquarters in Washington, somebody within the OSI, we do not know who, decided to dump this report; to not reveal it to the defense lawyers of Demjanjuk in the United States. In 1981, when Otto Horn testified in the denaturalization case of Demjanjuk in Cleveland, his defense lawyer did not have the memorandum from 1979.
In none of the other proceedings that took place in the United States, up until 1986, did the defense lawyer of Demjanjuk have this memorandum, which undermined totally Horn's so-called identification of Demjanjuk as Ivan the Terrible.
When Demjanjuk was extradited to the state of Israel, on February 28, 1986, the OSI told the Israeli prosecution that they did not have the original report of the proceedings that took place with Otto Horn in November 1979. Instead, they produced three affidavits, from the second half of 1986, seven years later, that described what had happened seven years earlier, when supposedly, Otto Horn identified Demjanjuk as Ivan the Terrible. So, when Otto Horn testified in the case of Demjanjuk in Israel, and we're talking about a death penalty case, the defense lawyers could not properly cross-examine Otto Horn, because we never had the real memorandum which nullified the entire process of identification.
In 1989 we received a short memo written by Michael Wolf, then the deputy director of the OSI. I will read it to you: ``On July 2, 1986, Neil Sher (Neil Sher is, then, the head of the OSI) and I spoke to Bernie Duarte at the American Embassy in Beirut, Lebanon, regarding his recollections of the photo spread procedure with Otto Horn. Bernie stated that his recollection of the details of the photo spread procedure as related to Gabby Finden (Gabby Finden is one of the prosecution team of the state of Israel which prosecuted Demjanjuk in 1987-88) [was] not certain. Bernie stated that the details of the facts given to Gabby could easily be mistaken, but that it was his understanding that Gabby wanted these details, explaining at the time that he could not be certain about the exact sequence and the language and the words used in the conversation with Horn. Bernie added that since the interview had taken place over six years ago, and since he didn't have notes, and since he didn't have notes of the interview, he could not give definite chronology of all of the comments made and actions taken by Horn in the course of the identification procedure.''
In other words, this Bernie Duarte produced two affidavits in a death penalty case, while he knows that he doesn't remember the details, doesn't know what he's talking about. And we were crossing Otto Horn in a death penalty case, without having this document in our possession, because it was deliberately dumped by the OSI, and not given to the defense lawyers of John Demjanjuk.
Of the dozens of bureaucrats at the OSI, at this stage, one George Parker became aware of what was happening, and he wrote a five-page memorandum explaining that there was no case against Demjanjuk. Now, not only did he write a memorandum and send it to the head of the OSI at the time, Alan Ryan, but he asked for a meeting with Alan Ryan, and tried to persuade him to drop the case. This is October 1980. The proceedings against Demjanjuk in court had not yet started. Parker was ignored, and the proceedings began in February 1981.
When George Parker realized that this was going to happen, he decided to quit the OSI. He felt that he couldn't take part in this frameup, on the one hand, and coverup on the other hand. He quit the OSI. Now, he revealed all these facts in an interview he gave to NBC television in November 1991, 11 years later. In this interview, he showed the memorandum he had written 11 and a half years before. And also, he noted that as early as 1979, internal documents of the OSI related to Ivan Marchenko and Nikolai Shelaiev as the two individuals who operated the gas chambers in Treblinka; Ivan Marchenko, known as Ivan the Terrible. He revealed all this in this interview to NBC in November 1991.
However, my strong position is that George Parker is no better, and in some aspects even worse, than the bureaucrats of the OSI. He wanted to wash his hands of the execution of Demjanjuk, but he made this thing possible. Because, in February 1981, when the proceedings took place, he kept his mouth shut. He knew exactly, he wrote a whole memorandum telling the reasons why Demjanjuk was not Ivan the Terrible. But his citizenship was revoked just because he was allegedly Ivan the Terrible. Parker knew where the evidence was, and he kept his mouth shut.
February 28, 1986. Demjanjuk was extradited to the state of Israel, because the U.S. courts ruled that he was Ivan the Terrible. Parker knew he was not. Parker knew he was facing a death penalty. He kept his mouth shut. April 25, 1988, Demjanjuk was sentenced to death, for one reason only--for being Ivan the Terrible, and again George Parker keeps his mouth shut. He only opened his mouth in November 1991 when everything was revealed by the defense, when we went, in September 1990, to the Soviet Union and got the documents--80 of them--which proved unequivocally that Ivan Marchenko was Ivan the Terrible. He only opened his mouth when Congressman James Trafficant revealed publicly, the two telegrams I was referring to before.
So, actually, when he went [on] television, he was scared for his own skin, and he wanted to jump on the bandwagon, and to say, ``Look, I have also something to tell about that conspiracy.'' But where was he for 11 years? So, being so alert and so aware of what's going on, and keeping your mouth shut in such dreadful circumstances, in my opinion, doesn't make George Parker the only righteous man in the sodomy of the OSI. No way.
In 1982, when the proceedings in the denaturalization case were completed, and the American lawyer of Demjanjuk, John Martin, asked the OSI to surrender to him all the evidence in its possession from foreign countries, specifically the Soviet Union, Poland, West Germany, and the state of Israel, he got the following response from Bruce Einhorn, the lead prosecutor:
``All relevant and discoverable documents in the government's possession have already been made part of the record of these proceedings. As a result of those documents, and other evidence, your client was denaturalized.''But, the worst atrocity comes when Demjanjuk was finally extradited to the state of Israel. A few weeks later, his son-in-law Ed Nishnic filed a lawsuit based on FOIA, to get the entire file, the entire dossier about Demjanjuk, which was in the possession of the OSI. And we have a memo, written to Martin Sachs, one of the trial attorneys of the OSI, by none other than Bruce Einhorn. And this is what he writes:
``This will confirm our discussion regarding your request for information concerning what the effect would be if we were to agree to the release of our Demjanjuk files pursuant to several pending FOIA requests. I am familiar with the facts of the Demjanjuk case, because I was the lead attorney on it. I'm also familiar with the fact that we are currently providing judicial assistance to the state of Israel in their investigation and prosecution of Demjanjuk who was extradited there this past February. I can state unequivocally that we should oppose release of our files for the following reasons: concern over the integrity of the Israeli prosecution. Release of our material now would in all probability reveal, and could easily undermine and prejudice, the Israeli prosecution strategy.''What is this strategy? To execute Demjanjuk for being Ivan the Terrible! And he doesn't want to undermine that strategy! To hang someone, who he knows is not that man that he's going to be hanged for being! That's what he's saying. Black and white, in writing.
Conversely, there is the expected publicity that would naturally be attached to release of certain and often dramatic material. He knows it's dramatic, because it shows that Demjanjuk is not Ivan the Terrible. And the drama which would be created because of the release of this material, is no good. Therefore, it will not be released.
And here we see, cold-bloodedly, cold-bloodedly, in a death penalty case, the OSI, as an organization, decides not to provide the family of the accused in these proceedings, the exculpatory material which it has in its possession, that could easily undermine the strategy of his prosecutors. I don't think a coverup was ever proven by its perpetrators' material so unequivocally, in writing, black and white, as this coverup of the OSI to execute Demjanjuk for being what he's not. I don't think ever, in such a blunt way, could you expose and show a coverup as this document shows us.
But it is even worse. The OSI is fully aware, that the defense team had no access whatsoever to the Soviet Union, or to Poland, where this material in its possession is originated from. So, the OSI was fully aware that if they did not disclose this material to Demjanjuk, he would never, ever, under any circumstances be able to get this material, because no one could foresee in 1986, that three and a half years, four years onwards, the Soviet Union would collapse, and the entire communist regimes in Eastern Europe would collapse, as happened, and make it possible, to get this material ourselves. But nobody could have anticipated this in 1986; no one.
So, by deciding to block this material from the defense, the OSI actually knew that there would be no way the defense could get to this material.
Now, usually, the perpetrators of a coverup, especially such a cynical one, when the facts start to emerge, would ask forgiveness from the Demjanjuk family. After all, by that time, Demjanjuk was under a death sentence. We're talking about 1991, Demjanjuk was sentenced to death. He was not yet cleared. He had been on death row three years. But, no. The only action of the OSI was to deny responsibility for this, and the actual perpetration of all these things.
Now, there was an enormous amount of publicity when this coverup exploded. The judges of the Federal Court of Appeals for the 6th Circuit, read about all these revelations in the newspapers. And, Judge William Merritt decided on his own initiative, to reopen the original extradition proceedings of Demjanjuk to the state of Israel. The Court appointed a special master, Judge Thomas Wiseman, to investigate on behalf of the Court of Appeals, whether the extradition and the denaturalization of Demjanjuk were the product of fraud upon the U.S. courts.
Judge Thomas Wiseman had extensive hearings in the second half of 1992 and the first half of 1993, and came out with a devastating report, on June 29, 1993. Based on this report, on November 17, 1993, the Federal Court of Appeals for the 6th Circuit, issued their decision. I'll read you some of the relevant parts.
Page 4:
``As early as 1978 or 1979, the government had information from official sources within the Soviet Union, indicating that there were two Ukrainian operatives of the gas chamber at Treblinka, Ivan and Nikolai. And that Ivan Grozny, Ivan the Terrible, was a man named Ivan Marchenko, not Ivan Demjanjuk.''Page 11:
``It seems clear that the American courts, considering Demjanjuk's fate, should have had those documents that were in the OSI possession, that pointed to Ivan Marchenko as Ivan the Terrible.''It continues:
``The OSI attorneys acted with reckless disregard for their duty to the court, and their discovery obligations in failing to disclose at least three sets of documents in their possession, before the proceedings against Demjanjuk ever reached trial.''The court concludes:
``Thus, we hold that the OSI attorneys acted with reckless disregard for the truth, and for the government obligation to take no steps that prevent an adversary from presenting his case fully and fairly. This was fraud on the court in the circumstances of this case.Black and white. The most unequivocal terms possible.``And finally, as a result of all this, for the reasons set out herein, we vacate the judgment of the District court, and the judgment of this court, in the extradition proceedings on the grounds that the judgments were wrongly procured, as the result of the prosecutorial misconduct that constituted fraud on the court.''
Now, in this case, not only were we able to prove the coverup, the cold-blooded conspiracy, but, we also were able to prove the motive and the reason behind it.
On August 25, 1978, Congressman Joshua Eilberg, then Chairman of the House Subcommittee on Immigration, writes a letter to Mr. Griffin Bell, then the Attorney General of the United States:
``Reports have reached me that the deficiencies have become apparent in the preparation of the case of the United States vs. Demjanjuk, a denaturalization proceeding against an alleged Nazi war criminal now living in Cleveland, Ohio. I wish to express my strong concern over the inadequate prosecution of the case. A repeat of the recent Fedorenko adverse decision to the government's case in Florida would nullify and gravely jeopardize the long and persistent efforts of this subcommittee in ridding the country of this undesirable element. The creation of the special litigation unit, the OSI, within the INS, was established to bring expertise and organization to this process. This unit should be fully entrusted with these cases. I would strongly argue to place the direction of the proceedings of the Demjanjuk case in the hands of the Special Litigation Unit. We cannot afford the risk of losing another decision.''This is the 25th of August, 1978, 13 days after the OSI gets in its hands the material that exonerates Demjanjuk. But, because of this letter, and other political pressures which I will refer to later, they are afraid to come out and say, ``We've got it all wrong; Demjanjuk is not Ivan the Terrible.'' And, because of such a letter, and political pressures demonstrated by such a letter, the OSI didn't dare to reveal the real facts about this case, decided to dump exculpatory material, and not reveal it; not to the courts and not to the Demjanjuk attorneys, all through the years.
The Sixth Circuit also addresses this question, on page 24 of the decision:
``Mr. Parker wrote in his 1980 memorandum that the denaturalization case could not be dismissed because of factors largely political, and obviously considerable.''Simple as that.
Other lawyers in the OSI wrote memos discussing this case ``as a political hot potato,'' that if lost, would raise political problems for everyone, including the Attorney General. The decision continues:
``Mr. Ryan, director of the office, wrote to the assistant Attorney General of the Criminal Division in 1980, that the OSI had secured the support in Congress, Jewish community organizations, and public at large, for the OSI. Press coverage has been substantially favorable and support from Jewish organizations is now secure. But, he went on to say, that this support cannot be taken for granted, and must be reinforced at every opportunity.''And then it concludes:
``It is obvious from the record, that the Office of Special Investigations, must try and please and maintain very close relationship with the various interest groups, because their continued existence depended upon it.''So, we have the motive and the reasons. Now, Alan Ryan himself confirmed it. In an interview to an Alabama newspaper, the Huntsville Times, on October 30, 1991, Ryan said,
``It [the Demjanjuk case] was one of the first cases we tried, and we were very much on the line. If we had lost that case, we probably would have had a very short lifespan.''In other words, in order to prolong the lifespan of the OSI, they chose to shorten the lifespan of Demjanjuk!
Five minutes after Demjanjuk was acquitted, Janet Reno, the Attorney General of the United States, was asked to comment. We are talking about a man who spent seven years, six months, and 21 days in prison in Israel for being what he's not, because of the Justice Department that Janet Reno heads. Now, she didn't have one word of criticism about the organization she's in charge of. The only thing she said is that the Justice Department would do everything in its power, to prevent the return of Demjanjuk to the United States. Fortunately enough, her power is not limitless, and four days later, the same Sixth Circuit again reconvened, and ordered the immediate return of Demjanjuk to the United States.
When that same Sixth Circuit said that the Justice Department, through the OSI, had committed a fraud upon the court, which almost led to the execution of an innocent person, she again was asked to comment. The only thing she had to say was, that she would try to appeal the 6th Circuit decision to the Supreme Court, which she did. The Supreme Court refused to even certify the case. No investigation, nothing has been done since then by anybody in this country; no government body, not the U.S. Congress or any other body within the government of the United States, has moved to investigate, let alone to actually prosecute. Why not? The activity of those who are responsible for this terrible travesty, didn't end with the case of Demjanjuk.
Thank you very much.
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