Problems Of Crime and Punishment

By Richard Lacayo.

If Karl Linnas is guilty, this is what he did. In the early 1940s, during the German occupation of his native Estonia, he was chief of a Nazi concentration camp in a place called Tartu. Twelve thousand East Europeans were executed there, including 2,000 Jews. Linnas ordered half-naked men, women and children transported to a ditch and gunned down. Some of them he finished off himself.

These are the charges, supported by eyewitness accounts and recovered camp documents. In 1962 a Soviet court tried Linnas in absentia as a war criminal and sentenced him to death. But by that time he was living in Greenlawn, N.Y., having become a citizen in 1960, nine years after entering the U.S. In 1981, however, his citizenship was revoked after a court determined that he had lied about his wartime activities to immigration officials. The U.S. Supreme Court will shortly decide whether to block his deportation temporarily. If it refuses to do so, Linnas, 67, will probably soon be on a plane to the U.S.S.R. There his execution is very probable, though the Soviets may go through the motions of a new trial.

The issue that the Supreme Court will decide is a narrow one, whether to grant him a stay in order to consider his third petition to that court. But controversy has crystallized around the larger question -- as much ethical as legal -- of whether the U.S. is wrong to use Soviet-supplied evidence in its pursuit of Linnas and other accused Nazi war criminals. The honorable sheriff in the westerns, after all, protected even the most despicable criminal from the savage mob. In short, in its zeal to see a Nazi atrocity punished, is the U.S. guilty of trimming its standards of justice?

& Cooperation in such cases between the U.S. and the Soviet Union began in the early 1970s. In 1979 the Justice Department established a Nazi-hunting branch, the Office of Special Investigations; since then 23 naturalized Americans have been stripped of their citizenship and 13 removed from the U.S. Some 600 more cases are under investigation. Soviet-supplied evidence, including video-taped eyewitness testimony and wartime documents seized by advancing Soviet forces, has played some part in a majority of the cases that have come to court in the U.S., including that of John Demjanjuk, the retired autoworker from Cleveland now charged in an Israeli court with being an infamously sadistic guard at the Treblinka death camp.

Many East European emigre groups in the U.S. are aghast at any reliance on the U.S.S.R. With unfaded memories of the Soviet annexation of the Baltic states in 1940 and Stalin's man-made famine that some say killed 6 million in the Ukraine in the 1930s, they argue that at the close of the war the Red Army seized unused German stationery, blank military forms, typewriters, inks and stamps, all useful for producing forged documents. They charge that the Soviet Union has fabricated evidence as a way to intimidate fervently anti-Communist East Europeans settled in the U.S. "The OSI is in cahoots with the Soviet KGB," says Bill Liscynesky, president of Cleveland's United Ukrainian Organizations.

Some ask how the U.S. can call Soviet legal procedures unacceptable when used against Soviet dissidents but appropriate for supporting charges against accused Nazis of Baltic or Ukrainian descent. An unlikely coalition shares that view, including liberal former U.S. Attorney General Ramsey Clark, who is Linnas' lead counsel, and conservative ex-White House Aide Patrick Buchanan, who has called Soviet justice an "oxymoron." Leading the other side are Jewish organizations, committed to punishing perpetrators of the Holocaust, and the Justice Department, which says it sometimes has no choice but to settle for Soviet evidence. "The documents and the witnesses who lived through this period are still in the Soviet Union," says OSI Director Neal Sher. The OSI is satisfied it has the right man. "Not once in 40 years has anyone proved a case of Soviet forgery or perjury by a Soviet-supplied witness," says former OSI Prosecutor Eli Rosenbaum, now World Jewish Congress general counsel.

The Justice Department maintains that the documentary evidence is subject to rigorous scrutiny and testing by historians and handwriting, ink and paper experts for both the defense and the Government. Defense counsel are also invited to cross-examine witnesses when videotape depositions are taken in the Soviet Union, at U.S. expense in the case of indigents. Finally, an American court decides whether to accept such evidence and how heavily to rely on it. "Our system provides all the safeguards," says Sher.

Linnas supporters dispute exactly that. Deportation is a civil proceeding, and they argue that the U.S. should use the more rigorous standards of criminal procedure, as Canada has decided to do. Critics also point out that witnesses in the U.S.S.R. testify under Soviet rules and cannot be adequately challenged by attorneys for the accused. No Americans have been given access to Soviet archives, they add.

It is certainly true that the circumstances, legal and geopolitical, have denied Linnas the sort of defense he would be entitled to if tried in the U.S. But his case has received eight years of protracted review, during which various judges have concluded that despite his claim of innocence, he is plainly guilty. Much of the evidence against him can never be perfectly scrutinized, but even in a U.S. courtroom, prosecutors would probably seek Soviet assistance or else proceed without evidence from the scene of the crime. Last May a federal appeals panel wrote, "The irony of Karl Linnas objecting to execution without due process is not lost on this court." If proceedings in the Linnas case cannot meet the highest standards that U.S. justice is capable of, does that mean that justice should not be pursued at all?

With reporting by Anne Constable/Washington and Jeanne McDowell/New York