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Barring Axis Persecutors From The United States: OSI's "Watch List" Program

by Elizabeth B. White

I. Introduction

In addition to denaturalizing and removing Nazi persecutors from the United States, the Office of Special Investigations (OSI) is responsible for enforcing the Holtzman Amendment's provisions barring aliens who assisted in Axis crimes from entering this country. See 8 U.S.C. 1182(a)(3)(E)(i). Such individuals continue to seek to visit the United States. For example, during the Thanksgiving holiday in 2004, an 82-year-old suspect from Austria attempted to enter this country in order to visit relatives in Arizona. OSI had placed his name and birth date on the government's border control "watch list" of aliens possibly ineligible to enter the United States. Therefore, when he arrived at Atlanta's Hartsfield-Jackson International Airport, Customs and Border Protection (CBP) inspectors referred him for secondary inspection and contacted OSI. Following guidelines developed by OSI, a CBP inspector questioned the man in detail about his World War II activities. He soon confessed that he had been sentenced to death after the war for the murder and mistreatment of concentration camp prisoners, but had received amnesty after ten years' imprisonment. Interview by U.S. Customs and Border Protection immigration inspector [name cannot be divulged] with Franz Doppelreiter in Atlanta, Ga. (Nov. 24, 2004). CBP, a component of the Department of Homeland Security (DHS), barred his entry into the United States and returned him to Europe the same day. See Ira Rifkin, He Was Hoping to Spend the Winter in Phoenix With His Family, The Jerusalem Report, June 13, 2005. Since 1990, when OSI began compiling statistics on the watch list referrals received from immigration officials, the unit has handled over 475 such inquiries. As a result, 175 suspected participants in Axis crimes have been refused admission at U.S. airports and other ports of entry.

II. Development of the OSI watch list

The OSI watch list is actually a shorthand term for the tens of thousands of "lookouts" for suspected Axis persecutors that OSI has placed in the automated border security systems that immigration inspectors and visa-issuing officials consult in assessing the admissibility of aliens to the United States. These lookouts are based on evidence amassed by OSI that establishes a reasonable basis to suspect that the individual in question ordered, incited, assisted, or otherwise participated in Axis-sponsored persecution on the basis of race, religion, national origin, or political belief, and therefore is barred from entry by the Holtzman Amendment. The names that OSI has contributed to the interagency system constitute a comparatively small portion of the millions of names in the system, which covers suspected terrorists, narcotics traffickers, and others who are or may be ineligible to enter the United States.

OSI's watch list began in 1980, when, acting at OSI's request, the State Department (State) entered the names and birth dates of all known SS officers into its Automated Visa Lookout System (AVLoS), using a list of 40,000 names supplied by OSI. The decision to list all former SS officers was based on the fact that the International Military Tribunal (IMT) at Nuremberg judged the SS to be a criminal organization because of the key role it played in carrying out Nazi crimes. See The Nurnberg Trial, 6 F.R.D. 69, 143 (1946). The logical corollary of this judgment by the IMT is that the officers in such an organization may reasonably be suspected of having ordered, incited, assisted, or participated in such crimes.

Since 1980, OSI has sent the names of thousands of concentration camp guards, members of Einsatzgruppen (Nazi mobile killing squads), and other suspects to the former Immigration and Naturalization Service (INS), DHS, and State to be placed in the automated lookout systems. As a result, more than 26,000 additional names of suspected Nazi persecutors were added to State's Consular Lookout and Support System, which superseded AVLoS, INS's National Automated Lookout System (NAILS), and the Treasury Department's Treasury Enforcement Communications System (TECS), to become the primary automated border security system used at ports of entry. OSI also arranged for State to incorporate the lookouts for SS officers into NAILS and TECS. Once this was accomplished, it was estimated that the number of lookouts in each of the automated "watch list" systems for suspected excludable Nazi persecutors who had not "aged out" of the systems (who were not more than ninety years old) was between 60,000 and 70,000.

OSI continues to add individual names to the watch list as it becomes aware of Nazi persecutors residing outside of the United States who might attempt to enter this country. OSI also routinely adds the names of OSI defendants who are removed from or leave the United States as a result of litigation brought by OSI. Probably the best known example of an individual on the OSI watch list is former Austrian president and United Nations Secretary General Kurt Waldheim. In 1987, five years after he concluded his term as U.N. Secretary General, Waldheim was banned from entering the country because a comprehensive investigation by OSI established a prima facie case that he had participated in Nazi persecution.

III. Barring Japanese war criminals

The Holtzman Amendment's reference to crimes committed on behalf of Nazi Germany and governments "allied to" Nazi Germany has been interpreted to include crimes committed by Japanese Imperial Forces during the period that Japan was Germany's ally. Of the tens of thousands of names added to the border control watch list system by OSI, however, fewer than one hundred are names of Japanese perpetrators. This disparity exists because the Japanese Government has long declined to provide OSI with access to pertinent information in its archives. In 1996, OSI requested State and INS to add to the watch list members of the Japanese Army's infamous Unit 731, which conducted lethal medical experiments on prisoners of war. In addition, OSI requested lookouts be posted for former Japanese military personnel who were implicated in the operation of so-called "comfort women" stations, where imprisoned non-Japanese women were repeatedly raped. This sparked considerable public comment in Japan and among groups of Japanese victims. See Michael J. Sniffen, U.S. Bars Japan War Criminals, Associated Press, Dec. 3, 1996.

To date, only one of the aliens on the watch list because of assistance in Japanese war crimes is known to have attempted to enter the United States at a port of entry. He was stopped by INS inspectors and returned to Japan on the first available flight. Michael Zielinger, Ex-Japanese Soldier Deemed War Criminal- Man Who Was To Tell Acts Denied U.S. Entry, Houston Chronicle, July 3, 1998. A second Japanese suspect's visa application was denied.

IV. Enforcing the OSI watch list

In 1989, the government implemented the Visa Waiver Program, which permits citizens of certain countries (primarily members of the European Union, including Germany and Austria) to enter the United States without visas. With the commencement of this program, individuals who matched (or appeared to match) lookouts for suspected Nazi persecutors began arriving at ports of entry into the United States. See Ronald J. Ostrow, U.S. Catching Former Nazis at Airports, Los Angeles Times, Mar. 25, 1990. To assist immigration inspectors in assessing the eligibility of such individuals for entry, OSI developed a set of instructions to be followed when a suspected Axis persecutor attempted to enter the United States. The instructions were sent to INS personnel at key ports of entry, such as New York and Miami. They were also incorporated into training materials given to new immigration inspectors and a videotape of a seminar, taught by an OSI official on inspecting suspected Axis persecutors, was incorporated into INS training protocols.

The key element of OSI's assistance to INS inspectors, and now to DHS' Immigration and Customs Enforcement officials, however, is that an OSI official is always available to provide information and advice when would-be entrants are stopped at U.S. ports of entry. The availability of off-hours assistance is particularly vital to the success of efforts to bar Nazi persecutors from entering the United States because the flights on which such individuals travel usually arrive in the United States outside of normal business hours. The great majority of such watch list incidents involve visitors attempting to enter under the Visa Waiver Program, who, under the program terms, must be excluded if suspicion exists that they are inadmissible. In such instances, all that is usually required to determine inadmissibility is to establish that the traveler is identical to the subject of the lookout, which can generally be resolved fairly quickly. If the suspected Nazi persecutor possesses a U.S. visa, however, the inspection for admissibility must be deferred for four business days after the date of entry. In such cases, OSI must locate and assemble, within ninety-six hours, evidence of the individual's World War II-era activities. This usually involves obtaining records from several archives in Germany, translating documents, analyzing the evidence, and presenting it so that the DHS official conducting the inspection clearly understands the matter and can conduct an effective interview. OSI attorneys have also assisted on-site at inspections of individuals whom the evidence strongly implicated in Nazi crimes.

When State receives visa applications from individuals who appear to match OSI lookouts or whom vice consuls suspect may have assisted in Nazi crimes, it calls upon OSI for assistance in vetting those applicants. OSI attempts to gather evidence relating to the applicants' activities during the Nazi era, recommends whether the applicants should be questioned further about specific matters, and advises whether the evidence supports a suspicion of assistance in persecution. The applicants bear the burden of proving admissibility and are usually unable to overcome this burden.

Similarly, whenever a question arises about the admissibility, under the Holtzman amendment, of an alien applying for adjustment of immigration status or for U.S. citizenship, immigration officials turn to OSI. OSI determines whether the benefit should be denied because of the applicant's activities during the World War II era. If, in the course of vetting such applicants, OSI discovers evidence of assistance in Axis crimes, it institutes removal proceedings. In one such instance, a Lithuanian immigrant's denial of any military service during World War II raised the suspicion of his naturalization examiner. Evidence showed that he served in a unit that assisted in the persecution and murder of Jews. He subsequently agreed to depart permanently from the United States in order to avoid being the subject of OSI-instituted removal proceedings.

V. Prosecutions originating from the OSI watch list

In enforcing the Holtzman Amendment's ban on the entry of aliens who assisted in Axis crimes into the United States, OSI's aim is to return such aliens as quickly as possible to their countries of origin, not to arrest or otherwise detain them. On two occasions, however, immigration officials in Hawaii have arrested the subjects of OSI lookouts and, with OSI's assistance, successfully prosecuted them for visa fraud. See Bob Egelko, Court Upholds Visa Fraud Conviction of SS Guard, The Honolulu Advertiser, July 6, 1991. In two other instances, subjects of OSI lookouts for former concentration camp guards were questioned by immigration authorities when they arrived at ports of entry. They were found to be legal permanent residents whose presence here had gone undetected when INS previously checked their names against U.S. immigration records at OSI's behest. OSI subsequently brought successful removal cases against both men. United States v. Goertz, No. 90-00762-ACK (D. Haw. July 3, 1990); United States v. Paal, No. 90- 00935 DAE (D. Haw. Sept. 4, 1990), aff'd, 937 F.2d 614 (9th Cir. 1991)..

About The Author

Dr. Elizabeth B. White began working as a historian for the Office of Special Investigations in 1983. As Chief of Investigative Research from 1988 to 1997, her responsibilities included developing and enforcing OSI's watch list. She drafted guidelines and provided training for immigration inspectors for questioning and assessing the admissibility of suspected Axis persecutors. She has been OSI's Chief Historian since 1997 and was named Deputy Director in 2004. Her published works include The Disposition of SS-Looted Victim Gold During and After World War II, 14 AM. UNIV. INT'L L. J. 213 (1999) and German Influence in the Argentine Army (Garland Publishing, Inc. 1991).

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.