The concatenation of two recent newsworthy events reveals beyond all doubt the elemental composition and fundamental nature of the State or, in the vernacular, of the u201Cgovernment.u201D Brute and deadly force forms the elemental component of the State, and the redundant blather that we live under u201Ca rule of law,u201D or u201Ca government of laws, not men,u201D or u201Ca due process kind of democracy,u201D is fundamentally flawed nonsense, and dangerous nonsense at that.
Consider the event that decorated front pages throughout the world. The United States of America invaded a sovereign, theoretically u201Cfriendly,u201D nation sans any declaration of war or formal notice to the existing foreign government. In the dead of night, American troops broke into a private dwelling with malice aforethought and murdered the inhabitants. After several infantile attempts to clarify what took place, the invaders conceded to all the world that while some of the murdered victims were defending their premises, the primary target, a citizen of a foreign state suspected of being a terrorist and generally a u2018very bad man,' was unarmed when he was gunned down, as was one of his wives who attempted to protect her spouse (she survived although wounded in the fray). The strike force gathered up sundry private property and personal belongings from the deceased persons, as well as the prime suspect's body, and departed by stealth from the foreign nation, disposed of the body, and returned home to the cheers of the multitudes and slobbering praise from political persons who sought personal aggrandizement from the invasion.
Throughout ten thousand years of recorded human history, all governments have ruled by force and the threat of force against the individual inhabitants. Despite different cloaks and disguises, the essence of the State remained identical in the Athenian city-state, in the Roman Republic, in the Golden Age of England, and in all other notable domains. Only once in the entire tapestry of history does one dissident thread appear: in the late eighteenth century, a new nation emerged on the sparsely-settled North American continent, a nation that proclaimed itself different in this fundamental aspect of statehood. At the beginning, the United States (admittedly with some warts and blemishes) asserted that rulers must observe limits, that citizens possess individual and inalienable rights to free action, and that each human being occupies a personal sovereign enclave which no government may breach. By its Declaration of Independence and its Constitution, this new state assured all that it observed the rule of law, that the foremost aspect of that rule subjected the government to definite and prescribed limits, and that the state could not tread beyond those barriers into private dwellings or property or souls. As an important subset of these declared principles, that new state guaranteed that all persons charged with a crime against the state must receive certain fundamental rights and protections: due process of law, sanctity of person and abode from unreasonable searches and seizures, assurances against self-incrimination, barriers against cruel and unusual punishments and oppressive bail and, most saliently, absolute entitlement to a presumption of innocence until proven guilty by the government beyond any reasonable doubt and to a moral certainty in a trial to a jury comprised of the peers of the accused held before a fair and impartial judge. Further, the Constitution prohibited passage of ex post facto laws, that is, the overriding rule of law barred the state from trying and punishing conduct that had not been expressly made criminal before the act occurred.
Objective observers have long noted the incremental erosion of many of these precious attributes of a free society. Nonetheless, the month of May 2011 bore witness to the absolute and unquestioned demise of such cherished rights. Apparently, if an individual is believed by the political apparatus and its supporting mob to be a really bad person, he becomes a true out-law in the original sense of the term: he becomes a man outside the law, unprotected by any rule of law, and fair game for any who would plunder his property and take his life.
It can't happen here? It did. It would never happen again save to a genuine evil terrorist? Believe that, and I have not one but two bridges across the Willamette River for sale.
Troubling as the foregoing event may be, at approximately the same time the back pages of some major newspapers related an even more frightening narrative, one which harbingers a very dangerous descent into a real Dark Age. As with Osama bin Laden, the human target in this less-reported case was long perceived as having been u2018a very bad man' sometime in the past and, thus, one to whom the normal rules of law should not apply.
A German court tried and convicted John Demjanjuk, 91 years old, nearly blind, very ill, and consigned to a wheelchair, of 28,060 counts of the crime of being an accessory to murder, one count for each prisoner allegedly killed during the years the accused was employed as a prison guard; based on this conviction, the court sentenced the defendant to five years in prison.
On the surface, John Demjanjuk sounds like a terrible fellow. However, the case against him contains an insurmountable problem: the prosecution failed to present (and obviously the court could not and did not find) any evidence that Mr. Demjanjuk committed any specific crime whatsoever, and further, the state presented no proof that Mr. Demjanjuk committed any specific act that would be considered criminal either now or in the past. The German prosecution and court, blinded by its national obsession with and revulsion for its Nazi past, convicted the accused simply because he had served as a prison guard during World War II, apparently applying a modern version of ex post facto criminalization of an earlier, non-criminal, event.
Consider some undeniable and essential underlying facts and common sense assumptions which make this case more incredible and distressing. Mr. Demjanjuk was not a German national at all; he was born in the Ukraine, hence a citizen of the Union of Soviet Socialist Republics; the record contains no evidence he was a Nazi of any stripe or that he ever received German citizenship status. He served in the Soviet Army during the early years of World War II; anyone possessing passing familiarity with the history of that era knows that Mr. Demjanjuk was conscripted into the Russian Army, that is, in plain old American terms, he was drafted and had he refused to serve he (and most likely his family) would have suffered an immediate and painful death.
But wait, it gets better. In 1942, during one of the interludes when the Soviet Union and Nazi Germany were enemies instead of friends, the German Army captured enemy soldier Demjanjuk and u201Cemployedu201D him as a guard at the Sobibor prison camp. Again, one reasonably surmises that such u201Cemploymentu201D came with no real choice, since the Nazis executed many if not most captured enemy combatants. Thus, the 2011 German court purported to consider and punish conduct that would have occurred — had it taken place at all — between 66 and 69 years ago by a young man doubly conscripted into a horrible war that encompassed many nations and much of the world's population.
Following the war, Mr. Demjanjuk immigrated to the United States and gained American citizenship in 1958 through the prevailing and appropriate channels. From all reports, he lived a proper life and behaved in a proper manner. The United States government revoked his citizenship in 1981 when he was accused by Holocaust survivors of being a Treblinka Camp guard named Ivan u201CGroznyu201D (whose correct name was Ivan Marchenko), a man known colloquially as u201CIvan the Terrible.u201D Following a foreign trial and conviction on that charge, not to mention seven long years on death row in an Israeli prison, on July 29, 1993, the Supreme Court of Israel reversed the verdict and ruled unanimously that Mr. Demjanjuk had been wrongly identified as u201CIvan the Terrible.u201D On August 18, 1993, that Court unanimously rejected the prosecutors' appeals for a new trial. Given the diligent nature and assiduous tradition of the Israelis in hunting down and prosecuting Nazi war criminals, this Israeli judicial determination deserves great weight.
Thereafter, the elderly Mr. Demjanjuk regained his United States citizenship in 1998, only and ultimately to lose it once again and suffer extradition to Germany to face the new and amorphous 2011 charges that punished him sans proof of any identified criminal act. Of course, the United States political prosecutors have long displayed an animus if not outright persecution toward Mr. Demjanjuk, to such an extent that a respected Federal appellate court took the unusual step of publicly rebuking the government lawyers for their unmitigated misconduct; in the terse and telling words of one 1993 headline writer, the Federal judges ruled that the U.S. government u201Cstacked [the] deck against Demjanjuk.u201D [i] On its own motion, the United States Court of Appeals for the Sixth Circuit ruled that u201Cwe conclude that OSI [federal Office of Special Investigations, a Nazi-hunting arm of the U.S. Executive Department] did so engage in prosecutorial misconduct that seriously misled the court.u201D [ii] This u201Cfraud on the courtu201D consisted of prosecutors intentionally withholding and failing to disclose exculpatory information to Mr. Demjanjuk and his lawyers (despite redundant discovery requests and orders); the undisclosed material contained convincing if not overwhelming proof that Demjanjuk was not u201CIvan the Terribleu201D at all. [iii] In support of this almost unprecedented conclusion of repeated Federal misconduct, the Sixth Circuit noted that vacillating government claims about documents disappearing only to be found again was u201Chard to creditu201D [iv] and that other prosecutors' claims should be taken u201Cwith a grain of salt.u201D [v] The Court also observed that the government sought to win conviction at all costs, [vi] to the end that its agents endeavored to obtain a preconceived outcome based on attorney bias instead of justice. [vii]
Furthermore, and perhaps more unsettling, the Federal Court specifically found that u201Cpoliticalu201D factors likely influenced some of the governmental misconduct. [viii] Influential Congressmen and Jewish interest groups pressured the prosecutors that they could not u201Cafford the risk of losingu201D Mr. Demjanjuk's case, [ix] and demanded that these executive branch employees must assist u201Cin ridding this country of these undesirable elements.u201D [x] Separation of power apparently meant nothing to those out to get Mr. Demjanjuk.
Telling this tale signifies some of the inherent danger that stalks us now. Heretofore, elemental criminal due process required, at the very least, a meaningful allegation of a specific crime or crimes, and proof beyond a reasonable doubt and to a moral certainty that the accused committed one or more of such plainly-identified crimes. Of course, despite the current Washington fawning over European ways and concepts, European courts in general and German courts in particular lack America's purported adherence to constitutional standards of fair play, due process, and the rule of law. That said, the United States must be considered complicit in this atrocious decision by revoking Mr. Demjanjuk's citizenship and remanding him to the tender mercies of German jurisprudence; one supposes that citizenship in the Land of the Free and the Home of the Brave (even acquired citizenship) should entitle an individual to at least superficial fundamental fairness and due process of law.
The extraordinary passage of time enhances the likelihood of a miscarriage of justice in a case where conviction rests not upon any evidence but upon supposition and political expediency. In this instance, any u201Ccrimeu201D necessarily occurred between 1942 and 1945. Statutes of limitation recognize certain salient facts: witnesses die or disappear; observations fade; evidence disintegrates or otherwise vanishes; trails to rebuttal proof become obscure; false memories appear and augment as times change and favored positions emerge. Agreed that such legal limitations sometimes do not apply to particularly heinous conduct, such as homicide, but nonetheless the yaw of 66 or more years ought to require significant distrust of any charge and any conviction, even if one were based upon an explicit indictment and proof of a specific criminal act.
Furthermore, Mr. Demjanjuk's plight demonstrates the very real disadvantageous position occupied by a criminal defendant: the state always possesses enormous resources which the accused can never match. Unlimited taxpayer funds, significant manpower advantages, and the luxury of time and power to accumulate and prepare for prosecution further tips the scale of justice against any individual charged with crime, even a specific crime. Indeed, the Sixth Circuit observed just one such advantage in excoriating the government in Mr. Demjanjuk's case, commenting that, u201Conly the government has the contacts and resources necessary to obtain information from foreign governments.u201D [xi] This imbalance in time and resources plays a substantial role in the elemental imposition of an exceedingly high standard of proof (beyond a reasonable doubt) in criminal cases tried under a rule of law.
In assessing the concerns set forth, understand what I do and do not contend and intend. I present no screed and carry no brief in support of Nazis, terrorists, mass murderers, or other malevolent individuals or collectives. Far different and distinct issues would have arisen had one or more individuals, singly or in a group, attacked Messrs. bin Laden and Demjanjuk. My trepidation and my assault relate solely to the state action that took place and, more pertinently, to the lessons such actions teach and the frightening consequences they necessarily entail.
In this regard, consider that now all semblance of a rule of law has disappeared into the twilight of the past and will be soon forgotten. The mob we call democracy and the men on white horses who lead such cabal are now permitted to label any person sufficiently evil so as to eradicate all legal protections that normal civil process has long considered necessary, appropriate, and universally applicable. Is it such a far step from Osama bin Laden and John Demjanjuk to imprisonment and/or execution of common dissenters? N.B. that during World War I, men and women who challenged the wisdom and legitimacy of United States involvement in a European scuffle served long prison terms (courtesy of that liberal lion Oliver Wendell Holmes, Jr.) simply because they voiced dissent and presented reasonable contrary argumentation. Those of us who decry mandated health insurance, or conscripted army service, or state management of educational indoctrination now may face similar imprisonment or a worse fate; after all, men on white horses and maddening mobs cannot long tolerate dissenters who might deflect others from the u2018common good' de jour. Do I voice needless alarms? Remember the bargain bridges I have for sale.
[i] The Oregonian, Thursday, November 18, 1993, page A19. u201CJudges rule that U.S. stacked deck against Demjanjuk.u201D For an extended article concerning the 2011 conviction, see, The Oregonian, Friday, May 13, 2011, page A7.
[ii] Demjanjuk v. Petrovsky, et al, 10 F.3d 338, 339 (6th Cir. 1993). See also, 10 F.3d. at 354 for a more detailed statement of the Court's conclusion.
[iii] Id., 10 F.3d. at 340. Among other information, the government knew as early as 1978 or 1979 that two Ukrainians who operated the gas chambers at Treblinka affirmed that Marchenko, not Demjanjuk, was u201CIvan the Terrible.u201D Id.,10 F.3d. at 341, 342. See also, 10 F.3d. at 354.
[iv] Id., 10 F.3d. at 345.
[v] Id., 10 F.3d. at 347.
[vi] Id.,10 F.3d. at 345
[vii] Id.,10 F.3d. at 349, 350.
[viii] Id., 10 F.3d. at 354-55.
[xi] Id., 10 F.3d. at 349. In the Demjanjuk case, much of the exculpatory evidence withheld by the prosecutors arose from witnesses interrogated and deposed on foreign land and by states other than the United States.
Ridgway "Dick" Foley [send him mail] maintains an appellate litigation practice in Oregon. More than 100 of his essays and scholarly articles have appeared in such journals as The Freeman and Freedom Daily during the past 40 years.