Treblinka, or that his lie masked material facts or was an act of “willful deceit.”
Roettger also wrote that there were two “equitable considerations,” or extenuating circumstances, critical to the case and his decision: 1) if Fedorenko had refused to serve at Treblinka, the SS would have executed him; 2) if Fedorenko had told visa officials the truth, his life would have been in danger. Roettger therefore ruled: “Because the Government failed to meet its burden of proof, judgement is entered for the defendant. Under the circumstances of this case equitable considerations would also require the same result.”
Fedorenko cried. The JDL fumed.
Chant leader Brett Becker told the press: “This decision is indicative of the fact that Nazi war criminals will be allowed to live in America in comfort. This decision strengthens our belief in the philosophy of the JDL, which states there is no justice for the Jew, except that which he takes himself.”
In New York, Bonnie Pechter, the national director of the JDL, said: “We are going to start a large campaign against this judge and… demand a new trial. There is no prosecution for Nazi war criminals in America.”
Morton Mattel, a Treblinka survivor never called to the stand, expressed his shock at Roettger’s decision. “How can it be that he goes free as you and me,” he told a reporter. “I was with him for four months. I can’t forget. I woke up last night screaming.”
Mattel, who lived near Fort Lauderdale, had been prepared to testify that Fedorenko beat him with his whip and that he had a scar on his scalp to prove it, but prosecutors never called him to the stand. Arguing that six eyewitnesses were enough, Roettger asked the government not to call any more. The government agreed.
Although Roettger’s decision appeared cold and uncaring, the trial had affected him deeply. “It was the most gruesome testimony I’ve ever heard,” he told the
The government didn’t waste any time filing an appeal, which it won. And Fedorenko wasted no time filing a counterappeal to the U.S. Supreme Court, which he lost. Attorney General Benjamin Civiletti himself argued the government’s case before the High Court, sending a clear message to America and the rest of the world that the era of protecting Nazi collaborators in the United States was over. Civiletti argued: “armed guard service, with a uniform, with epaulets, with a black tie, with boots, with a pistol, with a rifle in a death camp… was such conduct that it amounted to assistance of the enemy in the persecution of civilian population.”
For the High Court, the Fedorenko case was a simple application of the Displaced Persons Act of 1948 (DPA). Congress had passed the law, as was its right under the Constitution. Congress could have stipulated that assistance to the enemy had to be
The High Court further pointed out that the DPA did not grant the government the right to use equity considerations in making its denaturalization decisions. Therefore, the Court held, Judge Roettger erred when he ruled in favor of Fedorenko based on extenuating circumstances.
In sum, the Supreme Court ruled: Whether Fedorenko’s guard service was voluntary or involuntary was irrelevant; Fedorenko’s lie hid material facts; and if visa officers had known that Fedorenko had been a guard at Treblinka, they would have denied him a visa. Therefore, the government could strip Fedorenko of his U.S. citizenship.
Even though he faced deportation, Feodor Fedorenko held no grudge against the United States. “I am happy and satisfied with America,” he said. “America is not to blame that Jewish groups have brought this up.”
Fedorenko had learned that his first wife and son, whom he thought died during the war, were alive and living in Ukraine. He asked to be deported to the Soviet Union to join them. He left for Ukraine in 1984, six years after his trial in Fort Lauderdale and nine years after the INS received the Ukrainian list from Michael Hanusiak.
CHAPTER SEVENTEEN
While the government was preparing for the trial of John Demjanjuk in Cleveland, Elizabeth Holtzman was sparring with Congress and the Department of Justice in Washington. At issue were three items on her to-be-done-yesterday list.
As a lawyer, Holtzman recognized that the Immigration and Naturalization Act of 1952 (Public Law 414) had a loophole big enough for any Nazi who wasn’t brain dead to skate through. The congresswoman closed that loophole in 1978 with what would be called the Holtzman Amendment. It made inadmissible to the United States “
As a result of the Holtzman Amendment, the names of sixty thousand known Nazis and Nazi collaborators were placed on a U.S. immigration watch list. Hundreds were eventually blocked from entering the United States. The amendment also made prosecutable those Nazis and Nazi collaborators who entered the United States after 1952, and closed a loophole whereby those ordered deported could avoid deportation by seeking “discretionary relief” from the court under a hardship provision in immigration law.
Holtzman also knew that the FBI and the CIA were protecting former Nazis already in the United States. Although she was eager for proof of federal meddling, she wasn’t about to waste even a day trying to find it. Let historians unravel the tangled strands of cover-up, conspiracy, and obstruction. Her mission was to help deport Nazi war criminals. Along with Immigration Subcommittee chairman Eilberg, Holtzman lobbied for a General Accounting Office investigation into the INS bureaucratic disaster.
The GAO opened its investigation of the INS in 1977, three years after Holtzman had asked to read the Karbach list files. The subcommittee had given the GAO a clear, no-nonsense mandate: Find out whether INS’s lack of Nazi deportations was “due to a conspiracy involving INS personnel and possibly other Federal agencies,” as Anthony DeVito alleged.
From the moment they opened the first INS file folder, GAO investigators ran into their own “iron curtain.” Citing national security, both the FBI and the CIA had refused to deliver the Nazi files and documents the GAO had requested.Tossing the GAO a crumb, the agencies did offer to provide good-faith summaries of files and documents, if they had any.
With one hand stapled to its back, the GAO selected fifty-seven INS Nazi cases for review. The findings were so totally predicable they constituted a nonevent. Only five, or less than 10 percent of the total, appeared to be thorough INS investigations. The real issue: Why was the INS record so shoddy? Was it because the FBI, CIA, and INS were protecting Nazi war criminals?
To answer those questions, the GAO relied exclusively on self-reporting from the three agencies:
• Without revealing any names for national security reasons, the CIA reported that it had used twenty-one former Nazis as “sources,” seven of whom had been paid.
• Also without revealing any names, the FBI admitted to having had a “confidential relationship” with two former Nazis who were not paid. It hastened to add, however, that it never “intervened in or obstructed any INS investigation or prosecution.”
• And the INS claimed that no government official ever attempted to “interfere” in any Nazi case.
Accepting those reports without challenge, the GAO concluded: “It is unlikely that widespread conspiracy has existed in Federal agencies—especially the INS—to obstruct investigation of allegations that individuals, now residents of the United States, committed atrocities before or during World War II.”
Holtzman wasn’t displeased. Even though its investigators had allowed the FBI and CIA to hide behind the shield of national security, the U.S. government had publicly admitted for the first time that it both coddled and employed former Nazis. The cat was now out of the bag.
If Holtzman was reasonably satisfied with the GAO report, former INS staffers Tony DeVito and Vincent Schiano were not. During an Immigration Subcommittee hearing, they accused the INS of caving in to the FBI and the CIA by accepting agency summaries and denials without even a hint of skepticism. They told the subcommittee
