Good Citizens?

A drive on war-crime suspects

Ukrainian-born Feodor Fedorenko, 73, has spent most of his 31 years in the U.S. as a Connecticut foundry worker. He has paid taxes and minded his own business, and in 1970 he became a citizen. Then, in 1978, he found himself in a courtroom in Fort Lauderdale, Fla., listening to a string of witnesses swear that during World War II he had whipped and shot Jews at the Treblinka extermination camp in Poland. The former guard was not on trial for war crimes, but for concealing his Treblinka experience when applying for citizenship. If the Government won, he probably would end up on a plane back to Europe.

Last week Fedorenko's case was before the Supreme Court, and the outcome will determine much more than where an aging widower lives out his final years. The law says that citizenship can be revoked if the immigrant concealed a "material fact" when he applied for it. This provision has become the linchpin of the Justice Department's three-year effort to deport suspected war criminals believed to be in this country.

The Government maintains that a fact is material if its revelation would have triggered an inquiry that "might" have turned up facts barring citizenship--participation in atrocities, for example. That is not enough, insists Fedorenko's lawyer, Brian Gildea of New Haven, Conn. The Government has to show that such an investigation definitely "would" have led to the discovery of damning facts. Says Allan Ryan, head of the Justice Department's special unit for tracking down former war criminals: "That's no different from saying we have to prove the atrocities from scratch right in the courtroom." At least the Justice Department is not stymied by defendants' hiding behind a statute of limitations; there is no such protection in these cases.

Even if the Government wins its argument in the Supreme Court, the passage of time has created formidable obstacles. Simply showing that an immigrant was, say, a camp guard and that he later concealed that fact means locating survivors of the camp and hoping they can identify that person after 35 or 40 years have passed. The Justice Department had to go to Israel to find the six witnesses against Fedorenko, and the Philadelphia trial of another suspected war criminal is taking place in part because department lawyers located and video-taped nine Soviet witnesses in the Ukraine.

It is also possible that some defendants will die before they are brought to justice. The one in Philadelphia, Wolodymir Osidach, a former Ukrainian military police official, has heart trouble, and the Government made sure that a doctor and nurse were on hand when he took the stand. Says Ryan: "We're racing against the clock."

Why did the Government wait so long to get started? For years the issue did not seem to have enough political urgency to win out in bureaucratic competitions for money and staff. Then, in 1974, New York Congresswoman Elizabeth Holtzman took the lead in pressuring the Justice Department to crack down. Today the department's unit has a staff of 50 with an annual budget of $2.3 million. The new importance attached to the effort was underscored last week when Benjamin Civiletti --making his first appearance before the Supreme Court since becoming Attorney General--argued the Government's case against Fedorenko.

A favorable ruling would still leave the Justice Department short of its ultimate goal: seeing its targets tried somewhere for war crimes. For example, if Fedorenko loses, he will then go through deportation proceedings, which a skillful defense lawyer could stretch out for years. Should he finally be shipped out, Fedorenko could select any destination that is not "prejudicial to the interests of the United States," yet another ambiguous test. "It would be a waste of all this effort," says Ryan, "to watch them go to another country and live peacefully."

Like Fedorenko, many of the suspects have been model citizens since arriving here. "When we prosecute them," Ryan remarks, "their neighbors say, 'What? My kids play with his kids. It couldn't be true.' " Neither he nor his predecessor, former Nuremberg Prosecutor Walter Rockier, buys the arguments that these people have suffered enough or have compensated for their pasts with years of clean living. Says Rockier: "These people are murderers. World War II wasn't fought to let them into the U.S. I don't care if they do keep their lawns well trimmed."

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