Whatever Happened to the Basic Notion of Due Process?

This is about memory and truth, about history and justice, and about our daunting but unavoidable duty to knit them into an intelligible whole.

In the late 1970s, an embarrassed U.S. government was forced to admit that, in the anxious, early days of the Cold War, it had admitted to this country thousands of Central and Eastern European immigrants guilty of war crimes. A few were Germans; most were people of other nations--Balts, Ukrainians, Croats, Slovaks, Circassians--who had cooperated with the Nazis in their persecution of Jews and other religious and ethnic minorities.

Some of these criminal immigrants were useful “intelligence assets” in the secret war then being waged with the Soviet Union. Most simply were men and women who took advantage of the situation to portray themselves as “victims” of Communist persecution.

In any event, the U. S. Justice Department belatedly began to pursue them. Thirteen years ago, it set up an Office of Special Investigations, whose staff of 12 lawyers, seven historians and two investigators is charged with developing information on war criminals who managed to find a haven in America. They have had numerous successes.

More recently, however, serious questions have been raised about whether their zeal has lead them, in at least two instances, to abuse basic American notions of due process and fairness.

One of these cases involves John Demjanjuk, a 72-year-old Ukranian immigrant and retired Cleveland auto worker who was stripped of his U. S. citizenship and deported to Israel to stand trial on charges that he was “Ivan the Terrible,” the sadistic guard who operated the Treblinka death camp gas chamber in which hundreds of thousands of Jews were murdered. Demjanjuk was convicted and sentenced to die.

But now, the Israeli Supreme Court is considering compelling information that seems to support Demjanjuk’s contention that he is the victim of mistaken identity. Meanwhile, the Federal Appeals Court in Cincinnati that extradited Demjanjuk is re-examining its ruling because Justice Department prosecutors may have withheld information indicating that another man had been identified as Ivan the Terrible. The Justice Department’s Office of Professional Responsibility also has opened an inquiry into the conduct of the government’s lawyers in the case.

In the words of one official, the Justice Department also has “ratched up” a 2-year-old investigation into the conduct of the lawyers who secured the extradition to Yugoslavia of former Southern California resident Andrija Artukovic, who served as minister of the Interior, Justice and Religion in the Nazi-puppet regime that governed Croatia during World War II. Artukovic, convicted of war crimes for his complicity in the deaths of thousands of Jews, gypsies and Serbs, died of natural causes in a Yugoslav prison in 1988.

Questions similar to those arising in the Demjanjuk case--that the government knowingly withheld from the court contradictory and even exculpatory evidence--also have been raised in the Artukovic prosecution.

Artukovic’s defender in these proceedings is his son, Radoslav, a Los Angeles stockbroker. I first met him in 1982, when I wrote an editorial for The Times praising the OSI’s deportation of a notorious Romanian war criminal and urging the government to press the case against Artukovic, who had lived here since the 1950s.

The day the editorial appeared, my phone rang and it was “Rad.” He asked for a meeting. I declined.

“Look,” he said, “I think you owe it to me to talk to me. You know, you called my dad a murderer in your newspaper.”

It was, I admitted, a point. So we met and agreed to disagree over his father’s culpability, particularly because Artukovic had signed the Croatian racial laws modeled after those of Nazi Germany. Still, we’ve remained in touch. Rad has continued to pursue not only his belief that his father was innocent, but that the Justice Department behaved unethically when it prosecuted him.

I spoke with Rad this week about the Justice Department’s renewed interest in his charges. He is now more convinced of his father’s fundamental mistreatment than when we last met. The government’s prosecutors, he said, “knew the Yugoslavs themselves had doubts about the evidence they put on at my dad’s hearing. In one case, they put on a single statement by a witness, when they knew they had in their files three other statements by that same witness that contradicted the evidence on the very point before the court.

“They also induced the Yugoslavs to indict my dad after the fact on the only two counts they could sustain in front of the U. S. magistrate. By the way, I think that federal magistrate made the best decision he could on the evidence in front of him.”

The younger Artukovic’s dogged pursuit of his father’s antagonists is rooted less in historical considerations than in his own regard for the demands of due process.

“This a great country,” he says. “Our institutions have served us extremely well. We need to preserve our belief in the intrinsic integrity of our system and, particularly, in the equal application of justice. What keeps me going is not my duty to my dad, but my duty to our country. This isn’t really about what happened in Croatia, but about what happened here.

“If our government can lie to convict people accused of being Nazis, like my dad, then why not lie about drug smugglers or whoever happens to be the pariah of the moment? Why not lie all the time about minority or poor people accused of crimes, since the system routinely ignores their rights anyway?”

Rad might be surprised to learn that one of those who agrees with him is Rabbi Abraham Cooper of the Simon Wiesenthal Center. The center, Cooper says, welcomes an “across the board investigation into OSI’s conduct” precisely because it believes it will show there has been “no witch hunt at the Justice Department.”

“This is America,” Cooper says, “you have to play by the rules, all of them, including those that guarantee due process to people accused of even heinous crimes. If you don’t, what do we have? We’re back in the jungle. The important thing is that complete confidence in OSI’s integrity be publicly demonstrated, so that we can finish the hunt for these war criminals.

“You know, Simon Wiesenthal, who, after all, has devoted his life to the pursuit of these people, once said to me, ‘Each of these trials is an inoculation against hatred. Each is a warning for future generations. We do not know who tomorrow’s killers will be.’ ”

That, of course, is precisely why the Justice Department owes not only the Demjanjuk and Artukovic families but also the American people a full accounting, if only to maintain the moral authority to confront tomorrow’s killers.