Rachel Browning’s Legal Blog

            An 89-year old retired auto-worker from Ford and twice de-naturalized U.S. citizen is desperately trying to avoid deportation to Germany, and this week the 6th Circuit Court of Appeals is scheduled to rule on whether his stay should be granted and case reopened.  The Ukrainian-born John Demjanjuk (born Ivan Demjanjuk in 1920) has been accused in a German arrest warrant of 29,000 (yes, thousand) counts of being an accessory to murder at the Sobibor death camp in Nazi-occupied Poland in 1943.  Germany wants him returned there to face these charges.  The U.S. government wants him deported.  And Demjanjuk’s attorney insists that transporting the sick and elderly man back to Germany would amount to “cruel and inhumane” treatment.

Demjanjuk has continually denied involvement in any deaths or crimes associated with the Nazis or the Holocaust, saying that he was only a prisoner of war, held by the Russians, and not a Nazi collaborator.  It’s not the first time he’s had to respond to such allegations, nor the first time his alleged associations of the past have come back to haunt him. 

The following is a brief history of Demjanjuk’s life and trials in the U.S., from which emerges two contradictory faces of the same man.

After immigrating to the U.S. as a refugee under the Displaced Persons Act in 1952, Demjanjuk became a U.S. citizen in 1958.  His citizenship was revoked in 1981 when the Justice Department alleged he had served the Nazis as the notorious Nazi guard “Ivan the Terrible” in Poland at the Treblinka death camp.  At same time, Israel issued an extradition request to the U.S. so that he could stand trial there under the Nazis and Nazi Collaborators (Punishment) Law of 1950.  He was extradited to Israel in 1986, and two years later was found guilty of war crimes and crimes against humanity, based on his being identified as “Ivan Grozny” or “Ivan the Terrible” of Treblinka.  The court found that he had operated the diesel engines used to pump gas into the death chambers, killing thousands.  He appealed the decision, however, and in 1993, Israel’s Supreme Court ruled that Demjanjuk was not Ivan the Terrible and allowed him to return to the United States.  This finding was based primarily on written statements of former guards at Treblinka that Ivan the Terrible’s true surname was Marchenko, not Demjanjuk.  The government allowed him to return to the United States; and in 1998, the Sixth Circuit Court of Appeals ruled that Demjanjuk was a victim of prosecutorial misconduct and restored his U.S. Citizenship.

A year later in May 1999, however, the DOJ filed a new civil suit against Demjanjuk, this time alleging that Demjanjuk had served as a guard at the Sobibór and Majdanek camps in German-occupied Poland and at the Flossenburg camp in Germany. It also accused Demjanjuk of being a member of an SS-run unit that had captured approximately two million Jews in Poland.  Demjanjuk fought the charges up to the sixth circuit again, but lost the case, for failing to produce “credible evidence” of his whereabouts during WWII.   The DOJ revoked his U.S. Citizenship once again in May 2004, and an immigration judge ordered him removed to Ukraine in December 2005.  His appeals to the BIA and sixth circuit were both denied and the U.S. Supreme Court denied his petition for certiorari in May 2008.  A month later, the German government jumped in with its extradition request to bring Demjanjuk back to Germany and answer to charges there.

            Since then, Demjanjuk has filed a motion to reopen his case and an accompanying stay of deportation, arguing that to carry out the deportation order and order his transport back to Germany would constitute “torture” within the meaning of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention).  Demjanjuk’s argument is limited to the claim that the transportation itself would aggravate his conditions to such a degree that the deportation would prove torturous; not that anyone in Germany is going to withhold care, or mistreat him in any way that would constitute torture.  His attorney did argue, in its motion for the stay, however, that “it is clear that the purpose and intent of the German authorities in accepting Mr. Demjanjuk’s deportation and then subjecting him to this abusive treatment is to punish him…(which) meets the standard of “torture” under the Convention.”

Finally, last week, the 6th Circuit granted a last minute stay and requested both Demjanjuk’s and the government’s attorneys to submit additional information regarding its jurisdiction over the motion to reopen and stay, and information from physicians regarding his condition.   With all the twists and turns this case has taken over the past two decades, it is difficult to predict how the court will rule.  To put it another way, it is difficult to know which version of Demjanjuk – the sickly and ailing elderly man, or the alleged Nazi conspirator – the court will find more persuasive.  Stay tuned….