Appeals Court Rules Demjanjuk Must Be Allowed Back in the U.S.

Jewish groups have reacted with shock and dismay to an appeals court decision here ordering the federal government to allow John Demjanjuk’s return to the United States.

The U.S. Court of Appeals for the 6th Circuit ruled here Tuesday afternoon that Demjanjuk must be allowed to return to the United States in the wake of a decision last week by Israel’s Supreme Court to overturn his 1988 conviction and death sentence for war crimes committed at the Treblinka death camp in Poland.

A three-judge panel of Chief Judge Gilbert Merritt, Judge Pierce Lively and Judge Damon Keith reached the decision after hearing arguments from lawyers representing the U.S. government and Demjanjuk’s family, which had filed a petition seeking his re-entry to the country.

Following the Israeli Supreme Court’s ruling last Thursday, the Justice Department had said it would bar Demjanjuk from returning to the United States, which extradited him to Israel in 1986.

Israel had planned to deport Demjanjuk to his native Ukraine. But on Sunday, the Israeli Supreme Court ordered that he be held in Israel for another 10 days while the court considered a petition from Holocaust survivors and others that Demjanjuk be tried in Israel on other war crimes charges.

While the Israeli court ruled there was “reasonable doubt” that Demjanjuk was the notorious Treblinka gas chamber operator known as “Ivan the Terrible,” it said that there was persuasive evidence he served as a guard at the Sobibor death camp and two concentration camps.

CITED DANGER IN ISRAEL

But the federal court here, which has been reviewing the legality of Demjanjuk’s extradition, ruled Tuesday that the former Cleveland autoworker could not be tried in Israel for any offense other than for crimes for which he was extradited.

Arguing that Demjanjuk was extradited solely on the charges that he was “Ivan the Terrible” of Treblinka, the court said it would be “improper” for further prosecution of Demjanjuk. Such action, it said, “would violate basic precepts of international law.”

Noting that Demjanjuk, who was stripped of his U.S. citizenship in 1981, is now “stateless and homeless,” the court also ruled that “basic humanitarian considerations embodied in the U.S. Constitution require that steps be taken” to ensure that justice is carried out.

The court also justified its decision by saying that Demjanjuk may be in serious physical danger as long as he remains in Israel.

Citing death threats made in Israel to Demjanjuk and his family, the court said its pending case on the legality of his extradition “will not serve its purpose if Mr. Demjanjuk is killed or injured.”

In doing so, the court accepted arguments made by Demjanjuk’s attorney, Michael Tigar, who made an emotional plea for his client’s return.

Tigar described the Israeli jail where Demjanjuk is being held as a “death cell” where the daytime temperature climbs to “over 100 degrees.”

Joseph Douglas Wilson, attorney for the government, argued that the 1981 judgment stripping Demjanjuk of his U.S. citizenship was still valid and that, as such, he was ineligible to reenter this country.

But the court was not persuaded by that argument and questioned the grounds on which he was originally denaturalized. It also rejected the government’s argument that the court had no jurisdiction to order Demjanjuk’s re-entry.

The government can appeal Tuesday’s ruling to the full U.S. Court of Appeals and then to the Supreme Court. But there was no immediate indication of whether it would do so.

In Washington, the Justice Department’s Office of Special Investigations, which has pursued the case against Demjanjuk since its inception, had no immediate comment on the Cincinnati court’s findings.

‘MISPLACED COMPASSION’

But Jewish groups did not conceal their disappointment.

“I’m flabbergasted,” Abraham Foxman, national director of the Anti-Defamation League, said in New York. The court’s ruling “throws aside the findings of a master appointed by the court to look into the law. I urge the Justice Department and hope they appeal it.”

In Los Angeles, Rabbi Marvin Hier, dean of the Simon Wiesenthal Center, called the ruling “a very unfortunate decision” and “misplaced compassion for perpetrators.”

“Unfortunately,” he said, “this decision does not have the wisdom behind it that the Israeli decision had, because this decision operates on the assumption that John Demjanjuk has not had due process in the U.S. That is not the case.”

“This sends the wrong message, at the wrong time, that the victim in this case is John Demjanjuk. It loses sight of the real victims, who are buried at Sobibor and the other camps” where he served, said Hier.

Elan Steinberg, executive director of the World Jewish Congress, criticized the court’s ruling by taking a direct swipe at the chief judge.

“This is typical of the way that Judge Gilbert Merritt has handled cases involving Nazi persecutors,” he said. He accused Merritt of trying to “gut” the law, sponsored by former U.S. Rep. Elizabeth Holtzman (D-N.Y.), that allows the government to denaturalize and deport war criminals who entered this country illegally.

In a related development, the WJC on Tuesday released what it contends is a “smoking gun” in the Demjanjuk case: a document from KGB files in Moscow found in 1991 that contains the original orders in German showing Demjanjuk’s transfer to the Sobibor camp on March 26, 1943.

The WJC called the document “ironclad proof” of Demjanjuk’s assignment as an SS guard at Sobibor.

The KGB document contains a list of 84 SS men trained at the Trawniki camp who were being transferred to Sobibor as replacements for men already serving there. Demjanjuk, identified by name and date of birth, is No. 30 on the list.

(Contributing to this report was JTA staff writer Susan Birnbaum in New York.)