The Nazi Hunters (47 page)

The Israeli Supreme Court acquitted Demjanuk in July 1993, and the U.S. Sixth Circuit Court ruled that he could return to the United States. To make matters worse, it also restored his citizenship and declared that OSI was guilty of prosecutorial misconduct. Demjanuk’s defendants had
charged all along that OSI was withholding evidence that cast doubt on its case, and they even had sifted through the dumpster outside its offices to dig up incriminating documents. “The allegations that were trumped up about improprieties in the investigation still rankles,” former OSI Director Ryan told me in 2015. But Eli Rosenbaum, who held the same post starting in 1995, admitted: “
We got a huge black eye on that case, and I would say we deserved a black eye.”

That did not mean that Rosenbaum was swayed by Demjanuk’s protestations of his innocence. “It was clear that Demjanuk was lying, that he was a death camp guard, at a minimum at Sobibor,” he said. In other words, just as his SS identification card had indicated. Under Rosenbaum’s direction, OSI launched a new investigation and painstakingly rebuilt its case, relying mostly on the identity card and new documents from the German and Soviet archives rather than on purported eyewitnesses.

Among the findings: Demjanuk was never a soldier in Vlasov’s Russian Liberation Army as he had maintained. Like his U.S. visa application claim that he had been a farmer in Sobibor, this was another cover story. In 2002, the Sixth Circuit Court stripped Demjanuk of his citizenship for a second time. The subsequent deportation battles finally ended in 2009, when Demjanuk was once again sent out of the country to be tried—this time in Germany.

Demjanuk had been pleading that he was too old and ill to travel or face a new trial, and he boarded the flight to Munich on a stretcher. In court, he was wheeled in on a gurney, and he looked almost lifeless. He was eighty-nine at that point and far from healthy, but his opponents were convinced that he was putting on an act every time he appeared in public. Shortly before he was flown to Munich, the Simon Wiesenthal Center had posted a video on YouTube showing him walking down a street in his neighborhood and getting in a car without any problems or assistance.

In May 2011, the court ruled against Demjanuk, finding the evidence that he had served as a guard in Sobibor convincing. Unlike in previous German cases, it ruled that this was sufficient grounds to convict him of
being an accessory to the murder of 29,060 people, the total number of people who died in the camp during his time there. He was sentenced to five years in prison, although he was given credit for the two years he had already spent in pretrial detention. While his lawyers appealed the verdict, he was allowed to live in a nursing home. He died there on March 17, 2012, with the appeal still pending.

That allowed his son to claim that, in practical terms, the court’s verdict was no longer valid. He also voiced the conviction of many in the Ukrainian American community that Germany had used his father “
as a scapegoat to blame helpless Ukrainian POW’s for the deeds of Nazi Germans.” Columnist Pat Buchanan had waged a furious campaign against OSI’s prosecution of “
this American Dreyfus,” as he labeled Demjanuk. “How many men in the history of this country have been so relentlessly pursued and remorselessly prosecuted?” he asked.

Demjanuk’s defenders can always point to the early misidentification of him as Ivan the Terrible and his initial death sentence in Israel as proof that both prosecutors and judges are capable of grievous errors. But after nearly three decades of legal battles, his guilt was finally established, and his cover stories were exposed for what they were. More significantly, the Munich verdict set a new precedent for how Germany could handle the prosecution of the dwindling number of alleged war criminals who were still alive. The rules of the game had suddenly changed.

• • •

Until the Demjanuk case, German prosecutors had been faced with the challenge of proving alleged Nazi criminals guilty for specific acts of murder and other crimes. The result was a very low conviction rate. Finding witnesses and corroborating evidence that pointed to mass murder was not difficult; finding documents and witnesses who could pin responsibility for specific murders on specific individuals was a huge challenge.
According to the Institute of Contemporary History in Munich, West Germany conducted investigations against 172,294 people from 1945 to 2005. This produced 6,656 convictions, but only 1,147 of those guilty verdicts were for homicide. Considering the enormous tally of the Third
Reich’s victims, this meant that only a tiny fraction of the murderers were held accountable for their deeds.

What was different about the Demjanuk case was that, instead of demanding that the prosecution prove him guilty of specific acts of murder, the Munich court accepted the formulation that he was an accessory to mass murder. In other words, those who served in the death camps were guilty by virtue of the positions they held. Kurt Schrimm, the head of the Central Office for the Investigation of National Socialist Crimes in Ludwigsburg, soon made it clear that he would apply that new standard.
In September 2013, he announced that his operation was about to send information on thirty former Auschwitz-Birkenau guards to state prosecutors to investigate whether they, too, were accessories to murder. “We take the view that this job [in Auschwitz-Birkenau], regardless of what they can be individually accused of, makes them guilty of complicity in murder,” he declared. The thirty former guards ranged in age from eighty-six to ninety-seven, and many of them would be effectively let off the hook because of death, illness, or other factors.
As of early 2015, thirteen of those cases were still under investigation, and only one had led to an indictment.

When Oskar Gröning, the ninety-three-year-old SS “bookkeeper of Auschwitz” who was accused of complicity in the deaths of 300,000 prisoners, went on trial in the German town of Lüneburg in April 2015, he admitted he served as a guard and tallied the money seized from prisoners on the way to the gas chambers. But like so many other defendants in earlier trials, he claimed he was only a small cog in the huge killing machine. “
I ask for forgiveness,” he said. “I share morally in the guilt but whether I am guilty under criminal law, you will have to decide.” This was more of an admission than most Nazi defendants ever made, but still implied that he should not be held legally accountable.

On July 15, 2015, the court found Gröning guilty, sentencing him to four years in prison—a more severe sentence than the three and a half years that the state prosecutors had asked for. Judge Franz Kompisch pointed out that he had joined the SS and taken “a safe desk job” at
Auschwitz of his own free will, and that made him complicit in mass murder. Addressing Gröning, he declared that his decision “was perhaps affected by your era, but it was not because you were unfree.”

Schrimm had explained that the goal was not so much to punish the former guards as to show that there was still an effort to achieve a measure of justice. “
My personal opinion is that in view of the monstrosity of these crimes one owes it to the survivors and the victims not to simply say ‘a certain time has passed, it should be swept under the carpet,’ ” he added.

The irony was that the Munich court that convicted Demjanuk had finally accepted the arguments made decades earlier about what constituted adequate evidence of guilt for those who served in the Nazi machinery of death. William Denson, the U.S. Army’s chief prosecutor in the Dachau trial that opened in late 1945, had based his case on the theory of “common design.” Instead of having to prove individual crimes, it was enough, he had argued, that “
each one of these accused constituted a cog in this machine of extermination.” Fritz Bauer, the German prosecutor who spearheaded the efforts to hold his countrymen accountable for their actions during the Third Reich, had similarly argued during the Frankfurt Auschwitz trial in the 1960s that “
whoever operated this machinery is guilty of participation in murder, whatever he did, of course provided he knew the aim of the machinery.”

There was a still bigger irony. If the German courts had accepted that approach starting in the 1950s or 1960s, there would have been a huge surge in trials and convictions. As Piotr Cywiński, the current director of the Auschwitz-Birkenau State Museum, put it, “
This often happens: you have an accounting for the crimes only when there’s almost no one left who can still be held accountable.” The whole earlier rationale of the German courts was flawed, Cywiński maintained. “If you have the mafia shooting at people, no one will care whether someone was shooting or standing guard to make sure that no one is coming. He is participating in the crime. It was shocking that the Germans decided differently.”

The German newsmagazine
Der Spiegel
offered another explanation in its August 25, 2014, cover story entitled “
The Auschwitz Files: Why the
Last SS Guards Will Go Unpunished.” Klaus Wiegrefe, the author of the lengthy report, concluded that Germany’s poor record on convictions was the result of more than just the rigid legal requirements. “The punishment of crimes committed at Auschwitz did not fail because a few politicians or judges tried to thwart such efforts,” he wrote. “It failed because too few people were interested in decisively convicting and punishing the perpetrators. Many Germans were indifferent to the mass murder at Auschwitz after 1945—and thereafter.”

Nonetheless, Cywiński and many other foreign critics were encouraged by the Demjanuk decision—and by the determination of Schrimm of the Ludwigsburg office to act on it. “We are in the area not only of law but also of morality,” Cywiński said. “Those who say you shouldn’t convict people in their nineties claim this is some kind of moral wrong. The bigger moral failure would be to avoid passing judgment. That would be a triumph of injustice.”

• • •

As their handling of Demjanuk and other cases showed, U.S. officials needed no convincing on that score. On July 23, 2014, Eastern Pennsylvania District Court Magistrate Judge Timothy R. Rice ordered Johann Breyer, an eighty-nine-year-old former SS Auschwitz guard and retired toolmaker living in Philadelphia, extradited to Germany to face trial. In its extradition request, Germany had offered the kind of justification that reflected the reasoning in the Demjanuk case. Breyer was “
part of an organization which purposefully executed the orders to carry out the murders within the chain of command,” it declared, referring to his “Death’s Head” SS guard unit. Breyer did not deny he served in Auschwitz, but he claimed he was not involved in the killings.

In his ruling, the American judge departed from dry legal language to convey the reasoning behind his decision. “As outlined by Germany, a death camp guard such as Breyer could not have served at Auschwitz during the peak of the Nazi reign of terror in 1944 without knowing that hundreds of thousands of human beings were being brutally slaughtered in gas chambers and then burned on site,” he wrote. “A daily parade of freight trains delivered hundreds of thousands of men, women, and children,
most of whom simply vanished overnight. Yet, the screams, the smells, and the pall of death permeated the air. The allegations establish that Breyer can no longer deceive himself and others of his complicity in such horror.” He also pointed out “no statute of limitations offers a safe haven for murder.”

But on the same day that Rice announced his decision, the former SS guard died. This was not the first time that Nazi war crime suspects had died before they could be deported from the United States to face charges elsewhere. The legal process was often a tortuous one, if it was started at all. For those who worked for years to win their cases against alleged Nazi war criminals like Breyer, this was an important victory, but his death was also frustrating. It felt like another opportunity lost, not so much to punish the culprit, but to offer a new lesson in a German court about accountability and history—a lesson that individuals are responsible for their actions in such a situation, no matter what orders they may have received.

Breyer’s death right before he could be extradited also raised the question why such cases came to fruition so late—and how much had really been accomplished.
Since its creation in 1978 to 2015, the U.S. Office of Special Investigations won 108 cases against participants in Nazi crimes, according to its director Eli Rosenbaum. It stripped eighty-six people of their citizenship, and deported, extradited, or otherwise expelled sixty-seven such persons.

Former Congresswoman Elizabeth Holtzman, whose intense lobbying led to the creation of OSI, believes that this is an impressive record—especially given the difficulties of trying to prosecute people for crimes committed so long ago. “
I’m very proud of the people who led these efforts,” she said. “We got the unit to function in a professional manner, to seek evidence worldwide. They succeeded against all odds. No country in the world had done anything more than we have in this period of time.”

Rosenbaum, who returned to OSI in 1988, taking over as director in 1995, certainly agrees with that assessment. He readily concedes that Cold War politics was responsible for a long period when the U.S. lost interest in pursuing Nazi perpetrators, and, in some cases, enlisted them
in the new battle against the Soviet Union. But he points out that even in the late 1940s and through much of the 1950s, the United States kept files on Nazi perpetrators and tried to keep many of them from entering the country. The decision to work with others has to be seen in the context of the times, when the superpower struggle felt like a life-or-death contest, he maintains. “In law enforcement, we use bad people all the time,” he noted.

Were the subsequent efforts by OSI to go after alleged war criminals, like the recent cases pursued by German prosecutors, a matter of doing too little, too late? In some ways, yes. But they have already had a significant impact, signaling that the United States no longer is willing to turn a blind eye to the remaining perpetrators who can still be identified and targeted for denaturalization and deportation.