Annual 2 Chapter 4

Nazi Criminals in the United States:
The Fedorenko Case

by Henry Friedlander and Earlean M. McCarrick


Since World War II, the United States has been morally committed to trying Nazi war criminals. In 1943, President Roosevelt joined Churchill and Stalin to issue the Moscow Declaration; in it the Allied leaders pledged to bring to justice the "Hitlerite Huns" for their "atrocities, massacres and cold- blooded mass executions." Retaining the right to try the major Axis leaders, they promised to extradite all other war criminals.1 In 1945, the United States, represented by Associate justice Robert H. Jackson as Chief of Counsel,2 joined France, Great Britain, and the Soviet Union in the London Agreement: "acting in the interests of all the United Nations," the Signatories established the International Military Tribunal (IMT) "for the trial of war criminals whose offenses have no particular geographic location."3 The list of offenses included crimes against peace, war crimes, and crimes against humanity.4 In addition to the trial of these major war criminals before the IMT, the Allies reaffirmed their intentions to try or extradite all other Nazi criminals.5

In 1945, the Allied Control Council for Germany issued Law No. 10 to regulate the trials of Nazi war criminals.6 This law defined the various offenses, including the crime against humanity,7 and provided a mechanism for the trial or extradition of war criminals.8 In its zone of occupation, the United States initiated a policy of denazification;9 at the same time, the U.S. Army established military commissions and military tribunals to try Nazi criminals.10 But large numbers of these criminals were extradited to countries previously occupied by Nazi Germany; the majority stood trial in East European nations.11

The mass murder of the Jews and other civilians occupied a central place in almost all trials of Nazi criminals. Even the International Military Tribunal, primarily concerned with the conspiracy to wage aggressive war, pointed in its judgment to the persecution of the Jews as "a record of consistent and systematic inhumanity on the greatest scale."12 The first trial before a U.S. Army Military Commission con- cerned the mass murder of civilians in the euthanasia institution Hadamar.13 Of the trials before the U.S. Military Tribunals at Nuremberg, several concerned the mass murder of Jews and other groups: one dealt with the killings by the SS Einsatzgruppen,14 another dealt with the killings in the concentration camps."15 In most of these trials, the name Treblinka, which later figured prominently in the Fedorenko litigation, appeared repeatedly in testimonies and judgments.16

In the immediate postwar period, the United States was not involved at home in the discovery and prosecution of Nazi war criminals because obviously none were then citizens or residents of the United States. This changed, however.

In the aftermath of the war, which had dislocated millions of civilians, large numbers of people could not be repatriated and remained in Germany, Austria, and Italy as displaced persons.17 The most prominent groups of displaced persons, but by no means the majority, were Jewish survivors of the Nazi camps. Most of these eventually settled in Israel, but thousands went to other countries, mostly to the United States.18 The majority of the displaced persons were East Europeans, primarily from areas controlled by the Soviet Union (Lithuania, Latvia, Estonia, Bielorussia, Ukraine, etc.), who for various reasons refused to be repatriated. After an early period of forced repatriation, the Cold War and other considerations halted their return to their various countries of origin.19

These East European refugees, including the so-called ethnic Germans (Volksdeutsche), had left their homes during the war years under a variety of circumstances: as forced laborers deported to the Reich by the Germans, as voluntary recruits for the German forces, or as open collaborators of the Nazi regime. No doubt the collaborators, who had often committed crimes as appalling as their German masters, were a minority among the East European refugees; by changing their identities and hiding their past, they were able, with or without the help of their compatriots, to disappear among the mass of displaced persons.

On 22 December 1945, President Truman issued an executive order giving displaced persons priority under existing immigration law. Almost all of those admitted under the Truman directive in the next two years were Jewish survivors of the Holocaust.20

In 1948, the Congress, distressed by the influx of so many Jewish immigrants, passed the Displaced Persons Act (DPA), which concentrated on admitting all types of European refugees, thus submerging the Jewish survivors in a flood of non-Jewish refugees from Eastern Europe. Although about two-thirds of the displaced persons admitted under the Truman order were Jewish, only about sixteen percent of those admitted under the later DPA were Jewish. The DPA, and the 1950 amended version, admitted several hundred thousand East European refugees.21 Of course, the DPA did exclude Nazi collaborators. It barred those who "assisted the enemy in persecuting civil populations"; and the 1950 amendment excluded those who "advocated or assisted in the persecution of any person because of race, religion or national origin."22 However, considering the masses of East European displaced persons processed for immigration between 1948 and 1952, such prohibitions were almost impossible to enforce. As we shall see, many war criminals entered the United States and eventually became citizens by hiding their past and masquerading as anticommunist displaced persons.23

During the 1950s, 1960s, and early 1970s, the Government of the United States made no serious attempt to enforce the law. Those war criminals who had entered the country in violation of the explicit prohibitions of the Act continued to reside here without difficulty; in due course they qualified for citizenship-again in violation of existing law, which required among other things "good moral character."

Sporadic attempts to expel these criminals, usually precipitated by requests from foreign governments, failed because of the cold war atmosphere of the postwar years.24 A good example is the case of Andrijia Artukovic.

Artukovic, born in 1899 in Austrian Herzegovina, which later formed part of Yugoslavia, served during World War II as Minister of the Interior in the puppet state of Croatia. During those years, the Ustasha, the fascist party that ran this Nazi satellite, established death camps and murdered large numbers of men, women, and children, including Jews, Moslems, Gypsies, and Serbs. Artukovic, a high functionary of the Ustasha regime, was implicated in most of these crimes.

Fleeing justice in postwar Yugoslavia, Artukovic entered the United States in 1948. During the 1950s, Yugoslavia sought his extradition "for murder and participation in murder."25 But Artukovic was able to avoid extradition to Yugoslavia because the District Court in the Southern District of California did not consider the evidence sufficient for extradition to a communist state.26

At the same time, the Immigration and Naturalization Service attempted to deport Artukovic. He had entered the United States the false name of Alois Anich - as a "temporary visitor for pleasure," and has remained here for thirty- five years, until the present, as a tourist. When his visa and two extensions expired and his application for permanent residence under the Displaced Persons Act was denied, the Government tried to deport him. In 1952, an immigration judge found that he "had been a cabinet-level Nazi minister in Yugoslavia, responsible for the genocide of Jews and Serbs," and ordered Artukovic deported.27 In 1953, the Board of Immigration Appeals (BIA) upheld this decision. The BIA reviewed the massive crimes committed by the Croatian state and concluded that "it is difficult for us to think of any one man ... who could have been more responsible for the events in Croatia during this period......"28 Despite an order of deportation outstanding since 1952, the case is still in the courts and Artukovic is still in the United States.

Official interest in Nazi war criminals who had illegally entered the United States after World War II did not emerge until the late 1970s. At that time, a new generation of Americans, acquainted with the events of the Holocaust, viewed the continued presence of Nazi criminals in their midst - as resident aliens or as citizens - as an affront; unlike an earlier generation of government officials, who had excused collaboration with the Nazis if it appeared to have been motivated by anticommunism, their successors intended to do something about it. Public allegations of conspiracy to prevent the discovery and, expulsion of the criminals led to an investigation by the Government Accounting Office at the request of the Congress in 1977.29 In 1977, the Immigration and Naturalization Service established a Special Litigation Unit to centralize litigation against Nazi criminals. But the failures of this unit - shown in the Walus fiasco and the Fedorenko trial30 - led in 1979 to the creation of the Office of Special Investigations (OSI) in the Criminal Division of the Department of Justice, to bring together in one office all investigative and litigation activities concerning Nazi criminals.31

The task confronting the OSI was not simple. American law does not confer upon the government the authority to indict and try individuals for war crimes committed outside United States territory. Federal jurisdiction normally has no extraterritorial dimensions. It never extends to crimes committed by foreign nationals against other foreign nationals on foreign Soil.32 In fact, murderers are tried in state, not federal, courts; thus, a person who killed someone in California and is apprehended in New York, must be extradited for trial in a California court. Extradition to the European country where the Nazi collaborators committed their crimes (or where they are considered citizens) is of course possible. However, the United States, like many other countries, does not usually extradite its own citizens. Thus extradition is feasible only if the war criminal is a resident alien. As we have seen, even this did not work in the case of Artukovic.

The only successful extradition involved the Queens, New York, housewife Hermine Braunsteiner Ryan. She had served as a female SS guard at the concentration and extermination camp of Maidanek in Lublin during World War 11, fled imprisonment in her native Austria after the war, and entered the United States as the wife of an American serviceman. After her discovery in the 1970s, she voluntarily gave up her United States citizenship to escape deportation; however, she was extradited to the German Federal Republic.33 There she was tried, together with a number of her wartime accomplices, for the crimes committed in Maidanek. She was convicted and received a life sentence.34

Few of the Nazi criminals in the United States, however, attracted sufficient attention to prompt extradition requests by foreign governments. Even when requests were made, they were rejected. For example, in the 1960s twelve requests for extradition were received from the Soviet Union, but the State Department refused them because it claimed that no valid extradition treaty existed.35 Thus in most cases the only way of expelling Nazi criminals from the United States is deportation. But as in extradition, citizens of the United States cannot be deported. Therefore, it is necessary for the Government to go to court to strip them of their citizenship, that is, to denaturalize them.

At first glance, it would appear relatively simple to denaturalize those who implemented Hitler's policy of extermination. American public policy never welcomed Nazis and their collaborators.36 The Displaced Persons Act, under which many entered, explicitly excluded them. In addition, good moral character, which Nazi killers obviously did not possess, is a prerequisite for becoming a citizen. Nevertheless, large numbers entered the United States and became citizens. When they are eventually unmasked, the difficulties confronting the Government in ordinary denaturalization proceedings are compounded in litigation against Nazi criminals who entered the United States after World War II. The crimes that, had they been known, would have disqualified them for citizenship, took place over forty years ago in foreign countries. This makes it more difficult to acquire physical evidence and to identify and locate witnesses willing and able to testify in American courts.

By the late 1970s, many Holocaust survivors and other witnesses were in their sixties and seventies (as were the defendants). Many witnesses lived abroad, creating problems of translation unusual in American judicial proceedings. The credibility of witness testimony, particularly identification of defendants whose physical appearance has radically changed, is even more open to challenge than usual. Further, the years have arguably dimmed witness memories of factual details; for example, precise dates, the exact location of physical structures, designs of buildings, colors of uniforms, types of insignias, and the spelling of names.37

Documentary evidence in turn poses problems equal to those of witness testimony. The fact that the events took place in foreign countries requires reliance on documents written in foreign languages. Unfamiliar with the languages involved, American courts have found it difficult to translate Nazi terminology into American usage.38 Although some of these documents, captured from the Germans at the end of World War II, have long been available in the National Archives, most need to be procured from sources located outside the United States. American access to those documents located in the West - the Berlin Document Center under State Department control, the International Tracing Service of the Red Cross, the German Federal Archives in Coblenz, the German Federal Military Archives in Freiburg, and others - has presented no problems, although the massive nature and fragmentation of these records requires time-consuming searches. In addition, American prosecutors can use the documentary evidence collected for the Nuremberg trials, located today in the National Archives; for the Eichmann trial, deposited in Yad Vashem; and for trials by the West German courts, located in part at the Central Office for the Investigation of Nazi Crimes in Ludwigsburg.

However, access to documents in the archives of the Soviet Union and Soviet bloc countries, often essential for trials of East European nationals who aided the Nazis, has been more difficult. Although these countries are willing to supply copies of documents and cooperate in proceedings against Nazi criminals in the United States, access and use has been somewhat problematic; documents could be obtained only on an as-needed basis, access required diplomatic intervention, and American judges have at times been hostile toward the admission of documents from communist countries. In addition, the State Department, during the cold war, was reluctant to seek Soviet sources. The official view was that the Soviet Union would turn American efforts to investigate Nazis in the United States into propaganda.

The need to rely on documentary evidence from foreign countries presented another problem peculiar to war crimes cases. American judges and prosecutors were not only unfamiliar with Nazi terminology and the language in which the documents were written, but lacked expertise on such matters as the Nazi regime, the German chain of command, the structure of the SS and police, the operation of the camps, and the involvement of East European auxiliaries. To cope with some of these problems, the Government eventually began to rely heavily on experts in the history of World War II, Nazi Germany, and the Holocaust.

The first denaturalization case brought by the Government - prior to the creation of the Office of Special Investigations - was a fiasco.39 In the case against Frank Walus, there were no disputed questions of law - only disputed questions of fact. The fundamental dispute concerned the whereabouts of the defendant during the war. The Government claimed that he was in Poland and produced witnesses to prove both his presence and his commission of atrocities. The defendant claimed he was in Germany as a forced laborer and produced both witnesses and documents to prove his presence there.

Instituted in January 1977 in the federal district court in Chicago, the litigation apparently originated with a complaint lodged by a former friend who, in the words of the appeals court, harbored a "hatred" for the defendant.40 The Government alleged that, as a Pole working for the Gestapo, Walus committed atrocities against the Jewish inhabitants of the ghettos in Czestochowa and Kielce. The Government's case was not frivolous. The allegations were supported by the testimony of twelve survivors of the ghettos, as well as testimony by co-workers and the former friend that Walus told them he aided the Gestapo in Polish ghettos. However, there was no documentary evidence to support the Government's allegations that he was in Poland or in the Gestapo.

The Government charged that Walus had illegally procured his citizenship because he concealed his wartime activities on his 1970 application for citizenship and because, having committed atrocities and lied on his application, he lacked the requisite good moral character.

Walus denied the allegations. He claimed he was not in Poland at all, but in Germany as a forced farm laborer during the war. In addition to the testimony of five witnesses from the families of the farmers to whom he had been assigned in Germany, and photographs taken in Germany during the war, Walus presented documentary evidence - a record of his employment from the German health insurance office (Allgemeine Ortskrankenkasse) supported by the records of the International Tracing Service of the Red Cross in Arolsen - to prove that he was in Germany during the war.

District Judge Julius Hoffman - the notorious judge in the trial of the Chicago Seven - rejected the witness testimony and documentary evidence presented by the defense. In addition to discrepancies in the evidence presented by the defense, the judge found also that the testimony of the German defense witnesses was tainted because they or their relatives had been members of the Nazi party; he also rejected the German documents because they had been generated by the Third Reich. He ordered Walus denaturalized.

When the district court refused to vacate its judgment on the basis of newly discovered evidence - six new witnesses from France and Poland plus residence documents with attached photographs from the State Archive at Neuburg on the Danube - Walus appealed to the Court of Appeals for the Seventh Circuit.

Although the Court of Appeals refused to reverse the district court's revocation of citizenship on the grounds either of the insufficiency of the evidence or the bias of the trial judge, it nonetheless found Hoffman's behavior "disturbing" and concluded that the Government's case was "sufficiently weak" to justify a new trial. Noting that the "strength of the Government's case is at least partly the result of the trial court's frustration of defense attempts to cross-examine the witnesses," the Court of Appeals concluded that the newly discovered evidence "would almost certainly compel a different result in a new trial."41 Apparently the Government agreed. It did not retry Walus.

Subsequently, there have been no repetitions of the Walus fiasco. Nor does any seem likely. The Walus case seems to have been the result of a convergence of a series of unfortunate circumstances. The Government's first effort to deal with the presence of Nazi criminals in the United States was marred by questionable identification techniques, less than thorough investigation, and unwillingness to take seriously the defendant's documentary evidence. Further, the district judge's prejudicial behavior undermined the defense attorney's efforts to defend, and the court's findings were at variance with the evidence presented.

With the subsequent centralization of investigation and litigation in the well-funded Office of Special Investigations, and the development of the expertise that comes from experience, along with systematic archival searches and professional analyses, it is unlikely that a case as weak as that against Walus would in the future be pursued in the face of a strong defense. Still, the next case also proved a fiasco at the district court level.

In August 1977, the Government filed suit against Feodor Fedorenko in the U.S. District Court for the Southern District of Florida.42 Fedorenko was born in the Ukrainian village of Sivasch in 1907. He received three years of formal school, worked on the family farm until the Soviet collectivization drive of the early 1930s, and moved in 1933 to the Crimea, where he worked as a truck driver for a Soviet collective farm. He was married and had three children. After the German invasion of the Soviet Union on 22 June 1941, Fedorenko was mobilized into the Soviet Army and captured by the Germans shortly thereafter. During the winter of 1941-42 he passed through a number of POW camps in Zhitomir, Rowne, and Chelm, exposed there to the same terrible conditions imposed by the Germans on all Soviet prisoners.43

In the spring of 1942, he was transferred to Travnicki (Trawniki), a camp in Poland where the SS trained auxiliaries. Fedorenko would later claim that he was chosen simply because he was a truck driver, and as such needed by the Germans, although he was never used by them for this purpose. In fact, the Germans selected volunteers from non-Russian nationalities - Ukrainians, Latvians, etc. - to serve in armed units of the SS, known as volunteer auxiliaries (Hilfsfreiwillige, or Hiwis).44 Throughout Eastern Europe the SS used these auxiliaries to guard ghettos, conduct roundups, accompany deportation trains, participate in mass executions, and serve in the extermination camps.

In Travnicki, Fedorenko received a black uniform, worn by all Hiwis, and was given elementary military training. He was then posted to Lublin, received a rifle, and stood guard over houses from which Jews had been forcibly removed. Shortly thereafter, he was transferred to Treblinka via Warsaw. Apparently he arrived at Treblinka guarding a transport of Jews deported from Warsaw.

The extermination camp Treblinka was one of three killing centers (the other two were Belzec and Sobibor) in eastern Poland. There Odilo Globocnik, the SS and Police Leader for the Lublin district, headed the enterprise known as Operation Reinhard; its object was to concentrate, pillage, deport, and kill the Jews of occupied Poland. Treblinka, the largest of the three killing centers, commenced operation in July 1942. A revolt of the inmates on 2 August 1943 destroyed parts of the camp, and it finally closed in November 1943. Treblinka and the other two camps of Operation Reinhard served only the purpose of mass murder. Every man, woman, and child arriving there was killed. Most were Jews; a few were Gypsies. A few young men and women were not immediately killed. Used to service the camp, they sorted the belongings of those who had been murdered and burned the bodies after the gold fillings had been extracted from the teeth. Eventually, they too were killed. Only a handful, able to escape during the uprising, survived to testify. Treblinka was located in the Warsaw district and served primarily for the murder of Jews from the Warsaw ghetto; however, Jews from other parts of Poland, as well as Jews from Germany and other European countries, were also killed there. The number of victims killed in Treblinka has been estimated as 700,000 to 900,000 persons.

The method of murder was relatively simple. The victims arrived by train, mostly in cattle cars, but also in passenger cars if they came from western Europe. They were driven from the cars; men were separated from women. Forced to undress, they had to hand over all their valuables. Those too old or infirm to walk rapidly were taken to a building marked as the "Infirmary" (Lazarett); there they were shot and their bodies dropped into a ditch in which a continuous fire consumed them. All others were driven naked toward the gas chambers; urged on with comments like "the water is getting cold," the victims entered a narrow path known as the "tube" (Schlauch), and also as "Ascension Boulevard" (Himmelfahrtsallee) or "the road without return." From there they entered the gas chambers, which were disguised as shower rooms and used carbon monoxide from a motor to kill the victims.

The Treblinka killing center employed a very small staff. About 35 to 40 Germans, dressed in the uniform of the SS, supervised all operations. They were supported by 90 to 120 Ukrainian auxiliaries, without whose help the killing machine could not have been operated. A fluctuating number of Jewish prisoners, approximately 500 to 1,000, performed all the necessary physical labor.45

A West German district court described the functions of the Ukrainian auxiliaries at the first Treblinka trial in Dusseldorf in 1965:

In addition to the group of German staff members, there were approximately 90 to 120 Ukrainian volunteers (Hilfsfreiwillige). They were mainly assigned to guard duty, but to a certain degree they were also used during the killing operations. In contrast to the Germans, they wore a black uniform and were armed with carbines or rifles; the overwhelming majority also carried long leather whips and to some extent revolvers. Further, the guard units had at their disposal machine guns and hand grenades, which were kept in a special armory. in addition, there was also an armored scout car at Treblinka.

Ukrainian troops were divided into platoons (Zuge). These were commanded by ethnic Germans (Volksdeutsche), known as platoon leaders (Zugfuhrer). The Ukrainians did mostly guard duty. However, they did not only stand guard at the camp perimeter and on the watch towers, but under the supervision of the German brigade leaders they also guarded the various labor details inside and outside the camp. Finally, they were employed during the arrival and liquidation of transports.46

At his trial in Ft. Lauderdale, Fedorenko claimed that he was not involved in the operations of Treblinka; he only served as guard outside the camp, had no dealings with the prisoners, and never harmed anyone. But survivors of Treblinka testified that he had moved inside the camp, had participated in the process of dealing with arriving transports, had shot people in the Lazarett, and had been present at the gas chambers during the killings.

Fedorenko left Treblinka after the uprising of August 1943, continuing to serve the Germans as a watchman in various places. By the end of the war, he had made his way to Hamburg. He discarded his uniform and lost himself in the mass of East European refugees. Claiming displaced person status, he worked for the British occupation forces and in 1949 applied for a visa to the United States under the Displaced Persons Act (DPA).

The DPA, passed by Congress in 1948 and amended in 1950, provided for the rapid admission of some of the one million European refugees uprooted by World War II.47 The Act discriminated against Jewish displaced persons, concentrating instead on the East European refugees who refused to be repatriated to their communist homelands.48 However, Congress did exclude those East European refugees who refused to be repatriated to their homelands because they had committed war crimes and had collaborated with the Nazis. Congress did this by demanding that each applicant for a visa prove his status as a displaced person. For the purpose of the Act, Congress adopted the definition of displaced persons devised by the International Refugee Organization of the United Nations (IRO). This definition excluded the following:

1. War criminals, quislings and traitors,

2. Any other person who can be shown: (a) to have assisted the enemy in persecuting civil populations of countries, members of the United Nations; or (b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.49

Obviously, Fedorenko did not meet the qualifications for a displaced person and thus could not have obtained a visa under the DPA if he had revealed his service as a Hiwi at Treblinka. He therefore lied about his past, stating that he was born in Poland and spent the war years as a forced factory laborer in Poelitz, Germany. He thus received a visa and entered the United States in 1949. Thereafter, he admitted that he had actually been born in the Ukraine, arguing that he had lied about his place of birth only because he feared repatriation to his communist homeland. He continued, however, to hide his wartime service as an SS auxiliary. By concealing his wartime activities, he became a citizen of the United States in 1970. During his years in the United States, he lived in Connecticut and worked in a factory; careful not to attract attention to himself by violating American laws, he received only one parking ticket. However, claiming to believe his Russian wife and children dead, he married again, thus becoming a bigamist. Finally, his past caught up with him; in 1977, the Government instituted denaturalization proceedings against him.

The Government argued that the Immigration and Nationality Act of 1952 requires revocation of citizenship "illegally procured" or "procured by concealment of a material fact or willful misrepresentation."50 By this time, Fedorenko had admitted his wartime activities. Therefore, the Government and Fedorenko agreed upon some issues: that he had been a Treblinka guard, that he had willfully concealed and misrepresented his service as an SS auxiliary, and that he lied about his activities and whereabouts during the war when he initially applied for a visa, These were undisputed questions of fact. But whether he was therefore subject to denaturalization because he had concealed or misrepresented a "material" fact and had illegally procured citizenship were disputed questions of law.

The Government charged that Fedorenko was subject to denaturalization under both prongs of the standards for revocation provided for in the Immigration and Nationality Act:51 he illegally procured citizenship and he procured citizenship by willfully concealing and misrepresenting material facts.

Citizenship is "illegally procured" if the applicant did not possess the qualifications for citizenship at the time he was naturalized. The Government argued that Fedorenko's citizenship was illegally procured because he did not possess the prerequisite of legal residence in the United States at the time of naturalization: he had entered with a displaced persons visa for which he was ineligible because his service at Treblinka and his commission of crimes and atrocities explicitly disqualified him as a displaced person; he did not, therefore, have a legal, unexpired visa, one of the requirements for legal residence.52

Although admitting that he had been a guard at Treblinka and that he had lied on his visa about his place of birth and his wartime activities, Fedorenko insisted that he had been a prisoner of war, that his service at Treblinka had been involuntary,53 that he had committed no atrocities, and he therefore was not excluded by the DPA. His entry and subsequent naturalization were, therefore, lawful.

The Government also charged that the Immigration and Nationality Act required revocation of Fedorenko's naturalization because his concealment of his service at Treblinka constituted willful concealment and misrepresentation of material facts. Further, he lacked the "good moral character" requirement for naturalization because he had committed atrocities.54 Fedorenko countered this charge by arguing that his service as a guard at Treblinka was not a material fact because he had served involuntarily and had committed no atrocities.

What constitutes procurement of citizenship by willfully concealing and misrepresenting a material fact is a more difficult statutory standard to define and to apply than is the "illegally procured" standard. That both concealment and misrepresentation must be willful is settled.55 That concealed or misrepresented fact must be "material" is settled.56 What constitutes a "material" fact is not so clear.

The Supreme Court's leading answer to the question of materiality was given in the 1960 Chaunt opinion.57 Peter Chaunt, born in Hungary and naturalized as an American citizen in 1942, was stripped of his citizenship in 1953. The Government charged, and the lower courts held, that he had concealed and misrepresented a material fact when he failed to disclose that he had been arrested three times for distributing handbills, making a speech, and causing a breach of the peace. The Government argued that had it known of these arrests, it would have conducted an investigation and its investigation would have uncovered Chaunt's communist connections. His communist affiliation would have disqualified him from citizenship. The Supreme Court restored his citizenship. It concluded that three arrests for such minor violations, which did not even lead to a jail sentence, would not have generated an investigation, especially since Chaunt's admission of membership in the International Worker's Order did not do so. The Supreme Court not only overturned the decisions of the lower-courts, but more important, it also set forth two tests that would govern materiality in future cases:

The Government has to show either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.58

Under the first Chaunt test, the Government must present clear, convincing, and unequivocal proof of the existence of suppressed facts "which, if known, would have warranted denial of citizenship.59 Thus, the Government must prove the ultimate disqualifying fact. If the Government can prove that the concealed fact would have warranted denial of citizenship, there is no need for the second Chaunt test.

Under the alternate or second Chaunt test, the Government must prove by clear, convincing, unequivocal evidence that disclosure of the suppressed facts at the time of application for citizenship "might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship."60

Lower courts and commentators have differed sharply on the meaning of the second Chaunt test.61 There are essentially four possible interpretations of the second test of Chaunt for determining the materiality of a concealed fact. These variations will herein be designated as might-would; might-might; would-would; and would-might:

1. Might-would.
Under this interpretation, the Government would have to prove that knowledge of the suppressed fact might have led to an investigation and that the investigation would have revealed a disqualifying fact.

2. Might-might.
Under this interpretation, the Government would have to prove that knowledge of the suppressed facts might have led to an investigation and the investigation might have uncovered a disqualifying fact.

3. Would-would.
Under this interpretation, the Government would have to prove that knowledge of the suppressed facts would have led to an investigation and that the investigation would have led to discovery of a disqualifying fact.

4. Would-might.
Under this interpretation, the Government would have to prove that knowledge of the suppressed fact would had led to an investigation and the investigation might have uncovered a disqualifying fact.

Of these four possible interpretations, the first (might-would) and the third (would-would) are virtually indistinguishable from the first Chaunt test: both would impose upon Government the burden of proving the existence of ultimate disqualifying facts. Both would permit retention of citizenship obtained by deceit (at that stage in the process at which the individual bears the burden of proving eligiblity) unless, years after the fact (when the burden of proving ineligibility rests with the Government), the Government could prove by clear, convincing, and unequivocal evidence that the individual was in fact not qualified and had willfully lied to conceal that fact.

The second possibility (might-might) is so speculative that its use contradicts the high value the Court places on both residence in the United States and American citizenship. It would authorize "fishing expeditions," endanger retention of citizenship on the basis of tenuous reasoning, and impose second-class status on naturalized citizens.

The fourth (would-might) strikes a balance between the right of the naturalized citizen against revocation, except for the most serious concealments and misrepresentations, and the integrity of the naturalization process (and the right of a country to determine which aliens will become citizens) against those who deliberately fie to acquire that which probably could not have been acquired legitimately and honestly.

The non-jury trial of Fedorenko took place before Judge Norman Roettger, Jr., in Ft. Lauderdale.62 Roettger, who appeared to sympathize with Fedorenko,63 complained about the Jewish demonstrators outside the courthouse64, the Justice Department's refusal to pay for holding a portion of the trial in Athens or Istanbul,65 the decision of the Judicial Conference to prohibit American courts from holding court sessions outside the United States,66 and the Government's expenditure of money for transcripts and translators.67 Further, in the middle of the trial he held a press conference announcing that he did not believe the Government witnesses.68 In his final decision, he found for the defendant, rejecting all aspects of the Government's case.

Judge Roettger rejected the Government's claim that it had met its burden of proof under the first Chaunt test. That is, he rejected the Government's argument that the fact of Fedorenko's service as a Treblinka guard would, if known, have warranted denial of citizenship. He also rejected the Government's argument that it had met its burden of proof under the second test of Chaunt. He adopted the wouldwould standard, the most stringent of the four possible interpretations of Chaunt's second test: the Government had to prove by clear, convincing, and unequivocal evidence that Fedorenko's concealment of his service at Treblinka would have led to an investigation and that the investigation would have revealed disqualifying facts. Moreover, his judgment as to what constituted the ultimate disqualifying fact was similarly stringent. He held that the Government had to prove that Fedorenko's service as a Treblinka guard was voluntary and that he had committed atrocities.

Roettger was not persuaded by the Government's expert witness, Kempton Jenkins, a Deputy Assistant Secretary of State, who had served as a vice- consul in Germany after World War II processing visas under the DPA. Jenkins testified for the Government that the vice-consuls administering the DPA in postwar Germany always considered guards in Nazi camps ineligible for a visa. He further testified that "involuntary" service as a camp guard was a contradiction in terms. Roettger, however, held that the Act excluded only those who "voluntarily" assisted the enemy.69 He thus read "voluntary" into section 2(a) of the Act, which excluded persons who "assisted the enemy in persecuting civil populations," although the word 'Voluntary" did not appear there. The word appeared only in section 2(b) of the Act, which excluded those who "voluntarily assisted the enemy forces." The Act thus excluded only those who voluntarily fought in the Axis armies, but excluded all who voluntarily or involuntarily served in the camps or other places of repression.

Roettger, however, reinterpreted the provisions so that voluntariness was demanded in both sections. He argued that to denaturalize those who involuntarily served as guards at Treblinka would also endanger the citizenship of Treblinka survivors, because the Jewish inmates had also assisted the SS in running the camps by performing various tasks necessary to operate the killing center. He thus concluded that the Government had only proved that Fedorenko had served at Treblinka, but not that he had done so voluntarily.70

The Government, however, had done more. It had produced witnesses to testify that Fedorenko had committed atrocities, certainly proof of voluntary participation in the killings at Treblinka. But Judge Roettger found the testimony of the Israeli survivors not credible. Although he did not believe Fedorenko's claim that he was unaware of the killings at Treblinka, Roettger accepted Fedorenko's contention that he had served against his will and had harmed no one.

In part, the Government contributed to this conclusion by failing to present a clear and forceful case. It did not present any expert witness testimony concerning the complex historical question of the voluntary nature, command structure, and criminal function of the Ukrainian SS auxiliary units. Further, it withdrew as witnesses the three English-speaking survivors of Treblinka, who resided in the United States and Canada, relying instead solely on survivor witnesses from Israel, with the resulting problems of translation and communication in court.

Roettger did not deny that Treblinka was a killing center, and that the witnesses had observed atrocities committed by Ukrainian guards. He challenged, however, the methods used to identify Fedorenko as the culprit.71 The Israeli witnesses had originally identified Fedorenko from photographs assembled by the Israeli police. Roettger found the photospread used in Israel "too suggestive." When the Israeli police investigators testified in his court, he accused them of coaching the witnesses. In Ft. Lauderdale, the witnesses also identified Fedorenko in open court, but after the passage of thirty-five years they took some time to do so. Roettger dismissed all identifications of Fedorenko in Israel and in Ft. Lauderdale; this was the only explanation he offered for finding their testimony against Fedorenko not credible.

Applying the would-would standard of the second test of Chaunt, Roettger concluded that the Government had proved that disclosure by Fedorenko of his service at Treblinka would have led to an investigation to determine if that service was voluntary or if the defendant had committed atrocities.72 He held, however, that the Government had failed to prove by clear, convincing, and unequivocal evidence that the investigation would have led to the discovery of the ultimate disqualifying fact that the service was voluntary or that atrocities had been committed by Fedorenko. Thus, Roettger ruled that Fedorenko's concealment did not involve material facts and that therefore his visa was valid and his citizenship legal.

Not satisfied with ruling in favor of Fedorenko on the basis of the Chaunt test, Roettger exceeded the equitable discretion vested in a federal district court in denaturalization cases to make doubly sure that Fedorenko would not lose his citizenship. Finding that Fedorenko was of good moral character, Roettger concluded that Fedorenko's law-abiding and hardworking years in America balanced, as a matter of equity, his service in the extermination camp of Treblinka. Therefore, as a matter of equity, that is fairness, he resolved all remaining doubts in Fedorenko's favor.73

If Judge Roettger's decision in favor of Fedorenko had prevailed, all future attempts to expel Nazi criminals from the United States would probably have come to naught. Fortunately, he was totally reversed by the appellate courts. At the same time, the Government moved to strengthen its capacity to prosecute Nazi criminals.

The Office of Special Investigations was established largely as a result of the efforts of Representatives Joshua Eilberg and Elizabeth Holtzman, who chaired and served on the House Judiciary Committee's Subcommittee on Immigration, Citizenship and International Law. The subcommittee's investigations into allegations that Nazi criminals found haven in the United States and that the Immigration and Naturalization Service in particular and other agencies such as the State Department and NASA in general knew of and condoned or encouraged the immigration and continued presence in the United States of these criminals, brought this question to the forefront. In 1978, moreover, Congress amended the INA specifically to authorize the exclusion and deportation of alien Nazi war criminals.74 Prior to this amendment, there was no basis upon which to deport alien Nazi war criminals unless the Government could prove that they had lied on their visa applications.

Reagan Administration, the OSI's strong congressional support survived the departure of both Representatives Eilberg and Holtzman. Staffed by lawyers, investigators, and researchers, the OSI accepts and investigates all complaints lodged against individuals accused of collaboration. If the allegation proves groundless, the file is closed. In some instances, the file may be closed because there is not enough evidence to warrant prosecution in view of the heavy burden of proof borne by the Government in denaturalization and deportation cases. The OSI has actively investigated over two hundred cases thus far, but the first major appellate victory in a Nazi war criminal case was won by its predeccesor, the Special Litigation Unit. The well-argued brief in opposition to Roettger's decision, however, was prepared by those who would later organize and serve as the nucleus of the OSI.

The Government appealed Judge Roettger's decision to the Court of Appeals for the Fifth Circuit in New Orleans.75 In its brief, the Government argued that it met its burden of proof under both Chaunt tests of materiality. It had sustained the burden imposed by the first Chaunt test, because it had proved the existence of a suppressed fact - Fedorenko's service at Treblinka - that would in and of itself, had it been known, have denied him a visa and therefore citizenship. First, as Kempton Jenkins had testified, those who had administered the DPA in postwar Germany refused to grant visas as a matter of course to anyone who had staffed the Nazi camps. Fedorenko, therefore, had not been eligible for entry into the United States. Second, the DPA provided that "any person who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States."76 Because Fedorenko had lied about his wartime acivities, he had been inadmissible.

Alternatively, the Government argued that it had borne its burden of proof under a would-might construction of Chaunt's second test. That is, it had proved that disclosure of Fedorenko's service as a concentration camp guard would have led to an investigation (and the district court had so found), and that the investigation might have revealed the disqualifying facts of commission of crimes or atrocities.

The Court of Appeals for the Fifth Circuit accepted Judge Roettger's findings of fact: Fedorenko had not personally committed atrocities and his service at Treblinka had not been voluntary.77 Accepting, in addition, Roettger's conclusion that only voluntary service at Treblinka would automatically have disqualified Fedorenko from receiving a visa, it held that the Government had failed to satisfy the first test of Chaunt. However, perhaps uncomfortable with the tone of Roettger's opinion, the Court of Appeals added in an aside that Fedorenko's contention that his service at Treblinka was not voluntary "came thirty years too late."78

The Court of Appeals rejected Judge Roettger's stringent would-would construction of Chaunt's second test. Instead, it opted for the Government's would-might interpretation, agreeing with an earlier decision of the Sixth Circuit Court of Appeals that "the issue is not whether naturalization would have been denied ... but whether ... the Government was denied the opportunity of investigating ... eligibility for citizenship."79 Under this test, the Court of Appeals concluded that the government had proved by clear, convincing, and unequivocal evidence that the undisclosed fact of Fedorenko's service at Treblinka would have led to an investigation which might have revealed that he committed atrocities. Fedorenko had therefore willfully concealed or misrepresented material facts. On this basis, the Court of Appeals reversed judge Roettger's decision and revoked Fedorenko's citizenship.

Judge Roettger had based his decision in favor of Fedorenko on two factors, the second of which had been the question of equity: Fedorenko's blameless life in America had balanced his involuntary service at Treblinka. On this point, the Court of Appeals severely reprimanded Roettger. It unanimously held that the district judge had no discretion to apply his standard of fairness in the Fedorenko denaturalization case. The law requires denaturalization if citizenship was illegally procured; the postwar conduct of Nazi criminals in America is irrelevant.80

Fedorenko appealed to the Supreme Court of the United States. By this time, the OSI was in charge of Nazi war criminal litigation and submitted a well-argued brief supporting the reasoning of the Court of Appeals. The Attorney General, rather than the Solicitor General, handled the oral argument. The Supreme Court, possibly interested in clarifying the status of Nazi criminals in America, accepted the case.81 By a vote of 7 to 2, the Court, in a landmark decision on Nazi criminals, upheld the Court of Appeals and irrevocably stripped Fedorenko of his citizenship.82

The majority opinion, written by Justice Thurgood Marshall, would govern the course of all future cases involving the denaturalization of Nazi war criminals. The majority opinion sidestepped the complex problems posed by the interpretation of Chaunt and went directly to the heart of the matter. Ruling that Chaunt did not apply to visa fraud, justice Marshall concluded that Fedorenko had been ineligible for citizenship because he had obtained his visa illegally.83 He held that anyone who, like Fedorenko, lacked a valid visa, entered the United States illegally. And citizenship is "illegally procured" if the applicant for naturalization does not posses the prerequisite of a valid visa and lawful residence; and illegally procured citizenship must be revoked.84

Under this opinion, the Government would only have to prove that Nazi criminals obtained their visas illegally to revoke their citizenship. Applying this standard to Fedorenko, the majority again went to the heart of the matter. Pointing out that Congress in the DPA had required exclusion of all who "assisted the enemy in persecuting civil populations," regardless of whether this was voluntary or not, it held that the courts did not have the authority to rewrite the congressional mandate.85 Fedorenko's service at Treblinka, voluntary or not, must be considered assistance to the enemy in persecuting civil populations. He was therefore ineligible to receive a visa, had entered the United States illegally, and the citizenship he thereupon procured was not valid. In addition, Fedorenko lied about his wartime activities when he applied for a visa and thus misrepresented a material fact to gain admission to the United States. By so doing, he became automatically inadmissible under the DPA. For all these reasons, the Supreme Court revoked his citizenship.

Justices Blackmun and White disagreed with the majority concerning the applicability of Chaunt in the Fedorenko case. Blackmun wanted to apply the most stringent would-would test of Chaunt.86 However, he reached the same conclusion that the majority reached - that Fedorenko had forfeited his citizenship - and only offered his disagreements in a concurring opinion. White wished to apply the less stringent would-might Chaunt test but, unlike Blackmun, did not reach the same conclusion as the majority.87 Wishing to offer Fedorenko another chance to rebut, he asked in a dissenting opinion that the case be returned to the lower court.

Only Justice Stevens offered a substantive dissent to the majority's opinion concerning Fedorenko.88 Siding with Judge Roettger against the Court of Appeals and the Supreme Court majority, he insisted that the DPA excluded only those who voluntarily assisted the Nazis in persecuting civilians. To Stevens, involuntary service in a Nazi extermination camp such as Treblinka did not constitute a crime. Service as an armed guard at a death camp was thus no barrier to immigration or citizenship. Applying the most stringent would-would construction of Chaunt, Stevens held that the Government would have to prove that knowledge of Fedorenko's service would have led to an investigation and the investigation would have led to discovery of the ultimate disqualifying fact: voluntary service or commission of atrocities. Because the Government had proved neither, Stevens concluded that Fedorenko had obtained his citizenship legally and could not lose it.

Not satisfied with this conclusion, Stevens added what he perceived to be a moral justification for this open door to Nazi criminals in the United States. He argued that everyone in the Nazi concentration and extermination camps - members of the SS, Ukrainian auxiliaries, as well as the Jewish inmates - assisted in operating the machinery of destruction. In effect equating the activities of a Ukrainian guard (who carried a gun and shot at prisoners) with that of a Jewish inmate (who cut the hair of women arriving at the camp), he insisted that it was necessary to distinguish between voluntary and involuntary participation. To Stevens, this distinction had to be made in order to protect the Jewish inmates - who had involuntarily served the enemy from losing their citizenship. He concluded, with a tone of moral indignation, that because of the majority opinion "human suffering will be a consequence of today's venture. . . "89

Justice Stevens' argument rests on a profound misunderstanding of the nature of the Nazi camps. Even a non-lawyer can discern the difference between the culpability of an unarmed inmate of Treblinka who cut women's hair or played in the orchestra, and that of a Ukrainian auxiliary who, gun in hand, stood ready to prevent victims from escaping their intended murder. However, the question is indeed more complex. It is of course true that everyone in the camps, including the inmates, became enmeshed in the operation. For this reason, theologians and philosophers may assign degrees of metaphysical guilt to guards and victims. It is, however, inconceivable that jurists would be unable to make legal distinctions. Justice Stevens uses "involuntary" in a crass and unsophisticated manner. Certainly there is a distinction between the involuntary participation of a guard, whose alternative is simply unattractive, and the involuntary participation of the inmate, whose alternative is immediate death. Fedorenko chose to serve at Treblinka, rather than resuming the status of a Russian POW or taking the risk - incumbent upon all prisoners of war - of escape. The Jewish inmates had no choice; they could escape the gas chambers only as long as they performed the menial tasks assigned to them.

The final result proves the validity of these distinctions. The Jewish inmates who performed the physical labor needed to operate the camp were all destined to be murdered as unwelcome witnesses to the crimes committed at Treblinka; only a handful managed to escape that destiny when they joined their fellow inmates in revolt. Fedorenko, according to Justice Stevens also an involuntary participant, was not harmed by his German masters; instead, he was rewarded, transferred to Hamburg after the completion of his grisly tasks, and survived to plead his case before the Supreme Court of the United States.

No one would deny that some inmate kapos committed crimes. A number of such kapos incidentally none of them Jewish have been tried and convicted in West German courts. These convictions, however, were based on the testimony of other inmates that these particular kapos had committed murders not required by their status as inmate functionaries. As justice Stevens himself noted, no Treblinka survivor has ever made such a charge against any Treblinka kapo. His comments concerning kapos at Treblinka are therefore irrelevant to any finding of guilt under American or any other civilized law. In the case of Fedorenko, however, all witness testimony identified him as someone who committed murders.

Most laymen, and even many lawyers, have assumed that the Supreme Court decision would rid the United States of the Nazi criminal Fedorenko. This, however, has not been true. After his denaturalization, the Government had to institute deportation proceedings against Fedorenko. As we have seen in the case of Artukovic, deportation can take decades. In fact, not a single Nazi criminal residing in the United States as an alien has been deported so far.90 Deportation hearings are not held in the federal courts; they are administrative proceedings before a hearing officer, called an immigration judge, of the Naturalization and Immigration Service (INS). The procedures governing such hearings are not so tightly controlled by legal rules as in the federal courts. This relative laxity may aid the Government in cases of poverty- stricken undesirable aliens from Asia, Latin America, and the Caribbean. In cases of European Nazi criminals, however, this has tended to work in favor of the defendant.

The Government bears the same heavy burden of proof by clear, convincing, and unequivocal evidence as in denaturalization proceedings in the federal courts. It must convince skeptical immigration judges that these aliens, who led blameless lives in America, had committed atrocities during World War II. Thus, after the lengthy denaturalization proceedings, which in the case of Fedorenko involved two federal appeals, the Government must prove its case all over again. Even if the Government should be successful, the Nazi criminal can appeal to the Board of Immigration Appeals (BIA) and in addition once again to the federal courts. Thus Nazi criminals have far greater latitude in appealing negative decisions than does a simple murderer in the state courts.

In the case of Fedorenko, the Government has succeeded on the first level, perhaps partly because of the notoriety attached to Fedorenko after the Supreme Court decision. Still, it took two years even to obtain a decision in the first step of the deportation process. In February 1983, Immigration Judge Gordon W. Sacks ordered Fedorenko deported, holding that Fedorenko's "action, to assist in thousands of murders, merely to receive better food and treatment from his captors than others of his comrades in arms, demonstrates an immense lack of humanity" and that he "has not shown either remorse or subsequent actions of atonement."91

Fedorenko has appealed this decision to the BIA. Unintentionally justifying Immigration Judge Sacks's conclusions about his character, Fedorenko and his attorney, Brian M. Gildea, have argued in their brief to the BIA that the Jewish inmates of Treblinka were more guilty of crimes that were committed than Fedorenko, the Ukrainian auxiliary SS guard.92 It is to be hoped that the BIA will reject this bizarre defense and return Fedorenko to the Soviet Union and to the justice that may await him there.93

NOTES

1. Moscow Declaration, 1 Nov. 1943. The relevant section of the Declaration reads as follows: "At the time of the granting of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi party who have been responsible for, or have taken a consenting part in the above atrocities, massacres, and executions, will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created therein. Lists will be compiled in all possible detail from all those countries having regard especially to the invaded parts of the Soviet Union, to Poland and Czechoslovakia, to Yugoslavia and Greece, including Crete and other islands, to Norway, Denmark, the Netherlands, Belgium, Luxemburg, France and Italy." Text in Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 [Green Series], 14 vols. (Washington, 1950-1952), I:viii [hereafter cited as Green Series].

2. Appointed by President Truman, 2 May 1945: Executive Order 9547, in Federal Register 10, no. 89 (4 May 1945): 4961 and in Green Series 1:ix.

3. London Agreement, 8 Aug. 1945, in Green Series I:ix-x; also in Trial of the Major War Criminals before the International Military Tribunal [Blue Series], 42 vols. (Nuremberg, 1947-1949), 1:8-9 [hereafter cited as Blue Series] and in Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression [Red Series], 8 vols. and 2 suppl. (Washington, 1946- 1948), 1:1-3 [hereafter cited as Red Series].

4. Charter of the IMT, in Blue Series 1:10-16; Red Series 1:4-11; Green Series 1:xi- xv.

5. London Agreement, Article 4: "Nothing in this Agreement shall prejudice the provisions established by the Moscow Declaration concerning the return of war criminals to the countries where they committed their crimes." Article 6: "Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any Allied territory or in Germany for the trial of war criminals."

6. Control Council Law No. 10, 20 Dec. 1945, in Green Series 1:xvi-xix. Signed for the United States by General Joseph T. McNarney.

7. Article 11 1(c): "Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecution on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated."

8. Article IV 1: "When any person in a Zone in Germany is alleged to have committed a crime, as defined in Article 11, in a country other than Germany or in another Zone, the government of that nation or the Commander of the latter Zone, as the case may be, may request the Commander of the Zone in which the person is located for his arrest and delivery for trial to the country or Zone in which the crime was committed."

9. See Karl Loewenstein, "Reconstruction of the Administration of Justice in American-Occupied Germany," Harvard Law Review 61 (1948): 419-67; idem, "Law and Legislative Process in Occupied Germany," Yale Law journal 57 (1948): 724-60, 994-1022; Eli E. Nobleman, "The Administration of Justice in the United States Zone of Germany," Federal Bar journal 8 (1946): 70-97; Elmer Plischke, "Denazification Law and Procedure," American Journal of International Law 41 (1947): 807-27; John H. Herz, "The Fiasco of Denazification in Germany," Political Science Quarterly 63 (1948): 569-94.

10. The proceedings of the Military Commissions have not been published; the records are located in the National Archives branch in Suitland, Maryland. Legal summaries have been issued by the United Nations War Crimes Commission as Law Reports of Trials of War Criminals, 15 vols. (London, 1947-1949). The proceedings and documents of the Military Tribunals were issued in mimeographed form and are located in a number of deposit libraries; selections have been published in the 14 vols. of the Green Series.

11. See German Federal Republic, Der Bundesminister der Justiz, Bericht uber die Verfolgung nationalsozialistischer Straftaten, Deutscher Bundestag, 4. Wahlperiode, Drucksache IV/3124. Starting in 1946, war criminals were also tried in German courts. See Henry Friedlander, "The Judiciary and Nazi Crimes in Postwar Germany," SWC Annual 1 (1984): 27-44.

12. Red Series, Opinion and Judgment, p. 77.

13. United States v. Alfons Klein et al., Case No. 12-449, Review and Recommendation of the Deputy Theater Judge Advocate for War Crimes, 7708 War Crimes Group, European Command (Feb. 1946). This was the first trial held by the United States and took place prior to the proclamation of Law No. 10. The judge advocate was Colonel Leon Jaworski of later Watergate fame.

14. United States v. Otto Ohlendorf et al., Green Series, case 9, vol. 4.

15. United States v. Oswald Pohl et al., Green Series, case 4, vol. 5.

16. See judgment of the IMT: "All who were fit to work were used as slave laborers in the concentration camps; all who were not fit to work were destroyed in gas chambers and their bodies burnt. Certain concentration camps such as Treblinka and Auschwitz were set aside for this main purpose." Red Series, Opinion and Judgment, p. 81.

17. See "History and Background of the European Displaced Persons Problem," 80th Cong., 2d sess., Senate Report 950, in U.S. Code Cong. Service and Adm. News, 1948, p. 2035 [hereafter cited as Senate Rept. 950].

18. See Leonard Dinnerstein, America and the Survivors of the Holocaust (New York, 1982).

19. See Nikolai Tolstoy, The Secret Betrayal (New York, 1978).

20. See Dinnerstein, America and the Survivors, p. 113; also House Committee on the Judiciary, Subcommittee on Immigration, Citizenship, and International Law, Alleged Nazi War Criminals, 95th Cong., 1st sess., 1977, serial no. 95-39, pp. 46- 67 [hereafter citied as Alleged Nazi War Criminals].

21. Act of 25 June 1948, Public Law No. 80-774, 62 Stat. 1009. Act of 16 June 1950, Public Law No. 81-555, 64 Stat. 219.

22. Section 2(a), 62 Stat. 1009; Section 13, 64 Stat. 219.

23. See Department of justice, Criminal Division, Office of Special Investigations, "Digest of Cases in Litigation" (issued at various times). As of January 1985, the OSI has opened 840 investigations, completed 510, and had 330 pending. The OSI had undertaken litigation for denaturalization in 30 cases, has been successful in 17, and 13 are pending in court or on appeal. It had undertaken litigation for deportation in 22 cases, and 15 are pending in court or on appeal; 5 defendants departed the U.S., 1 died, and I is awaiting deportation. Communication from the OSI to the authors, Jan. 1985.

24. Alleged Nazi War Criminals, pp. 46-67.

25. United States v. Artukovic, 170 F. Supp. 383 (S.D. Cal. 1959).

26. Ibid.

27. Artukovic v. Immigration Service, No. 81-7415 (9th Cir. 1981), Brief for the United States, p. 1.

28. Decision of the BIA, R 691-93, cited ibid., p. 4.

29. Comptroller General, Widespread Conspiracy to Obstruct Probes of Alleged War Criminals Not Supported by Available Evidence-Controversy May Continue, GGD 78-73 (15 May 1978); also Alleged Nazi War Criminals. For a popular account, see Howard Blum, Wanted! The Search for Nazis in America (New York, 1977).

30. See pp. 69-70 and 77-79.

31. Department of Justice, Attorney General Benjamin R. Civiletti, Order No. 851- 79, 4 Sept. 1979.

32. Even for crimes committed within the United States, the states have the basic authority to define and punish crimes. Thus, during the 1960s, the federal government dealt with the violence against blacks and civil rights workers in the South by charging the killers with violations of civil rights statutes, not with murder. United States v. Price, 383 U.S. 787 (1966); United States v. Guest, 383 U.S. 745 (1966). President John F. Kennedy's accused assassin, had he himself not been killed, would have been tried in a Texas, not a federal, court. The constitutional powers of the federal government authorize national protection for federal officials (In Re Neagle, 135 U.S. 1 [18901), although Congress did not exercise that power until the political assassinations of the 1960s. Arguably, Congress could make such atrocities committed abroad crimes; under the Constitution it has the power "to define and punish offenses Against the Law of Nations" (Article 1, Section 8). However, such a law might run afoul of the Article VI guarantee that a defendant is entitled to a trial in "the State and district wherein the crime shall have been committed, which district shall been previously ascertained by law." On the other hand, Article 111, Section 2, provides that "the trial of all crimes. shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place as the Congress may by law have directed" [emphasis added]. Even without any additional congressional "definition," federal courts might have jurisdiction over offenses against international law. Thus Congress has already specifically conferred upon federal courts authority to hear civil suits brought by individuals against aliens in the United States who violate international law. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

33. Ryan v. United States, 360 F. Supp. 264 (E.D.N.Y. 1973); United States v. Ryan, 360 F. Supp. 265 (E.D.N.Y. 1973), aff'd, Ryan v. United States, 478 F.2d 1397 (2d Cir. 1973). She was extradited, In re the Extradition of Ryan, 360 F. Supp. 270 (E.D.N.Y. 1973), aff'd, 478 F.2d (2d Cir. 1973).

34. Washington Post, 1 July 1981, sect. A, p. 1, col. 6.

35. Alleged Nazi War Criminals, pp. 47, 54.

36. Ibid.

37. See Adalbert Ruckerl, NS-Verbrechen vor Gericht (Heidelberg, 1982), pp. 249 ff.

38. On Nazi language, see Henry Friedlander, "The Manipulation of Language," in The Holocaust: Ideology, Bureaucracy, and Genocide, ed. Henry Friedlander and Sybil Milton (Millwood, N.Y., 1980), pp. 103-13.

39. United States v. Walus, 453 F. Supp. 699 (N.D. 111. 1978).

40. United States v. Walus, 616 F.2d 283, 295 (7th Cir. 1980).

41. Ibid., pp. 286-87, 290.

42. For the court decision, see United States v. Fedorenko, 455 F. Supp. 893 (S.D. Fla. 1978). For the facts of the case, including the details of Fedorenko's life and crimes, we have used the unpublished transcript of the trial: United States v. Feodor Fedorenko, District Court of the United States for the Southern District of Florida, No. 77-2668-Civ-NCR. For details of Fedorenko's life story, see his testimony on direct and cross examination (Fedorenko Transcript, pp. 1254- 1591).

43. See Hans-Adolf Jacobsen, "Kommissarbefehl und Massenexekutionen sowjetischer Kriegsgefangener," in Anatomie des SS-Staates, 2 vols. (Munich, 1967), 2:137ff.; Christian Streit, Keine Kameraden: Die Wehrmacht und die sowjetischen Kriegsgefangenen, 1941-1945 (Stuttgart, 1978); Alfred Streim, Die Behandlung sowjetischer Kriegsgefangener im "Fall Babarossa" (Heidelberg, 1981).

44. These volunteers were also known as Askaris, a Swahili term used to describe native African troops serving in the German colonial army during World War 1.

45. Justiz und NS-Verbrechen: Sammlung deutscher Strafurteile wegen nationalsozialistischer Totungsverbrechen, ed. Adelheid L. Rilter-Ehlermann and C. F. Ruter, 22 vols. (Amsterdam, 1968-1981), 22:34-47. See also Ino Arndt and Wolfgang Scheffler, "Organisierter Massenmord an Juden in nationalsozialistischen Vemichtungslagern," Vierteljahrshefte fur Zeitgeschichte 24 (1976): 105-35; and Adalbert Ruckerl, NS-Vernichtungslager im Spiegel deutscher Straffirozesse (Munich, 1977), pp. 197-242.

46. Justiz und NS-Verbrechen 22:39.

47. See above, n. 21. About 395,000 persons had actually been admitted when the authorization expired on 21 June 1952. The Displaced Persons Act Story: The Final Report of the United States Displaced Persons Commission (Washington, D.C., 1952), p. 242.

48. See President Truman's message on aid to refugees and Displaced Persons, 25 June 1948, in Milton R. Konvitz, Civil Rights in Immigration (Ithaca, N.Y., 1953), appendix 2. Although Truman signed the DPA because "it did more good than harm," he objected to the Act's anti-Jewish bias.

49. Constitution of the IRC, Part 2 of Annex 1, cited in Senate Rept. 950, p. 2052, defined those "persons who will not be the concern" of the IRO. Eligibility under the IRO and the DPA extended to those persons who were out of their country of nationality or former residence and who were unwilling to return because of fear of persecution and to persons who fled from Germany or Austria because of Nazi persecution and had returned but who had not been resettled.

50. 8 U.S.C., sec. 1451(a).

51. The Immigration and Nationality Act (INA), 8 U.S.C., sec. 1451(a), requires revocation of citizenship illegally procured or procured by concealment of a material fact or by willful misrepresentation.

52. The INA, 8 U.S.C., sec. 1427(a) and 1429, requires applicants for citizenship to be lawfully admitted to the United States for permanent residence. Lawful admission for permanent residence requires that the individual possess a valid unexpired visa.

53. The question of involuntary participation, or rather the nature of duress, has played an important role in all West German trials of Nazi criminals. Like Fedorenko, almost all Nazis tried in West German courts, including even SS generals, have claimed that they participated in criminal activities only involuntarily under duress. Most West German district and appellate courts have disallowed this defense unless the defendant could prove that he had attempted seriously to escape such duty. As we have seen, Fedorenko made no such attempt. See the discussion of the Befehlsnotstand (duress under orders), in Herbert Jager, Verbrechen unter totalitdrer Herrschaft: Studien zur nationalsozialistischen Gewaltkriminalitdt (Olten and Freiburg, 1967), part 2. For a crass example involving an SS general, see Henry Friedlander, "The Deportation of the German Jews: Post-war German Trials of Nazi Criminals," Leo Baeck Institute Yearbook 29 (1984): 201-26.

54. The INA, section 316(a)(3), 8 U.S.C., sec. 1427(a)(3), requires a good moral character as a condition for acquisition of citizenship.

55. Costello v. United States, 365 U.S. 265, 271-72, n. 2 (1961), cited in Fedorenko v. United States, 449 U.S. 490, 505 (1981).

56. Ibid.

57. Chaunt v. United States, 364 U.S. 350 (1960).

58. Ibid., p. 355.

59. Ibid.

60. Ibid.

61. Emphasizing the right of the individual to retain citizenship, the third and the ninth circuits have tended to see little distinction between the two tests, finding misstatements material only if the true facts, if disclosed, would have required denial of citizenship. See, for example, United States v. Rossi, 299 F.2d 650, 652- 53 (9th Cir. 1962); La Madrid-Peraza v. INS, 492 F.2d 1297 (9th Cir. 1974); and United States v. Riela, 337 F.2d 986 (3rd Cir. 1964). The first, second, and sixth circuits, on the other hand, have emphasized the right of the government to full and truthful answers to questions, so that any necessary investigation could be undertaken at the time of application for citizenship, rather than later when it is more difficult to determine the facts; they have tended to view the two tests as distinct, finding it unncessary for the government to prove the existence of the ultimate disqualifying fact. See, for example, Kassab v. INS, 364 F.2d 806 (6th Cir. 1966) and Carrado v. United States, 227 F.2d 780 (6th Cir. 1955). It was the differing interpretations of the second Chaunt, according to the Blackmun opinion in Fedorenko, which led the Court to grant certiorari so that it could resolve the conflict. For analyses of Chaunt and materiality prior to the Fedorenko opinion, see Note, "Misrepresentation and Materiality in Immigration Law-Scouring the Melting Pot," Fordham Law Review 48 (1980): 471-504; Kristin E. Hennes, "Concealment of Facts Forestalling an Investigation in Denaturalization Proceedings," University of Chicago Law Review 47 (1980): 588-603; Note, "Citizenship-Denaturalization-Diminished Protection of Naturalized Citizenship in Denaturalization Proceedings," Texas International Law journal 14 (1979): 453- 74; Irving A. Appleman, "Misrepresentation in Immigration Law: Materiality," Federal Bar journal 22 (1962): 267-75. See also United States v. Fedorenko, 597 F.2d 946 (5th Cir. 1979).

62. United States v. Fedorenko, 455 F. Supp. 893 (S.D. Fla. 1978).

63. See, for example, ibid., p. 900.

64. Ibid., p. 899.

65. Ibid., p. 897.

66. Ibid.

67. Ibid, p. 899.

68. Fedorenko Transcript, pp. 1145 ff.

69. United States v. Fedorenko, 455 F. Supp. 913 (S.D. Fla. 1978).

70. Ibid.

71. Ibid., pp. 905-6. See also Debra H. Nesselson and Steven Lubet, "Eyewitness Identification in War Crimes Trials," Cardozo Law Review 2 (1980): 71-94.

72. United States v. Fedorenko, 455 F. Supp. 915-16 (S.D. Fla. 1978).

73. Ibid., p. 918.

74. Public Law 95-549, 8 U.S.C., sec. 1182(a), 1182(d)(3), 1251(a).

75. Brief for the United States, United States v. Fedorenko, 597 F.2d 946 (5th Cir. 1979).

76. DPA, sec. 10.

77. United States v. Fedorenko, 597 F.2d 946 (5th Cir. 1979).

78. Ibid., p. 953.

79. Corrado v. United States, 227 F.2d 780, 784 (6th Cir. 1955), cited in United States v. Fedorenko, 597 F.2d 946, 951 (5th Cir. 1979).

80. United States v. Fedorenko, 597 F.2d 946, 953-54 (5th Cir. 1979).

81. Fedorenko v. United States, cert. granted, 444 U.S. 1070 (1980).

82. Fedorenko v. United States, 449 U.S. 490 (1981). justice Marshall delivered the opinion of the Court, in which Brennan, Stewart, Powell, and Rehnquist joined. Chief Justice Burger concurred without an opinion. Blackmun filed a concurring opinion. White and Stevens dissented in separate opinions.

83. Ibid., p. 518.

84. 8 U.S.C., sec. 1427(a), 1429, 1451.

85. Fedorenko v. United States, 449 U.S. 490, 512 (1981).

86. Ibid., p. 518.

87. Ibid., p. 526.

88. Ibid., p. 530.

89. [bid., p. 583.

90. At the time this article was completed in spring 1984. But see below, n. 93.

91. In the Matter of Feodor Fedorenko, Department of Justice, Immigration Court, file A7 333 468-Hartford, Conn.

92. Respondent's Brief in Support of Appeal, 10 May 1983, In the Matter of Feodor Fedorenko, Department of Justice, Immigration Court, file A7 333 468-Hartford, Conn.

93. In April 1984, after the completion of this article, the BIA affirmed the order of deportation. Fedorenko then filed an appeal to the U.S. Court of Appeals for the Third Circuit, but withdrew this appeal in August 1984, thus clearing the way for his actual deportation. After the failure of last-minute legal maneuvers by the defendant and his supporters (petitions for a writ of habeas corpus and for a stay of deportation; all rejected by a U.S. district court, a U.S. court of appeals, the BIA, and two justices of the Supreme Court), Fedorenko was finally deported to the Soviet Union on 21 Dec. 1984.

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