Jewish World Review / April 5, 1998 / 9 Nissan, 5758

Neal M.Sher

Neal Sher Judge Gilbert Merritt's Obsession With Jews

(Second of two parts on the case of Ivan Demjanjuk)

THE FIRST PART of this series laid out the unassailable and utterly convincing evidence - as established in American and Israeli courts - that Ivan Demjanjuk was part and parcel of the Nazi's campaign of mass murder and genocide stemming from his service as an SS auxiliary at the Trawniki training camp, the Sobibor death camp and the Flossenberg and Regensberg concentration camps.

Today, this willing instrument of death and persecution sits quietly at home in Cleveland, his American citizenship having been restored, If Demjanjuk could thank only one Ivan Demjanjuk person for his current (although, hopefully, not permanent) good fortune there can be no doubt who deserves that less than noble distinction: Judge Gilbert Merritt of the United States Court of Appeals For the Sixth Circuit.

As the case wound its way through the system, Merritt, at the time the Court's Chief Judge, took an unusually keen interest in Demjanjuk's situation. Some believe he deserves a medal, arguing that he courageously took up an unpopular cause in order to correct what he perceived to be a possible injustice. That is certainly the way in which the judge characterizes his role.

That argument, however, becomes less and less persuasive the closer one looks at the continuing behavior of this high profile jurist.

The long and the short of it is that Merritt has exhibited - and continues to exhibit - what can only be characterized as an obsession with Jews. By resurrecting and advancing offensive and discredited canards of the past - which today you'd expect to see only on web sites of hate mongers and neo-nazis - Judge Merritt has disgraced his powerful position of responsibility. A position he holds for life.

Understand that the issue is not whether Merritt had a legitimate interest in the Demjanjuk case: as was one of three appellate judges who affirmed the trial court decision ( issued by the late Frank Battisti of Cleveland) approving Israel's request to extradite Demjanjuk to stand trial for murder, he certainly did. The problem lies in the way in which he exercised his judicial authority and what he has said about the Jewish community, both on and off the bench. I'm sure you can come with many ways to characterize his behavior, but since we are, after all, talking about a member of the federal bench, let's have his deeds and words speak for themselves. Then, you can judge the Judge.

Here's the essential background.

While the appeal of Demjanjuk's conviction for murder was pending before the Israeli Supreme Court, there were press reports that statements taken after the war by Soviet authorities from several former Treblinka guards suggested that the "Ivan" who manned the gas chambers was known as "Marchenko" [as noted in Part I of this series, Demjanjuk swore to US immigration authorities that his mother's maiden name was Marchenko; in Israel he claimed it was a lie] .

Vanity Fair magazine ran a story that mentioned that some of these statements had been given to the U.S. Justice Department in the mid-1970's in connection with a different case, but were not made part of the Demjanjuk record.

Reacting to the news accounts, Merritt, on his own and without being requested to do so by Demjanjuk's attorneys, re-opened the case demanding an explanation. After court hearings, Merritt's appeals tribunal ruled that the matter should be sent back to a trial judge explore the issue and to determine what, if anything, should be done.

Judge Battisti - who presided over both the lengthy denaturalization case and the subsequent extradition proceedings - was the by any measure the only jurist in the country thoroughly familiar with the facts of the case and what transpired during the discovery stage of the litigation, which was when the Soviet statements in question would have been relevant. Common sense and well established solid case law - including some from Merritt himself - would dictate that if the appeals court wanted a fresh look at the matter, Judge Battisti was the one man to do it.

But Merritt didn't see it that way. Instead of sending it back to the most logical and appropriate choice, he appointed a different federal judge, Thomas Wiseman from Nashville, as a Special Master to conduct the inquiry.

Although Wiseman is known to be both tough and fair, he knew nothing about the case and would have to spend enormous amounts of time and energy to even approximate Battisti's familiarity with the issues. It certainly seemed odd, to say the least, that Merritt would have done an end run around Battisti. This is when people first started to raise their eyebrows and wondered whether something was amiss.

It was especially odd since a only a few years earlier, Merritt's court rejected Demjajnuk's lawyers contention that Battisti should be disqualified from hearing the extradition case because he had ruled against him at the denaturalization trial. On the contrary, said the court, Battisti's singularly unique knowledge of the case, not to mention the considerations of judicial economy, made it important that he remain on the case.

So, one might ask, why did Merritt deliberately freeze out Battisti? The answer might well lie in what David Twersky reported in the Forward on July 16, 1993: that before making the assignment to Wiseman, Merritt had spoken with Battisiti who indicated that he was not all that impressed with what was in the Vanity Fair article which Merritt had brought to his attention. It was also reported that Battisti specifically requested that if anything further was to be done in the case that it be returned to him for review. Apparently, Battisti's reaction was not what Merritt wanted to hear. Hence, Merritt established the costly and time-consuming Special Master process.

Merritt, it must be said, denied to the Forward that he ever spoke to Battisti. However, Twersky, who is as sharp as they come, has little doubt that his information was solid. And, I should add that I too heard the same account from reliable sources who were in a position to know.

But, for all his maneuvering, Merritt would be in for a sharp surprise from the very man he had hand-picked in the expectation that he would stick it to the government let him down. Judge Wiseman took his charge very seriously, conducting hearings and taking testimony and evidence for well over a year. In a 200 page, carefully crafted opinion he found that there was no misconduct on the part of the prosecutors, that they had acted in complete good faith and that there was no intent to violate any rules or ethical obligations. He ruled there was no basis to upset the earlier decision against Demjanjuk.

Merritt's appeals panel, however, would get the last word. Although they took issue not one of Judge Wiseman factual findings, including the conclusion that the prosecutors acted in good faith, Merritt's panel decided that the government had somehow committed fraud. In order to get to their desired result, Merritt and company effectively created the oxymoronic category of "good faith fraud", a standard which apparently applies only to prosecutors of Nazis persecutors. Perhaps Merritt and company believe that accused Nazis represent a class deserving of special consideration.

But the most disturbing part of the ruling came in the form of gratuitous comments to the effect that the newly created category of fraud which the government had committed was somehow related to the undue influence political pressure brought to bear upon the Office of Special Investigations. OSI would do just about anything to please those dangerous Zionist influence peddlers. Notice how nicely that fit in with the main charge leveled by Demjanjuk and other Nazi collaborators : that OSI was little more than a tool of the KGB out to discredit Eastern Europeans. The "Zionist-Bolshevist" conspiracy had once again reared its ugly head.

Judge Wiseman, it must be said, flatly rejected that absurd claim of undue Jewish pressure. But Merritt and friends jumped on it like white on rice. As their smoking gun to prove the nefarious relationship, they cited the fact that Alan Ryan, my predecessor as OSI Director, had gone on a lecture tour in Israel under ADL sponsorship. That part was true. But the court ignored one minor detail: Ryan made the trip as a private citizen, years after he left government service. Both the ADL and Ryan wrote to the court asking that the opinion be corrected to reflect the facts accurately.

In their November, 1993 letter to the Sixth Circuit, the ADL aptly noted that the court had "without any proof, offered fodder to the anti-Semites among us by making a sweeping and inflammatory allegation that the Jewish community set out to manipulate OSI and that OSI allowed itself to be manipulated. In so doing, you have unfairly impugned the integrity of OSI, cast aspersions upon the Jewish community's legitimate interest in OSI's work, and misapprehended a fundamental truth."

Not eager for the facts to get in the way, Merritt ignored the ADL's and Ryan's requests to correct the record. But, as we shall see, Merritt would later have something to say about the Jews.

The comments in the Sixth Circuit's opinion were as offensive and inappropriate as anything ever coming out of a federal court, and the ADL's response was representative of the Jewish community's reaction overall. Congressman Charles Schumer went so far as to say that the decision was "as close to blatant anti-Semitism as I've ever seen in a judicial opinion".

One has to wonder, based on his reasoning, whether Merritt is troubled by the fact that civil rights groups take an active interest in the Justice Department's policies towards enforcing civil rights legislation. Or is he just applying a special standard for Jews?

In any event, that was not the first time that Merritt's handling of an OSI case had irritated those who support the efforts to prosecute Nazi criminals. In 1991, Merritt and two colleagues, overturned an order to deport Leonid Petkiewytsch, a former guard at the Nazi forced labor camp at Kiel-Hasse, Germany. Wearing a Gestapo uniform and brandishing a rifle, Petkiewytsch escorted the slave labor prisoners to their work sites and served as a perimeter guard where he prevented them from escaping. He had orders to shoot anyone attempting to escape.

During oral argument on that case, Merritt commented that he thought Petkiewytsch's service as an armed guard was relatively unimportant (tell that to a survivor of Kiel-Hasse!) while at the same time expressing concern over what he termed "the notion that the Holocaust should be kept alive."

The court struck down the order of deportation even though it agreed with the Board of Immigration Appeals finding that Petkiewytsch's activities constituted "assistance in persecution" but that such "assistance" is not enough; there had to be, according to Merritt's court, "active participation".

There was one fundamental problem with the court's reasoning: the law governing deportations of Nazis - known as the Holtzman Amendment - expressly and unambiguously mandated that those who "assisted" a Nazi sponsored persecution were to be deported. The reaction of Elizabeth Holtzman, the author and namesake of that legislation, to the court's interpretation is telling: "they simply read ‘assistance' out of the amendment", in an obvious effort to "gut" it.

With this as a backdrop, it should come as no surprise that the Merritt court's comments regarding Jewish influence in the Demjanjuk case raised serious questions.

But what was at first consternation and concern turned to utter disbelief and indignation by what happened after Merritt was reportedly removed from the list of potential Supreme Court nominees.

In calculated, unambiguous and thoroughly injudicious comments, Merritt blamed the Jews for his failing to reach the highest court in the land, which he apparently believed was otherwise a sure bet. His obsession with the Office of Special Investigations and Ivan Demjanjuk had turned into an obsession with the Jews and Jewish influence.

In interviews with a Tennessee television station and a bar association publication, Merritt expressed shock and dismay at the awesome political clout Jews seemingly wielded. He had no doubt that he was destined for the Supreme Court, until, it seems, the Jewish lobby swung into action.

Apparently, those wily and devious Jews controlled not only the Justice Department, they had taken hold of the White House as well.

Here it is, almost 5 years later and Merritt, like the Energizer Bunny, keeps going on and on about OSI and about the Jews. As recently as November of last year, Merritt gave an interview to the Israeli newspaper Haaretz in which he accused the federal prosecutors of "lying through their teeth" (even though such allegations were refuted by Judge Wiseman) and he repeated slanderous statements about OSI having succumbed to the pressure of Jewish interests.

In furtherance of his vendetta, in October 1994 Merritt sent a letter to Attorney General Reno accusing Alan Ryan of perjury. The Justice Department investigated and advised Judge Merritt that there was absolutely no basis for that charge, thus confirming what Wiseman had found.

In his letter to Reno, Merritt could not refrain from making yet another untoward comment exhibiting his twisted view of the Jewish community. Resurrecting his conviction that the Nazi prosecutors were under the total domination of Jewish special interests, he cited as proof the fact that I had moved from OSI to become the executive Director of AIPAC. Arguing that that development proved his point, he demanded a Justice Department inquiry. The Department would not even dignify that allegation, noting that Judge Wiseman had expressly ruled that there was evidence that the prosecutors had succumbed to political pressure.

Not surprisingly, Merritt has been able to garner support from a few members of the local Jewish community , who insist that the man is kosher and harbors no ill feelings towards the Jewish community. It's the old "some of my best friends are ..." argument which we have seen in the past from the likes of Kurt Waldheim and Patrick Buchanan. The fact that it now comes from a member of the United States Court of Appeals is as pathetic as it is offensive.

I've never been to Judge Merritt's chambers. Do you think it's possible that right there, next to his copy of the Constitution, sits a collector's edition of the Protocols of the Elders of Zion?

JWR contributor, Neal M. Sher, is a partner in the Washington law firm Schmeltzer, Aptaker and Shepard and is the President of the American section of the International Association of Jewish Lawyers and Jurists. He is the former Director of the Office of Special Investigations in the Justice Department and the former Executive Director of American Israel Public Affairs Committee.


3/22/98: The Continuing Saga of Ivan Demjanjuk
3/1/98: Shameful Scapegoating At The Holocaust Museum

©1998, Neal M. Sher