Court rules Demjanjuk should not have been deported over war crimes charges

November 18, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Accusing Justice Department lawyers of illegally manipulating U.S. court cases against accused Nazi war criminal John Demjanjuk, a federal appeals court ruled yesterday that he should never have been sent to Israel to be tried for death camp atrocities.

Although the victory was Mr. Demjanjuk's second in recent months in courts here or overseas, he still faces a firm Justice Department demand that he be deported as soon as legally possible for war crimes or for lying on immigration papers.

In its new decision, the 6th U.S. Circuit Court of Appeals in Cincinnati strongly criticized Justice Department Nazi-hunters for withholding information that would have helped Mr. Demjanjuk defend himself in U.S. courts against being deported, losing his citizenship, and being extradited to Israel for a war crimes trial.

Last July, Israel's Supreme Court nullified his war crimes conviction there and his death sentence, saying there were doubts that he was the infamous "Ivan the Terrible" who ran the lethal gas chamber motors and mutilated Jewish prisoners at a Nazi death camp at Treblinka, Poland, during World War II.

After further legal wrangling in Israel, Mr. Demjanjuk returned to the United States, awaiting the outcome of legal maneuvers by his family seeking to restore his U.S. citizenship, get a right to stay in America, and bring an end to any further threat of deportation.

Yesterday's decision was the first response to those maneuvers. It found that Justice Department lawyers who handled the Nazi war crimes probe of Mr. Demjanjuk, starting in 1976, committed fraud on the court by withholding essential information from his lawyers. This fraud contributed to the court order that sent him to Israel in 1986 for the war crimes trial, it ruled. So, it said, the extradition was wrongly procured.

The three-member Circuit Court panel rejected a Nashville judge's suggestion last June that the case be closed, with no action against any department attorneys who prosecuted Mr. Demjanjuk. U.S. District Court Judge Thomas A. Wiseman Jr. found that those lawyers had acted in "good faith" in developing the Demjanjuk case.

The Circuit Court did not deal directly with the deportation issue yesterday or with Mr. Demjanjuk's loss of his citizenship in 1981. The breadth of the decision, however, seemed to undercut the federal court order stripping him of his citizenship. The government may have to start that process over again, along with a new deportation case.

Justice Department spokesman Carl Stern said the agency was reviewing its options for a possible appeal. He added that the department intends "to effect Demjanjuk's prompt removal from the United States as soon as his legal status is resolved."

The department has argued that, whether or not Mr. Demjanjuk was Ivan at Treblinka, he did serve as a guard at other Nazi death or forced labor camps and made false statements on his entry documents in 1952 -- all reasons that it says would justify deportation and loss of citizenship.

Mr. Demjanjuk, 73, who spent seven years in Israel while being prosecuted, convicted and sentenced to hang, has been in seclusion since returning to the United States in late September. His homecoming prompted angry protests around his family home in the Cleveland suburb of Seven Hills.

His son-in-law, Edward Nishnic of Cleveland, told reporters there: "We want this nightmare over with. It's been 17 years since these accusations were brought." Mr. Demjanjuk, he added, "took the news very calmly, as he has done with all the news in this case."

Beginning in early 1976, U.S. immigration officials investigated reports that Mr. Demjanjuk had been a guard at the Nazi death camp at Sobibor, Poland. The next summer, the Justice Department, under pressure from Congress, set up a Nazi-pursuit office -- the Office of Special Investigations -- that ultimately led the government's case against Mr. Demjanjuk.

It was that unit's lawyers who drew the Circuit Court's sharp criticism yesterday. Although Mr. Demjanjuk's lawyers had made efforts to learn everything the government prosecutors were developing against him, and he had a right to know that, the federal attorneys held back information that cast doubt on the identification of Mr. Demjanjuk as Ivan of Treblinka, the Circuit Court said.

The federal lawyers "acted with reckless disregard for the truth" and for their duty not to scuttle a full and fair defense of Mr. Demjanjuk, the court case. "This was fraud on the court in the circumstances of this case." As a result, it said, it was necessary to wipe out the extradition order that made it possible for Israel to try him.

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