The Office Of Special Investigation's Prosecution Of World War II Nazi Persecutor Cases
by Adam S. Fels
II. OSI: "all under one roof"
The specialized expertise that OSI has developed allows it to handle the investigation, trial, and appeal of its cases in-house. OSI works closely with the U.S. Attorneys' Offices in the districts in which its cases are brought, and, in some of these cases, Assistant U.S. Attorneys have, at their request, played an active role in the litigation. OSI has also called upon other federal agencies to provide forensic document examination, DNA analysis, and other technical and scientific services.
From an evidentiary perspective, OSI cases are extremely complex. OSI must prosecute cases based on events that transpired more than sixty years ago, in places thousands of miles away from the United States. Given the passage of time, and the routine lack of access to fingerprints, eyewitness testimony, ballistics data, and other forms of evidence commonly used by prosecutors, OSI typically must rely on the written records of the Third Reich and other Axis regimes to successfully prosecute its targets. This unique and highly challenging situation has necessitated the hiring of historians with expertise in the Holocaust and the Third Reich. The historians are at the heart of OSI's investigative efforts in the World War II cases.
While OSI historians engage in a variety of tasks throughout the course of investigation and litigation, their principal task is to locate and review wartime documents and postwar investigative records housed in various archives and document centers throughout Europe and the United States. They reconstruct the whereabouts and activities of OSI's subjects. This painstaking and tedious task is absolutely essential to establishing the grounds for civil prosecution. OSI historians scour concentration camp rosters, transfer orders, incident reports, personnel records, and similar documentation, often written in German or in East European languages, and collect data on individuals mentioned in each document. OSI staff then compares the names, dates of birth, and any other available biographical data, with United States immigration records to ascertain whether any of the individuals mentioned in the Nazi documents immigrated to the United States. Other identifying data on the wartime documents, such as an individual's hometown or parents' names-all of which also appear on an individual's immigration records-confirms that the individual identified on the wartime documentation and the one identified in U.S. immigration records are one and the same. Some think that OSI's cases trace their origin to tips from self-styled "Nazi-hunters," or from the Holocaust victims who recognize their former tormentors in chance encounters in the United States. Virtually all of the prosecutable cases, however, have originated either with allegations made by European governments (during the first years of OSI's existence) or have resulted from the process of comparing names of Axis personnel with U.S. immigration and other government records. To date, OSI has identified more than 70,000 such potential suspects and checked their names against domestic records.
When OSI locates a suspected Nazi persecutor who resides in the United States (or lives abroad as a U.S. citizen), the historian working on the investigation (under the direction of an OSI attorney) will attempt to develop sufficient evidence to establish that the individual assisted, or otherwise participated, in the persecution of civilians because of race, religion, national origin, or political opinion. The additional investigation generally requires extensive research into the individual's wartime history, whereabouts, or into the activities of the Nazi-controlled unit in which the individual allegedly served.
OSI's attorneys' principal contributions to the investigative process include interviewing Holocaust survivors, who can at least attest to the persecution they suffered at a particular location even if they cannot identify the persecutors by name or face. OSI attorneys also contribute to the process by questioning the subjects. For example, Jacob Reimer, Figures 13 and 14 (found on page 37), admitted to an OSI attorney during a 1992 interview in Manhattan, that he led his platoon on a mission to "exterminate a labor camp" and that he fired his weapon during the killing operation while serving as a noncommissioned officer in a Nazi unit in Poland. Interview by Neal Sher and Eli Rosenbaum with Jacob Reimer, New York, NY (May 1,1992). During a 2003 interview in Wisconsin, Josias Kumpf admitted to OSI attorneys that, while serving in the SS in 1943, he stood guard during the mass shootings that accomplished the liquidation of the Jewish labor camp at Trawniki, Poland, for the specific purpose of preventing prisoner escapes. Interview by Michelle Heyer and Stephen Paskey with Josias Kumpf, Racine, Wisconsin (Mar. 24, 2003). As he later elaborated at deposition, "I was watching them shoot some people and some of them come out and run away again. . . . Some people was [sic] shot and not good enough so they was [sic] still able to move, you know. That's what we have to watch outside so that they don't go no place." Deposition of Josias Kumpf, Milwaukee, Wisconsin (May 26, 2004), at 74.
OSI's caseload has not abated despite the inevitable decrease in the number of persecutors who remain alive. This is primarily due to the dissolution of communist rule in eastern and central Europe in the 1990s and the subsequent opening of archives in the former Soviet Union and its satellite countries to OSI historians. As the vast majority of OSI subjects served the Nazis in areas ultimately taken by Soviet forces in 1945, these archives house what is almost certainly, in the aggregate, the largest collection of captured Axis documentation extant. Given the advanced age of OSI subjects, the unit's in-house historians are engaged in an unprecedented race against the clock to locate and examine pertinent materials among these vast collections of documents and help construct, where possible, prosecutable cases.
If an alleged Nazi perpetrator has become a naturalized U.S. citizen, the first step is to bring suit in federal court to obtain an order revoking citizenship. These denaturalization proceedings are initiated by filing a civil complaint in the U.S. District Court in the district in which the individual currently resides. The complaint is filed jointly by OSI and the United States Attorney. The defendant in a denaturalization proceeding is not entitled to a trial by jury. Instead, a federal judge hears the evidence and decides whether the government has presented sufficient evidence to support the defendant's denaturalization. Given that the "right to acquire American citizenship is a precious one," the government must meet a "heavy burden" in order to establish the conditions necessary for denaturalization. Fedorenko v. United States, 449 U.S. 490, 505 (1981). The government's burden of proof-clear, unequivocal, and convincing evidence that does not leave the issue in doubt-is substantially identical to the "beyond a reasonable doubt" burden imposed on the government in criminal cases. Klapprott v. United States, 335 U.S. 601, 612 (1949).
Unlike the situation encountered in criminal cases, however, both sides may obtain pretrial discovery under Fed. R. Civ. P. 26-37. Also, the defendant may not invoke the Fifth Amendment to refrain from answering questions in a deposition about his or her wartime activities. In United States. v. Balsys, 524 U.S. 666, 700 (1998), the Supreme Court ruled that an OSI defendant could not invoke the Fifth Amendment where there was no threat of criminal prosecution in the United States and the only threat of criminal prosecution was in another country. Finally, there is no statute of limitations for bringing a denaturalization suit, Costello v. United States, 365 U.S. 265, 283 (1961), nor can the defendant avail himself of other equitable relief, see Fedorenko, 449 U.S. at 516-17 (once district court has determined that the government has met its burden, court has no discretion to excuse the conduct).
The government can employ either or both of two legal theories to establish grounds for denaturalization in the World War II cases: the defendant's citizenship was "illegally procured," that is, a requirement for naturalization was not met; and/or procured by "concealment of a material fact or by willful misrepresentation." 8 U.S.C. § 1451(a). While the government may allege both grounds for denaturalization in a complaint and at trial, each ground is independently sufficient to support denaturalization. See, e.g., United States v. Tittjung, 235 F.3d 330, 341 (7th Cir. 2000); United States v. Dailide, 227 F.3d 385, 398 (6th Cir. 2000); United States v. Negele, 222 F.3d 443, 448 (8th Cir. 2000).
A. Illegal procurement
Citizenship is "illegally procured" when there has not been "strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Fedorenko, 449 U.S. at 506, 515-26. Illegal procurement can be established by showing, inter alia, that the defendant was not legally eligible to enter the country ("unlawful entry"), 8 U.S.C. § 1427(a)(1), or was not a person of "good moral character" during the period of permanent residence in the United States immediately prior to obtaining citizenship, 8 U.S.C. § 1427(a)(3). In either case, failure to comply strictly with the prerequisites of citizenship renders the resulting citizenship null and void, and the defendant is returned to the same residency status possessed prior to the illegal procurement.
1. Unlawful entry
An individual who entered the United States without a valid visa has committed an unlawful entry. In order to determine whether an individual's visa was valid, courts must refer to the immigration laws and regulations in effect at the time the individual entered the country. The vast majority of OSI subjects entered the country with visas issued under one of two statutes, the Displaced Persons Act of 1948 (DPA), 62 Stat. 1013, or the Refugee Relief Act of 1953 (RRA), Pub. L. 203, 67 Stat. 400 (1953). In addition to meeting all statutory conditions required by the relevant act, individuals entering the country were also required to meet conditions found in State Department regulations, 22 C.F.R. § 53.33(j) (1949), and the general requirements of the United States immigration laws in effect at the time of admission (either the Immigration Act of 1924 for entry prior to June 27, 1952, or the Immigration and Nationality Act of 1952 for all entries after June 27, 1952).
Under the DPA, there are four primary grounds for establishing unlawful entry.
Under the DPA, the government need not prove that the individual intended to assist in persecution "because of" race, religion, or national origin and that the individual's conduct assisted in that persecution. Rather, it is sufficient to prove that the Nazis persecuted because of race, religion, or national origin. See, e.g., Reimer, 2002 WL 32101927, at * 8. Moreover, the individual's persecutory conduct need not be shown to have been voluntary to constitute assistance-inpersecution. Fedorenko, 449 U.S. at 512. By contrast, the government must prove that an individual voluntarily rendered assistance to enemy forces to support a count based on the second primary ground for unlawful entry.
The third primary ground, membership in a "hostile movement," only requires proof that the defendant was a member of an organization that was hostile to the United States during the war. The government need not prove that the defendant engaged in any specific conduct. See, e.g., United States v. Wittje, 333 F. Supp.2d 737, 748 (N.D. Ill. 2004), aff'd, 422 F.3d 479 (7th Cir. 2005). Thus, for example, membership in the forces that guarded SS-run concentration and labor camps or membership in an auxiliary police unit-again, regardless of voluntariness-constitutes membership in a hostile movement. See, e.g., United States v. Demjanjuk, No. 1-99Cv1193, 2002 WL 544622 at *28 (N.D. Ohio, Feb. 21, 2002), aff'd, 367 F.3d 623 (6th Cir.), cert. denied, 125 S. Ct. 429 (2004); United States v. Ciurinskas, 148 F.3d 729, 734 (7th Cir. 1998). Figures 15 and 16 (found on page 37).
The fourth primary ground for unlawful entry is willful misrepresentation made to immigration officials. According to the Supreme Court, in order to establish that a defendant's entry was unlawful because of a willful misrepresentation, the government must prove that: (1) the defendant misrepresented or concealed some fact; (2) the misrepresentation or concealment was willful; (3) the fact was material; that is, the fact had a natural tendency to influence, or was capable of influencing, the decision of the immigration official; and (4) the defendant procured some benefit as a result. Kungys v. United States, 485 U.S. 759, 767, 770, 772 (1988). Although Kungys involved a misrepresentation made by an OSI defendant at the naturalization application stage, courts have applied the Kungys test in situations involving misrepresentations at the visa application stage. See, e.g., United States v. Stelmokas, 100 F.3d 302, 317 (3d Cir. 1996). The government need not show that the defendant would not have received his visa "but for" the misrepresentation or concealment. Kungys, 485 U.S. at 776-77.
The RRA, enacted in 1953, only slightly changed the grounds for unlawful entry. While an individual could no longer be excluded for previous membership in a hostile movement, or for having provided voluntary assistance to enemy forces, the RRA continued to proscribe the entry of individuals who either made a material misrepresentation in the visa application process or who "personally advocated or assisted in the persecution of any person or group of persons because of race, religion, or national origin." RRA §§ 11(e), 14(a), 67 Stat. 400 (1953). Again, as with the DPA, the individual need not be shown to have intended to assist in persecution because of race, religion, or national origin, United States v. Friedrich, 305 F. Supp.2d 1101, 1106 (E.D. Mo. 2004), aff'd, 402 F.3d 842 (8th Cir. 2005); nor must it be shown that the individual's conduct was voluntary, United States v. Hansl, 364 F. Supp.2d 966, 976 (S.D. Iowa 2005), app. docketed, No. 05-2540 (8th Cir. June 6, 2005).
If an individual received a visa under the DPA, then-applicable State Department regulations rendered him or her ineligible to receive a visa if he or she had "advocated or acquiesced in activities or conduct contrary to civilization and human decency on behalf of the Axis countries during . . . [World War II]." 22 C.F.R. § 53.33(j) (1949). For example, this regulation rendered invalid a visa issued to an individual who guarded a Jewish ghetto as a member of a Nazi-sponsored auxiliary police battalion. See United States v. Stelmokas, No. 92- 3440, 1995 WL 464264, *24-25 (E.D. Pa. Aug. 2, 1995), aff'd, 100 F.3d 302, 313 (3d Cir. 1996).
2. Good moral character requirement
Citizenship is also "illegally procured" if a person lacks the "good moral character" necessary for naturalization as a U.S. citizen during the period of permanent residence in the United States immediately prior to obtaining citizenship. 8 U.S.C. § 1427(a)(3). However, the applicant's conduct and acts at any time prior to the application for citizenship bear on the determination of whether the applicant has established the requisite good moral character. 8 U.S.C. § 1427(e). Courts have thus held that an individual lacks "good moral character" if he or she assisted in persecution of civilians during World War II, before the individual commenced residence in this country. See, e.g., Stelmokas, 1995 WL 464264, at *25-26. Similarly, a person who provides false testimony in connection with an application for a visa or for naturalization lacks "good moral character." See INA § 101(f)(6), 8 U.S.C. § 1101(f)(6). A count premised on alleged false testimony requires that the government prove that the defendant had a subjective intent to obtain immigration benefits and made an affirmative misrepresentation under oath (as opposed to merely concealing some information), but unlike a count premised on willful misrepresentation, does not require that the government prove that the misrepresentation was material. Kungys, 485 U.S. at 779-81.
B. Procurement by concealment or misrepresentation
The second basis for denaturalization is procurement of naturalization by concealment or misrepresentation. A count based on alleged procurement by concealment or misrepresentation is identical, in all significant respects, to a count based on illegal procurement by material misrepresentation. The only difference is in the timing of the misrepresentation or concealment. If a misrepresentation or concealment was made during the visa application process, then the government may allege illegal procurement. If the misrepresentation or concealment was made during the naturalization process, then the government may allege procurement by concealment or misrepresentation. As with a material misrepresentation count, the government must prove that a defendant willfully misrepresented or concealed a material fact and that citizenship was procured as a result.
As denaturalization is a civil proceeding, either party may appeal an unfavorable outcome to a federal court of appeals, and, ultimately, may seek review by the United States Supreme Court. OSI lawyers typically handle all appellate proceedings, with the exception of Supreme Court cases, which are handled by the Office of the Solicitor General.
If the government prevails on an illegal procurement or fraudulent procurement theory and a court revokes the defendant's citizenship, OSI must initiate administrative proceedings to have the defendant removed from the country. If the individual was never naturalized, OSI is able to commence removal proceedings without the necessity of first litigating a denaturalizing case.
In order to commence a removal action, OSI and the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security (DHS) jointly file a Notice To Appear (NTA) in the Immigration Court for the jurisdiction in which the individual resides. As with denaturalization proceedings, removal hearings in immigration court are civil proceedings and the government must prove the allegations in the NTA by clear, unequivocal, and convincing evidence that does not leave the issue in doubt. See, e.g., Woodby v. INS, 385 U.S. 276, 286 (1966). The alien may appeal an immigration judge's order of removal to the United States Board of Immigration Appeals (BIA), and if unsuccessful at the BIA, he may then seek review of the removal order in the appropriate federal circuit court, and ultimately, the Supreme Court.
The NTA may assert either (or both) of two independent, but related grounds for removal. The government may claim, under Section 237(a)(1)(A) of the INA, 8 U.S.C. § 1227(a)(1) (A), that the alien was "within one or more of the classes of aliens inadmissible by the law existing at such time. . . ." In order to remove the alien under this ground, it must be established that the alien was ineligible to receive a visa under the statute by which the alien entered the United States, typically either the DPA or RRA. Alternatively (or additionally), the government may proceed under the so-called Holtzman Amendment of the INA that requires the removal of any alien who, during 1933 to 1945, "under the direction of, or in association with the Nazi Government of Germany [or one of the other Axis regimes] . . . ordered, incited, assisted or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion." 8 U.S.C. § 1182(a)(3)(E); 8 U.S.C. § 1227(a)(4)(D). This amendment applies regardless of the law under which the persecutor entered the country. Furthermore, unlike INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), the Holtzman Amendment bars Axis persecutors, as a matter of law, from seeking all forms of relief from removal other than protection under the Convention Against Torture. 8 U.S.C. § 1182(a)(3)(E); 8 U.S.C. § 1229b(c)(4). The language of the Holtzman Amendment tracks the assistance-in-persecution language in both the DPA and the RRA; indeed, it is slightly broader since it applies to individuals who participated in persecution because of political opinion.
The fact that the three statutes are so similarly worded and that the same burden of proof applies at both the denaturalization and removal stages allows OSI to employ the principle of collateral estoppel to prevent relitigation of the assistance-in- persecution issue in immigration court. See, e.g., Hammer v. INS, 195 F.3d 836, 841-42 (6th Cir. 1999); Schellong v. INS, 805 F.2d 655, 660 (7th Cir. 1986). OSI may also use collateral estoppel to bar relitigation of the issues supporting a Section 237(a)(1)(A) count or a Holtzman Amendment count in the NTA if OSI succeeded in proving, at the denaturalization stage, that the alien participated in Nazi-sponsored persecution and therefore was ineligible for a visa under either the DPA or RRA.
If collateral estoppel is not available for all facts required to establish that an alien is removable as charged, then those additional facts must be proved at a removal hearing. Neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence apply at such a hearing. At the removal hearing, OSI may introduce documents and fact and expert witness testimony to establish that the alien is removable. If an order of removal is issued by the immigration judge, after the alien exhausts all administrative and judicial appeals, OSI then works with the State Department and DHS to effectuate removal to a country designated by the immigration judge.
Adam S. Fels served as law clerk to the Honorable Donald M. Middlebrooks, United States District Court Judge for the Southern District of Florida from 1998 through 1999. From 1999 through 2003, Mr. Fels was associated with the Washington D.C. office of the law firm Latham & Watkins LLP, where he specialized in internal corporate investigations and antitrust litigation. He joined the Office of Special Investigations in 2003.
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