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It is typically said that "Mercy seasons Justice" (Shakespeare Merchant of Venice Act IV sc. i. see also Milton Paradise Lost" Bk 10, line 77.) But heartfelt and appealing as such dicta may be, do they not inescapably posit an opposition between mercy and justice such that each must be said to work in derogation of the other, rendering mercy a form of justice denied?
In his discourse, Dives in Misericordia, [ here ] Pope John Paul II explored the rival concepts of mercy and justice as they appeared in the Old Testament and concluded that “mercy differs from justice, but is not in opposition to it” since both were aspects of divine love.
A similar conclusion was reached by Prof. Samuel Levine in an article for the Journal of Catholic Legal Studies (Vol 45:455) entitled "Looking Beyond the Mercy/Justice Dichotomy" [ here ]. Levine quoted rabbinical commentary -- in the mode of Aeschylus' Oresteia -- to the effect that "the goal of justice is not to be juridically astute but to be socially healing" because "where there is strict adherence to justice... one of the parties is humiliated and the conflict persists."
Muslim community elders espouse a similarly pragmatic approach, conceiving of justice in terms of a conflict-resolution in which, after mutual venting of claims and grievances, the parties' reciprocal acknowledgements of rights, wrongs and losses "beyond measure" are factored into the ultimate calculus of damages.
Nevertheless, socially useful and well intentioned as such perspectives might be, they do nothing to dislodge the original dichotomy. Is there no way it could be said that justice is mercy or, to paraphrase Wagner, that the highest form of justice requires its total abandonment?
PART I - JUSTICE
What’s in a Case?
Such thoughts come to mind when, earlier this month, it was reported in the world press that prosecutors in Germany had initiated criminal proceedings against against 88 year old John Demjanjuk for war crimes. Der Spiegel, in particular, gave prominent play to the story, carrying three or four reports on the matter, one of which was entitled “The Case Against Demjanjuk”. (Link)
Sipping our morning coffee, we clicked on the link out of a natural curiosity to discover what exactly the case against Demjanjuk was. But although the report recapitulated the saga of the 25 year long court proceedings, it was bereft of any facts as to what the case was other than stating that seven pieces of evidence placed Demjanjuk at Sobibor, a Nazi camp in Poland. Astonishingly, the article concluded
"John [Damjanjuk] Jr. doesn't have a plausible explanation for how these bits of evidence incriminating his allegedly innocent father could have found their way into court papers. ... But if you ask him what might really have happened in his father's past, he doesn't have an answer."
Why should the accused’s son have to prove his father’s innocence? Sixteen hundred years ago, the Emperor Julian decreed the Presumption of Innocence. An exasperated prosecutor protested, "But Sire, How can anyone be found guilty if it be sufficient to deny?" to which Julian answered, "How can anyone be found innocent if it be sufficient to accuse?"
Perhaps Der Spiegel was satisfied that the case consisted in the absence of an explanation by the accused’s son, but in Anglo-American law at least the burden of proof is on the accuser, and we remained curious as to what the Seven Pieces of Evidence might be. And so, mouse in hand, we clicked on.
But although report after report reported that Demjanjuk had been accused, it was next to impossible to discover what the factual basis of the accusation against him was. Typical was Haaretz which reported that
"Sources close to the investigation told Haaretz that the [U.S.] Office of Special Investigations had urged the Germans to open the investigation against Demjanjuk. The German investigators worked on the case together with the U.S. Justice Department's Office of Special Investigations, and said last year they were "convinced" Demjanjuk served as a guard in the Sobibor camp from March 27 to September 16 in 1943, and was an accomplice to the murder of at least 29,000 Jews." (Haaretz, 12 March 2009)
"Sources close to the investigation" are always the police and prosecutors themselves. These "sources" are always "convinced" that the suspect in their sights is "linked" to crime by information "consistent" with his guilt. Not only are they convinced, they are usually adamant. In fact, these same close sources were adamant that Demjanjuk was also Ivan the Terrible, a murderous camp guard at Treblinka.
It may be, as the Washington Post put it, that “Demjanjuk has long been accused of working for the Nazis as a death camp guard” (WaPo, 3 Jan 2009) but a lot of people worked as camp guards and could also be said to have been “involved” in mass murder. It may be, as well, that Demjanjuk has long been accused, but the strength of that accusation (as opposed to the vehemence with which it is made) rather diminished when we dimly recalled that Demjanjuk jad been acquitted of being the murderous Ivan of Treblinka.
In fact, if he had been acquitted, why was he being hounded at all? Each mouse-click served only to unfold more questions. So, we left off searching for the case and went to read up on the long-standing prosecution.
The Hunt
In 1952, John Demjanjuk immigrated to the United States as a refugee from war-torn Eastern Europe. He settled in Cleveland and for the next 25 years worked on the line for Ford Motor Co. In 1981 his citizenship was revoked on the grounds that he had concealed his having worked as a Nazi camp guard on his immigration application. He was subsequently extradited to Israel where he was tried and convicted (1987) for being the notorious and sadistic Ivan the Terrible who was said to have bull-whipped a Jewish woman to death and laughed with glee as he pumped the accelerator of the murderous gas engines.
Ivan the Terrible(as per the one alleged picture available on the net)
Demjanjuk was convicted on two items of evidence: (1) an SS identification card bearing Demjanjuk’s picture and vital statistics and (2) the testimony of five of 18 surviving eyewitnesses, who identified him as Ivan the Terrible. “I’ll never forget his walk” said Pinchas Epstein as he rose from his chair and demonstrated Ivan’s limping shuffle, to a hushed and emotional court audience.
“ JERUSALEM - An Israeli court yesterday ruled that John Demjanjuk was "Ivan the Terrible," a sadistic guard at the World War II Treblinka death camp, and convicted him of helping gas to death hundreds of thousands of Jews
"We determine decisively and without hesitation or doubt that the accused, John Demjanjuk, who is on trial before us, is Ivan, known as 'Ivan the Terrible,' " presiding Justice Dov Levin said.
"Wild applause broke out in ...” etc. etc. (Boston Globe [here])
There was only one problem: Demjanjuk was not Ivan the Terrible and “he was freed in 1993 on appeal after evidence emerged that investigators had “confused” him with another Ukrainian guard at Treblinka. (Washington Post, 9 Jan 2009) [ Israeli Min. For. Aff /Summary of First Case ] [ IMFA / Summary 1993 Appeal ]
Well... “confused” is perhaps a Washington Post term of art. What the Israeli Supreme Court found was that critical exculpatory evidence had been intentionally withheld by investigators at the U.S. Office of Special Investigations. [ IMFA /Supreme Court Decision ]
As it turned out, Soviet police files, previously made available to the OSI, contained the depositions of 14 or so Ukrainian nationalists who identified one Ivan Marchenko as “Ivan the Terrible”. OSI investigators countered that Demjanjuk could have been known by his mother’s maiden name, Marchenko. The only difficulty here was that Demjanjuk’s mother’s maiden name was actually Tabachyk. [ report ]
Following his release from Israeli custody, Demjanjuk was returned to the United States where his citizenship was restored to him in 1998. The Sixth District Court of Appeal did not mince words. It ruled that the withholding of evidence by OSI prosecutors constituted a “fraud on the court”. (United States v. Demjanjuk, No. C77-923, 1998 U.S. Dist. Court LEXIS 4047 (N.D.Ohio 1998) [setting aside Demjanjuk 1, on the basis of the findings of prosecutorial misconduct in Demjanjuk 5] reported here and here and [Court Appendix 7 - Smoking Memo ] )
“Fraud on the Court” It is not a phrase courts hand out like candy, especially when the fraud was committed by the United States Department of Justice. The Washington Post might seek to sweep the fraud under the carpet of “confusion” but OSI investigators had in fact subverted Due Process.
In American law, “due process” is an historical and juridical term that covers a cluster of fundamental principles considered integral to civilized justice. It derives from Magna Carta (1215) when King John was forced at sword point to promise not to dispossess or execute anyone without due proces de ley.
The reason America courts speak of due process is that when the process is corrupted by a failure to abide by what is due -- in this case the obligation to disclose known evidence of innocence -- then the results of the process are “tainted” and cannot be relied upon. Without a public trial, confronting witness and examining all the evidence pro- and con- how do we know that the case hasn’t been squeezed out and trussed up in some subterranean police boiler room?
Nevertheless, according to Jeff Jacoby of the Boston Globe Demjanjuk’s release on a “technicality” was a “gross travesty of justice” that allowed “a sadistic thug who stuffed human beings into gas chambers ... to live happily ever after.” [ link ]
Well not quite. The blood hounds at the Office of Special Investigations would not give up. In May 1999, the Justice Department filed a new civil complaint against Demjanjuk, seeking once again to strip him of his citizenship.
Cramming the stuffing at Treblinka down the memory hole, the new complaint alleged that Demjanjuk had served as a guard at Sobibor and Majdanek camps in Poland and at the Flossenburg camp in Germany. It additionally accused Demjanjuk of being a member of an SS-run unit that took part in capturing nearly two million Jews in the General Gouvernment of Poland.
In 2001, Demjanjuk was again stripped of his citizenship on the grounds that he had not “fully” disclosed his war time activities in his 1952 visa application and on account of his alleged participation in Nazi-sponsored persecution.
The decision was hailed by prosecutors. Then Assistant Attorney General Michael Chertoff said that the decision "affirms the Justice Department's strong commitment to the principle that individuals who assisted the Nazis are undeserving of the privilege of American citizenship." Eli M. Rosenbaum, Director of the Justice Department's Office of Special Investigations, which, along with the U.S. Attorney's Office in Cleveland, brought the case against Demjanjuk, called the decision "especially gratifying," noting that "This case demonstrates that the government will continue to pursue aggressively those who assisted the Nazis in their infamous campaign of genocide." [ link ]
This “pursuit” included inducing other countries to criminally prosecute Demjanjuk for alleged war crimes. But after 25 years of prosecution, the case was now a tawdry, tangled, legal mess. As a technically stateless person, there was no place Demjanjuk could be quickly and easily dumped. Moreover, the OSI was not interested in leaving Demjanjuk alone but wanted him to be prosecuted. Alas for them, the Israeli Supreme Court had previously ruled that it would not allow Demjanjuk to be prosecuted for being the other guard at the other camp, because to do so would violate fundamental principles of fairness and double-jeopardy. Israel itself wanted nothing to do with this nosing after blood.
In June 2008, a non-governmental “civil rights group” (Equipo Nizkor) filed suit in Spain accusing Demjanjuk of having served as a guard at the Flossenburg concentration camp in Germany, where 30,000 Jews and other prisoners died from unsanitary conditions, malnutrition and other atrocities. (Equipo Nizkor Press Release 8 June 2008 [ here ] .)
The accusation disclosed its own absurdity. Based on the charge, the critical issue, on which Equipo Nizkor evidently had a deficit of evidence, was whether Demjanjuk was personally responsible for the death-inducing malnutrition and unsanitary conditions. The deficit is even more pronounced when one takes into account the lowliness of Demjanjuk’s position within the Nazi chain of command. Bit by bit, the “case against Demjanjuk” was turning out to involve a lot of legal wreckage.
Civilized, albeit basic, concepts of justice are rooted in the idea of individual responsibility. “Don’t rob Peter to pay Paul” reflects the idea in the context of what one person may owe to another. There are situations, particularly in civil law, where a group is held responsible for damages on account of its collective conduct. But under the criminal law, where the penalty involves a loss of life or liberty, guilt is based on personal and specific conduct which commits a crime. It was precisely for this reason that our quest for “the case” began with the question, “Yes, but what did he do?”
In popular lore, the Nuremberg War Crime Trials are said to stand for the principle that “just following orders in no excuse.” But, as with most popularizations, that is at best a half truth. What the judgements at Nuremberg held was that just following orders was no excuse for higher ups in charge of formulating policy. The notion that private soldiers and the vast army of underlings that crank the wheels of society's engines are criminally responsible for policy remains to this day a tenuous and uncertain proposition. Thus for example, in the war crimes trial of Josef Oberhauser the defendant was acquitted of murder and convicted of being only an accessory on the ground that the “actual” murderers were Hitler, Himmler and Heydrich, whereas Oberhauser had been merely a tool who followed orders. [here ]
Actually, Hitler et al had not been the “actual” murderers. If words are to mean anything, the actual murderers were those who did the hands on killing of specific victims with the requisite intent. Criminal law has always required proof of a specific act (actus reus) done with the requisite intent or mental state (mens rea). The Oberhauser Case illustrates the problem that inheres with mass crimes of policy. Hitler may have had the intent (i.e. formulated the “policy”) but he did not commit the actus reus. Oberhauser may have done one or a hundred deeds, but he did not have the mens rea of intending the policy.
The perplexing and discomforting fact is that “collectivization” of any sort magnifies individual power astronomically but at the same time reduces both individual freedom and hence responsibility to a correspondingly inverse degree. At the Nuremberg War Crime Trials, the government of Germany was adjudged to have maintained camps where millions of victims perished from malnutrition, mistreatment, unsanitary conditions, disease and mass-killings. [ War Crimes Findings & Judgement ] No single person could possibly have committed such a crime which was in fact only “committed” by and through that artificial collective entity known as “government.”
Compounding the problem is the fact that “the state” never does just one thing but is always in the kaleidoscopic process of doing multiple things. Thus a theory of guilt based on “aiding the process” results in further absurdities. Does the coal delivery man aid the killing process by providing coal to run the crematoria? If he stops delivering coal does he then also aid the "malnutrition process" by depriving the ovens of fuel to make broth and bread for the hungry inmates? The notion that Demjanjuk or any other underling was somehow responsible for the lack of food deliveries and outbreaks of typhus that ravaged Nazi camps is an absurdity.
Although the Spanish suit did not get very far, better results were forthcoming from Germany; and in Spring 2008, Germany announced that it also might seek extradition against Demjanjuk, accusing him of “torture” at the Sobibor death camp. In June and again in November of that year, Germany's top Holocaust crimes prosecutor, Kurt Schrimm, announced that there was enough evidence to convict Demjanjuk. Of what, exactly, remained fuzzy. According to Schrimm, there was now “stronger evidence” against Demjanjuk including his identity card from Sobibor, which has been “verified” by an expert in the Munich police. (WaPo 9 Jan 2009; Haartez 12 mar 09)
Demjanjuk's Dienstausweiss
Demjanjuk's Dienstausweiss[curious? see FN-1 here ]
Magnifying the mystery, Schrimm added that although there were no surviving eyewitnesses to testify against Demjanjuk, he was confident that prosecutors in Munich could still win a conviction.
"We have managed to obtain hundreds of documents and have also found a number of [now dead] witnesses who spoke out against Demjanjuk ... For the first time we have even found lists of names of the people who Demjanjuk personally led into the gas chambers. We have no doubt that he is responsible for the death of over 29,000 Jews."
"The investigator, Kurt Schrimm, said his office had evidence that Demjanjuk, 88, had been a guard at the Sobibor death camp in Poland and had personally led Jews to the gas chambers there in 1943." (Reuters 10 Nov 2008)
"Demjanjuk is accused of participating in the murders while he was a guard at the Nazi camp in occupied Poland between March and September 1943." (Haaretz 11 Mar 2009)
"In this capacity, he participated in the accessory to murder of at least 29,000 people of the Jewish faith," (Haartez 12 mar 2009)
"Demjanjuk is accused of taking part in the murders while he was a guard at the Sobibor death camp in occupied Poland between March and September 1943. In this capacity, he participated in the accessory to murder of at least 29,000 people of the Jewish faith," Munich prosecutors said in a statement today. (UK Guardian 11 Mar 2009.)
“ Demjanjuk is suspected of being part of the SS auxiliary responsible for gathering the ghetto Jews and guarding them in the concentration and death camps, and personally leading Jews to the gas chambers there in 1943. (Haaretz 12 Mar 2009)
The same mainstream press also informed that Efraim Zuroff, “a Nazi hunter for the Simon Wiesenthal Center and director of its Jerusalem office, said there was plenty of justification for a trial. ‘There's no question that there's enough evidence against Demjanjuk, no question at all,’ ....”
But what did his accusers mean when they said that Demjanjuk “participated in" murder?
To a seasoned reporter like Jeff Jacoby the answer was no doubt clear: it meant that he (along with other sadists) “stuffed” bodies into gas chambers at Treblinka and -- since his acquittal of that crime was just a “technicality” -- he must have stuffed them at Sobibor as well. All this after also being part of the “auxiliary” that rounded up Jews in various ghettos, guarded them in various concentration camps from Majdenek to Flossenberg and then led them to gas chambers (at Sobibor) after having been truly convicted, qua Ivan the Terrible, of bull-whipping inmates and manically flooring the accelerator of the carbon monoxide engines at Treblinka. Why Demjanjuk was a veritable one-man Holocaust Show.
Yes, “participate” could mean all of that.
However, precisely because the word “participate” is ill-defined and potentially all-inclusive, skeptics insist on specifics. The need for specifics increases once it is noted that what Haaretz alternately reported was not that he took part in the murders (as per the Post) but that he "participated in the accessory to murder."
The word “accessory” may be one of them lingo-technicalities that bore the scribblers at the Globe and Post, but in law there is a whale of a difference between a “perpetrator” and an “accessory”
Perpetrators of crime are those who actually do the deed (stab, shoot, pull the lever). Co-participants in the deed are usually called "accomplices". Those who help those who do the deed by conduct before or after the event are called "accessories". The difficulty with indirect criminal liability is where to draw the line. Is the taxi driver who gives the murderer a ride uptown an "accessory" to the robbery his passenger just committed? He certainly did help the robber get away, but did he intend to? did he know a crime had just been committed? In law, without knowledge and intent there is no culpability, whatever the likes of Jacoby might think. [FN/2-Accomplices]
Just as insidious were the reports that sought to incriminate Demjanjuk with guilt by organizational chart. When Haaretz reported that Demjanjuk was “part” of an auxiliary that rounded up Jews, did it mean to say that he personally was involved in dragging Jews out of their abodes or merely that he was enlisted in an organized militia, some parts of which, rounded up Jews? Did his "part" consist in “aiding the process” by being a mess hall cook?
Skipping lightly over the fact that there are no surviving eyewitnesses to testify against Demjanjuk, Schrimm assured the world that prosecutors had found lists of the names of the people Demjanjuk “personally” led into the gas chambers. Did these lists explicitly schedule named people for gassing? Does this mean that the initials “I.D.” appear as the “designated escort” next to the names of the victims? Apparently not because rather than point to such obvious and incriminating facts, Schrimm adverted to “General Orders”
"We know that he was a guard at Sobibor, and we know that all guards at Sobibor had to do the same work. All of them had to bring the people from the trains and to the gas chambers and to remove the corpses afterward."
Actually, if the eye-witness accounts are to be believed, it was Jewish inmate labor that "remove[d] the corpses afterward." Even so, this was a truly astonishing theory of guilt. Did “all” of the guards also have to pour in the gas crystals or pump the fumes? Because if they “all” had to do the same work, they “all” also had to do the actual killing, unless they were all “accessories” and the actual killing was done under outside contract with some private killing corporation like Blackwater. But if they all had to do the actual killing why bother with the lesser fact of “escorting” ?
The case against Demjanjuk appeared to consist of an ID card, and an alleged, general description of Sobibor guard duties. That is precisely the kind of attenuated, circumstantial evidence the Nazi People's Court relied on to sentence people to death in the frenzied last years of the war. But “guilt by being there” is not sufficient to convict anyone of criminal homicide, at least not in an American court.
So, after much head scratching and mouse clicking we were left off where we started. We had no reason to doubt that prosecutors had found Seven Pieces of Evidence. But instead of being given descriptions and details as to what those pieces were, all we could get were Schrimm’s conclusions as to what he thought those pieces proved.
After near 30 years of investigating and hounding a man across three continents, it is hardly too much to ask that those who do so should come up with more precise descriptions of their evidence; and when they fail to engage on such an elementary point of fact and fairness, it is entirely proper to conclude that their case is an empty sham buttressed by inuendo and insinuation.
GX 86
Nevertheless, we now became determined to get to bottom of the matter: (1) what exact degree of involvement in murder was Demjanjuk being accused of and (2) by what kind of evidence of theory was that involvement proved? Was Demjanjuk accused of being an accomplice or merely of assisting in some indirect, circumstantial manner? Did Schrimm have an eye-witness statement in the vein of "I saw him..." or was he relying on a general job description?
Criminal liability has always been based on deeds. The notion of guilt by being there is so alien to our concept of law that we were determined to verify as best we could what the case was and how prosecutors intended to prove it. At length were able to find a fairly comprehensive review of the documentary evidence in the Findings of Fact at Demjanjuk's second revocation of citizenship hearing. (United States v. Demjanjuk, No. 1:99CV1193 U.S. Dist. Crt. (N.D. Ohio, 2002) [ here ] or [ here ] )
Criminal liability has always been based on deeds. The notion of guilt by being there is so alien to our concept of law that we were determined to verify as best we could what the case was and how prosecutors intended to prove it. At length were able to find a fairly comprehensive review of the documentary evidence in the Findings of Fact at Demjanjuk's second revocation of citizenship hearing. (United States v. Demjanjuk, No. 1:99CV1193 U.S. Dist. Crt. (N.D. Ohio, 2002) [ here ] or [ here ] )
One of Several Alternative Recreations of Sobibor's Layout(The smaller square at upper right is "Camp III" the alleged
gassing facility. The general account is that the victims
were led via a fenced off path from the station to Camp III)
The court's findings reviewed the documentary evidence which placed a named and identified "John Demjanjuk" as being inducted into the Trawniki training camp and thereafter being posted to Majdenek, Flossenberg and Sobibor. (Findings, ¶ 113, pg. 24, citing "Sobibor transfer roster" GX [Govt. Exhibit] 5.) The findings went on to state:
But what was Government Exhibit 86? It was evident from the above as well as from other references in the court's findings that Exhibit 86 was a document that transcribed some kind of narration, as opposed to an ID card, duty roster sheet or other official operational record.
A reader might think this is grotesque quibbling. Surely the gist of the matter was that Demjanjuk shoved victims into gas chambers. Very true, that was the impression of the matter, but that was not what was said. If Demjanjuk had been identified as one of the "trained guards" that drove people into gas chambers, it was a simple enough thing to say so. One of the popular misconceptions floating about the publo-sphere is that police and prosecutors are well intentioned bumblers that don’t speak English too good very often and so we should cut them some slack and fill in the cracks of their narrations. Au contraire mon vieux. Police and prosecutors and even judges are all very skilled at inuendo. Defense attorneys exist to enforce the Laws of Grammar, and by enforcing grammar to insure that due process is abided.
But investigations and analyses often do not proceed in a directly linear fashion. And so it was that, while looking around for GX 36, we bumped into a 1993 article in the New York Times recounting Demjanjuk’s acquittal of the first case and the filing of new charges against him. The article went on to state:
Assuming the lesser of two evils, we decided to do some investigation into Camp Sobibor to find out what the general duty roster might have been like, such as might justify an inference of mass guilt by definition. Alas, the case against Sobibor was not much different than the case against Demjanjuk.
Officialist holocaust historians allege that Sobibor was a “pure extermination” center -- a camp the sole purpose of which was to liquidate Jews. This would account for its apparently small size. This would also account for the District Court's clever but equivocal finding that
The difference is critical if Demjanjuk’s guilt is based on the argument that he stuffed bodies into gas chambers because that’s the only thing that was done at Sobibor and everyone assigned there had to do it.
Alas, even accepting the spirit of the court's findings, what we discovered was that there was no hard evidence of mass exterminations at Sobibor in the first place. As stated on the memorial Auschwitz-Birkenau web-site:
Nevertheless, it is important not to confuse issues. It can certainly be accepted that the Nazis committed programmatic genocide against the Jews particularly in Poland. It does not necessarily follow from that premise that genocidal killings took place at Sobibor. The issue here concerns the guilt of one man for alleged multiple murders at Sobibor based on what appeared to be a circumstantial theory of how Sobibor operated. And now, instead of finding an SS duty roster or some such equivalent, we discovered that there was no forensic evidence of mass killing at all.
The dirth of concrete forensic evidence is made up by testimonial accounts and confessions and, not surprisingly, these accounts vary and, at times, relate absurdities. Virtually all legal systems recognize that the divergence in detail among eye-witness accounts is a factor which reduces the reliability of their account because we can't tell what the account is in the first place. On the other hand, the coincidence among varying accounts on a single common fact acts as a confirmation of that fact, at least where thecircumstances negate the likelihood that the single "common fact" wasn't being carried on the wings of rumour.
Thus, while survivor-witness inconsistencies might not negate the fact of mass killing they reduced to a shambles Kurt Schrimm’s theory of mass killing by unvarying, uniform process. Far from substantiating such a factual premise our research disclosed that Sobibor had a halting and somewhat erratic history and that the camp did have non-homicidal work components. (Fn-4 Sobibor Summary )
Thus, again, we came full circle. At some point in 1943, Demjanjuk may have stood guard over or escorted people to a gas chamber because that’s what guards did. That was pretty much guilty-by-definition.
Here's how the definitions work in Demjanjuk's case:
Moreover, we wondered, how could Demjanjuk get a fair trial without being able to contest the definitional premise? How could that premise be contested given that the alleged witnesses are deceased? In the absence of specific evidence against him, the trial of Demjanjuk necessarily involved a trial of overall Nazi policy in the General Gouvernment of Poland or an the unquestioned acceptance of the "Sobibor Premise". We had started out looking for the facts of the case and we ended up discovering a theory of the case that rendered any trial either a farce or a foregone conclusion. (FN-5/ProvingPremises)
Just as bad, the Israeli prosecutor’s theory of guilt seemed to confuse history with criminal guilt. Historical inferences operate on a more general and probabilistic level than inferences in a criminal case the goal of which is the execution of the accused. It is one thing to say that considering everything we know about Nazi policies in the occupied territories, it is a fair conclusion that mass murder took place at Sobibor. It is quite another to say, on the same general basis, that ergo Demjanjuk committed specific acts that make him an accessory to mass murder and for which he should be executed. And yet, that is precisely what has happened. By virtue of his status as a "part" of the collective group which, as a whole, committed war crimes, Demjanjuk is made to take on the guilt of the whole for war crimes.
This is the true essence of scapegoating, which is simply to prosecute the fact of a larger event in the person of the scapegoat. That person is seldom chosen at random out of a crowd but invariably bears some connection or "linkage" to the larger event. But it is the evil of the larger event that is purgatively punished in the sacrificial victim, who is condemned not for anything he can actually be proved to have done but rather for his unfortunate ability to serve as a prism for the real object of condemnation.
Astonishing as it may seem, all else being equal, it is easier to strip a person of the priceless jewel of American Citizenship than it is to convict him of driving at an unsafe speed. The District Court's "Conclusions of Law" explained that:
But that is not what the Israeli prosecutor told the Times. What he said was that Demjanjuk was an accessory to murder by definition. The term "accessory" is part of the vocabulary of criminal law. By using the word "accessory" the Israeli prosecutor implied criminal not civil guilt. Perhaps guilt-by-definition is the rule under Israeli law, but in the United States (at least so far) criminal guilt cannot be imposed “by definition” without proof of specific personal conduct, willfulness, and intent.
To make matters worse, from the point of view of due process, the definition (i.e. that Demjanjuk was a Trawniki-Trained-Sobibor-Guard) was established by the testimony of a dead witnesses. The one thing Schrimm was perfectly clear about was that all his witnesses were deceased. To his way of thinking that was no big deal because Germany follows the civil legal system which allows trial by written deposition and ex-parte interrogations.
But under the Constitution and U.S. criminal law, it would not be possible to try an American citizen on the basis of deceased testimonial statements rustled up in support of a theory of definitional guilt. The Confrontation Clause of the Bill of Rights exists precisely because English and American law recognized the inherent viciousness of convicting a man on the basis of depositions and statements given in private to magistrates and prosecutors at ex parte hearings. As noted recently by the Supreme Court in Crawford v. Washington (2004) 541 U.S.36, 44, it was precisely on the force of such “statements” and confessions that Sir Walter Raleigh was convicted and beheaded in a shameful case in which the prosecutor himself later confessed that “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”
But in Demjanjuk’s case, precisely that type of evidence was used to strip a him of his citizenship and of his constitutional protections and then ship him off to a country where he could be criminally prosecuted on such a "degraded" basis.
The vice here is the seamless connection between civil deportation and prosecution, where the United States deports a person "by definition" to a country (Germany) where he can be hanged if not quite by definition then by an rather loose definition of "accessory" and reliance on an equally amorphous determination that his conduct stemmed from "base motives"... whatever they might be demed to be. (United States v. Gecas 50 F.3d 1549, 1561 fn 12. (11th Cir. 1995) citing Strafgesetzbuch [StGB] art. 211 (F.R.G.).) This is just another, more “judicial” form of rendition.
Whatever GX 86 was, it was at the heart of a very nasty process -- a process so nasty in fact that it was almost irrelevant what GX 86 was. The one possibility that might bring the case back into a more normal fold was if the exhibit was some sort of official business record that in fact established Schrimm’s theory. So we forged on.
The District Court’s supplemental findings had rejected a defense claim that one Ignat Danilchenko had mis-described Demjanjuk’s physical features. The findings referenced a Danilchenko Protocol by defense exhibit number. But clearly a certain Danilchenko had said things about Demjanjuk’s service at Sobibor. Was this Danilchenko the one behind GX 86?
So we persisted in our quest, and to shorten a long story, at last got hold of a copy of GX 86. As it turns out GX 86 was a Danilchenko statement, only it it was another one, this time given to Soviet police examiners in November 1979, at the request (no less) of U.S. “justice authorities.” In pertinent part, the statement is as follows.
With respect to Sobibor, the Protocol
Did “gassing facility” mean Section III as a whole or the gas chamber itself? Did Danilchenko mean to say that Demjanjuk escorted up to the gate of Camp III or did he mean up to the entrance of the gas chamber itself? Danilchenko’s statement that he did not know if Demjanjuk as a guard inside the gassing facility zone would suggest that he only led the victims up to that zone. The Protocol itself provided the answer. Earlier on in the narration, Danilchenko stated:
And so at long last -- after what had started out as a news read with morning coffee -- we uncovered the case against Demjanjuk. As we had hunched, Schrimm had no evidence that Demjanjuk had committed or was an accomplice to a single homicide. What he had was the testimony of a dead witness that Demjanjuk had acted as an accessory before the fact by virtue of standing guard as others were marched to their execution.
We also discovered the shameful lengths to which the Department of Justice was willing to go in order to see Demjanjuk convicted, if only during the last hour of his breath.
It will be remembered that, following his acquittal in the Treblinka case, the Israeli Supreme Court refused to allow reprosecution for alleged crimes at Sobibor. The court’s reasoning was that, although conduct at Treblinka and conduct at Sobibor were, narrowly speaking, different events, the thrust of the charge had been that Demjanjuk had participated as an accessory in the same cluster of camps during Aktion Rheinhard. The court took note of the operational inter-relationship between the two camps and of the fact the original case and the new one involved much the same evidence and were essentially two prongs of one fork. The State had had its bite at the apple, double jeopardy applied. nemo bis vexari pro eadem causa.
The response of the OSI, as evidenced by noises in the press, was to claim rank ignorance. The Washington Post made a point of reporting that the existence of Sobibor was "not well known " to the prosecutors until recently (WaPo 9 January 2009) and this pathetic rag of an excuse has cropped up elsewhere in the net-literature on the case. The District Court’s finding of facts also alluded to the supposed fact that Sobibor was not well known “during the war.” One does not need to be a rocket scientist to figure out that OSI was bruiting about the notion that it should be allowed a second bite because it really did not know the significance of Sobibor, even though the posting to Sobibor clearly appears on Demjanjuk’s identification card.
No! No! None of the holocaust experts at the OSI had any idea what that really meant. It never would have occurred to them that it was a notorious extermination camp. Not in a thousand years!
Utter bullshit. Sobibor is refrenced as a concentration camp on page 967 in William Shirer's The Rise and Fall of the Third Reich, published in 1959 (although it is spelled Sibibor). Sobibor is correctly spelled, discussed and appears on the inside jacket map as an "extermination camp" in volume two of John Toland's autobiography Adolph Hitler published in 1976. Both were standard and popular American works.
Not only that... the Danilchenko Protocol (II) was specifically requested by the Department of Justice in 1979, and assuming it was received shortly after it was taken, OSI knew all about Danilchenko and Sobibor before they tried Demjanjuk for being Ivan the Terrible at Treblinka. The Department of Justice committed not simply a fraud on the court, not simply a cheat on a defendant, it continues to show utter contempt for the Constitution, although it may keep its hands technically clean by getting the Germans to do the biting
Our investigative saga proved beyond a shadow of a doubt how foolish it is to rely on the official assurance of anything or on the re-blabbering of that assurance by the over-paid morons in the press. At any rate, now that we finally had a basic handle on the facts, we could ask whether justice was served by prosecuting an 88 year old man for escorting people to their execution.
To those raised on a primitive diet of black and white definitions it may perhaps seem “technical” to seek gradations of culpability among SS guards. To such people, the fact that Demjanjuk supposedly volunteered for "the SS" upon being taken prisoner as a Russian soldier is sufficient to prove any and all criminally culpable accessory participation in the crimes of the Third Reich. But under virtually any civilized legal system, gradations of culpability are based on the degree and circumstances of the accused's involvement.
To the extent we can rely on general information, our research has disclosed, that under German Law, any case against Demjanjuk for culpable participation in individual or multiple homicides (whether as a direct perpetrator, accomplice or accessory) would depend on a showing that he acted out of “base motives.” The “base motives” standard essentially incorporates what in American law is comprised by the components of: knowledge, intent, mitigation or excuse.
To understand motives, we have to understand that circumstances out of which they grew and so an assessment of Demjanjuk’s overall culpablility requires getting some sense of the war-time context that is less trivial and imbecilic than War and Remembrance and other whole-soaps
For, the history of the war -- especially in the East -- was not the simple melodrama it has been turned into by war-time and post-war propaganda. It was rather a collapse of civilization replaced by a paradoxical and terrible organized chaos in which individuals either survived as best they could or indulged their baser instincts as freely as they could or did both.
The war in the East did not begin with Germany’s invasion of Russia, but rather with the fall of the Russian Empire in 1917 and the collapse of the Austro Hungarian Empire a year later. Each in their sphere, these two Empires had kept the lid on a simmering cauldron of national and ethnic rivalries and hatreds. Upon their collpase and dismemberment what ensued was a decade long civil war between Red and White Russians that dovetailed murderously with an ongoing ethno/national struggle between Bolsheviks and Latvian, Finnish and Ukrainian nationalists who furiously resisted incorporation into the new Union of Soviet Socialist Republics.
During the devastating Ukrainian-Soviet war in the 1920’s some 35,000 Jews (some say 100,000) were murdered by Ukrainian nationalist factions, partly from anti-semitic motives and partly on account of the high percentage of Jews in Communist ranks. As the disastrous decade ended, millions of Ukrainian peasants were in turn starved to death by Soviet commisars. Those sitting in trans-Atlantic safety and comfort are wont to forget the intensity of these rivalries and to ignore the not unreasonable terror felt by the Western European middle classes of the looming Soviet threat.
At first, the Nazi invasion of Russia was propagandized as a war of European salvation and national liberation against Soviet Bolshevism. In this crusade against communism, “auxiliary” SS brigades were enlisted from Spain, France, Holland, Norway, Lithuania, Romania, and the Ukraine. Drawn from the political right, these volunteers enlisted -- not to kill Jews -- but to free their homelands from Soviet domination or to fight the Communist threat against Europe.
Of course, in fighting the crusade against communism, these brigades also indirectly assisted the other crusade, also led by the Nazis, against the Jews. There are those, like Daniel Goldhagen, who insist that all of "them" without exception are equally accomplices and guilty of genocide of his “us”. But this is simply a vindictive dementia.
When it comes to volunteers or draftees from the East, the situation was more complex. Anti-semitism was stronger and more violent in the East and it is known that in several instances "the locals" took it upon themselves to engage in a pogrom with little or no Nazi instigation. The situation was further complicated by the fact that the Germans themselves had ambivalent feelings (to put it mildly) about the people they were supposedly liberating. Most complex of all was the position of the Ukrainians many of whom had been drafted into the Soviet Army and were later captured and interned by the Germans as POWs.
At his first trial, Demjanjuk testified that as 20 year old farm boy with rudimentary education he had been drafted into the Soviet Army. He was captured and interned as a POW. He was subsequently enlisted into some kind of Ukrainian auxiliary batallion and, after training at Trawniki, was posted to Ozkow, a Nazi run farm. [ cite ] The OSI prosecutors do not dispute this aspect of Demjanjuk’s testimony.
What press and prosecutors apparently overlook is the grim duress most of these "volunteers" were actually subjected to. While SS volunteers in Western Europe may have enlisted under mistaken assumptions, they did so freely. Not so in the East. The Ukrainians captured with the Russian Army were given the choice of enlisting in the auxiliary units or defense detachments or being left to freeze and starve to death in open air prison pens, in which 500,000 Soviet soldiers perished.
Although one would never know it from the press reports, there was no single "auxilliary" or SS unit. There were Hilfswillige (usually translated as "auxiliaries") which were assigned to essentially menial duties and separate Schutzmanmschaft (defense) batallions, which were used to engage partisans and/or round up Jews. The composition and evolving duties of these units was nothing uniform or standard, but varied by region, by nationality and according to war-time needs. [ Link: Article on Volunteer Auxiliaries in Eastern Territories ]
While the Ukrainian volunteers were screened for pro-German or anti-Communist attitudes, they were never entirely trusted by the Germans who initially assigned them to the most menial auxiliary duties. In fact, some members of the German staff at Sobibor spoke with utmost contempt for the Ukrainians whom they said lived like "animals". In several instances, Ukrainians murdered their German officers. In other cases they exploited imprisoned Jews for money. Over time, some of the conscript/volunteers were used in Aktion Reinhardt anti-Jewish cleansing actions in the ghettos. Some Ukrainians were undoubtedly anti-semitic, but others were punished for fraternizing with Jews. Following the revolt at Sobibor 28 Ukrainian guards fled "for fear of German reprisals". [ link ]
As a "guard" it appears likely that Demjanjuk was enrolled as a "Hiwi". To allege that he was "part" of the same group as the Einsatzkommandos that engaged in mass murder is a seriously misleading equivocation.
Demjanjuk has always claimed that his identification card was a forgery. That was not a patently frivolous claim. After the war the Soviets had old scores to settle with Ukrainian nationalists and against anyone who, from their perspective, had “gone over to the fascist enemy.” But accepting the identification as valid, it would show that after Ozkow he was posted Sobibor during a period of about 9 months in 1943. He was not an entirely model auxiliary. Records presented in his U.S. immigration proceedings showed that he was disciplined with "25 lashes" at least twice for "breaking quarantine" which other sources indicate were unauthorized absences in quest of onions and potatoes.
Taking all the facts into consideration, how was Demjanjuk different from millions of other soldiers being used as pawns and cannon fodder in the cruel game of States.?
Applying Germany's "base motives" standard, if it could be proved that Demjanjuk knew about the final solution at the time he "enlisted" and that he enlisted intending to aid and abet that great crime, then perhaps a case against him would have some foundation. That at least, was the judgement in the case of Josef Hirtreiter, where the German court ruled that Hirtreiter's conduct in "overseeing" the undressing of gas-chamber victims at Treblinka was criminal because it had been engaged in with the intent of a murderer. The court based its finding of intent on the fact that Hirtreiter had voluntarily enlisted in the SA in 1932 and had actively supported and espoused the purposeful extermination of non-Aryans. [ link ] But absent proof of such facts in Demjanjuk's case, the only thing that has been shown is that, after enlisting (or being enlisted) in a so-called SS auxiliary, he was cut orders to act as a guard at various camps. In fact, how is Demjanjuk different from a Jewish camp kapo or other prisoner inmates who assisted the "killing process"?
There may be those who will let forth shrieks of sonic intimidation coupled with bellowing about “moral equivalence” but the dispassionate fact is -- as anyone who has ever actually served in an army knows -- that soldiers and inmates are in pari materia. Once in uniform, neither has the option to decide to sleep in or skip out. To be sure, the status of the one is the inverse of the other, but neither is a free agent and it is freedom of choice that is the essential pre-requisite for culpability. In Demjanjuk's case, the similarity circumstance was enhanced by the fact that he had been a prisoner and was given the option of dying with the rest or saving himself by working for his new masters That was exactly the same choice given kapos.
The limited freedom of choice available to soldiers even in the most conventional circumstances is precisely the reason, that post-war Nuremberg Trials stopped short of indicting and hanging the entire German Army or the entire SS. While there is little difficulty in prosecuting soldiers who, acting on their own, commit atrocities or enlist for the purpose of doing so, the case becomes decidedly more difficult when it involves soldiers who have no choice save obeying orders or the firing squad.
The cruel absurdity that washed over a continent was captured in the movie Europa Europa, the story of a teenage German Jew, Solomon Perel, whose family fled Nazi persecution by escaping to Poland. When Poland was invaded, the Perels dispersed and Solomon fled further east into the arms of the Russians who enrolled him in the Komsomol Youth. There Perel learned Russian and the heroic virtues of Comrade Stalin. When the Nazis invaded Russia, Perel was captured, along with Russian army units, and was taken to a nearby forest to be shot. Suddenly recovering his German, Perel convinced his captors that he was a wandering Volksdeutcher (ethnic German). The soldiers were delighted to have saved this Aryan jewel from the midst of Slavic scum and Perel became the unit’s mascot. His heroism on the field and help in capturing Stalin’s real son, caught the commander’s attention and he was packed off to an SS Officer’s school where he remained till the end of the war, participating in its final days, with old men and Hitler Youth, in Homeland Defense against the invading Allies.
Another Jewish teenager, Alex Kruzem, survived the war on false identity papers. Throughout his childhood, he appeared in Nazi propaganda films as an army mascot. He is said to have handed out chocolates to other Jews to calm them as they waited for the trains that would take them to the concentration camps. In 2007, Alex's son Mark Kurzem published a book, entitled "The Mascot" which detailed his father's childhood among the Nazi SS.
Let us listen to Stanislaw Smajzner, an inmate at Sobibor, speaking about one of the Kapos...
Stanislaw Smajzner
As such experiences illustrate, once one moves past strategic or polemical accounts, the war, as seen through personal histories, ceases to be question of vectors, colored blocks and definitions and becomes a vast panorama of perplexity and paradox.
If Smajzner is to be believed Franz’s conduct and motives involved far more culpability than simply acting as a watch-man; and yet, even Smajzner finds room for understanding and forgiveness. Are such sentiments reserved for Jews only?
More than anything else, what is involved in the persecution of Demjanjuk is the creation of a manichean definition that overlooks all ambiguity, gradations of culpability or mitigation and that simply divides the world into them the unrighteous versus us the victims. Such a definition has little to do with Justice.
Putting aside the OSI’s “fraud on the court,” prosecutors in Demjanjuk’s first case at least had eye-witness testimony the he (“as Ivan Marchenko”) personally broke a Jewish woman’s back, whipped another victim for stealing bread and pumped carbon monoxide into the exhaust chamber. That was at least evidence of personal, criminal guilt to be weighed in the scales along with whether Marchenko too had not lost his mind. Now, however, from all the statements that have been released and uncovered, Demjanjuk is being hounded on a theory of guilt based on mere status.
What is involved here is actually double-scapegoating. The Holocaust is being expurgated through Demjanjuk at the same time the guilt of individual Jewish kapos for their equally accessory participation in that crime is being transferred and redeemed by sacrificing an aged Ukrainian.
There is no doubt (at least in our minds) that Demjanjuk could properly be tried for any crime undertaken entirely on his own initiative; but once he is placed within a command hierarchy his freedom and hence culpability become radically reduced. Thus, even if he had pumped the gas under orders his culpability (in our view) would be substantially mitigated. Precisely because “stuffing” and “door closing” is at the border of the killing, culpability at that point becomes borderline. In our view the notion of culpability for being an accesory before the fact in standing guard at or escorting towards “the killing facility” doesn’t wash at all, because at that point the conduct is not only attenuated (removed) from the actual killing it is also difused among a multiplicity of actors operating at the same degree of atenuation. What about the railway personnel who bring the train into the station? What about the delivery man who brings the diesel fuel to the camp ?
From the evidence we have found, Demjanjuk was one of a million small participants caught up in a colossal and catastrophic historical calamity. Whether he volunteered to fight the Soviets or whether, like Solomon Perel, was simply trying to stay alive in a typhoon beyond his control, there has been no showing that he directly perpetrated acts of murder or that he sought to to aid and abet genocide from base or racist motives.
One of the themes that kept cropping up throughout our investigation into Demjanjuk’s case was the function and usage of memory; and this, in turn, raised questions about that thing we call "Justice".
As most trial lawyers know, a trial is most essentially an exercise in remembering. In fact, it could be said that Justice itself is simply memory in action. “You owe me...” and “You killed my....” are simply claims for injuries remembered.
But if it turns out that the memory is wrong, what does that say about the "demand for justice"? Has the courtroom become the scene of an attack? In fact, most cultures regard an "accusation" as a species of attack and in many systems the plaintiff who lost a case was required to pay the penalty he himself had demanded.
In any trial, the role of memory bears down on three fundamental issues: 1) the identification of the defendant, 2) a description of the injurious deed and, when it exists, a 3) confession bearing witness against one's self, albeit sometimes accusing others. The proceedings against Demjanjuk, at one stage or another, involved each of these types testimonial memory and became a text book on the perils they presented in the pursuit of justice.
In a criminal trial the most important memory is the identification of the defendant as the person who committed the crime. But while the press reports the existence of eye-witnesses! with tones that might be reserved for the discovery of the Philospher’s Stone, “The vagaries of eyewitness identifications are well-known; the annals of criminal law are rife with instances of mistaken identification.” (United States v. Wade, (1967) 388 U.S. 218, 228.) Indeed. What boy hasn’t read about Lincoln’s famous impeachment of the witness who swore he saw the defendant clearly and unmistakably in the “clear light of the moon”
Over the past 30 years scientific studies have repeatedly shown that, in actuality, eye-witnesses adjust their memories to conform to what they want to believe and to what they believe an authority figure wants them to say. It is even worse. Studies have consistently shown that the more positive an eye-witness is the less reliable his identification actually is. “I’ll never forget that face! It’s him, it’s him without out a doubt. His image is branded in my brain” -- is a dead ringer for a false identification.
How do such mistakes happen? At the time of Demjanjuk’s first trial, the psychology of eye-witness identifications was a relatively new field that had been in existence for about 10 years. One of the world’s foremost cognitive psychologist and researchers in the field of memory and identifications was Dr. Elizabeth Loftus. Demjanjuk’s attorney sought Loftus’s expert opinion. After reviewing the photo-line up procedures that had been used, Loftus concluded that Demjanjuk’s identification had been irremediably suggested. However, because she had lost family members in Nazi camps, that memory kept her from testifying on Demjanjuk’s behalf, although she did assist behind the scenes. (Loftus related her conflictive attitudes about testifying for the defense in her book Witness for the Defense (Macmillan 1992).)
Most people think of memory in terms of recall, like pulling a file from a cabinet. But Loftus’ studies and those of other cognitives psychologists prove that memory is less a re-call than it is a present, mental re-creative act. We remember "yesterday" as we want to remember it today, recreating or re-assembling today something that we label as "yesterday".
Curiously enough language itself seems to reflect this. Our word re member is precisely that: to put members (i.e. items) back together. In Spanish, memory is often spoke as a kind of self-accord - me acuerdo que (I am in accord that...) What we call the past is simply the handiwork (mindwork) of the present.
This, I believe, is a very frightening proposition, because in itself it means that we all live in an entirely un-moored subjective present. The more we try to connect ourselves to a past by remembering today what we just remembered yesterday about an event 10 years ago, the more we get trapped in an infinite regression. We need to nail things down, which is where Sacred Books, contracts, and laundry receipts come in.
In a thoughtful article published for the UK Independent in 1993, following Demjanjuk’s acquittal, journalist Gita Sereny wrote that “Pincas Epstein's hair is white now, but he is still slim, with a fine, sensitive face, not a face that lies.” [link] The scenes in the Israeli court-room at Demjanjuk’s 1987 trial were certainly tearful and dramatic, but as the Israeli Supreme Court itself acknowledged the identifications hardly amounted to rock-solid evidence on which to hang a man. Pincas Epsetein was simply wrong.
Thus, after all but discounting Epstein’s “honest face,” the Israeli High Court went on to say, that documentary evidence, such as Demjanjuk’s identifiction card, was a far more reliable piece of evidence. However, that card did not on its face place him at Treblinka and even it did it still did not mean that he was Ivan Marchenko.
The OSI’s suppression of known witness testimony that exculpated Demjanjuk rendered his Treblinka Trial a sham and a farce. But even without that “fraud on the court”, the case against Demjanjuk stood on very shifting sands. The essential fact of that matter is that people identified him as Ivan the Terrible because they wanted to see Ivan the Terrible in him and they truly did see Ivan the Terrible, even though he wasn't.
Today, in Demjanjuk's second case, there are no more live eye-witnesses to do the seeing. Instead it appears that the case against him is based on Danilchenko’s confessions. But confessions are simply a subset of eye-witness perceptions and the underlyhing problem is the same. The difference between the two types of testimony is that with confessions the “perception” is not of some external event but of what one sees about one’s self. If it is true that we remember what we want to remember, then it is equally true that we remember ourselves as we want to see ourselves as being or as having done. From a psychological and cognitive point of view, this is a sticky wicket indeed. Talmudic law prohibited outright the use of confessions and Maimonides was psychologically astute enough to add that melancholy and depressed persons must be prevented from confessing to crimes which they have not committed so as to be put to death. [link ]
Juridically, the problem with confessions is usually contexutalized as a question of voluntariness, which is a somewhat narrower context than memory-of-self in general. The public mind narrows the context even more. Most people think of an involuntary confession as those one in which, after extreme physical pain, the suspect foreswears his god and implicates his mother. But, in actuality, American law, recognizes that confessions (like eye-witness identifications) are basically present re-creative acts. At least that is the danger.
In the Miranda Case, after reviewing a great number of pyschological studies, the Supreme Court held that all in-custody confessions were “inherently coercive” (Miranda v. Arizona (1966) 384 U.S. 436, 457-458. The reason is simple. When any human or animal is deprived of physical liberty his survival instinct makes regaining freedom the highest imperative. If that is not possible, the same instinct seeks to make the conditions of confinement as unthreatening as possible. This circumstance gives the person in the dominant position an immense lever of control over the person in his custody and this lever is easily used to manipulate the interrogee to adjust his testimony by playing on guilt, pride, fear, love and in fact any of the hundreds of emotions that move us. This does not mean that these emotions "lever-out" the truth, it means rather that what is expressed in the form of a confession seeks to appease one or more of those emotions. If Maimonedes is to be believed "suicide by cop" is not a new phenomenon. In fact there is simply no telling what people will confess to and why.
Of course the police and that cacophony of stupidites that passes for the American press made a noisy brouha over how the Court was coddling criminals. But once it is accepted that in custody interrogations are inherently coercive and hence inherently untrustworthy, they could hardly be admitted into evidence. Once that predicament is grasped, it can be understood that the Miranda warnings were really devised as a means to “save” the confession, not to throw it out. In a typically American fashion, the court sought a panacea in "balancing the playing field" and reasoned that if a modicum of “control” over the situation were given to the suspect (the right to be silent, the right to end the interrogation at will, the right to demand a lawyer) then a “balance” would be restored and the situation sufficiently equalized so that the confession could be considered non-coercive and the result of free choice. What beggars the imagination is not the notion that the court was coddlng criminals but that it could seriously believe such quickly uttered mumbo jumbo would equalize the power relation between jailer and jailed.)
No surprise but Danilencko was not given any Miranda warnings. No... instead he “was advised of the responsibility of a witness as stipulated in Article 73 of the Code of Criminal Procedure of the RSFSR. He was also warned of his criminal liability for knowingly giving false statements, refusing to give a statement, or evasion in accordance with Articles 181 and 18_ of the Criminal Code of the RSFSR.” (Protocol, Preliminary Recitals) Danilchenko had himself been prosecuted and had served time for having been a guard. In fact, he had given a statement before. He knew exactly what the RSFSR would consider to be an evasive or false statement.
Is Danilchenko’s statement true? Does the fact that it “conforms” with his earlier statement mean that the answer is basically yes, or does it mean that he felt he had to conform his newer statement? Does that same fact mean that 30 years after the fact his memory of additional facts not stated are less reliable? To be sure the Protocol contains the recurrence of stilted phraseology (e..g “the watchmen and Demjanjuk...” and “... the Jews who were doomed for extermination...” ) but the statement does not purport to be a verbatim transcript and such phrasing is a legitimate way of conveying the substance of what Danilchenko was saying, if in fact he was saying it. On the other hand, there can be no doubt that inter governmental agencies know how to “talk” to one another even through the medium of neutral sounding officialeze. “We’re investigating one suspect DEMJANJUK in regard to possible allegations of criminality in connection with EXTERMINATIONS at Sobibor.” “Gotcha...” Once again, memory serves as a corridor between past and present, and there is no sure way of knowing through which end what facts come.
Lastly there are the memories of uncounted survivors of Sobibor, whose testimonies are relied upon directly or indirectly to establish the primordial fact of genocide and the more case-specific fact of camp conditions and manner of operations at the camp.
The underlying difficulties with these remembered accounts is the same as that with eye-witness identifications: the memory is less about the objective past and more about the subjective present. The same variety of factors that can suggest and “taint” a physical identification can suggest an historical description. In fact, the same variety of factors that can influence a confession can produce an inverse confession or exclupation. What is a teenager like Franz the Kapo likely to "remember"?
Years back, while waiting in court for my case to be called, I got to chatting with a young DOJ lawyer sitting next to me. As it turns out she was working in the Department's war crimes unit. Somewhat envious, I remarked that it seemed she had a very interesting job. To my surprise she replied with a kind of irritated ennui. “Ah..It’s a disaster," she said. I gave her an inquisitive look. "The witnesses’ memories are all over the place. They imagine all sorts of things, and even end up contradicting themselves.” I gathered that several cases had more or less fizzled in her hands or blown up in her face.
The case with “holocaust survivor” testimony is is even worse that that with witness identifications because event-descriptions involve a higher degree of inference and conclusion. As all trial lawyers know, the average human being is worse than a horse when it comes to logical thinking. People jump to all sorts of conclusions without even realizing it. “Did you actually see...?” “No ... but....” --how else? --what else? --why else? --who else? isy a standard refrain repeated in trial after trial
To this may be added the further fact that what people “see” is influenced by mythology, lore, cultural attiudes, accepted truths and so on. The notions that “the Hun” had set up secret factories to make soap from corpses was widely believed up until the 1930, when (in the West at least) there was an official effort to put an end to what had been an official lie.
The humbling fact is that testimonial evidence of any sort is perilously fragile. On the basis of no one factor or consideration can it be said to be true....or false. It is often probably both, and there is no right answer or even a very “scientific” means of calculating with some formula which answer is righter than wronger.
The frightening thought is the possibility that objective memory does not exist. As mortals we need to anchor ourselves within a time continuum. The eternal present actually terrifies us. But suppose our "has been" is simply whatever we are today, without reason, claim or excuse in anything "past"? How do we know that "done yesterday" is not simply the work of the mind today, that justice is nothing more than our mood today?
In an extreme case (and it has happened) we could create (today) the memory of something (yesterday) that never happened. Fortunately ... we do have laundry receipts, and so were are never entirely just floating unmoored in a subjective present.
In most cases the influence of our present state on our memory of the past operates at the level of coloration and re-modelling. i.e. we seldom create a totally false memory, but rather adjust and slant our re-assembly of memory-images. Still, in any memory there is at least a component of what we want today, apart from what actually did happen or what we think did happen yesterday. Even partial embellishment/enhancement can seriously alter what the past really was.
The mood of the survivor / witnesses to see an Ivan Marchenko in Ivan Demjanjuk may only have "adjusted" the visualized physiology a little here and a little there, but the ultimate effect was 100% off and disastrous to Demjanjuk, although gratifying (given the applause) to the audience in court.
Whatever the degree of "adjustment", the fact that re-membering is an act of present recreation points to another question: why do we want to create or re-assemble that memory in a particular way? What purpose does it serve? What benefit do we derive from from that recreation?
Just as confessions can be tailored to suit emotional needs and physical needs, so too eye-witness identifications and event-narrations. In any trial the question is only half "what happened" yesteday. The other half is "what are about" now?
The Demjanjuk case serves as a textbook for all the evidentiary difficulties involved in testimonial evidence. But beyond that, the case raises question about Justice. What exactly is the “memory in action” being prosecuted here? And worse yet, is “justice” simply the snarl of the present? If what we remember -about yesterday is what we want to remember today, were the tearful and angry identifications at Demjanjuk’s first trial simply the howl of one pack against an interloper from another?
On the assumption that the past did exist and that we can know today things that did actually take place then, the question remains why should Demjanjuk be tried at all? Why should he be tried again after 30 years of vexation and on the eve of his death?
In a speech last month commemorating the 50th anniversary of the Nazi crimes investigation office in Ludwigsburg, Charlotte Knobloch, president of the Central Council of Jews in Germany, lamented that “The race against time has been lost ... An unknown number of grave crimes remain unpunished." [ link ]
Knobloch is wrong. Time was ordained by God. The relentless and obsessional pursuit of “perfect” and “complete” justice is neither justice nor perfect but simply an obsession with injury to self that results in wreaking unjust injury upon others.
After reviewing the case against Demjanjuk and assuming the worst that could be proved against him something seemed not quite right in arguing that even if Demjanjuk were assumed to be guilty he warranted mercy. It seemed to us that such a dichotomy somehow sidestepped an issue and thereby avoided the essential injustice being done to an old man.
Where did our sense of injustice arise from? In trying to figure this out, we arrived at some conclusions we had not had before. The ongoing prosecution of Demjanjuk was a clear case of disproportionality. But what we came to see was that, just as fundamentally, it represented a root perversion of Justice, the essence of which is not only proportionality but moderation.
The renunciation of moderation in the pursuit of Justice began 30 years ago with a conscious decision by Congress, at the instance of Jewish organizations, to set up the OSI and to instigate a relentless, irredentist pursuit of even the most minor alleged "war criminals".
In 1995, Jonathan Drimmer, who had met Eli Rosenbaum at a legal internship, went to work for the OSI. According to FindLaw’s professional resumé, “Prosecuting Nazi war criminals for the United States Department of Justice can be slow going. Jonathan Drimmer gets the job done fast...” Working fast, he went to work on Demjanjuk’s case and succeeded in revoking his citizenship a second time. [ link ]
According to Haaretz “The German investigators worked on the case together with the U.S. Justice Department's Office of Special Investigations, a (Haaretz 12 march 2009). In an interview to Der Spiegel, Rosenbaum put a certain accent on the collaboration stating “We have a very strong collaborative relationship with [the German prosecutors]. They know that we are available to assist them on a twenty-four-hour-day, seven-days-a-week basis.”
As reported in the Jerusalem Post “Munich prosecutors credited help from the US Office of Special investigations in clarifying the validity of Nazi-era identity papers in enabling them to file charges against Demjanjuk.” [ link ]
According US Holocaust Memorial Museum, “the OSI and the United States Holocaust Memorial Museum are ‘siblings’ of a sort, having been conceived within the same political and moral context of the late 1970s.” [ link ]
The Justice Department OSI page proudly adds that “As a result of OSI’s record in identifying, investigating and denying refuge inthe United States to Nazi persecutors, the United States is the only country in the world to have won the “A” rating from the Simon Wiesenthall Center for effectiveness in pursuing justice for Holocaust crimes.” [ link ]
Effective in hunting down, certainly; but, in the case of John Demjanjuk, the “context” is simply a relentless and unquenchable demand for retribution, lacking in all moderation.
Even if Demjanjuk had been one of countless underlings who pulled the trigger or lever in a murderous and genocidal war, it was an event that occurred over sixty years ago. Most civilized countries have statutes of limitation which in Demjanjuk’s case expired in the 1970’s until Germany was pressured by holocaust blood hounds to remove it.
These statutes are based on both practical and moral considerations. As a practical matter, there comes a time when memories fade, when evidence of both guilt and of innocence is lost and when what testimony remains in written form is not subject to cross examination. In such circumstance any trial becomes a pale and feeble imitation of the real thing.
As a humanitarian matter, there comes a time, also, when it is our sense of justice calls out to let bygones be bygone. Nature herself dictates as much which is precisely why, in the natural scheme of things, memories fade. Or, given what has been said about memories, a hurt stops hurting.
From the Greeks we learn that moderation is the elemental virtue within all things. The love of Justice (as distinct from a victimised self-love) entails both the pursuit of redress and the redress itself -- what lawyers distinguish as “process” versus the “substantive merits”. Justice is neither one nor the other but is both the process and what is due as a result. To conceive of justice solely in substantive terms of "any eye for an eye" is to see the matter with only one eye. It is just as essential to justice to take into consider the lengths one will go for retribution.
By way of illustration. To punish a man with 70 years imprisonment for selling liquor on sunday is not proportionate justice. (O’Neil v. Vermont (1892) 144 U.S. 323, 337 diss. Field, J. ) To hound a man for 20 years to get him to pay his $2.00 parking ticket is also not justice, even if the fine is entirely proportionate to the offence, because the quest is itself immoderate.
Both double jeopardy provisions as well as statutes of limitations embody a recognition that due process requires moderation in the pursuit of justice even if the accused is presumed to be guilty.
It is often the case that after an unsuccessful prosecution, the State discovers new evidence that will definitely prove the defendant's guilt. But although guilt is assured, since Roman times it has been a fundamental maxim that no one should be twice put in jeopardy for the same cause.
The same principal is at work in statutes of limitation. Like the Deuteronomic law requiring the forgiveness of debts after seven years, statutes of limitation do not involve 1:1 proportionality as such, but rather that kind of proportionality between ends and means that is called moderation. Thus considered, it can be seen that the campaign to remove the statute of limitations for war crimes was in fact a public and explicit renunciation of moderation. But without moderation there can be no justice.
In tempering the scale, l’esprit de geometrie cannot get us the precise modulation that sounds right. So too with tempering justice, a certain esprit de finesse is required to sense the right balance. This is not a question of “fudging”. Our affirmative response to what sounds right flows from out natural inner ear and what feels just flows from our natural inner conscience what what Catholic theologians call synderesis.
From this perspective, it can be seen that what the U.S. Holocaust Memorial Museum describes as it’s “sibling” memorial/prosecutorial task is a fundamentally unnatural undertaking. Its aim is not to let memories fade naturally, but to keep them alive and present by every artifice possible. Its goal is never to let the dead rest but to persist at picking over the wounds of the past so that life becomes just an open sore.
Those laboring in this enterprise, attempt to hide its real nature and to rationalise it by recourse to the trite and stupid statement that those who forget the past are doomed to repeat it. Of course, individually and collectively, we learn from our mistakes. But what we must not forget is what we have learned, not how we mistaked. To confuse the two is a subtle perversion that kills forgetfullness and rebirth.
The genocide suffered by the Jews during the World War was one of histories great and horrible crimes. But it was not the only one and even in its totality it was not infinite. Demjanjuk’s part in the terrible event, whatever it might have been, also had its limits which ought not to be magnified beyond that which any one man is capable of.
Thus, even if it is supposed that Demjanjuk were guilty of some actual killing within the context of mass-murder ordered from above, it would be time to move on and to let an 88 year old man die in peace. In fact, the case against Demjanjuk is at best a tenuous and vague theory of accessory complicity by virtue of being there and acting as a guard. And “all” this after the former case collapsed on the substantive merits ensuing upon prosecutorial misconduct. There can be no question that hounding Demjanjuk at this point is disporportionate to anything he can be reasonably and articulably be suspected of doing.
The immoderate pursuit of retribution arises from an unbalanced notion that any injury to one's self is a boundless crime that cries to heaven for ongoing and perpetual vengeance. This cannot be. Injuries personally suffered can certainly be deep and consequential; but even if one has lost his all, one is not all. The deed done is necessarily finite so that to assert that the crime is "beyond measure" is simply to magnify one's self beyond measure. Prosecution on this basis is simply form of ethnic idolatry and collective egotism masquerading as justice.
In fact "pursuit of justice" is just a tissue draped over a monumental collective self-obsession. As stated by the Hebrew Union, the prosecution simply "serves as a valuable means" to remind the world of the Holocaust. In other words, retribution is actually incidental to the real goal which is to cause each of us to daily re-aware ourselves of Jewish suffering in our remembering today. And so, the Holocaust Museum does the memorializing while it's sibling OSI does the prosecuting.
If Justice is to be a means it should at least be a means for social healing. But, it seems to us, that Justice is an end in itself -- one that consists in proportionality of demand and moderation of pursuit.
Knobloch is wrong. What is running out is patience with what amounts to a relentless, and profoundly psychotic pursuit of sacrificial victims to appease a lust for self-validation. The crimes committed against innocent civilians by the Nazis were tragic and terrible. But there comes a point where we resume life let the dead bury the dead or become dead ourselves through living a cult of death obsession.
Ironically, the one court that has refused to play along was neither in Germany nor in the United States but in Israel. In refusing, on double jeopardy grounds to let the second case proceed, that court gave life to the principle of moderation. It understood what all decent men with a sense of due process understand: the State had had its bite at the apple in a prosecution that has now lasted close to 20 years, of which 7 were spent by Demjanjuk in solitary confinement. Even if the case were not garbage, enough is enough. It is not mercy but justice that demands leaving an old man alone. For shame, the Memorial Prosecution crowd could care less about that. Reliving death and hunting Nazis is their life blood. It would hardly be surprising if we see the dead hunted in their graves. It's been done before, such is the depravity of Man.
©WCG, 2009
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The court’s findings were tantalizing. Parag. 129 stated a premise without any citation other than it being a fact stated, noticed or stipulated into the record. Parag. 132 stated the court’s own conclusion that Demjanjuk had “contributed to the process.” This much we had learned from Schrimm, Spiegel and Haaretz.129. The extermination camp [at Sobibor] was a secret operation, not well known during World War II. (Tr. at 451).130. When a transport arrived at the camp, all of the Trawniki-trained personnel were mobilized for guard duty. (GX 86; Tr. at 574-75).131. The Trawniki-trained guards assigned to Sobibor met arriving transports of Jews, forcibly unloaded the Jews from the trains, compelled them to disrobe, and drove them into gas chambers where they were murdered by asphyxiation with carbon monoxide. (GX 86; Tr. at 541-43, 574-75).
132. In serving at Sobibor, Defendant contributed to the process by which thousands of Jews were murdered by asphyxiation with carbon monoxide. (Findings, pg. 27.)
But what was Government Exhibit 86? It was evident from the above as well as from other references in the court's findings that Exhibit 86 was a document that transcribed some kind of narration, as opposed to an ID card, duty roster sheet or other official operational record.
So at last we knew. Demjanjuk was being prosecuted on the basis of the statement of a now dead witness that, in effect, accused him of stuffing human beings into gas chambers. Whether that ought to be legally sufficient to make out a case for criminal guilt, we at least knew the basic evidentiary “facts”. Or did we? The court's findings went on to state:
133. The Trawniki-trained guards assigned to Sobibor also guarded a small number of Jewish forced laborers kept alive to maintain the camp, dispose of the corpses, and process the possessions of those killed. The guards compelled these prisoners to work, and prevented them from escaping. (GX 44.8, GX 86; Tr. at 543)What bothered us about these statements was that they put a dent in Schrimm’s “all-did-all” theory. Clearly, some guards -- Demjanjuk in particular -- were doing things that did not involve “stuffing”. Just to check, we went back and re- read parag. 131, and noticed that it did not name Demjanjuk specifically but only said that “trained guards assigned to Sobibor” met the trains, unloaded, led and stuffed. Paragraph 132 stated a conclusion that “Demjanjuk” had “contributed” to the process, but the only factual specification as to him was that he had guarded forced laborers (parags. 133 and 134) We had almost been lulled! Paragraph 131 in fact stated something of a tautology. Obviously the trained guards were assigned “to Sobibor” since we are talking about Sobibor. Assuming that gassing took place there, trained guards of some sort oversaw that process, but was Demjanjuk among them? Had we reached terra firma or merely a shoal? In fact we smelled fish.
134. While assigned to Sobibor, Defendant guarded Jewish forced laborers, compelled them to work, and prevented them from escaping. (Tr. at 551).
A reader might think this is grotesque quibbling. Surely the gist of the matter was that Demjanjuk shoved victims into gas chambers. Very true, that was the impression of the matter, but that was not what was said. If Demjanjuk had been identified as one of the "trained guards" that drove people into gas chambers, it was a simple enough thing to say so. One of the popular misconceptions floating about the publo-sphere is that police and prosecutors are well intentioned bumblers that don’t speak English too good very often and so we should cut them some slack and fill in the cracks of their narrations. Au contraire mon vieux. Police and prosecutors and even judges are all very skilled at inuendo. Defense attorneys exist to enforce the Laws of Grammar, and by enforcing grammar to insure that due process is abided.
That Demjanjuk had acted as a camp guard seemed beyond dispute. But the court’s findings did not state that Demjanjuk had shoved people into gas chambers. As to him, it said at most that as a guard at the the camp, he had guarded over labor detatchments.
And so, the court’s findings of fact had proved to be something of a chimera. The gist of the matter was that Demjanjuk had been a “Nazi guard” and probably participated in some manner in the overall mass gassing process but, in the end, the court’s findings were no more specific than Schrimm’s claims. It seemed obvious that we needed to get a hold of “GX 36” whatever it was exactly.
The Guilt of Scapegoats.
But investigations and analyses often do not proceed in a directly linear fashion. And so it was that, while looking around for GX 36, we bumped into a 1993 article in the New York Times recounting Demjanjuk’s acquittal of the first case and the filing of new charges against him. The article went on to state:
“What exactly Mr. Demjanjuk was supposed to have done at the Sobibor camp is not clear although Israeli prosecutors have argued that any guard was by definition an accessory to mass murder.” [ NYT Article ]“By definition?” By definition of what? Did this definition derive from a factual premise that all guards at Sobibor did everything or was Schrimm’s “all-did-everything” claim simply a reflection of a general theory definitonal guilt that applied to “any” guard at all in the Third Reich?
Assuming the lesser of two evils, we decided to do some investigation into Camp Sobibor to find out what the general duty roster might have been like, such as might justify an inference of mass guilt by definition. Alas, the case against Sobibor was not much different than the case against Demjanjuk.
Officialist holocaust historians allege that Sobibor was a “pure extermination” center -- a camp the sole purpose of which was to liquidate Jews. This would account for its apparently small size. This would also account for the District Court's clever but equivocal finding that
128. The Germans constructed in Sobibor one of the three extermination camps for the express purpose of killing Jews as part of Operation Reinhard."Express" is not the same thing as "sole" and constructing an extermination camp in Sobibor is not the same as the entirety of Sobibor being exclusively dedicated to extermination. [ FN-3 ]
The difference is critical if Demjanjuk’s guilt is based on the argument that he stuffed bodies into gas chambers because that’s the only thing that was done at Sobibor and everyone assigned there had to do it.
Alas, even accepting the spirit of the court's findings, what we discovered was that there was no hard evidence of mass exterminations at Sobibor in the first place. As stated on the memorial Auschwitz-Birkenau web-site:
"Sobibor is one of the most mysterious of the mass-extermination sites. The Germans demolished the camp and carefully removed all evidence of it, removing corpses from the graves and burning them before planting a forest at the site." [ cite ]More recently, archeological and geological studies were undertaken to verify the existence of mass burning pits and/or graves. However, the results were inconclusive and have not been published, leading to further dispute between contending historians. The case against Demjanjuk was getting curiouser by the click.
Nevertheless, it is important not to confuse issues. It can certainly be accepted that the Nazis committed programmatic genocide against the Jews particularly in Poland. It does not necessarily follow from that premise that genocidal killings took place at Sobibor. The issue here concerns the guilt of one man for alleged multiple murders at Sobibor based on what appeared to be a circumstantial theory of how Sobibor operated. And now, instead of finding an SS duty roster or some such equivalent, we discovered that there was no forensic evidence of mass killing at all.
The dirth of concrete forensic evidence is made up by testimonial accounts and confessions and, not surprisingly, these accounts vary and, at times, relate absurdities. Virtually all legal systems recognize that the divergence in detail among eye-witness accounts is a factor which reduces the reliability of their account because we can't tell what the account is in the first place. On the other hand, the coincidence among varying accounts on a single common fact acts as a confirmation of that fact, at least where thecircumstances negate the likelihood that the single "common fact" wasn't being carried on the wings of rumour.
Thus, while survivor-witness inconsistencies might not negate the fact of mass killing they reduced to a shambles Kurt Schrimm’s theory of mass killing by unvarying, uniform process. Far from substantiating such a factual premise our research disclosed that Sobibor had a halting and somewhat erratic history and that the camp did have non-homicidal work components. (Fn-4 Sobibor Summary )
Thus, again, we came full circle. At some point in 1943, Demjanjuk may have stood guard over or escorted people to a gas chamber because that’s what guards did. That was pretty much guilty-by-definition.
Here's how the definitions work in Demjanjuk's case:
1. The SS committed genocidal crimes in Eastern Polandand
2. Demjanjuk was a card-carrying SS member
3. Ergo, By definition, as an SS man, Demjanjuk "participated" in genocide.
1. (a) The only thing that took place at Sobibor was mass gassing, or alternately (b) All staff at Sobibor had the same killing dutiesThe first definition is a logical fallacy; the second is basically a false or unproved premise coupled with an equivocal ambiguity ("killing duties").
2. Demjanjuk was part of the staff at Sobibor.
3. Ergo: By definition he committed mass murder
Moreover, we wondered, how could Demjanjuk get a fair trial without being able to contest the definitional premise? How could that premise be contested given that the alleged witnesses are deceased? In the absence of specific evidence against him, the trial of Demjanjuk necessarily involved a trial of overall Nazi policy in the General Gouvernment of Poland or an the unquestioned acceptance of the "Sobibor Premise". We had started out looking for the facts of the case and we ended up discovering a theory of the case that rendered any trial either a farce or a foregone conclusion. (FN-5/ProvingPremises)
Just as bad, the Israeli prosecutor’s theory of guilt seemed to confuse history with criminal guilt. Historical inferences operate on a more general and probabilistic level than inferences in a criminal case the goal of which is the execution of the accused. It is one thing to say that considering everything we know about Nazi policies in the occupied territories, it is a fair conclusion that mass murder took place at Sobibor. It is quite another to say, on the same general basis, that ergo Demjanjuk committed specific acts that make him an accessory to mass murder and for which he should be executed. And yet, that is precisely what has happened. By virtue of his status as a "part" of the collective group which, as a whole, committed war crimes, Demjanjuk is made to take on the guilt of the whole for war crimes.
This is the true essence of scapegoating, which is simply to prosecute the fact of a larger event in the person of the scapegoat. That person is seldom chosen at random out of a crowd but invariably bears some connection or "linkage" to the larger event. But it is the evil of the larger event that is purgatively punished in the sacrificial victim, who is condemned not for anything he can actually be proved to have done but rather for his unfortunate ability to serve as a prism for the real object of condemnation.
Astonishing as it may seem, all else being equal, it is easier to strip a person of the priceless jewel of American Citizenship than it is to convict him of driving at an unsafe speed. The District Court's "Conclusions of Law" explained that:
37 Under the DPA [Displaced Persons Act], visas could not be granted to anyone who assisted in the persecution of any person
38. Voluntariness is not an element of an assistance in persecution charge under Section 13 of the DPA. “[A]n individual's service as a concentration camp armed guard--whether voluntary or involuntary--made him ineligible for a visa.” United States v. Fedorenko, 449 U.S.490 at 512. (1980)
39. Service as an armed guard at a Nazi concentration camp constitutes assistance in persecution within the meaning of Section 13 of the DPA. See, e.g., Fedorenko, 449 U.S. at 512;
41. As explained by the United States Court of Appeals for the Seventh Circuit,
"That Jews were persecuted at [concentration camps] is not in question, and that as an armed SS guard . . . Kairys “assisted” in that persecution, whether or not he committed a specific atrocity by beating a Jewish inmate to death or otherwise mistreating him beyond what is implicit in serving as a guard at such a camp, is settled in this circuit . . . If the operation of such a camp were treated as an ordinary criminal conspiracy, the armed guards, like the lookouts for a gang of robbers, would be deemed co-conspirators, or if not, certainly aiders and abettors of the conspiracy. (Kairys v. I.N.S., 981 F.2d 937, 942-43 (7th Cir. 1992), cert. denied, 507 U.S. 1024 (1993).
42. It is not a required element of an assistance in persecution claim under Section 13 of the DPA that a defendant engaged in “personal” acts of persecution. See United States v. Ciurinskas, 148 F.3d 729, 734 (7th Cir. 1998) (“Even if Ciurinskas had not personally participated [in persecution], his service in the 2nd Battalion is sufficient to constitute assistance in persecution”); Breyer, 41 F.3d at 890 (the Section 13 “exclusion does not require willing and personal participation in atrocities,” as “a person may be ineligible simply because he falls within an excludable category of persons”); United States v. Sokolov, 814 F.2d 864, 874 (2d Cir.987) (writer of propaganda assisted in persecution under Section 13 by creating a climate of opinion in which such persecution is acceptable, although “there was no showing ofactual persecution of Jews in the . . . area”), cert. denied, 486 U.S. 1005 (1988)Without taking issue with some of the questionable dicta in these authorities, the essential legal fact remains that in a civil immigration proceeding a person can be guilty and loose his citizenship by definition of having been a camp guard. The rationale for the rule is that every country has the right to set terms and conditions of entry.
But that is not what the Israeli prosecutor told the Times. What he said was that Demjanjuk was an accessory to murder by definition. The term "accessory" is part of the vocabulary of criminal law. By using the word "accessory" the Israeli prosecutor implied criminal not civil guilt. Perhaps guilt-by-definition is the rule under Israeli law, but in the United States (at least so far) criminal guilt cannot be imposed “by definition” without proof of specific personal conduct, willfulness, and intent.
To make matters worse, from the point of view of due process, the definition (i.e. that Demjanjuk was a Trawniki-Trained-Sobibor-Guard) was established by the testimony of a dead witnesses. The one thing Schrimm was perfectly clear about was that all his witnesses were deceased. To his way of thinking that was no big deal because Germany follows the civil legal system which allows trial by written deposition and ex-parte interrogations.
But under the Constitution and U.S. criminal law, it would not be possible to try an American citizen on the basis of deceased testimonial statements rustled up in support of a theory of definitional guilt. The Confrontation Clause of the Bill of Rights exists precisely because English and American law recognized the inherent viciousness of convicting a man on the basis of depositions and statements given in private to magistrates and prosecutors at ex parte hearings. As noted recently by the Supreme Court in Crawford v. Washington (2004) 541 U.S.36, 44, it was precisely on the force of such “statements” and confessions that Sir Walter Raleigh was convicted and beheaded in a shameful case in which the prosecutor himself later confessed that “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”
But in Demjanjuk’s case, precisely that type of evidence was used to strip a him of his citizenship and of his constitutional protections and then ship him off to a country where he could be criminally prosecuted on such a "degraded" basis.
The vice here is the seamless connection between civil deportation and prosecution, where the United States deports a person "by definition" to a country (Germany) where he can be hanged if not quite by definition then by an rather loose definition of "accessory" and reliance on an equally amorphous determination that his conduct stemmed from "base motives"... whatever they might be demed to be. (United States v. Gecas 50 F.3d 1549, 1561 fn 12. (11th Cir. 1995) citing Strafgesetzbuch [StGB] art. 211 (F.R.G.).) This is just another, more “judicial” form of rendition.
Whatever GX 86 was, it was at the heart of a very nasty process -- a process so nasty in fact that it was almost irrelevant what GX 86 was. The one possibility that might bring the case back into a more normal fold was if the exhibit was some sort of official business record that in fact established Schrimm’s theory. So we forged on.
The Danilchenko Protocol
The District Court’s supplemental findings had rejected a defense claim that one Ignat Danilchenko had mis-described Demjanjuk’s physical features. The findings referenced a Danilchenko Protocol by defense exhibit number. But clearly a certain Danilchenko had said things about Demjanjuk’s service at Sobibor. Was this Danilchenko the one behind GX 86?
We began the appropriate googling, and lo and behold came across a statement by Ignat Danilchenko, given to Soviet interrogators in March 1949. In that confession and statement, Danilchenko implicated a number of fellow guards in the “destruction of civilians of Jewish nationality” With respect to Demjanjuk he stated:
He wore the uniform of the German armed SS forces, he was armed with a weapon. Demjanjuk, being an SS Wachman, participated in the mass destruction of Jewish civilians at the Sobibor camp, guarded them from the possibility of escape before the extermination and accompanied them under guard to the gas chambers, in which the extermination of these people was perpetrated through suffocation gases, issuing from a special motor. ( Danilchenko 1949 Confession .)From the whole of the statement it was clear,that there were other non-homicidal aspects of Sobibor that had required guarding. Still, this was pretty close to “stuffing” and it seemed as if we had at last reached the basis of Schrimm’s case. In fact, one was left to wonder why Schrimm would befuddle things with blabber about general routines. The only other thing that troubled us was that this statement was hardly anything “new” and Schrimm had said he had new evidence. That voice on the shoulder said, Go the last damn yard. Indeed, we had already gone way beyond our first coffee.
So we persisted in our quest, and to shorten a long story, at last got hold of a copy of GX 86. As it turns out GX 86 was a Danilchenko statement, only it it was another one, this time given to Soviet police examiners in November 1979, at the request (no less) of U.S. “justice authorities.” In pertinent part, the statement is as follows.
In Sobibor, Demjanjuk served as an ordinary SS Wachmannn.Our persistence had paid off. The Danilchenko Protocol (II) was in fact a key piece of evidence that was important for what it told us about Sobibor, about Demjanjuk and about the prosectuion.
He was regularly armed...
When standing guard around the outside of the camp ... he was armed...
[He guarded posts in side the camp ... preventing penetrations or escapes]
Demjanjuk, just as did all the other Wachmanner in the camp, participated in the mass extermination of Jews.
I frequently saw [him], while armed with a rifle, guard people doomed to die in the various zones of the camp.
He performed these duties from the place where people were unloaded all the way to the entrance through the gates of the gassing facility
Demjanjuk escorted people through the process of reaching the gasssing facility in order to insure that the people doomed to die did not violate the ‘orderliness’ by which they were being sent for extermination.
I cannot specifically state the circumstances under which Demjanjuk escorted people to the gassing facility, or how many groups of prisoners he escorted during his service in the camp.
These functions were our constant everyday work.
I did not see whether Demjanjuk shot anyone while they were being sent to the gassing facility. There were such occasions in the camp...
It is hard for me to say who shot the sick and weakened prisoners at the “infirmary”. [The quote marks appearing in the statement are legitimate in that elsewhere he refers to it as a "so-called infirmary"]
It is possible that the shootings were carried out by the Wachmanner under orders of the Germans...
I do not know if Demjanjuk participated in shooting sick prisoners...
I had to guard the site were people were unloaded from the rail cars along with Demjanjuk.
I saw the Wachmanner and Demjanjuk push the Jews with rifle buts and hit them...
Demjanjuk was considered an experienced and reliable Wachman. He for example was regularly sent by the Germsns to get Jews from nearby ghettos and to bring them in vehicle to the camp for extermination.... I did not have enough experience
Demjanjuk while serving on the outer side of the gassing facility zone, guarded the barracks of the work deatial that serviced the gassing facility... I do not know if he served as a guard inside the gassing facility zone.
In may or April 1944 [Danilchenko and Demjanjuk] were sent to Flossenburg .. to guard political prisoners.
[In the fall of 1944 they were sent to Regensburg to escort 200 political prisonres from Flossenberg. and there guarded prisoners doing construction work... until April 1945. At that time Danilchenko escapbed but Demjanjuk chose to stay behind.]
With respect to Sobibor, the Protocol
1. Negated Schrimm’s “all-did-everything” assertions. The statement clearly showed that different watchmen had different guard duties in and around the camp.With respect ot Demjanjuk, the Protocol exhonerated him from perpetrating or being an accomplice in any act of homicide
2. Indicated that there was an infirmary in the camp. This was consistent with various testimonial accounts which speak of an infirmary and/or sick or invalids being delivered to the camp.
3. Indicated that there was at least one shooting incident at the infirmary in which Demjanjuk was clearly not implicated (FN-6/Shootings)
1. It indicated that Demjanjuk had a variety of guard duties at different posts.
2. It exclupated him from any notion that he had operated the gas enginges.
3. It implicated him in escorting and maintaing order in moving people from the trains to the gassing facility.
Did “gassing facility” mean Section III as a whole or the gas chamber itself? Did Danilchenko mean to say that Demjanjuk escorted up to the gate of Camp III or did he mean up to the entrance of the gas chamber itself? Danilchenko’s statement that he did not know if Demjanjuk as a guard inside the gassing facility zone would suggest that he only led the victims up to that zone. The Protocol itself provided the answer. Earlier on in the narration, Danilchenko stated:
When the gates to the gassing facility were opened, the people were driven into the chambers by the Germans and kapos from a special work detail.Thus Protocol (II) established unequivocally that while Demanjuk acted as a passive “watch-guard” around the camp, in various parts of the camp and while Jews were unloaded from the trains and marched to Camp III, Jeff Jacoby’s “stuffing” was done by the Germans and Jewish kapos.
The Germans aided by the kapos ....told the Jews that they had been brought to Sobibor allegedly to undergo sanitation processing....
And so at long last -- after what had started out as a news read with morning coffee -- we uncovered the case against Demjanjuk. As we had hunched, Schrimm had no evidence that Demjanjuk had committed or was an accomplice to a single homicide. What he had was the testimony of a dead witness that Demjanjuk had acted as an accessory before the fact by virtue of standing guard as others were marched to their execution.
We also discovered the shameful lengths to which the Department of Justice was willing to go in order to see Demjanjuk convicted, if only during the last hour of his breath.
It will be remembered that, following his acquittal in the Treblinka case, the Israeli Supreme Court refused to allow reprosecution for alleged crimes at Sobibor. The court’s reasoning was that, although conduct at Treblinka and conduct at Sobibor were, narrowly speaking, different events, the thrust of the charge had been that Demjanjuk had participated as an accessory in the same cluster of camps during Aktion Rheinhard. The court took note of the operational inter-relationship between the two camps and of the fact the original case and the new one involved much the same evidence and were essentially two prongs of one fork. The State had had its bite at the apple, double jeopardy applied. nemo bis vexari pro eadem causa.
The response of the OSI, as evidenced by noises in the press, was to claim rank ignorance. The Washington Post made a point of reporting that the existence of Sobibor was "not well known " to the prosecutors until recently (WaPo 9 January 2009) and this pathetic rag of an excuse has cropped up elsewhere in the net-literature on the case. The District Court’s finding of facts also alluded to the supposed fact that Sobibor was not well known “during the war.” One does not need to be a rocket scientist to figure out that OSI was bruiting about the notion that it should be allowed a second bite because it really did not know the significance of Sobibor, even though the posting to Sobibor clearly appears on Demjanjuk’s identification card.
No! No! None of the holocaust experts at the OSI had any idea what that really meant. It never would have occurred to them that it was a notorious extermination camp. Not in a thousand years!
Utter bullshit. Sobibor is refrenced as a concentration camp on page 967 in William Shirer's The Rise and Fall of the Third Reich, published in 1959 (although it is spelled Sibibor). Sobibor is correctly spelled, discussed and appears on the inside jacket map as an "extermination camp" in volume two of John Toland's autobiography Adolph Hitler published in 1976. Both were standard and popular American works.
Not only that... the Danilchenko Protocol (II) was specifically requested by the Department of Justice in 1979, and assuming it was received shortly after it was taken, OSI knew all about Danilchenko and Sobibor before they tried Demjanjuk for being Ivan the Terrible at Treblinka. The Department of Justice committed not simply a fraud on the court, not simply a cheat on a defendant, it continues to show utter contempt for the Constitution, although it may keep its hands technically clean by getting the Germans to do the biting
Cataclysm and Culpability
Our investigative saga proved beyond a shadow of a doubt how foolish it is to rely on the official assurance of anything or on the re-blabbering of that assurance by the over-paid morons in the press. At any rate, now that we finally had a basic handle on the facts, we could ask whether justice was served by prosecuting an 88 year old man for escorting people to their execution.
To those raised on a primitive diet of black and white definitions it may perhaps seem “technical” to seek gradations of culpability among SS guards. To such people, the fact that Demjanjuk supposedly volunteered for "the SS" upon being taken prisoner as a Russian soldier is sufficient to prove any and all criminally culpable accessory participation in the crimes of the Third Reich. But under virtually any civilized legal system, gradations of culpability are based on the degree and circumstances of the accused's involvement.
To the extent we can rely on general information, our research has disclosed, that under German Law, any case against Demjanjuk for culpable participation in individual or multiple homicides (whether as a direct perpetrator, accomplice or accessory) would depend on a showing that he acted out of “base motives.” The “base motives” standard essentially incorporates what in American law is comprised by the components of: knowledge, intent, mitigation or excuse.
To understand motives, we have to understand that circumstances out of which they grew and so an assessment of Demjanjuk’s overall culpablility requires getting some sense of the war-time context that is less trivial and imbecilic than War and Remembrance and other whole-soaps
For, the history of the war -- especially in the East -- was not the simple melodrama it has been turned into by war-time and post-war propaganda. It was rather a collapse of civilization replaced by a paradoxical and terrible organized chaos in which individuals either survived as best they could or indulged their baser instincts as freely as they could or did both.
The war in the East did not begin with Germany’s invasion of Russia, but rather with the fall of the Russian Empire in 1917 and the collapse of the Austro Hungarian Empire a year later. Each in their sphere, these two Empires had kept the lid on a simmering cauldron of national and ethnic rivalries and hatreds. Upon their collpase and dismemberment what ensued was a decade long civil war between Red and White Russians that dovetailed murderously with an ongoing ethno/national struggle between Bolsheviks and Latvian, Finnish and Ukrainian nationalists who furiously resisted incorporation into the new Union of Soviet Socialist Republics.
During the devastating Ukrainian-Soviet war in the 1920’s some 35,000 Jews (some say 100,000) were murdered by Ukrainian nationalist factions, partly from anti-semitic motives and partly on account of the high percentage of Jews in Communist ranks. As the disastrous decade ended, millions of Ukrainian peasants were in turn starved to death by Soviet commisars. Those sitting in trans-Atlantic safety and comfort are wont to forget the intensity of these rivalries and to ignore the not unreasonable terror felt by the Western European middle classes of the looming Soviet threat.
At first, the Nazi invasion of Russia was propagandized as a war of European salvation and national liberation against Soviet Bolshevism. In this crusade against communism, “auxiliary” SS brigades were enlisted from Spain, France, Holland, Norway, Lithuania, Romania, and the Ukraine. Drawn from the political right, these volunteers enlisted -- not to kill Jews -- but to free their homelands from Soviet domination or to fight the Communist threat against Europe.Of course, in fighting the crusade against communism, these brigades also indirectly assisted the other crusade, also led by the Nazis, against the Jews. There are those, like Daniel Goldhagen, who insist that all of "them" without exception are equally accomplices and guilty of genocide of his “us”. But this is simply a vindictive dementia.
When it comes to volunteers or draftees from the East, the situation was more complex. Anti-semitism was stronger and more violent in the East and it is known that in several instances "the locals" took it upon themselves to engage in a pogrom with little or no Nazi instigation. The situation was further complicated by the fact that the Germans themselves had ambivalent feelings (to put it mildly) about the people they were supposedly liberating. Most complex of all was the position of the Ukrainians many of whom had been drafted into the Soviet Army and were later captured and interned by the Germans as POWs.
At his first trial, Demjanjuk testified that as 20 year old farm boy with rudimentary education he had been drafted into the Soviet Army. He was captured and interned as a POW. He was subsequently enlisted into some kind of Ukrainian auxiliary batallion and, after training at Trawniki, was posted to Ozkow, a Nazi run farm. [ cite ] The OSI prosecutors do not dispute this aspect of Demjanjuk’s testimony.
What press and prosecutors apparently overlook is the grim duress most of these "volunteers" were actually subjected to. While SS volunteers in Western Europe may have enlisted under mistaken assumptions, they did so freely. Not so in the East. The Ukrainians captured with the Russian Army were given the choice of enlisting in the auxiliary units or defense detachments or being left to freeze and starve to death in open air prison pens, in which 500,000 Soviet soldiers perished.
Although one would never know it from the press reports, there was no single "auxilliary" or SS unit. There were Hilfswillige (usually translated as "auxiliaries") which were assigned to essentially menial duties and separate Schutzmanmschaft (defense) batallions, which were used to engage partisans and/or round up Jews. The composition and evolving duties of these units was nothing uniform or standard, but varied by region, by nationality and according to war-time needs. [ Link: Article on Volunteer Auxiliaries in Eastern Territories ]
While the Ukrainian volunteers were screened for pro-German or anti-Communist attitudes, they were never entirely trusted by the Germans who initially assigned them to the most menial auxiliary duties. In fact, some members of the German staff at Sobibor spoke with utmost contempt for the Ukrainians whom they said lived like "animals". In several instances, Ukrainians murdered their German officers. In other cases they exploited imprisoned Jews for money. Over time, some of the conscript/volunteers were used in Aktion Reinhardt anti-Jewish cleansing actions in the ghettos. Some Ukrainians were undoubtedly anti-semitic, but others were punished for fraternizing with Jews. Following the revolt at Sobibor 28 Ukrainian guards fled "for fear of German reprisals". [ link ]
As a "guard" it appears likely that Demjanjuk was enrolled as a "Hiwi". To allege that he was "part" of the same group as the Einsatzkommandos that engaged in mass murder is a seriously misleading equivocation.
Demjanjuk has always claimed that his identification card was a forgery. That was not a patently frivolous claim. After the war the Soviets had old scores to settle with Ukrainian nationalists and against anyone who, from their perspective, had “gone over to the fascist enemy.” But accepting the identification as valid, it would show that after Ozkow he was posted Sobibor during a period of about 9 months in 1943. He was not an entirely model auxiliary. Records presented in his U.S. immigration proceedings showed that he was disciplined with "25 lashes" at least twice for "breaking quarantine" which other sources indicate were unauthorized absences in quest of onions and potatoes.
Taking all the facts into consideration, how was Demjanjuk different from millions of other soldiers being used as pawns and cannon fodder in the cruel game of States.?
Applying Germany's "base motives" standard, if it could be proved that Demjanjuk knew about the final solution at the time he "enlisted" and that he enlisted intending to aid and abet that great crime, then perhaps a case against him would have some foundation. That at least, was the judgement in the case of Josef Hirtreiter, where the German court ruled that Hirtreiter's conduct in "overseeing" the undressing of gas-chamber victims at Treblinka was criminal because it had been engaged in with the intent of a murderer. The court based its finding of intent on the fact that Hirtreiter had voluntarily enlisted in the SA in 1932 and had actively supported and espoused the purposeful extermination of non-Aryans. [ link ] But absent proof of such facts in Demjanjuk's case, the only thing that has been shown is that, after enlisting (or being enlisted) in a so-called SS auxiliary, he was cut orders to act as a guard at various camps. In fact, how is Demjanjuk different from a Jewish camp kapo or other prisoner inmates who assisted the "killing process"?
There may be those who will let forth shrieks of sonic intimidation coupled with bellowing about “moral equivalence” but the dispassionate fact is -- as anyone who has ever actually served in an army knows -- that soldiers and inmates are in pari materia. Once in uniform, neither has the option to decide to sleep in or skip out. To be sure, the status of the one is the inverse of the other, but neither is a free agent and it is freedom of choice that is the essential pre-requisite for culpability. In Demjanjuk's case, the similarity circumstance was enhanced by the fact that he had been a prisoner and was given the option of dying with the rest or saving himself by working for his new masters That was exactly the same choice given kapos.
The limited freedom of choice available to soldiers even in the most conventional circumstances is precisely the reason, that post-war Nuremberg Trials stopped short of indicting and hanging the entire German Army or the entire SS. While there is little difficulty in prosecuting soldiers who, acting on their own, commit atrocities or enlist for the purpose of doing so, the case becomes decidedly more difficult when it involves soldiers who have no choice save obeying orders or the firing squad.
The cruel absurdity that washed over a continent was captured in the movie Europa Europa, the story of a teenage German Jew, Solomon Perel, whose family fled Nazi persecution by escaping to Poland. When Poland was invaded, the Perels dispersed and Solomon fled further east into the arms of the Russians who enrolled him in the Komsomol Youth. There Perel learned Russian and the heroic virtues of Comrade Stalin. When the Nazis invaded Russia, Perel was captured, along with Russian army units, and was taken to a nearby forest to be shot. Suddenly recovering his German, Perel convinced his captors that he was a wandering Volksdeutcher (ethnic German). The soldiers were delighted to have saved this Aryan jewel from the midst of Slavic scum and Perel became the unit’s mascot. His heroism on the field and help in capturing Stalin’s real son, caught the commander’s attention and he was packed off to an SS Officer’s school where he remained till the end of the war, participating in its final days, with old men and Hitler Youth, in Homeland Defense against the invading Allies.
Another Jewish teenager, Alex Kruzem, survived the war on false identity papers. Throughout his childhood, he appeared in Nazi propaganda films as an army mascot. He is said to have handed out chocolates to other Jews to calm them as they waited for the trains that would take them to the concentration camps. In 2007, Alex's son Mark Kurzem published a book, entitled "The Mascot" which detailed his father's childhood among the Nazi SS.
Let us listen to Stanislaw Smajzner, an inmate at Sobibor, speaking about one of the Kapos...
Abraham warned us about the Jewish Commander of his camp. His name was Franz.... And he had been his childhood friend. I knew him myself for he had also been in the Opole Ghetto and he had come to Sobibor on the same transport I had. He must have been at that time, only eighteen years old. Abraham referred to him in a way which was not to his credit. On the contrary, he discredited him severely, and said he was a highly dangerous element, unworthy of our confidence.
He emphasised that Franz had formerly been a nice boy. However, as soon as he had been appointed by the Germans as leader of the Jews in Camp 3 [sic], his personality had been completely altered. It was as if he had been contaminated by the atrocities which he watched daily. In truth, Sobibor had made a lunatic out of him, perhaps due to the constant practice of his tragic duties.
He had lost his reasoning abilities completely as well as his self-criticism and had begun to think of himself as an authentic German – even worse, an intolerant defender of Nazism. He thought the Jewish race should be annihilated and his obvious paranoia had reached a stage when he fulfilled his duties with a sadism not even the Germans could equal. He was always well-dressed and wore shining black boots. With that he aimed at putting on commanding airs and thus inflict terror in all his companions, with his arrogance and endless cruelty.
He had become vain and he thought he was a very important person before the unfortunate Jews who passed through the camp and met death.
We could even forgive him if we took into consideration the fact that his mind might very possibly have been deranged by the horrors he had seen. After all , it was only thanks to Franz that Abraham was still alive, lunatic that he was, he had eliminated and replaced one by one, all his subordinates and had only spared Abraham because he liked him very much. [ link ]
Stanislaw SmajznerAs such experiences illustrate, once one moves past strategic or polemical accounts, the war, as seen through personal histories, ceases to be question of vectors, colored blocks and definitions and becomes a vast panorama of perplexity and paradox.
If Smajzner is to be believed Franz’s conduct and motives involved far more culpability than simply acting as a watch-man; and yet, even Smajzner finds room for understanding and forgiveness. Are such sentiments reserved for Jews only?
More than anything else, what is involved in the persecution of Demjanjuk is the creation of a manichean definition that overlooks all ambiguity, gradations of culpability or mitigation and that simply divides the world into them the unrighteous versus us the victims. Such a definition has little to do with Justice.
Putting aside the OSI’s “fraud on the court,” prosecutors in Demjanjuk’s first case at least had eye-witness testimony the he (“as Ivan Marchenko”) personally broke a Jewish woman’s back, whipped another victim for stealing bread and pumped carbon monoxide into the exhaust chamber. That was at least evidence of personal, criminal guilt to be weighed in the scales along with whether Marchenko too had not lost his mind. Now, however, from all the statements that have been released and uncovered, Demjanjuk is being hounded on a theory of guilt based on mere status.
What is involved here is actually double-scapegoating. The Holocaust is being expurgated through Demjanjuk at the same time the guilt of individual Jewish kapos for their equally accessory participation in that crime is being transferred and redeemed by sacrificing an aged Ukrainian.
There is no doubt (at least in our minds) that Demjanjuk could properly be tried for any crime undertaken entirely on his own initiative; but once he is placed within a command hierarchy his freedom and hence culpability become radically reduced. Thus, even if he had pumped the gas under orders his culpability (in our view) would be substantially mitigated. Precisely because “stuffing” and “door closing” is at the border of the killing, culpability at that point becomes borderline. In our view the notion of culpability for being an accesory before the fact in standing guard at or escorting towards “the killing facility” doesn’t wash at all, because at that point the conduct is not only attenuated (removed) from the actual killing it is also difused among a multiplicity of actors operating at the same degree of atenuation. What about the railway personnel who bring the train into the station? What about the delivery man who brings the diesel fuel to the camp ?
From the evidence we have found, Demjanjuk was one of a million small participants caught up in a colossal and catastrophic historical calamity. Whether he volunteered to fight the Soviets or whether, like Solomon Perel, was simply trying to stay alive in a typhoon beyond his control, there has been no showing that he directly perpetrated acts of murder or that he sought to to aid and abet genocide from base or racist motives.
PART II - MEMORY
One of the themes that kept cropping up throughout our investigation into Demjanjuk’s case was the function and usage of memory; and this, in turn, raised questions about that thing we call "Justice".
As most trial lawyers know, a trial is most essentially an exercise in remembering. In fact, it could be said that Justice itself is simply memory in action. “You owe me...” and “You killed my....” are simply claims for injuries remembered.
But if it turns out that the memory is wrong, what does that say about the "demand for justice"? Has the courtroom become the scene of an attack? In fact, most cultures regard an "accusation" as a species of attack and in many systems the plaintiff who lost a case was required to pay the penalty he himself had demanded.
In any trial, the role of memory bears down on three fundamental issues: 1) the identification of the defendant, 2) a description of the injurious deed and, when it exists, a 3) confession bearing witness against one's self, albeit sometimes accusing others. The proceedings against Demjanjuk, at one stage or another, involved each of these types testimonial memory and became a text book on the perils they presented in the pursuit of justice.
A Face Remembered
In a criminal trial the most important memory is the identification of the defendant as the person who committed the crime. But while the press reports the existence of eye-witnesses! with tones that might be reserved for the discovery of the Philospher’s Stone, “The vagaries of eyewitness identifications are well-known; the annals of criminal law are rife with instances of mistaken identification.” (United States v. Wade, (1967) 388 U.S. 218, 228.) Indeed. What boy hasn’t read about Lincoln’s famous impeachment of the witness who swore he saw the defendant clearly and unmistakably in the “clear light of the moon”
Over the past 30 years scientific studies have repeatedly shown that, in actuality, eye-witnesses adjust their memories to conform to what they want to believe and to what they believe an authority figure wants them to say. It is even worse. Studies have consistently shown that the more positive an eye-witness is the less reliable his identification actually is. “I’ll never forget that face! It’s him, it’s him without out a doubt. His image is branded in my brain” -- is a dead ringer for a false identification.
How do such mistakes happen? At the time of Demjanjuk’s first trial, the psychology of eye-witness identifications was a relatively new field that had been in existence for about 10 years. One of the world’s foremost cognitive psychologist and researchers in the field of memory and identifications was Dr. Elizabeth Loftus. Demjanjuk’s attorney sought Loftus’s expert opinion. After reviewing the photo-line up procedures that had been used, Loftus concluded that Demjanjuk’s identification had been irremediably suggested. However, because she had lost family members in Nazi camps, that memory kept her from testifying on Demjanjuk’s behalf, although she did assist behind the scenes. (Loftus related her conflictive attitudes about testifying for the defense in her book Witness for the Defense (Macmillan 1992).)
Most people think of memory in terms of recall, like pulling a file from a cabinet. But Loftus’ studies and those of other cognitives psychologists prove that memory is less a re-call than it is a present, mental re-creative act. We remember "yesterday" as we want to remember it today, recreating or re-assembling today something that we label as "yesterday".
Curiously enough language itself seems to reflect this. Our word re member is precisely that: to put members (i.e. items) back together. In Spanish, memory is often spoke as a kind of self-accord - me acuerdo que (I am in accord that...) What we call the past is simply the handiwork (mindwork) of the present.
This, I believe, is a very frightening proposition, because in itself it means that we all live in an entirely un-moored subjective present. The more we try to connect ourselves to a past by remembering today what we just remembered yesterday about an event 10 years ago, the more we get trapped in an infinite regression. We need to nail things down, which is where Sacred Books, contracts, and laundry receipts come in.
In a thoughtful article published for the UK Independent in 1993, following Demjanjuk’s acquittal, journalist Gita Sereny wrote that “Pincas Epstein's hair is white now, but he is still slim, with a fine, sensitive face, not a face that lies.” [link] The scenes in the Israeli court-room at Demjanjuk’s 1987 trial were certainly tearful and dramatic, but as the Israeli Supreme Court itself acknowledged the identifications hardly amounted to rock-solid evidence on which to hang a man. Pincas Epsetein was simply wrong.
Thus, after all but discounting Epstein’s “honest face,” the Israeli High Court went on to say, that documentary evidence, such as Demjanjuk’s identifiction card, was a far more reliable piece of evidence. However, that card did not on its face place him at Treblinka and even it did it still did not mean that he was Ivan Marchenko.
The OSI’s suppression of known witness testimony that exculpated Demjanjuk rendered his Treblinka Trial a sham and a farce. But even without that “fraud on the court”, the case against Demjanjuk stood on very shifting sands. The essential fact of that matter is that people identified him as Ivan the Terrible because they wanted to see Ivan the Terrible in him and they truly did see Ivan the Terrible, even though he wasn't.
A Deed Confessed
Today, in Demjanjuk's second case, there are no more live eye-witnesses to do the seeing. Instead it appears that the case against him is based on Danilchenko’s confessions. But confessions are simply a subset of eye-witness perceptions and the underlyhing problem is the same. The difference between the two types of testimony is that with confessions the “perception” is not of some external event but of what one sees about one’s self. If it is true that we remember what we want to remember, then it is equally true that we remember ourselves as we want to see ourselves as being or as having done. From a psychological and cognitive point of view, this is a sticky wicket indeed. Talmudic law prohibited outright the use of confessions and Maimonides was psychologically astute enough to add that melancholy and depressed persons must be prevented from confessing to crimes which they have not committed so as to be put to death. [link ]
Juridically, the problem with confessions is usually contexutalized as a question of voluntariness, which is a somewhat narrower context than memory-of-self in general. The public mind narrows the context even more. Most people think of an involuntary confession as those one in which, after extreme physical pain, the suspect foreswears his god and implicates his mother. But, in actuality, American law, recognizes that confessions (like eye-witness identifications) are basically present re-creative acts. At least that is the danger.
In the Miranda Case, after reviewing a great number of pyschological studies, the Supreme Court held that all in-custody confessions were “inherently coercive” (Miranda v. Arizona (1966) 384 U.S. 436, 457-458. The reason is simple. When any human or animal is deprived of physical liberty his survival instinct makes regaining freedom the highest imperative. If that is not possible, the same instinct seeks to make the conditions of confinement as unthreatening as possible. This circumstance gives the person in the dominant position an immense lever of control over the person in his custody and this lever is easily used to manipulate the interrogee to adjust his testimony by playing on guilt, pride, fear, love and in fact any of the hundreds of emotions that move us. This does not mean that these emotions "lever-out" the truth, it means rather that what is expressed in the form of a confession seeks to appease one or more of those emotions. If Maimonedes is to be believed "suicide by cop" is not a new phenomenon. In fact there is simply no telling what people will confess to and why.
Of course the police and that cacophony of stupidites that passes for the American press made a noisy brouha over how the Court was coddling criminals. But once it is accepted that in custody interrogations are inherently coercive and hence inherently untrustworthy, they could hardly be admitted into evidence. Once that predicament is grasped, it can be understood that the Miranda warnings were really devised as a means to “save” the confession, not to throw it out. In a typically American fashion, the court sought a panacea in "balancing the playing field" and reasoned that if a modicum of “control” over the situation were given to the suspect (the right to be silent, the right to end the interrogation at will, the right to demand a lawyer) then a “balance” would be restored and the situation sufficiently equalized so that the confession could be considered non-coercive and the result of free choice. What beggars the imagination is not the notion that the court was coddlng criminals but that it could seriously believe such quickly uttered mumbo jumbo would equalize the power relation between jailer and jailed.)
No surprise but Danilencko was not given any Miranda warnings. No... instead he “was advised of the responsibility of a witness as stipulated in Article 73 of the Code of Criminal Procedure of the RSFSR. He was also warned of his criminal liability for knowingly giving false statements, refusing to give a statement, or evasion in accordance with Articles 181 and 18_ of the Criminal Code of the RSFSR.” (Protocol, Preliminary Recitals) Danilchenko had himself been prosecuted and had served time for having been a guard. In fact, he had given a statement before. He knew exactly what the RSFSR would consider to be an evasive or false statement.
Is Danilchenko’s statement true? Does the fact that it “conforms” with his earlier statement mean that the answer is basically yes, or does it mean that he felt he had to conform his newer statement? Does that same fact mean that 30 years after the fact his memory of additional facts not stated are less reliable? To be sure the Protocol contains the recurrence of stilted phraseology (e..g “the watchmen and Demjanjuk...” and “... the Jews who were doomed for extermination...” ) but the statement does not purport to be a verbatim transcript and such phrasing is a legitimate way of conveying the substance of what Danilchenko was saying, if in fact he was saying it. On the other hand, there can be no doubt that inter governmental agencies know how to “talk” to one another even through the medium of neutral sounding officialeze. “We’re investigating one suspect DEMJANJUK in regard to possible allegations of criminality in connection with EXTERMINATIONS at Sobibor.” “Gotcha...” Once again, memory serves as a corridor between past and present, and there is no sure way of knowing through which end what facts come.
Tragedy Re-lived
Lastly there are the memories of uncounted survivors of Sobibor, whose testimonies are relied upon directly or indirectly to establish the primordial fact of genocide and the more case-specific fact of camp conditions and manner of operations at the camp.
The underlying difficulties with these remembered accounts is the same as that with eye-witness identifications: the memory is less about the objective past and more about the subjective present. The same variety of factors that can suggest and “taint” a physical identification can suggest an historical description. In fact, the same variety of factors that can influence a confession can produce an inverse confession or exclupation. What is a teenager like Franz the Kapo likely to "remember"?
Years back, while waiting in court for my case to be called, I got to chatting with a young DOJ lawyer sitting next to me. As it turns out she was working in the Department's war crimes unit. Somewhat envious, I remarked that it seemed she had a very interesting job. To my surprise she replied with a kind of irritated ennui. “Ah..It’s a disaster," she said. I gave her an inquisitive look. "The witnesses’ memories are all over the place. They imagine all sorts of things, and even end up contradicting themselves.” I gathered that several cases had more or less fizzled in her hands or blown up in her face.
The case with “holocaust survivor” testimony is is even worse that that with witness identifications because event-descriptions involve a higher degree of inference and conclusion. As all trial lawyers know, the average human being is worse than a horse when it comes to logical thinking. People jump to all sorts of conclusions without even realizing it. “Did you actually see...?” “No ... but....” --how else? --what else? --why else? --who else? isy a standard refrain repeated in trial after trial
To this may be added the further fact that what people “see” is influenced by mythology, lore, cultural attiudes, accepted truths and so on. The notions that “the Hun” had set up secret factories to make soap from corpses was widely believed up until the 1930, when (in the West at least) there was an official effort to put an end to what had been an official lie.
The humbling fact is that testimonial evidence of any sort is perilously fragile. On the basis of no one factor or consideration can it be said to be true....or false. It is often probably both, and there is no right answer or even a very “scientific” means of calculating with some formula which answer is righter than wronger.
The frightening thought is the possibility that objective memory does not exist. As mortals we need to anchor ourselves within a time continuum. The eternal present actually terrifies us. But suppose our "has been" is simply whatever we are today, without reason, claim or excuse in anything "past"? How do we know that "done yesterday" is not simply the work of the mind today, that justice is nothing more than our mood today?
In an extreme case (and it has happened) we could create (today) the memory of something (yesterday) that never happened. Fortunately ... we do have laundry receipts, and so were are never entirely just floating unmoored in a subjective present.
In most cases the influence of our present state on our memory of the past operates at the level of coloration and re-modelling. i.e. we seldom create a totally false memory, but rather adjust and slant our re-assembly of memory-images. Still, in any memory there is at least a component of what we want today, apart from what actually did happen or what we think did happen yesterday. Even partial embellishment/enhancement can seriously alter what the past really was.
The mood of the survivor / witnesses to see an Ivan Marchenko in Ivan Demjanjuk may only have "adjusted" the visualized physiology a little here and a little there, but the ultimate effect was 100% off and disastrous to Demjanjuk, although gratifying (given the applause) to the audience in court.
Whatever the degree of "adjustment", the fact that re-membering is an act of present recreation points to another question: why do we want to create or re-assemble that memory in a particular way? What purpose does it serve? What benefit do we derive from from that recreation?
Just as confessions can be tailored to suit emotional needs and physical needs, so too eye-witness identifications and event-narrations. In any trial the question is only half "what happened" yesteday. The other half is "what are about" now?
The Demjanjuk case serves as a textbook for all the evidentiary difficulties involved in testimonial evidence. But beyond that, the case raises question about Justice. What exactly is the “memory in action” being prosecuted here? And worse yet, is “justice” simply the snarl of the present? If what we remember -about yesterday is what we want to remember today, were the tearful and angry identifications at Demjanjuk’s first trial simply the howl of one pack against an interloper from another?
PART III - MODERATION
On the assumption that the past did exist and that we can know today things that did actually take place then, the question remains why should Demjanjuk be tried at all? Why should he be tried again after 30 years of vexation and on the eve of his death?
In a speech last month commemorating the 50th anniversary of the Nazi crimes investigation office in Ludwigsburg, Charlotte Knobloch, president of the Central Council of Jews in Germany, lamented that “The race against time has been lost ... An unknown number of grave crimes remain unpunished." [ link ]
Knobloch is wrong. Time was ordained by God. The relentless and obsessional pursuit of “perfect” and “complete” justice is neither justice nor perfect but simply an obsession with injury to self that results in wreaking unjust injury upon others.
After reviewing the case against Demjanjuk and assuming the worst that could be proved against him something seemed not quite right in arguing that even if Demjanjuk were assumed to be guilty he warranted mercy. It seemed to us that such a dichotomy somehow sidestepped an issue and thereby avoided the essential injustice being done to an old man.
Where did our sense of injustice arise from? In trying to figure this out, we arrived at some conclusions we had not had before. The ongoing prosecution of Demjanjuk was a clear case of disproportionality. But what we came to see was that, just as fundamentally, it represented a root perversion of Justice, the essence of which is not only proportionality but moderation.
The renunciation of moderation in the pursuit of Justice began 30 years ago with a conscious decision by Congress, at the instance of Jewish organizations, to set up the OSI and to instigate a relentless, irredentist pursuit of even the most minor alleged "war criminals".
Board of Trustees
May 1979
New York
Statute of Limitations for Nazi War Crimes
WHEREAS the West German Statute of Limitations on Nazi War Crimes is due to expire on December 31, 1979; andIn response to such pressures, the then West German government abolished the statute of limitations applicable to alleged war crimes which were thereby made prosecutable in perpetuity. At the same time, in the United States, the Office of Special Investigations of the Department of Justice was established at the instance of Rep. Elizabeth Holtzman (Dem-Brooklyn, N.Y.) for the purpose of investigating and expelling Nazi war criminals who had immigrated to the United States. According to the DOJ’s web site,
WHEREAS the expiration of the statute would make many Nazi war criminals immune from prosecution for their horrendous crimes against humanity; and
WHEREAS it would be unconscionable to close the door on future prosecutrion while some of the perpetrators of history’s greatest crime have still not had to answer for their deeds; and
WHEREAS the prosecution of Nazi criminals serves as a valuable means by which to remind the world of the horrors of the Holocaust and to challenge those would deny or willingly forget the past....
BE IT THEREFORE RESOLVED THAT the Union of American Hebrew Congregations strongly urges the West German Parliament to abolish the Statute of limitaionts governing the prosecution of war crimes..... [ link ]
“As crimes committed against non-Americans outside the United States during [the Nazi period] are not within the criminal jurisdiction of U.S. courts, OSI persecutes Nazi and Axis persecutors under civil immigration laws, seeking to denaturalize [them] ..and ultimately to remove or extradite all such persecutors ... to countries in which they might stand trial for their crimes.” [ link ]The OSI’s current director Eli Rosenbaum, went to work for the Office as a trial attorney from 1980-1984. He then left for private practice as corporate litigator and later as general counsel for the World Jewish Congress. He returned to OSI in 1988 where he was appointed as Principal Deputy Director, and director in 1995. [ link ]
In 1995, Jonathan Drimmer, who had met Eli Rosenbaum at a legal internship, went to work for the OSI. According to FindLaw’s professional resumé, “Prosecuting Nazi war criminals for the United States Department of Justice can be slow going. Jonathan Drimmer gets the job done fast...” Working fast, he went to work on Demjanjuk’s case and succeeded in revoking his citizenship a second time. [ link ]
According to Haaretz “The German investigators worked on the case together with the U.S. Justice Department's Office of Special Investigations, a (Haaretz 12 march 2009). In an interview to Der Spiegel, Rosenbaum put a certain accent on the collaboration stating “We have a very strong collaborative relationship with [the German prosecutors]. They know that we are available to assist them on a twenty-four-hour-day, seven-days-a-week basis.”
As reported in the Jerusalem Post “Munich prosecutors credited help from the US Office of Special investigations in clarifying the validity of Nazi-era identity papers in enabling them to file charges against Demjanjuk.” [ link ]
According US Holocaust Memorial Museum, “the OSI and the United States Holocaust Memorial Museum are ‘siblings’ of a sort, having been conceived within the same political and moral context of the late 1970s.” [ link ]
The Justice Department OSI page proudly adds that “As a result of OSI’s record in identifying, investigating and denying refuge inthe United States to Nazi persecutors, the United States is the only country in the world to have won the “A” rating from the Simon Wiesenthall Center for effectiveness in pursuing justice for Holocaust crimes.” [ link ]
Effective in hunting down, certainly; but, in the case of John Demjanjuk, the “context” is simply a relentless and unquenchable demand for retribution, lacking in all moderation.
Even if Demjanjuk had been one of countless underlings who pulled the trigger or lever in a murderous and genocidal war, it was an event that occurred over sixty years ago. Most civilized countries have statutes of limitation which in Demjanjuk’s case expired in the 1970’s until Germany was pressured by holocaust blood hounds to remove it.
These statutes are based on both practical and moral considerations. As a practical matter, there comes a time when memories fade, when evidence of both guilt and of innocence is lost and when what testimony remains in written form is not subject to cross examination. In such circumstance any trial becomes a pale and feeble imitation of the real thing.
As a humanitarian matter, there comes a time, also, when it is our sense of justice calls out to let bygones be bygone. Nature herself dictates as much which is precisely why, in the natural scheme of things, memories fade. Or, given what has been said about memories, a hurt stops hurting.
From the Greeks we learn that moderation is the elemental virtue within all things. The love of Justice (as distinct from a victimised self-love) entails both the pursuit of redress and the redress itself -- what lawyers distinguish as “process” versus the “substantive merits”. Justice is neither one nor the other but is both the process and what is due as a result. To conceive of justice solely in substantive terms of "any eye for an eye" is to see the matter with only one eye. It is just as essential to justice to take into consider the lengths one will go for retribution.
By way of illustration. To punish a man with 70 years imprisonment for selling liquor on sunday is not proportionate justice. (O’Neil v. Vermont (1892) 144 U.S. 323, 337 diss. Field, J. ) To hound a man for 20 years to get him to pay his $2.00 parking ticket is also not justice, even if the fine is entirely proportionate to the offence, because the quest is itself immoderate.
Both double jeopardy provisions as well as statutes of limitations embody a recognition that due process requires moderation in the pursuit of justice even if the accused is presumed to be guilty.
It is often the case that after an unsuccessful prosecution, the State discovers new evidence that will definitely prove the defendant's guilt. But although guilt is assured, since Roman times it has been a fundamental maxim that no one should be twice put in jeopardy for the same cause.
The same principal is at work in statutes of limitation. Like the Deuteronomic law requiring the forgiveness of debts after seven years, statutes of limitation do not involve 1:1 proportionality as such, but rather that kind of proportionality between ends and means that is called moderation. Thus considered, it can be seen that the campaign to remove the statute of limitations for war crimes was in fact a public and explicit renunciation of moderation. But without moderation there can be no justice.
In tempering the scale, l’esprit de geometrie cannot get us the precise modulation that sounds right. So too with tempering justice, a certain esprit de finesse is required to sense the right balance. This is not a question of “fudging”. Our affirmative response to what sounds right flows from out natural inner ear and what feels just flows from our natural inner conscience what what Catholic theologians call synderesis.
From this perspective, it can be seen that what the U.S. Holocaust Memorial Museum describes as it’s “sibling” memorial/prosecutorial task is a fundamentally unnatural undertaking. Its aim is not to let memories fade naturally, but to keep them alive and present by every artifice possible. Its goal is never to let the dead rest but to persist at picking over the wounds of the past so that life becomes just an open sore.
Those laboring in this enterprise, attempt to hide its real nature and to rationalise it by recourse to the trite and stupid statement that those who forget the past are doomed to repeat it. Of course, individually and collectively, we learn from our mistakes. But what we must not forget is what we have learned, not how we mistaked. To confuse the two is a subtle perversion that kills forgetfullness and rebirth.
The genocide suffered by the Jews during the World War was one of histories great and horrible crimes. But it was not the only one and even in its totality it was not infinite. Demjanjuk’s part in the terrible event, whatever it might have been, also had its limits which ought not to be magnified beyond that which any one man is capable of.
Thus, even if it is supposed that Demjanjuk were guilty of some actual killing within the context of mass-murder ordered from above, it would be time to move on and to let an 88 year old man die in peace. In fact, the case against Demjanjuk is at best a tenuous and vague theory of accessory complicity by virtue of being there and acting as a guard. And “all” this after the former case collapsed on the substantive merits ensuing upon prosecutorial misconduct. There can be no question that hounding Demjanjuk at this point is disporportionate to anything he can be reasonably and articulably be suspected of doing.
The immoderate pursuit of retribution arises from an unbalanced notion that any injury to one's self is a boundless crime that cries to heaven for ongoing and perpetual vengeance. This cannot be. Injuries personally suffered can certainly be deep and consequential; but even if one has lost his all, one is not all. The deed done is necessarily finite so that to assert that the crime is "beyond measure" is simply to magnify one's self beyond measure. Prosecution on this basis is simply form of ethnic idolatry and collective egotism masquerading as justice.
In fact "pursuit of justice" is just a tissue draped over a monumental collective self-obsession. As stated by the Hebrew Union, the prosecution simply "serves as a valuable means" to remind the world of the Holocaust. In other words, retribution is actually incidental to the real goal which is to cause each of us to daily re-aware ourselves of Jewish suffering in our remembering today. And so, the Holocaust Museum does the memorializing while it's sibling OSI does the prosecuting.
If Justice is to be a means it should at least be a means for social healing. But, it seems to us, that Justice is an end in itself -- one that consists in proportionality of demand and moderation of pursuit.
Knobloch is wrong. What is running out is patience with what amounts to a relentless, and profoundly psychotic pursuit of sacrificial victims to appease a lust for self-validation. The crimes committed against innocent civilians by the Nazis were tragic and terrible. But there comes a point where we resume life let the dead bury the dead or become dead ourselves through living a cult of death obsession.
Ironically, the one court that has refused to play along was neither in Germany nor in the United States but in Israel. In refusing, on double jeopardy grounds to let the second case proceed, that court gave life to the principle of moderation. It understood what all decent men with a sense of due process understand: the State had had its bite at the apple in a prosecution that has now lasted close to 20 years, of which 7 were spent by Demjanjuk in solitary confinement. Even if the case were not garbage, enough is enough. It is not mercy but justice that demands leaving an old man alone. For shame, the Memorial Prosecution crowd could care less about that. Reliving death and hunting Nazis is their life blood. It would hardly be surprising if we see the dead hunted in their graves. It's been done before, such is the depravity of Man.
©WCG, 2009
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