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Office of SpecialInvestigations

An Introduction to the Work of the Office of Special Investigations . . . . . 1By Eli M. Rosenbaum

OSI's Prosecution of World War II Nazi Persecutor Cases . . . . . . . . . . . . . 8By Adam S. Fels

Taking the Paper Trail Instead of Memory Lane: OSI's Use of AncientForeign Documents in the Nazi Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

By Gregory S. Gordon

Barring Axis Persecutors from the United States: OSI's "Watch List"Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

By Dr. Elizabeth B. White

Practical Questions and Answers About OSI for AUSAs . . . . . . . . . . . . . . 22By Michelle Heyer

OSI's Expanded Jurisdiction under the Intelligence Reform and TerrorismPrevention Act of 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

By Gregory S. Gordon

Intra- and Inter-Agency Cooperation in the Investigation and Litigation ofCases Involving Modern Human Rights Violators . . . . . . . . . . . . . . . . . . . 30

By Stephen J. Paskey

Photograph Album . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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January 2006

Volume 54Number 1

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In This Issue

JANUARY 2006 UNITED STATES ATTORNEYS ' BULLETIN 1

An Introduction to the Work of theOffice of Special InvestigationsEli M. RosenbaumDirectorOffice of Special InvestigationsCriminal Division

I. Introduction

I am pleased and grateful that the editors ofUSA Bulletin have solicited a series of articles onthe work of the Criminal Division's Office ofSpecial Investigations (OSI). For some readers,much of this material will be familiar. For most,however, it will no doubt represent a firstencounter with OSI's work.

The 20th Century has been termed "The Ageof Atrocity" and also "The Age of Impunity." Itsurely is not hard to see why. Between 1900 and1987 alone, it is estimated that governments andgovernment-like organizations murdered 169million civilians. Yehuda Bauer, Rethinking theHolocaust, 262 YALE U. PRESS (2001). Thatdeeply shocking statistic, to say nothing of thecontinuation of the slaughter into the currentcentury, speaks volumes about the need forsystematic and aggressive law enforcement actionto identify and bring to justice the perpetrators ofcrimes against humanity.

Throughout the quarter-century of itsexistence, OSI, which was created in 1979 byAttorney General Order, has been taking just suchaction and, I believe, securing a significantmeasure of justice in cases of egregious humanrights violations–specifically, Nazi and ImperialJapanese crimes of persecution. See Order No.851-79. Although the United States Constitutionprecludes the institution of criminal prosecutionsbased on the underlying offenses committedabroad during and before World War II, it hasbeen possible to bring civil denaturalization anddeportation/removal actions, and, in the fewinstances in which foreign governments haverequested extradition, to commence extraditionproceedings. The goal has been to remove theperpetrators to countries that possess criminaljurisdiction.

During the past twenty-five years, OSI and itsUnited States Attorneys' Offices partners havewon cases against 101 participants in Nazi crimesagainst humanity–a total that exceeds the numberof such cases won during that period by all othergovernments of the world combined. To date,sixty of these individuals have been removed fromthe United States, helping to vindicate theprinciple that the United States, which has longprovided haven to the victims of persecution, willgrant no sanctuary to the perpetrators of suchcruelties. The defendants have included seniorlevel perpetrators such as Andrija Artukovic(Justice Minister and Interior Minister of AxisCroatia), Figures 1 and 2 (found on page 35), andOtto Albrecht von Bolschwing (an advisor toAdolf Eichmann, the SS official entrusted withcarrying out the mass murder of Europe's Jews),Figure 3 (found on page 35), as well as mid-leveloffenders such as Conrad Schellong (an SS guardsupervisor at the Dachau concentration camp).Figures 4 and 5 (found on page 35).

Other defendants have included what mightbe termed the trigger-pullers of the Holocaust,such as George Theodorovich (who admittedunder questioning by OSI attorneys that he wasindeed the author of the wartime handwritten"bullet reports" obtained from archives in thethen-Soviet Union, reports in which he accountedto his superiors for ammunition he had usedshooting Jews in Nazi-occupied L'viv, Ukraine).Interview with George Theodorovich, by then-OSI Director Neal M. Sher and the author,Philadelphia, Pa. (Dec 17, 1982). Another suchdefendant, Alexander Schweidler, was aMauthausen SS concentration camp guard anddog handler who, as captured SS documentationreflected, shot Allied prisoners of war to deaththere in 1942. Figure 6 (found on page 35). SeeSS report dated April 29, 1942, signed bySchweidler; source: German Bundesarchiv[Federal Archives].

Despite the lateness of the date, OSI's WorldWar II-era caseload remains a relatively heavyone, with nearly twenty of these uniquelychallenging matters still in litigation throughoutthe United States and dozens of suspects

2 UNITED STATES ATTORNEYS ' BULLETIN JANUARY 2006

remaining under active investigation by our smalloffice (eight prosecutors, ten investigativehistorians/country analysts, and eleven supportpersonnel).

With the recent expansion of OSI'sdenaturalization responsibilities to encompassnaturalized U.S. citizens who participated incertain postwar human rights violations abroad,we look forward to being able to continue to counton the women and men of the U.S. Attorneys'Offices for the wise counsel, steadfast dedicationto mission, and stellar prosecutorial skills thathave so often proved invaluable in our jointpursuit of justice on behalf of the victims of Naziinhumanity. In these human rights violator cases,which concern some of the most tragic andhorrific events of modern history, OSI is eager toreceive referrals from U.S. Attorneys' Offices, andwe encourage the active participation of AssistantUnited States Attorneys (AUSAs) in both thedevelopment and prosecution of these challengingcases.

This article is intended to provide a briefintroduction to OSI's history, functions, updatedmission, and the results that have been obtained inthe World War II cases. Other articles in this issuewill expand on some of the topics introduced here.

II. Background

Prior to OSI's 1979 creation, the federalgovernment's efforts in the Nazi cases werehandled principally by the former Immigrationand Naturalization Service (INS). However, inlarge part because the government did not marshalthe historical and other highly specializedexpertise necessary for successful investigation ofthese complex cases, its efforts met mostly withfailure. In the thirty-four years between the end ofWorld War II and the establishment of OSI, justone Nazi persecutor was denaturalized (HermineBraunsteiner-Ryan), and she and just one otherNazi persecutor (Ferenc Vajta) were removedfrom the United States. Numerous other caseswere lost. Congressional hearings in 1977-78 andtwo General Accounting Office studiesdocumented this history and also established thatseveral federal agencies had even employed Nazisuspects and provided immigration assistance tosome of them. In a May 1978 report, the GAOstated that federal "investigations of most casesbefore 1973 were deficient or perfunctory" andthat "[i]n some, no investigation was conducted."

The report added, "There have been no successfulprosecutions since 1973." Report by theComptroller General of the United States,W IDESPREAD CONSPIRACY TO OBSTRUCT PROBES

OF ALLEGED NAZI WAR CRIMINALS NOT

SUPPORTED BY AVAILABLE EVIDENCE --CONTROVERSY MAY CONTINUE 40 (GAO, May15, 1978).

In 1979, Associate Attorney General MichaelJ. Egan announced that the INS unit set up in July1977 to pursue the Nazi cases (the SpecialLitigation Unit, or SLU) would be transferred tothe Justice Department's Criminal Division. Intestimony before the House ImmigrationSubcommittee in March 1979, Egan stated that theSLU had been created "[a]fter at least 25 years ofinaction and indifference by prior administrations,the Immigration and Naturalization Service, andthe Congress." Nevertheless, he acknowledgedthat the SLU had "not worked out as we hadhoped." Prepared Statement of Associate AttorneyGeneral Michael J. Egan before the Subcommitteeon Immigration, Refugee and International Law,House Committee on the Judiciary, ConcerningINS Authorization, Mar. 28, 1979. In subsequenttestimony before that subcommittee in 1980,Assistant Attorney General Philip Heymannacknowledged that the Nazi cases had beenmishandled in the past by the executive branch,adding that the matter had become "something ofa national scandal." Testimony quoted in Requestfor Money to Hunt Nazis Defended, by Michael J.Sniffen, The Associated Press, Mar. 19, 1980.

The SLU's transfer to the Criminal Division ofthe Department of Justice (Department) wasaccomplished through Attorney General OrderNo. 851-79. Pursuant to that Order, OSI wascreated and it was assigned responsibility forcarrying out all of the investigative andprosecutorial activities of the Departmentinvolving individuals who, in association with theNazi Government of Germany and its allies,ordered, incited, assisted, or otherwiseparticipated in the persecution of any personbecause of race, religion, national origin, orpolitical opinion between 1933 and 1945. Since1979, OSI has been responsible for detecting,investigating, and taking legal action todenaturalize and deport/remove such individualsor prevent them from entering the United States.In 1979, these were already the ultimate "coldcases." Despite enormous initialskepticism–within and without the federal


government–that it was possible to prove thesecomplex cases decades after the events inquestion, and to do so in U.S. courts locatedthousands of miles from the scenes of the crimes,the Department has been able to prevail in the vastmajority of these prosecutions. The program'ssuccess has consistently won the U.S.Government an "A" rating in the annual report onworldwide law enforcement activity in the Nazicases issued by the Simon Wiesenthal Center(named after the famed Vienna-based Nazi-hunter)–the only government in the world ever toachieve this rating.

In discharging its responsibility, pursuant tothe Attorney General's 1979 Order, to enforce theprovisions of U.S. law that bar persons who wereinvolved in Nazi/Axis persecution from enteringthe United States (either as immigrants or asvisitors), OSI has compiled and added the namesof nearly 70,000 suspected Axis persecutors to thevisa denial and border control "watchlists"maintained by the Department of HomelandSecurity (DHS) and the Department of State(State). World War II suspects whose names havebeen incorporated in this interagency databasecontinue to attempt to visit this country. To date,more than 170 suspects have been denied entry atairports and other U.S. ports of entry.

In addition, OSI routinely handles inquiriesfrom State regarding applicants for U.S. visas andfrom DHS regarding applicants for naturalization.Over the years, OSI has also undertaken variousspecial projects, among them representing theU.S. Government in a joint German-Israeli-American effort to trace and apprehend theinfamous Auschwitz selector and experimenterDr. Josef Mengele, Figures 7 and 8 (found onpage 36), conducting investigations into U.S.intelligence utilization of former Lyon Gestapochief Klaus Barbie, Figure 9 (found on page 36),and other Nazi criminals, and performing researchinto the fate of gold, artwork, books, and othervaluables looted by the Nazis from their victims.

In recognition of the actuarial reality that theWorld War II prosecutions will inevitably come toan end, and in the expectation that skillsdeveloped at OSI in the Nazi cases could besuccessfully applied in other cases of crimesagainst humanity, support developed in recentyears for applying OSI's expertise to modern-dayhuman rights violators cases. The IntelligenceReform and Terrorism Prevention Act of 2004,Pub. L. No. 108-458, 118 Stat. 3638 (2004),

which was signed by the President in December2004, Figure 10 (found on page 36), provided OSIjurisdiction for investigating and taking legalaction to denaturalize any naturalized U.S. citizenwho participated abroad in acts of genocide or,acting under color of foreign law, in acts of tortureor extrajudicial killing. The Act also mandated theexclusion and removal of such persons,responsibilities that are discharged by theDepartments of State and Homeland Security.

III. Misconceptions about OSI

During my many years of answeringjournalists' questions and responding to inquiriesfrom members of the public, I have been struck bythe persistence of major misconceptions aboutOSI and its work. Some of the more important ofthese misapprehensions are addressed below.

A. Initiation of investigations

Perhaps in large part as a result of fancifulportrayals of "Nazi-hunting" commonly found innovels and motion pictures, it is widely believedthat OSI's Nazi prosecutions originate ininvestigations prompted by tips from private"Nazi hunters" and other concerned individuals,including victims who have encountered andrecognized their former tormenters in theUnited States. However, with one exception, themany hundreds of tips to OSI from such sourceshave never resulted in viable prosecutions. Thelone exception involved Jacob Tannenbaum, abrutal "kapo" (a specially privileged prisoner whosupervised other prisoners for the Nazis) who wasrecognized by a fellow former concentration campinmate. In fact, more than two-thirds of theprosecutions initiated by the office since its 1979creation have resulted from proactiveinvestigative actions taken by OSI staff to identifyperpetrators in the United States. All but four ofthe remaining prosecutions were based onreferrals from European governments or fromother U.S. Government agencies.

B. Investigative methodology

The vast majority of OSI's prosecutions overthe past twenty-five years trace their origin to along-running project that OSI launched in theearly 1980s to attempt to locate surviving Axisrecords. These include, but are not limited to, SSconcentration camp guard rosters, postwar wanted


lists, and other documents from which the unit'sinvestigative staff might gather names ofindividuals who could reasonably be suspected ofhaving participated in wartime crimes. To date,this effort has enabled OSI to identify more than70,000 such potential suspects. By methodicallychecking all of these names against U.S.immigration records and other domestic records,the unit has identified hundreds of suspects whocame to this country.

When such an individual is identified and isconfirmed to be alive, OSI's investigation-in-chiefbegins. These investigations are unconventional ina number of respects. Most notably, whereas atraditional law enforcement investigation is a"whodunit" that begins with a crime and attemptsto identify the perpetrator(s), an OSI investigationtypically begins with a suspect, and theassignment is to determine what, if any, crimescan be attributed to that individual. Of course,proving what a suspect did more than half acentury ago is a daunting challenge, and in theoverwhelming majority of cases, no incriminatingevidence can be found.

It is often assumed that OSI works its WorldWar II investigations and prosecutions extensivelywith outside law enforcement agencies such as theFBI and DHS' Bureau of Immigration andCustoms Enforcement (ICE). In fact, with respectto the Axis persecution cases, OSI is uniquewithin the Department's Criminal Division (andunusual in general among prosecution units in theUnited States) in that it handles substantially all ofthe trial, appellate, and investigative workassociated with its cases on an in-house basis. Theunit does call on other federal agencies forassistance in forensic document examination,DNA analysis, and other technical specialties.Moreover, prosecutors from the U.S. Attorneys'Offices are always welcome to assume significantlitigation responsibilities alongside OSI attorneys,and in some instances AUSAs have done so. Aswill be detailed in a subsequent article, OSI'swork on the modern human rights violator caseswill involve significant interaction between OSIand other federal agencies, particularly ICE.

A unique aspect of OSI's operatingmethodology is its use of staff historians toconduct the bulk of the investigative work. Thereis surprisingly little need in the World War IIcases for traditional "gumshoe" detective work,owing especially to the impossibility of findingliving eyewitnesses in most cases. As OSI

investigations and prosecutions tend to beextremely document-intensive (that is, most casesare proved principally through such evidence ascaptured wartime rosters and reports), historiansare the ideal agents for conducting the necessaryarchival research. OSI's historians, whocollectively possess fluency in nine pertinentforeign languages, are experts at tracking downthe surviving fragments of Nazi documentationand related records in archives throughout theworld, and interpreting them in order to makepossible the partial reconstruction of the wartimewhereabouts and activities of OSI's subjects. Morethan one such individual has responded to his OSIattorney questioner, in frustration and evidentamazement, with a variant of "You seem to knowmore about what happened back then than Ido!"–a tribute, albeit an unintentional one, to theremarkable work performed by OSI's staffhistorians.

C. Caseload

Another common misconception regardingOSI relates to the volume of its caseload. Theseemingly logical deduction that OSI's work hassteadily dwindled over the years is actuallyincorrect. The 1990s brought an unexpectedincrease in OSI's workload. During 1994, forexample, the unit filed seven new cases in federalcourts, its highest single-year total in a decade. In2002, OSI commenced ten new prosecutions, itshighest-ever single-year total. The Atlanta JewishTimes termed this "an incredible feat consideringthe fact that most participants in the Naziatrocities are now well into their seventh or eighthdecade." Amy Keller, Nazi Hunters Race theGrim Reaper, THE ATLANTA JEWISH TIMES 11(Feb. 6, 2004).

The principal reason for this escalation inactivity was the dissolution of communist rule ineastern and central Europe, which resulted in theopening up to OSI investigative personnel ofarchives previously sealed by communistauthorities in the former Soviet Union and itssatellite countries. These archives house what isprobably, in the aggregate, the largest collectionof captured Axis documentation extant. Thiswealth of evidence suddenly and unexpectedlybecame available as the Cold War ended, andOSI's multilingual investigative personnel, liketheir counterparts in other countries, are involvedin an unprecedented race against the clock toexamine as many of these records as possible.


These newly available records have enabled OSIto build compelling cases against existing suspectsand also to locate additional suspects in theUnited States.

Contributing to the record level ofprosecutorial activity in recent years are severalfactors.

• Continuing refinement of OSI's informationmanagement systems and other computerizedsystems employed in its investigative work.

• Increased investigative cooperation fromforeign governments.

• Development of enhanced historicalunderstanding of hitherto little-known Nazioperations through a steady accumulation ofthe fruits of investigative research over theyears.

• In the World War II investigations, as in anyseries of complex investigations, theoccasional stroke of good luck.

D. Burden of proof

Another frequently voiced misconceptionregarding the World War II cases relates to theburden of proof borne by the government in theseprosecutions. As these are civil cases rather thancriminal ones, it is commonly believed that thecivil "preponderance of the evidence" standardapplies, as opposed to the much higher "beyond areasonable doubt" standard applicable in criminalcases. In fact, denaturalization and removal casesmust be proved by "clear, unequivocal andconvincing evidence that does not leave the issuein doubt," a standard that the Supreme Court hasruled is "substantially identical" to the criminalbeyond a reasonable doubt standard. Klapprott v.United States, 335 U.S. 601, 612 (1949).

IV. Other functions performed by OSI

In addition to investigating and prosecutingdenaturalization and removal cases involvingWorld War II-era Axis persecutors, OSI continuesto bear other significant responsibilities, keyexamples of which are described below.

A. Assisting in exclusion of Axisperpetrators

As noted above, OSI assists DHS and theDepartment of State in screening applicants forentrance to the United States and petitioners fornaturalization as U.S. citizens. Even at this latedate, OSI usually receives one or more calls eachmonth from DHS Customs and Border Protection(CBP) immigration inspectors at U.S. airportsseeking assistance because individuals whosenames OSI has contributed to the interagencyborder control/visa denial "watchlist" system havearrived on a flight from abroad. As theseindividuals are seeking immediate entrance to theUnited States, a premium is placed on OSI'sability to provide pertinent information to theinspectors swiftly and on a 24/7 basis.

Among the perpetrators recently preventedfrom entering the United States was FranzDoppelreiter, a convicted Nazi criminal who wasstopped in late 2004 at Atlanta's Hartsfield-Jackson International Airport and admitted underquestioning at the airport that he had physicallyabused prisoners at the notorious Mauthausenconcentration camp while serving in the SS.Interview by U.S. Customs and Border Protectionimmigration inspector [name cannot be divulged]with Franz Doppelreiter, convicted Nazi criminal,in Atlanta, Ga. (Nov. 24, 2004). The best knowninstance of an individual who has been barredfrom entry as a result of OSI investigation is KurtWaldheim, the former Secretary General of theUnited Nations and later President of Austria.Figures 11 and 12 (found on page 36). (OSI'sreport on the Waldheim matter was released to thepublic and is available at http://www.usdoj.gov/criminal/publicdocs/11-1prior/crm14.pdf).

An accompanying article describes in detailhow OSI discharges its responsibility under the1979 Attorney General Order for helping toenforce the provisions of the 1978 U.S. law thatbars persons who were involved in Nazi/Axispersecution from entering the United States.

B. Cooperating with foreign governments

OSI, in coordination with the Department ofState, offers extensive assistance to foreigngovernments in their investigations andprosecutions of suspected Nazi criminals, andencourages governments to launch such


investigations and prosecute perpetrators. In manyinstances over the past two decades, this hasinvolved undertaking extensive efforts to persuadeforeign governments to take law enforcementaction despite initial reluctance to prosecute, oreven to investigate, any Nazi cases. In oneinstance, OSI dispatched attorneys to work withprosecutors for two weeks in a European capital,with the result that war crimes charges werebrought against a former officer in a Nazi killingsquad. The Simon Wiesenthal Center has publiclycommended the Department for its longtimeefforts to "facilitat[e] the prosecution of such[Nazi] criminals in other countries." SimonWiesenthal Center, NAZI WAR CRIMINALS

PROSECUTION - ANNUAL STATUS REPORT, 8 (Apr.19, 2001).

C. Representing the Department inWWII-related interagency projects

In addition to its independent efforts to locatesignificant information related to Axis criminalsand their crimes and disclose this to the public–asreflected most notably in OSI's publicly issuedreports on the fate of Auschwitz perpetrator Dr.Josef Mengele, Figures 7 and 8, and on U.S.intelligence utilization of former Lyon Gestapochief Klaus Barbie, Figure 9, and other Nazicriminals–OSI has participated in a variety ofinteragency projects that have sought to gatherand make public information on Nazi crimes andtheir aftermath that had long been withheld or wasotherwise unknown to scholars and the generalpublic.

In one such instance, OSI served as the leadDepartment component in a presidentially orderedinteragency effort commenced in 1996 to trace thefate of victim assets looted by the Nazis, includinggold that had been ripped from the mouths ofcivilians murdered in the concentration camps.OSI's research at the U.S. National Archives andelsewhere succeeded in finding the long-elusiveproof that Holocaust victim-origin gold wastransferred by Germany to Switzerland during thewar and was included in gold that was shipped tothe Tripartite Gold Commission (TGC) by U.S.occupation authorities in postwar Germany, fordistribution to European central banks. Thisdiscovery led directly to the liquidation of somesixty million dollars' worth of so-called residualgold by the TGC, and the distribution of theproceeds to needy Holocaust survivors throughoutthe world. (Indeed, these were the very first

compensatory funds to be received by Holocaustsurvivors in the wake of the internationalcommunity's "rediscovery" in the 1990s of theNazis' crimes of despoliation.)

In the course of its research, OSI also foundcaptured German documents revealing that theNazis devised and implemented a secret programof shipping jewelry taken from Jews toSwitzerland. This jewelry (explicitly identified inthe documents as "Jewish jewelry") was sent bydiplomatic pouch to the German legation inBerne, where it was retrieved by a German agentwho then used it to purchase industrial diamondsessential to the German war effort. See, e.g.,captured Feb. 1, 1943, report of German ForeignMinstry official Ernst Rademacher, United StatesNational Archives, Microform Series T120, RollNo. 1003, Frame 394154. OSI staff alsosucceeded in tracing the surviving records of theReichsbank Precious Metals Department, whichhad been unseen for nearly five decades. InSeptember 1997, the members of OSI's"Holocaust Assets" team received the AssistantAttorney General's Award for Special Initiative, inrecognition of their accomplishments.

The public report of the interagency groupwas released in May 1997 to widespread domesticand international acclaim, and it was commendedfor elements that were directly attributable toOSI's involvement. These included the landmarktracing of victim-origin gold to Switzerland andthe postwar Allied gold pool, and the disclosuresconcerning 1946 executive branch responses toCongressional inquiries regarding postwarnegotiations with Switzerland for the surrender oflooted gold. A second interagency report wasreleased in June 1998. It focused primarily on thewartime and postwar conduct of Sweden, Spain,Portugal, Turkey, and Argentina, as well as onallegations that gold of the wartime Axisgovernment of Croatia had been transferred to theVatican.

In December 1998, OSI completed apreliminary investigation of the holdings of theNational Gallery of Art in Washington, D.C. OSIadvised the Gallery that four works, including StillLife with Fruit and Game by the 17th centuryFlemish artist Frans Snyders, were possiblyidentical to works that were looted by the Nazisand found listed by OSI in postwar Office ofStrategic Services (OSS) reports of still-missingartworks. (OSI's probe began by comparing thenames of works listed in postwar records of the


former OSS as missing with works listed on theGallery's website.) In November 2000, theNational Gallery announced that it would returnthe Snyders painting to the French Jewish familyfrom which it was looted by the Nazis during theSecond World War.

Following enactment in October 1998 of theNazi War Crimes Disclosure Act, Pub. L. No.105-246, 112 Stat. 1859 (1998), OSI undertookmajor responsibility within the newly-establishedNazi War Criminal Records Interagency WorkingGroup (IWG). OSI was to assist in theunprecedented government-wide effort to locate,declassify, and disclose to the public, classifieddocuments pertaining to Nazi criminals and totransactions in plundered assets of Holocaustvictims. This compliance effort is continuing atthis writing. It constitutes the largest search-declassify-and-disclose operation in history. Todate, more than 100 million documents, found atthe CIA, FBI, Department of Defense, Departmentof Justice, and other agencies, have been screenedfor relevance, and more than eight million ofthem–some containing information of greathistorical importance–have been found relevantand have been declassified for public release.

D. Assistance to U.S. Attorneys' Offices

In light of its expertise in complexdenaturalization cases and its experience in WorldWar II human rights abuser cases, OSI hasoccasionally been called upon in recent years toprovide assistance to U.S. Attorneys' Offices incriminal naturalization fraud and civildenaturalization cases against suspected terroristsand other post-World War II human rightsviolators. U.S. Attorneys' Offices are encouragedto call upon OSI whenever situations arise inwhich it is believed that our assistance might behelpful.

V. The new jurisdiction

OSI's currently elevated activity levelnotwithstanding, it is clear that the World War IIinvestigation/prosecution program will eventuallybe phased out as the pool of suspects and thecommunity of witnesses inevitably shrink overtime. However, the December 2004 intelligencereform bill ensured that the unit would haveimportant work to do for the foreseeable future.

Beginning in the late 1990s, media reportsidentified multiple alleged human rights violatorsliving in the United States, and human rightsgroups charged that many such individuals hadmanaged to immigrate to the United States. See,e.g., Amnesty International, UNITED STATES OF

AMERICA: A SAFE HAVEN FOR TORTURERS

(2002). Allegations that the United States hasbecome home to a large number of aliens andnaturalized citizens who participated in warcrimes, crimes against humanity, torture, andother serious human rights violations abroadbefore immigrating to the United States attractedcongressional and scholarly attention. See, e.g.,S. REP. NO. 108-209, at 1-5 (2004) (in support ofS.710, the Anti-Atrocity Alien Deportation Act of2003), Nov. 24, 2003, at 1-5; William J. Acevesand Paul L. Hoffman, Using Immigration Law toProtect Human Rights: A Legislative Proposal, 20M ICH. J. INT'L LAW 657 (1999).

The Intelligence Reform and TerrorismPrevention Act of 2004, supra, signed into law bythe President on December 17, 2004, providedOSI jurisdiction for detecting, investigating, andbringing denaturalization actions against personswho participated at any time outside theUnited States in genocide or, when committedunder color of law of a foreign nation, torture, orextrajudicial killings. This expansion of OSI'smission ensures that the unit and its partners in theUSAOs, DHS, FBI, and other agencies will havemuch important work to do for the foreseeablefuture. Since receiving this new assignment, OSIhas moved swiftly to establish the new program,and looks forward to working with the U.S.Attorneys' Offices in this important endeavor.

VI. Conclusion

Over the past twenty-five years, the Office ofSpecial Investigations has amassed considerableexpertise in World War II human rights violatorcases, and it has applied that expertise primarily inthe litigation of complex denaturalization andremoval cases against Nazi criminals. The Office'sresources have also been deployed in aid of theefforts of other government agencies, includingother Department components, to pursue lawenforcement, and remunerative and/or historicaljustice in matters related to Axis crimes, as well asin matters wholly unrelated to those ghastlycrimes. It is hoped that this quarter-century ofhuman rights and denaturalization experience, andthe outstanding relationships that OSI has built


during this period with the U.S. Attorneys' Officesin particular, will serve the unit and the publicwell as OSI transitions into prosecuting themodern human rights violator denaturalizationcases. It is further hoped that the informationpresented in the foregoing account and in thearticles that follow will help promote expandedcooperation between the United States Attorneys'Offices and OSI in these important cases.�

ABOUT THE AUTHOR

�Eli M. Rosenbaum served as a trial attorney atthe Office of Special Investigations from 1980 to1984. Following turns as a corporate litigator withSimpson Thacher & Bartlett in New York Cityand as general counsel of an international humanrights organization headquartered in the same city,he returned to OSI as Deputy Director in 1988. In1995, he was appointed Director of that office.BETRAYAL, his book on the Kurt Waldheim affair,was published by St. Martin's Press. He has taughtfinance at the Wharton School and has lecturedwidely on OSI's work.a

OSI's Prosecution of World War IINazi Persecutor CasesAdam S. FelsTrial AttorneyOffice of Special InvestigationsCriminal Division

I. Introduction

For the first quarter-century of its existence,the Office of Special Investigations (OSI) wastasked solely with detecting, investigating, andtaking legal action to denaturalize and/or deportindividuals who, in association with the NaziGovernment of Germany and its allies, ordered,incited, assisted, or otherwise participated in thepersecution of civilians because of race, religion,national origin, or political opinion. In December2004, the scope of OSI's work was greatlyexpanded by the Intelligence Reform andTerrorism Prevention Act of 2004 (IRTPA), Pub.L. No. 108-458, 118 Stat. 3638. OSI, however,still devotes a very significant portion of its timeand resources to investigating and prosecutingthose who assisted the Nazis in their genocidalreign of terror.

OSI fulfills its responsibilities in the WorldWar II cases in three ways.

• Suits are brought in federal district courtsseeking to revoke the United Statescitizenship of individuals implicated in theNazis' persecution of civilians, such as themass murder of Jews and other crimes againsthumanity.

• Removal actions are commenced inUnited States immigration courts to removenoncitizens or former citizens from theUnited States because of their assistance orparticipation in persecution of civilians duringWorld War II.

• A border control "watchlist" is maintained andenforced to prevent suspected Axispersecutors from entering the country.

To date, OSI has won cases against 101individuals who assisted in Nazi persecution. Inaddition, over 170 suspected European andJapanese World War II perpetrators who sought toenter the United States in recent years have beenblocked from doing so as a result of OSI's "WatchList" program.


II. OSI: "all under one roof"

The specialized expertise that OSI hasdeveloped allows it to handle the investigation,trial, and appeal of its cases in-house. OSI worksclosely with the U.S. Attorneys' Offices in thedistricts in which its cases are brought, and, insome of these cases, Assistant U.S. Attorneyshave, at their request, played an active role in thelitigation. OSI has also called upon other federalagencies to provide forensic documentexamination, DNA analysis, and other technicaland scientific services.

From an evidentiary perspective, OSI casesare extremely complex. OSI must prosecute casesbased on events that transpired more than sixtyyears ago, in places thousands of miles away fromthe United States. Given the passage of time, andthe routine lack of access to fingerprints,eyewitness testimony, ballistics data, and otherforms of evidence commonly used by prosecutors,OSI typically must rely on the written records ofthe Third Reich and other Axis regimes tosuccessfully prosecute its targets. This unique andhighly challenging situation has necessitated thehiring of historians with expertise in theHolocaust and the Third Reich. The historians areat the heart of OSI's investigative efforts in theWorld War II cases.

III. Investigation

While OSI historians engage in a variety oftasks throughout the course of investigation andlitigation, their principal task is to locate andreview wartime documents and postwarinvestigative records housed in various archivesand document centers throughout Europe and theUnited States. They reconstruct the whereaboutsand activities of OSI's subjects. This painstakingand tedious task is absolutely essential toestablishing the grounds for civil prosecution. OSIhistorians scour concentration camp rosters,transfer orders, incident reports, personnelrecords, and similar documentation, often writtenin German or in East European languages, andcollect data on individuals mentioned in eachdocument. OSI staff then compares the names,dates of birth, and any other availablebiographical data, with United States immigrationrecords to ascertain whether any of the individualsmentioned in the Nazi documents immigrated tothe United States. Other identifying data on the

wartime documents, such as an individual'shometown or parents' names–all of which alsoappear on an individual's immigrationrecords–confirms that the individual identified onthe wartime documentation and the one identifiedin U.S. immigration records are one and the same.Some think that OSI's cases trace their origin totips from self-styled "Nazi-hunters," or from theHolocaust victims who recognize their formertormentors in chance encounters in theUnited States. Virtually all of the prosecutablecases, however, have originated either withallegations made by European governments(during the first years of OSI's existence) or haveresulted from the process of comparing names ofAxis personnel with U.S. immigration and othergovernment records. To date, OSI has identifiedmore than 70,000 such potential suspects andchecked their names against domestic records.

When OSI locates a suspected Nazi persecutorwho resides in the United States (or lives abroadas a U.S. citizen), the historian working on theinvestigation (under the direction of an OSIattorney) will attempt to develop sufficientevidence to establish that the individual assisted,or otherwise participated, in the persecution ofcivilians because of race, religion, national origin,or political opinion. The additional investigationgenerally requires extensive research into theindividual's wartime history, whereabouts, or intothe activities of the Nazi-controlled unit in whichthe individual allegedly served.

OSI's attorneys' principal contributions to theinvestigative process include interviewingHolocaust survivors, who can at least attest to thepersecution they suffered at a particular locationeven if they cannot identify the persecutors byname or face. OSI attorneys also contribute to theprocess by questioning the subjects. For example,Jacob Reimer, Figures 13 and 14 (found on page37), admitted to an OSI attorney during a 1992interview in Manhattan, that he led his platoon ona mission to "exterminate a labor camp" and thathe fired his weapon during the killing operationwhile serving as a noncommissioned officer in aNazi unit in Poland. Interview by Neal Sher andEli Rosenbaum with Jacob Reimer, New York,NY (May 1,1992). During a 2003 interview inWisconsin, Josias Kumpf admitted to OSIattorneys that, while serving in the SS in 1943, hestood guard during the mass shootings thataccomplished the liquidation of the Jewish laborcamp at Trawniki, Poland, for the specific purpose


of preventing prisoner escapes. Interview byMichelle Heyer and Stephen Paskey with JosiasKumpf, Racine, Wisconsin (Mar. 24, 2003). As helater elaborated at deposition, "I was watchingthem shoot some people and some of them comeout 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 haveto 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 theinevitable decrease in the number of persecutorswho remain alive. This is primarily due to thedissolution of communist rule in eastern andcentral Europe in the 1990s and the subsequentopening of archives in the former Soviet Unionand its satellite countries to OSI historians. As thevast majority of OSI subjects served the Nazis inareas ultimately taken by Soviet forces in 1945,these archives house what is almost certainly, inthe aggregate, the largest collection of capturedAxis documentation extant. Given the advancedage of OSI subjects, the unit's in-house historiansare engaged in an unprecedented race against theclock to locate and examine pertinent materialsamong these vast collections of documents andhelp construct, where possible, prosecutable cases.

IV. Denaturalization

If an alleged Nazi perpetrator has become anaturalized U.S. citizen, the first step is to bringsuit in federal court to obtain an order revokingcitizenship. These denaturalization proceedingsare initiated by filing a civil complaint in the U.S.District Court in the district in which theindividual currently resides. The complaint is filedjointly by OSI and the United States Attorney.The defendant in a denaturalization proceeding isnot entitled to a trial by jury. Instead, a federaljudge hears the evidence and decides whether thegovernment has presented sufficient evidence tosupport the defendant's denaturalization. Giventhat the "right to acquire American citizenship is aprecious one," the government must meet a"heavy burden" in order to establish theconditions 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 doesnot leave the issue in doubt–is substantiallyidentical 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 criminalcases, however, both sides may obtain pretrialdiscovery under Fed. R. Civ. P. 26-37. Also, thedefendant may not invoke the Fifth Amendmentto refrain from answering questions in adeposition about his or her wartime activities. InUnited States. v. Balsys, 524 U.S. 666, 700(1998), the Supreme Court ruled that an OSIdefendant could not invoke the Fifth Amendmentwhere there was no threat of criminal prosecutionin the United States and the only threat of criminalprosecution was in another country. Finally, thereis no statute of limitations for bringing adenaturalization suit, Costello v. United States,365 U.S. 265, 283 (1961), nor can the defendantavail himself of other equitable relief, seeFedorenko, 449 U.S. at 516-17 (once district courthas determined that the government has met itsburden, court has no discretion to excuse theconduct).

The government can employ either or both oftwo legal theories to establish grounds fordenaturalization in the World War II cases: thedefendant's citizenship was "illegally procured,"that is, a requirement for naturalization was notmet; and/or procured by "concealment of amaterial fact or by willful misrepresentation." 8U.S.C. § 1451(a). While the government mayallege both grounds for denaturalization in acomplaint and at trial, each ground isindependently sufficient to supportdenaturalization. See, e.g., United States v.Tittjung, 235 F.3d 330, 341 (7th Cir. 2000);United States v. Dailide, 227 F.3d 385, 398 (6thCir. 2000); United States v. Negele, 222 F.3d 443,448 (8th Cir. 2000).

A. Illegal procurement

Citizenship is "illegally procured" when therehas not been "strict compliance with all thecongressionally imposed prerequisites to theacquisition of citizenship." Fedorenko, 449 U.S.at 506, 515-26. Illegal procurement can beestablished by showing, inter alia, that thedefendant was not legally eligible to enter thecountry ("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 theUnited States immediately prior to obtainingcitizenship, 8 U.S.C. § 1427(a)(3). In either case,


failure to comply strictly with the prerequisites ofcitizenship renders the resulting citizenship nulland void, and the defendant is returned to thesame residency status possessed prior to the illegalprocurement. 1. Unlawful entry

An individual who entered the United Stateswithout a valid visa has committed an unlawfulentry. In order to determine whether anindividual's visa was valid, courts must refer tothe immigration laws and regulations in effect atthe time the individual entered the country. Thevast majority of OSI subjects entered the countrywith visas issued under one of two statutes, theDisplaced 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 tomeeting all statutory conditions required by therelevant act, individuals entering the country werealso required to meet conditions found in StateDepartment regulations, 22 C.F.R. § 53.33(j)(1949), and the general requirements of theUnited States immigration laws in effect at thetime of admission (either the Immigration Act of1924 for entry prior to June 27, 1952, or theImmigration and Nationality Act of 1952 for allentries after June 27, 1952).

Under the DPA, there are four primarygrounds for establishing unlawful entry.

• Assistance in the persecution of civilians.

• Voluntary assistance to enemy forces.

• Membership or participation in a movementhostile to the United States.

• Willful misrepresentation to immigrationofficials.

While a number of these grounds may beincorporated in a complaint, the most commonly-included count alleges assistance-in-persecution.The touchstone in determining what constitutesassistance-in-persecution under the DPA is theSupreme Court case of Fedorenko v.United States. After noting that other cases mightpresent "more difficult line-drawing problems,"the Court held that an armed concentration campguard assisted in persecution under the DPA. 449U.S. at 512 n.34. In the wake of Fedorenko,various federal courts have held that a broad rangeof conduct constitutes "assistance-in-persecution"under the DPA. See, e.g., United States v.

Sokolov, 814 F.2d 864, 874 (2d Cir. 1987)(publishing anti-Semitic articles in newspaper inNazi-occupied Russia constituted "assistance-in-persecution"); United States v. Reimer, No. 92-Civ-4638, 2002 WL 32101927 at *9 (S.D.N.Y.Sept. 3, 2002) (individual who provided logisticalsupport for guards who liquidated ghetto assistedin persecution under the DPA, as amended), aff'd356 F.3d 456 (2d Cir. 2004); United States v.Dercacz, 530 F. Supp. 1348, 1351 (E.D.N.Y.1982) (member of local police force who arrestedJews for failing to wear armbands identifyingthem as Jews assisted in persecution);United States v. Osidach, 513 F. Supp. 51, 97-99(E.D. Pa. 1981) (member of local police assistedin persecution by serving both as an interpreterand a uniformed patrolman).

Under the DPA, the government need notprove that the individual intended to assist inpersecution "because of" race, religion, or nationalorigin and that the individual's conduct assisted inthat persecution. Rather, it is sufficient to provethat the Nazis persecuted because of race, religion,or national origin. See, e.g., Reimer, 2002 WL32101927, at * 8. Moreover, the individual'spersecutory conduct need not be shown to havebeen voluntary to constitute assistance-in-persecution. Fedorenko, 449 U.S. at 512. Bycontrast, the government must prove that anindividual voluntarily rendered assistance toenemy forces to support a count based on thesecond primary ground for unlawful entry.

The third primary ground, membership in a"hostile movement," only requires proof that thedefendant was a member of an organization thatwas hostile to the United States during the war.The government need not prove that the defendantengaged 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 theforces that guarded SS-run concentration andlabor camps or membership in an auxiliary policeunit–again, regardless of voluntariness–constitutesmembership 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 entryis willful misrepresentation made to immigration


officials. According to the Supreme Court, inorder to establish that a defendant's entry wasunlawful because of a willful misrepresentation,the government must prove that: (1) the defendantmisrepresented or concealed some fact; (2) themisrepresentation or concealment was willful; (3)the fact was material; that is, the fact had a naturaltendency to influence, or was capable ofinfluencing, the decision of the immigrationofficial; and (4) the defendant procured somebenefit as a result. Kungys v. United States, 485U.S. 759, 767, 770, 772 (1988). Although Kungysinvolved a misrepresentation made by an OSIdefendant at the naturalization application stage,courts have applied the Kungys test in situationsinvolving misrepresentations at the visaapplication stage. See, e.g., United States v.Stelmokas, 100 F.3d 302, 317 (3d Cir. 1996). Thegovernment need not show that the defendantwould not have received his visa "but for" themisrepresentation or concealment. Kungys, 485U.S. at 776-77.

The RRA, enacted in 1953, only slightlychanged the grounds for unlawful entry. While anindividual could no longer be excluded forprevious membership in a hostile movement, orfor having provided voluntary assistance to enemyforces, the RRA continued to proscribe the entryof individuals who either made a materialmisrepresentation in the visa application processor who "personally advocated or assisted in thepersecution of any person or group of personsbecause of race, religion, or national origin." RRA§§ 11(e), 14(a), 67 Stat. 400 (1953). Again, aswith the DPA, the individual need not be shownto have intended to assist in persecution becauseof race, religion, or national origin, United Statesv. 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 conductwas 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 theDPA, then-applicable State Departmentregulations rendered him or her ineligible toreceive a visa if he or she had "advocated oracquiesced in activities or conduct contrary tocivilization and human decency on behalf of theAxis countries during . . . [World War II]." 22C.F.R. § 53.33(j) (1949). For example, thisregulation rendered invalid a visa issued to anindividual who guarded a Jewish ghetto as a

member of a Nazi-sponsored auxiliary policebattalion. 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 aperson lacks the "good moral character" necessaryfor naturalization as a U.S. citizen during theperiod of permanent residence in the United Statesimmediately prior to obtaining citizenship. 8U.S.C. § 1427(a)(3). However, the applicant'sconduct and acts at any time prior to theapplication for citizenship bear on thedetermination of whether the applicant hasestablished the requisite good moral character. 8U.S.C. § 1427(e). Courts have thus held that anindividual lacks "good moral character" if he orshe assisted in persecution of civilians duringWorld War II, before the individual commencedresidence in this country. See, e.g., Stelmokas,1995 WL 464264, at *25-26. Similarly, a personwho provides false testimony in connection withan application for a visa or for naturalization lacks"good moral character." See INA § 101(f)(6), 8U.S.C. § 1101(f)(6). A count premised on allegedfalse testimony requires that the governmentprove that the defendant had a subjective intent toobtain immigration benefits and made anaffirmative misrepresentation under oath (asopposed to merely concealing some information),but unlike a count premised on willfulmisrepresentation, does not require that thegovernment prove that the misrepresentation wasmaterial. Kungys, 485 U.S. at 779-81.

B. Procurement by concealment ormisrepresentation

The second basis for denaturalization isprocurement of naturalization by concealment ormisrepresentation. A count based on allegedprocurement by concealment or misrepresentationis identical, in all significant respects, to a countbased on illegal procurement by materialmisrepresentation. The only difference is in thetiming of the misrepresentation or concealment. Ifa misrepresentation or concealment was madeduring the visa application process, then thegovernment may allege illegal procurement. If themisrepresentation or concealment was madeduring the naturalization process, then thegovernment may allege procurement by


concealment or misrepresentation. As with amaterial misrepresentation count, the governmentmust prove that a defendant willfullymisrepresented or concealed a material fact andthat citizenship was procured as a result.

C. Appeals

As denaturalization is a civil proceeding,either party may appeal an unfavorable outcometo a federal court of appeals, and, ultimately, mayseek review by the United States Supreme Court.OSI lawyers typically handle all appellateproceedings, with the exception of Supreme Courtcases, which are handled by the Office of theSolicitor General.

V. Removal

If the government prevails on an illegalprocurement or fraudulent procurement theoryand a court revokes the defendant's citizenship,OSI must initiate administrative proceedings tohave the defendant removed from the country. Ifthe individual was never naturalized, OSI is ableto commence removal proceedings without thenecessity of first litigating a denaturalizing case.

In order to commence a removal action, OSIand the Bureau of Immigration and CustomsEnforcement of the Department of HomelandSecurity (DHS) jointly file a Notice To Appear(NTA) in the Immigration Court for thejurisdiction in which the individual resides. Aswith denaturalization proceedings, removalhearings in immigration court are civilproceedings and the government must prove theallegations in the NTA by clear, unequivocal, andconvincing evidence that does not leave the issuein doubt. See, e.g., Woodby v. INS, 385 U.S. 276,286 (1966). The alien may appeal an immigrationjudge's order of removal to the United StatesBoard of Immigration Appeals (BIA), and ifunsuccessful at the BIA, he may then seek reviewof the removal order in the appropriate federalcircuit court, and ultimately, the Supreme Court.

The NTA may assert either (or both) of twoindependent, but related grounds for removal. Thegovernment may claim, under Section237(a)(1)(A) of the INA, 8 U.S.C. § 1227(a)(1)(A), that the alien was "within one or more of theclasses of aliens inadmissible by the law existingat such time. . . ." In order to remove the alienunder this ground, it must be established that the

alien was ineligible to receive a visa under thestatute by which the alien entered theUnited States, typically either the DPA or RRA.Alternatively (or additionally), the governmentmay proceed under the so-called HoltzmanAmendment of the INA that requires the removalof any alien who, during 1933 to 1945, "under thedirection of, or in association with the NaziGovernment of Germany [or one of the other Axisregimes] . . . ordered, incited, assisted orotherwise participated in the persecution of anyperson because of race, religion, national origin,or political opinion." 8 U.S.C. § 1182(a)(3)(E); 8U.S.C. § 1227(a)(4)(D). This amendment appliesregardless of the law under which the persecutorentered the country. Furthermore, unlike INA§ 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), theHoltzman Amendment bars Axis persecutors, as amatter of law, from seeking all forms of relieffrom removal other than protection under theConvention Against Torture. 8 U.S.C.§ 1182(a)(3)(E); 8 U.S.C. § 1229b(c)(4). Thelanguage of the Holtzman Amendment tracks theassistance-in-persecution language in both theDPA and the RRA; indeed, it is slightly broadersince it applies to individuals who participated inpersecution because of political opinion.

The fact that the three statutes are so similarlyworded and that the same burden of proof appliesat both the denaturalization and removal stagesallows OSI to employ the principle of collateralestoppel to prevent relitigation of the assistance-in-persecution issue in immigration court. See,e.g., Hammer v. INS, 195 F.3d 836, 841-42 (6thCir. 1999); Schellong v. INS, 805 F.2d 655, 660(7th Cir. 1986). OSI may also use collateralestoppel to bar relitigation of the issues supportinga Section 237(a)(1)(A) count or a HoltzmanAmendment count in the NTA if OSI succeededin proving, at the denaturalization stage, that thealien participated in Nazi-sponsored persecutionand therefore was ineligible for a visa under eitherthe DPA or RRA.

If collateral estoppel is not available for allfacts required to establish that an alien isremovable as charged, then those additional factsmust be proved at a removal hearing. Neither theFederal Rules of Civil Procedure nor the FederalRules of Evidence apply at such a hearing. At theremoval hearing, OSI may introduce documentsand fact and expert witness testimony to establishthat the alien is removable. If an order of removalis issued by the immigration judge, after the alien


exhausts all administrative and judicial appeals,OSI then works with the State Department andDHS to effectuate removal to a countrydesignated by the immigration judge.

ABOUT THE AUTHOR

�Adam S. Fels served as law clerk to theHonorable Donald M. Middlebrooks,United States District Court Judge for theSouthern District of Florida from 1998 through1999. From 1999 through 2003, Mr. Fels wasassociated with the Washington D.C. office of thelaw firm Latham & Watkins LLP, where hespecialized in internal corporate investigationsand antitrust litigation. He joined the Office ofSpecial Investigations in 2003.a

Taking the Paper Trail Instead ofMemory Lane: OSI's Use of AncientForeign Documents in the Nazi CasesGregory S. GordonSenior Trial AttorneyOffice of Special InvestigationsCriminal Division

"And I would sooner trust the smallest slip ofpaper for truth, than the strongest and mostretentive memory, ever bestowed on mortalman."

Georgia Supreme Court Chief Justice Joseph H.Lumpkin, Miller v. Cotton, 5 Ga. 341, 349 (1848).

I. Introduction

A United States district court judge oncemarveled at the ability of the Office of SpecialInvestigations (OSI) "to discover the acts of asingle individual across the temporal expanse offifty years and a distance of an ocean and half acontinent." United States v. Hajda, 963 F. Supp.1452, 1457 (N.D. Ill. 1997), aff'd, 135 F.3d 439(7th Cir. 1998). In murdering millions of unarmedcivilians, the Nazis ensured that there would befew potential survivors who could stand aswitnesses to their crimes. Moreover, the majorityof the surviving victims have died in the sixdecades since the war ended. Of those remaining,

few were in a position during the war to learn thenames of their tormentors or to gaincomprehensive, first-hand knowledge of theiractions. With the passage of decades, theperpetrators now bear scant physical resemblanceto their wartime appearance, rendering lineup orin-court identification a virtual impossibility.Although OSI has found cohorts of its targets,most are reluctant in the extreme to testify, or totestify candidly, for fear of implicatingthemselves.

OSI owes much of its success, therefore, tothe treasure trove of documents, including rosters,reports, and correspondence, left behind by Nazibureaucrats and their agents in the field. Thesewartime documents often mask the horror thatgave rise to their existence as they recite, in bone-chillingly matter-of-fact language, names,numbers, statistics, and terse narratives. Suchevidence is usually clear and compelling on itsface. Yet because the documents embodying suchevidence are often in excess of sixty-years old andare the product of a foreign regime that has longsince vanished, they typically require explicationby expert historians for courts to understand theirfull import.


How do OSI prosecutors manage to buildtheir cases on the cornerstone of such historicaland foreign documentation? The answer is that,with the proper foundation laid, nearly all courtshave found such evidence to be entirelytrustworthy and extremely persuasive. Thedocuments are typically, though not exclusively,authenticated as ancient documents (being twentyyears or older) under Fed. R. Evid. 901(b)(8), orforeign public documents under Fed. R. Civ. P.44(a)(2) and Fed. R. Evid. 902(3). They areregularly exempted from the hearsay rule by, interalia, the ancient documents exception of Fed. R.Evid. 803(16), the public records or reportsexception of Fed. R. Evid. 803(8), or the businessrecords exception of Fed. R. Evid. 803(6).

Although decades-old documentation fromdefunct regimes is rarely used in non-OSI federalprosecutions, it has been the bread-and-butter ofOSI's Nazi cases. Such evidence may continue toplay a vital role in OSI's denaturalization casesagainst post-World War II human rights violators,who may have committed their crimes abroadduring the 1970s and 1980s, if not earlier. Thus,prosecution of such targets will often involveforeign documents that have been in existence fortwenty years or longer. As a result, those who willprosecute denaturalization cases involving Nazi-era, or more recently perpetrated human rightsviolations, would do well to familiarizethemselves with the rules and mechanics ofworking with these ancient foreign documents.

II. Authentication

Fed. R. Evid. 901(a) provides that "[t]herequirement of authentication or identification as acondition precedent to admissibility is satisfied byevidence sufficient to support a finding that thematter in question is what its proponent claims."Moreover, the burden of proof for authenticationis "slight." Link v. Mercedez-Benz of N. Am., 788F.2d 918, 927 (3d Cir. 1989). "[T]here need onlybe a prima facie showing, to the court, ofauthenticity, not a full argument on admissibility."Threadgill v. Armstrong World Indus., 928 F.2d1366, 1375 (3d Cir. 1991).

A. Ancient documents rule

An example of authentication meeting therequirements of Fed. R. Evid. 901(a) is set forth inRule 901(b)(8).

Evidence that a document or datacompilation, in any form, (A) is in suchcondition as to create no suspicionconcerning its authenticity, (B) was in aplace where it, if authentic, would likelybe, and (C) has been in existence 20 yearsor more at the time it is offered.

This "ancient documents rule" is the result ofthree policy considerations. The first is necessity.The passage of twenty years or more makes itmore difficult to find witnesses with informationthat could help authenticate the document in moredirect ways. The second is that fraud is less likelygiven the remoteness of time. One should notreasonably expect to encounter fabricationsproduced in the expectation of affecting theoutcome of a dispute twenty years or more in thefuture. The third is the relatively high probabilityof genuineness. The circumstances of propercustody and unsuspicious appearance, whencombined with age, give positive circumstantialassurance that the document is what it purports tobe. See 5 CHRISTOPHER B. MUELLER & LAIRD C.KIRKPATRICK, FEDERAL EVIDENCE § 529 (2d ed.2005).

Although the ancient documents rule requiresthat the document be free from suspicion, thatsuspicion goes not to the content of the document,but rather to whether the document is what itpurports to be. See United States v. Kairys, 782 F.2d 1374, 1379 (7th Cir. 1986).

[T]he issue of admissibility is whether thedocument is a Personalbogen [wartimeGerman personal information sheet] from theGerman SS records located in the SovietUnion archives and is over 20 years old.Whether the contents of the documentcorrectly identify the defendant goes to itsweight and is a matter for the trier of fact; it isnot relevant to the threshold determination ofits admissibility.

OSI's practice is to establish the elements ofRule 901(b)(8) principally by calling experthistorians to the stand, including renownedHolocaust scholars such as Dr. Raul Hilberg andDr. Charles Sydnor. See, e.g., United States v.Koziy, 728 F.2d 1314, 1321-22 (11th Cir. 1984)("The government produced Dr. Raul Hilberg, arenowned expert on the holocaust [sic]. . . Dr.Hilberg testified that he had seen otheranmeldungs and abmeldungs [wartime Germanregistration forms] and that the ones involved in


the present dispute were very similar to the oneshe had seen."); United States v. Szehinskyj, 104 F.Supp.2d 480, 489 (E.D. Pa. 2000), aff'd 277 F.3d331(3d Cir. 2002) ("Dr. Sydnor, whoseknowledge on this subject is encyclopedic,testified that there is nothing unusual about any ofthese documents."). Based on familiarity withNazi organizations and procedures, as well as thecondition and location of archives housing Nazirecords, these experts can establish the following.

• The documents do not contain anything out ofthe ordinary.

• They were found in locations, such as Germanor former Soviet repositories, where they arelikely to be found.

• The form of each document is consistent inevery way with the document being anunaltered original.

See, e.g., Szehinskyj, 104 F. Supp.2d at 490-91.

Owing to the strength of such testimony,courts have admitted into evidence a wide rangeof wartime Nazi documents and related postwarrecords. See, e.g, United States v. Demjanjuk, 367F.3d 623, 630-31 (6th Cir. 2004) (upholdingadmission of SS service pass), cert. denied, 125S.Ct. 429 (2004); United States v. Stelmokas, 100F.3d 302, 312 (3d Cir. 1996) (affirming admissionof rosters and other wartime Nazi documents fromformer Soviet archives); Kairys, 782 F.2d at 1379(upholding admission of Nazi personnel recordfrom archive in the then-Soviet Union); Koziy,728 F.2d at 1322 (affirming admissibility ofUkrainian police forms from archive in the then-Soviet Union under ancient document exceptionto hearsay rule). Similar expert testimony has alsobeen employed to offer relevant postwardocuments into evidence. See, e.g., Hajda, 135F.3d at 443-44 (upholding admission of postwartrial testimony and Soviet interrogation protocols).

B. Foreign public documents

Courts may also find wartime documentsoffered in OSI's cases to be self-authenticating ascertified foreign documents under Fed. R. Civ. P.44(a)(2) and Fed. R. Evid. 902(3). See Demjanjuk,1:99CV1193, 2002 WL 544622, at *23 (N.D.Ohio 2002). Fed. R. Civ. P. 44(a)(2) provides, inpertinent part:

A foreign official record . . . may beevidenced by . . . a copy thereof, attested by a

person authorized to make the attestation, andaccompanied by a final certification as to thegenuineness of the signature and officialposition (i) of the attesting person. . . .

Fed. R. Evid. 902(3) provides, in relevant part,that "[e]xtrinsic evidence of authenticity as acondition precedent to admissibility" is notrequired with respect to:

A document purporting to be executed orattested in an official capacity by a personauthorized by the laws of a foreign country tomake the execution or attestation, andaccompanied by a final certification as to thegenuineness of the signature and officialposition (A) of the executing or attestingperson. . . .

When offered under this theory in OSI's cases,government exhibits have been accompanied bycertifications, as well as attestations, by foreignofficials from public archives authorized to makethem. See In re Japanese Electronic ProductsAntitrust Litigation, 723 F.2d 238, 285 (3d Cir.1983) (certified documents from public archivespresumptively admissible), rev'd on othergrounds, 475 U.S. 574 (1986). Thus, even ifcourts refuse to admit wartime documents underthe ancient documents rule, they may still findthat they are self-authenticated as foreign publicdocuments.

C. Arguments attacking authenticity

The government need not prove chain ofcustody for original World War II-relateddocumentary evidence to satisfy its burden ofestablishing authenticity because such documentsare "non-fungible, and 'unique, identifiable andrelatively resistant to change.'" United States v.Demjanjuk, 2002 WL 544622, at *22. See alsoUnited States v. Humphrey, 208 F.3d 1190, 1204-05 (10th Cir. 2000) (unlike drugs, which arefungible, documents are unique and relativelyresistant to change and thus do not need a perfectchain of custody). In any event, chain of custodyneed not be shown to establish that documents areauthentic under the ancient documents rule. SeeStelmokas, 100 F.3d at 312 (3d Cir. 1996).

Defendants have also argued that documentsfrom archives in the former Soviet Union shouldnot be authenticated because of allegations thatthe Soviets forged documents. This argument hasbeen similarly unavailing. See Demjanjuk, 2002


WL 544622, at *15 ("There is no evidence thatthe Soviets ever forged or altered documents toimplicate any American for Nazi (sic) eracrimes."); Szehinskyj, 104 F. Supp.2d at 490(court finds no evidence the Soviets ever falsifieda document to implicate a Ukrainian living inNorth America). The court in one OSI casepointed out the fallacy inherent in such claims.

Lileikis' claims regarding the possibility ofSoviet tampering or forgery are totallyunsubstantiated and incredible . . . why wouldeven the KGB go to the trouble of forgingdocuments implicating Lileikis in war crimes,and then bar all access to its handiwork forsome fifty years, while awaiting the collapseof the government whose evil intentionstowards Lileikis it presumably sought toserve?

United States v. Lileikis, 929 F. Supp. 31, 38 (D.Mass. 1996). See also United States v. Stelmokas,No. 92-3440, 1995 WL 464264, at *8 (E.D. Pa.Aug. 2, 1995) (expert historical witness "testifiedthat he was not aware of a single instance of aWorld War II archival document pertaining to theHolocaust that was a Soviet forgery"), aff'd, 100F.3d 302, 313 (3d Cir. 1996) ("We cannotconceive that any rational person would believethat someone set out to incriminate Stelmokas andplanted fake documents in widely-scattered placesfor that purpose.")

Nevertheless, out of an abundance of caution,OSI routinely retains the services of forensicdocument experts, including: (1) scientists whoconduct various chemical and other tests on thepaper and ink, see, e.g., Koziy, 728 F.2d at 1321-22 (11th Cir. 1984) (Dr. Antonio Cantu'stestimony helped authenticate Nazi anmeldungand abmeldung by showing through chemicalanalysis that these documents were notmanufactured after their purported dates ofcreation); and (2) handwriting specialists, who cananalyze, inter alia, movement impulses in knownwriting samples and compare them to those in thewriting on documents in question. See, e.g.,Demjanjuk, 2002 WL 544622, at *23.

III. Hearsay issues

A. The ancient documents exception

The key admissibility hurdle to surmount inemploying World War II-related documents inOSI's cases is the rule against hearsay. Among theexceptions to this rule is the following:"[s]tatements in a document in existence twentyyears or more the authenticity of which isestablished." Fed. R. Evid. 803(16). This "ancientdocuments" hearsay exception has been applied toa variety of documents. See, e.g., Dartez v.Fireboard Corp., 765 F.2d 456 (5th Cir. 1985)(memoranda and correspondence from the 1940sdiscussing the dangers of asbestos); Compton v.Davis Oil Co., 607 F. Supp. 1221 (D. Wyo. 1985)(warranty deeds); and Bell v. Combined RegistryCo., 397 F. Supp. 1241 (N.D. Ill. 1975) (oldnewspaper articles), aff'd 536 F.2d 164 (7th Cir.1976). It has also been cited by courts inpermitting admission of wartime documents inOSI's Nazi cases. See, e.g., Hajda, 135 F.3d at443-44 (postwar statements from former SSguards admissible under ancient documentsexception to hearsay rule); Stelmokas, 100 F.3d at311-13 (affirming admission of Nazi occupationdocuments from former Soviet archives underancient documents exception to hearsay rule).

In Hajda, 135 F.3d at 444, the Seventh Circuitaddressed, inter alia, the admissibility of postwarwritten statements by former Nazi collaboratorswho claimed that the defendant had servedalongside them during the war. After the Hajdacourt found that these documents were properlyauthenticated under the ancient documents rule, itexamined whether their contents were admissibleunder Rule 805 and found that they were.

These documents are more than 20 years oldand they were properly authenticated, so theyare exceptions to the hearsay rule admissibleunder Rule 803(16) of the Federal Rules ofEvidence. However, this admissibilityexception applies only to the document itself.If the document contains more than one levelof hearsay, an appropriate exception must befound for each level. Fed. R. Evid. 805. As forKazimiera's statements, while a governmentofficial prepared them, Kazimiera signed andadopted them, so they contain only one levelof hearsay, which makes them admissibleunder Rule 803(16). . . . The signedstatements of the Treblinka [death camp]


guards are admissible for the same reason.Stanislaw's statement, on the other hand, isn'tsigned, so it contains two levels of hearsay.The document itself falls under Fed. R. Evid.803(16), but Stanislaw's actual statementneeds a separate exception in order to beadmissible. Here, the proper exception is adeclaration against interest, which permitshearsay statements when (1) they are againstthe declarant's penal or pecuniary interest atthe time made; (2) corroboratingcircumstances show the trustworthiness of thestatement; and (3) the declarant is unavailable.Fed. R. Evid. 804(b)(3).

Id. Cf. United States v. Stelmokas, 1995 WL464264, at *5-6 (wartime German reportinvestigating Lithuanian collaborator not admittedbecause multiple levels of hearsay violated Rule805). See Gregg Kettles, Ancient Documents andthe Rule Against Multiple Hearsay, 39 SANTA

CLARA L. REV. 719 (1999).

B. The business records exception

Another exception to the hearsay rule is foundin Rule 803(6) for documents: (1) made at or nearthe time of the events they record; (2) authoredby, or created from information transmitted by, aperson with knowledge of the information therein;(3) if kept in the course of a regularly conductedbusiness activity; (4) when it was the regularpractice of that business to make the document atissue; and (5) as shown by the testimony of thecustodian or other qualified witness.

OSI has presented expert historians as "otherqualified witnesses" to establish the applicabilityof this exception with respect to wartime Nazidocuments and related postwar records. See, e.g.,Szehinskyj, 104 F. Supp. 2d at 492 ("Dr. Sydnortestified at length about how the documents areakin to business records, in particular thepersonnel records of any large organization. Hestated that they were necessary in order for thecamps to function properly and outlined thecircumstances surrounding their creation.");United States v. Palciauskas, 559 F. Supp. 1294,1296 (M.D. Fla. 1983), aff'd 734 F.2d 625 (11thCir. 1984).

C. The public reports and catchallexceptions

Finally, OSI's proffered documents have alsobeen admitted through the public reports andrecords exception of Fed. R. Evid. 803(8) and theresidual exception of Fed. R. Evid. 807. Theseexceptions have been applied to such documentsas judgments in German postwar prosecutions ofNazi criminals and postwar witness affidavits.See, e.g. Szehinskyj:

Many of the documents also are admissibleunder Rule 803(8), which provides for theadmission of certain public records andreports. For example, the [German] courtdocuments fit within this exception. Finally,the documents are admissible under Rule 807,the general catchall hearsay exception, as allexperts agree that they are highly reliable.

104 F. Supp.2d at 492.

IV. Conclusion

In the final week of World War II, MichelThomas, a Jewish concentration camp inmate whohad escaped the Nazis and joined the U.S. ArmyCounter Intelligence Corps as it swept intoGermany, received a tip about a convoy of trucksin the vicinity of Munich said to be carryingunknown, but possibly valuable cargo. Thomaswent to the trucks' destination, where hediscovered an empty warehouse filled withveritable mountains of documents and cards withphotos attached. He had come upon the completeworldwide membership files of the Nazi Party,which had been sent to the mill to be destroyed onthe orders of the Nazi leadership in Berlin.Thomas and others ensured that the documentswere protected. Prosecutors at Nuremberg foundinvaluable evidence in these files, as havegenerations of prosecutors since that time.

Sixty years later, these documents and manyothers like them found in archives in Germany,the former Soviet Union, and elsewhere, stand asunassailable witness to the barbarities of Naziracial policies and the role of Hitler's henchmen incarrying them out. Through use of the ancientdocuments rule and related provisions in theFederal Rules of Evidence, the government hasbeen able to marshal such evidence against thosehenchmen in U.S. courts and obtain a measure ofbelated justice on behalf of Holocaust victims.


Moreover, the judicial precedents established bysuch cases could prove invaluable fordenaturalizing certain post-World War II humanrights violators, whose unspeakable deeds arecaptured in paper and ink and await retellingbefore the scales of justice.�

ABOUT THE AUTHOR

�Gregory S. Gordon served as law clerk to U. S.District Court Judge Martin Pence from 1990-1991 (D. Haw.). After a stint as a litigator in SanFrancisco, he worked with the Office of theProsecutor for the International Criminal Tribunalfor Rwanda from 1996-1998. He then became acriminal prosecutor with the U. S. Department ofJustice, Tax Division. After a detail as a SpecialAssistant U.S. Attorney for the District ofColumbia from 1999 through 2000, he wasappointed in 2001 as the Tax Division's Liaison tothe Organized Crime Drug Enforcement TaskForces (Pacific Region) for which he helpedprosecute large narcotics trafficking rings. Hebecame an OSI prosecutor in 2003. In 2004, hisarticle "A War of Media, Words, Newspapers andRadio Stations": The ICTR Media Trial Verdictand a New Chapter in the International Law ofHate Speech was published in Vol. 45, No.1 of theVirginia Journal of International Law.a

Barring Axis Persecutors from theUnited States: OSI's "Watch List"Program Dr. Elizabeth B. WhiteDeputy Director and Chief HistorianOffice of Special InvestigationsCriminal Division

I. Introduction

In addition to denaturalizing and removingNazi persecutors from the United States, theOffice of Special Investigations (OSI) isresponsible for enforcing the HoltzmanAmendment's provisions barring aliens whoassisted in Axis crimes from entering thiscountry. See 8 U.S.C. § 1182(a)(3)(E)(i). Suchindividuals continue to seek to visit theUnited States. For example, during theThanksgiving holiday in 2004, an 82-year-oldsuspect from Austria attempted to enter this

country in order to visit relatives in Arizona. OSIhad placed his name and birth date on thegovernment's border control "watch list" of alienspossibly ineligible to enter the United States.Therefore, when he arrived at Atlanta's Hartsfield-Jackson International Airport, Customs andBorder Protection (CBP) inspectors referred himfor secondary inspection and contacted OSI.Following guidelines developed by OSI, a CBPinspector questioned the man in detail about hisWorld War II activities. He soon confessed that hehad been sentenced to death after the war for themurder and mistreatment of concentration campprisoners, but had received amnesty after tenyears' imprisonment. Interview by U.S. Customsand Border Protection immigration inspector[name cannot be divulged] with FranzDoppelreiter in Atlanta, Ga. (Nov. 24, 2004).CBP, a component of the Department of


Homeland Security (DHS), barred his entry intothe United States and returned him to Europe thesame day. See Ira Rifkin, He Was Hoping toSpend the Winter in Phoenix With His Family,THE JERUSALEM REPORT, June 13, 2005. Since1990, when OSI began compiling statistics on thewatch list referrals received from immigrationofficials, the unit has handled over 475 suchinquiries. As a result, 175 suspected participantsin Axis crimes have been refused admission atU.S. airports and other ports of entry.

II. Development of the OSI watch list

The OSI watch list is actually a shorthandterm for the tens of thousands of "lookouts" forsuspected Axis persecutors that OSI has placed inthe automated border security systems thatimmigration inspectors and visa-issuing officialsconsult in assessing the admissibility of aliens tothe United States. These lookouts are based onevidence amassed by OSI that establishes areasonable basis to suspect that the individual inquestion ordered, incited, assisted, or otherwiseparticipated in Axis-sponsored persecution on thebasis of race, religion, national origin, or politicalbelief, and therefore is barred from entry by theHoltzman Amendment. The names that OSI hascontributed to the interagency system constitute acomparatively small portion of the millions ofnames in the system, which covers suspectedterrorists, narcotics traffickers, and others whoare or may be ineligible to enter theUnited States.

OSI's watch list began in 1980, when, actingat OSI's request, the State Department (State)entered the names and birth dates of all known SSofficers into its Automated Visa Lookout System(AVLoS), using a list of 40,000 names suppliedby OSI. The decision to list all former SS officerswas based on the fact that the InternationalMilitary Tribunal (IMT) at Nuremberg judged theSS to be a criminal organization because of thekey 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 IMTis that the officers in such an organization mayreasonably be suspected of having ordered,incited, assisted, or participated in such crimes.

Since 1980, OSI has sent the names ofthousands of concentration camp guards,members of Einsatzgruppen (Nazi mobile killingsquads), and other suspects to the former

Immigration and Naturalization Service (INS),DHS, and State to be placed in the automatedlookout systems. As a result, more than 26,000additional names of suspected Nazi persecutorswere added to State's Consular Lookout andSupport System, which superseded AVLoS, INS'sNational Automated Lookout System (NAILS),and the Treasury Department's TreasuryEnforcement Communications System (TECS), tobecome the primary automated border securitysystem used at ports of entry. OSI also arrangedfor State to incorporate the lookouts for SSofficers into NAILS and TECS. Once this wasaccomplished, it was estimated that the number oflookouts in each of the automated "watch list"systems for suspected excludable Nazi persecutorswho had not "aged out" of the systems (who werenot more than ninety years old) was between60,000 and 70,000.

OSI continues to add individual names to thewatch list as it becomes aware of Nazi persecutorsresiding outside of the United States who mightattempt to enter this country. OSI also routinelyadds the names of OSI defendants who areremoved from or leave the United States as aresult of litigation brought by OSI. Probably thebest known example of an individual on the OSIwatch list is former Austrian president and UnitedNations Secretary General Kurt Waldheim. In1987, five years after he concluded his term asU.N. Secretary General, Waldheim was bannedfrom entering the country because acomprehensive investigation by OSI established aprima facie case that he had participated in Nazipersecution.

III. Barring Japanese war criminals

The Holtzman Amendment's reference tocrimes committed on behalf of Nazi Germany andgovernments "allied to" Nazi Germany has beeninterpreted to include crimes committed byJapanese Imperial Forces during the period thatJapan was Germany's ally. Of the tens ofthousands of names added to the border controlwatch list system by OSI, however, fewer thanone hundred are names of Japanese perpetrators.This disparity exists because the JapaneseGovernment has long declined to provide OSIwith access to pertinent information in itsarchives. In 1996, OSI requested State and INS toadd to the watch list members of the JapaneseArmy's infamous Unit 731, which conductedlethal medical experiments on prisoners of war. In


addition, OSI requested lookouts be posted forformer Japanese military personnel who wereimplicated in the operation of so-called "comfortwomen" stations, where imprisoned non-Japanesewomen were repeatedly raped. This sparkedconsiderable public comment in Japan and amonggroups 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 watchlist because of assistance in Japanese war crimesis known to have attempted to enter theUnited States at a port of entry. He was stoppedby INS inspectors and returned to Japan on thefirst available flight. Michael Zielinger, Ex-Japanese Soldier Deemed War Criminal—ManWho Was To Tell Acts Denied U.S. Entry,HOUSTON CHRONICLE, July 3, 1998. A secondJapanese suspect's visa application was denied.

IV. Enforcing the OSI watch list

In 1989, the government implemented theVisa Waiver Program, which permits citizens ofcertain countries (primarily members of theEuropean Union, including Germany andAustria) 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 beganarriving at ports of entry into the United States.See Ronald J. Ostrow, U.S. Catching FormerNazis at Airports, LOS ANGELES TIMES, Mar. 25,1990. To assist immigration inspectors inassessing the eligibility of such individuals forentry, OSI developed a set of instructions to befollowed when a suspected Axis persecutorattempted to enter the United States. Theinstructions were sent to INS personnel at keyports of entry, such as New York and Miami.They were also incorporated into trainingmaterials given to new immigration inspectorsand a videotape of a seminar, taught by an OSIofficial on inspecting suspected Axis persecutors,was incorporated into INS training protocols.

The key element of OSI's assistance to INSinspectors, and now to DHS' Immigration andCustoms Enforcement officials, however, is thatan OSI official is always available to provideinformation and advice when would-be entrantsare stopped at U.S. ports of entry. The availabilityof off-hours assistance is particularly vital to thesuccess of efforts to bar Nazi persecutors from

entering the United States because the flights onwhich such individuals travel usually arrive in theUnited States outside of normal business hours.The great majority of such watch list incidentsinvolve visitors attempting to enter under the VisaWaiver Program, who, under the program terms,must be excluded if suspicion exists that they areinadmissible. In such instances, all that is usuallyrequired to determine inadmissibility is toestablish that the traveler is identical to the subjectof the lookout, which can generally be resolvedfairly quickly. If the suspected Nazi persecutorpossesses a U.S. visa, however, the inspection foradmissibility must be deferred for four businessdays after the date of entry. In such cases, OSImust locate and assemble, within ninety-six hours,evidence of the individual's World War II-eraactivities. This usually involves obtaining recordsfrom several archives in Germany, translatingdocuments, analyzing the evidence, andpresenting it so that the DHS official conductingthe inspection clearly understands the matter andcan conduct an effective interview. OSI attorneyshave also assisted on-site at inspections ofindividuals whom the evidence stronglyimplicated in Nazi crimes.

When State receives visa applications fromindividuals who appear to match OSI lookouts orwhom vice consuls suspect may have assisted inNazi crimes, it calls upon OSI for assistance invetting those applicants. OSI attempts to gatherevidence relating to the applicants' activitiesduring the Nazi era, recommends whether theapplicants should be questioned further aboutspecific matters, and advises whether the evidencesupports a suspicion of assistance in persecution.The applicants bear the burden of provingadmissibility and are usually unable to overcomethis burden.

Similarly, whenever a question arises aboutthe admissibility, under the Holtzman amendment,of an alien applying for adjustment ofimmigration status or for U.S. citizenship,immigration officials turn to OSI. OSI determineswhether the benefit should be denied because ofthe applicant's activities during the World War IIera. If, in the course of vetting such applicants,OSI discovers evidence of assistance in Axiscrimes, it institutes removal proceedings. In onesuch instance, a Lithuanian immigrant's denial ofany military service during World War II raisedthe 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 permanentlyfrom the United States in order to avoid being thesubject of OSI-instituted removal proceedings.

V. Prosecutions originating from theOSI watch list

In enforcing the Holtzman Amendment's banon the entry of aliens who assisted in Axis crimesinto the United States, OSI's aim is to return suchaliens as quickly as possible to their countries oforigin, not to arrest or otherwise detain them. Ontwo occasions, however, immigration officials inHawaii have arrested the subjects of OSI lookoutsand, with OSI's assistance, successfullyprosecuted them for visa fraud. See Bob Egelko,Court Upholds Visa Fraud Conviction of SSGuard, THE HONOLULU ADVERTISER, July 6,1991. In two other instances, subjects of OSIlookouts for former concentration camp guardswere questioned by immigration authorities whenthey arrived at ports of entry. They were found tobe legal permanent residents whose presence herehad gone undetected when INS previously

checked their names against U.S. immigrationrecords at OSI's behest. OSI subsequently broughtsuccessful 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, 937F.2d 614 (9th Cir. 1991).�

ABOUT THE AUTHOR

�Dr. Elizabeth B. White began working as ahistorian for the Office of Special Investigationsin 1983. As Chief of Investigative Research from1988 to 1997, her responsibilities includeddeveloping and enforcing OSI's watch list. Shedrafted guidelines and provided training forimmigration inspectors for questioning andassessing the admissibility of suspected Axispersecutors. She has been OSI's Chief Historiansince 1997 and was named Deputy Director in2004. Her published works include TheDisposition of SS-Looted Victim Gold During andAfter World War II, 14 AM. UNIV. INT'L L. J. 213(1999) and GERMAN INFLUENCE IN THE

ARGENTINE ARMY (Garland Publishing, Inc.1991).a

Practical Questions and AnswersAbout OSI for AUSAsMichelle HeyerAssistant United States AttorneyNorthern District of Ohio

Q: Are OSI's cases brought as criminal or civilprosecutions?

Although OSI is part of the Criminal Division, itsWorld War II denaturalization and removal actionsare civil proceedings. There is no basis underfederal law for criminal prosecution of theunderlying conduct that was committed abroad.The post-World War II human rights violatorcases are different, as some of these defendantsmay be prosecuted criminally for immigrationfraud (such as violations of 18 U.S.C.§ 1425–obtaining naturalization by fraud) or may

even be liable for the abuses themselves, forexample, for torture under 18 U.S.C. § 2340A,genocide under 18 U.S.C. § 1091, or war crimesunder 18 U.S.C. § 2441 (prosecutions which arenot within OSI's purview).

Although denaturalization is a civil proceeding,the right at issue in denaturalization cases–theright to U.S. citizenship–is considered especiallyprecious, therefore the government bears anunusually high burden of proof. That burden,"clear, unequivocal, and convincing evidence thatdoes not leave the issue in doubt." Fedorenko v.United States, 449 U.S. 490, 505 (1981), is"substantially identical" to the "beyond areasonable doubt" standard imposed in criminalcases. Klapprott v. United States, 335 U.S. 601,


612 (1949). Other than the much higher burden ofproof, denaturalization defendants are generallytreated like other civil defendants. Over the years,OSI defendants have attempted to invoke anumber of rights afforded to criminal defendants,virtually always unsuccessfully. Courts havefound, for example, that OSI defendants have noright to appointed counsel or to invoke the FifthAmendment right to refuse to answer questionsabout their wartime activities based on fear ofdenaturalization proceedings or foreign criminalprosecution. Recently, a court held that theprocedures for dealing with incompetent criminaldefendants do not apply in denaturalizationproceedings; instead, allegedly incompetentdenaturalization defendants in OSI cases may havea guardian appointed under Federal Rule of CivilProcedure 17(c), if appropriate. United States v.Mandycz, 199 F. Supp. 2d 671, 674-75 (E.D.Mich.2002).

Q: How does an OSI case proceed through thecourt system?

Procedurally, cases differ depending on whetherthe defendant is a naturalized U.S. citizen or aresident alien. The first step with citizendefendants is a denaturalization proceeding under8 U.S.C. § 1451(a). Denaturalization cases arefiled in the district in which the defendant residesand they follow the typical course of civillitigation, including discovery. If warranted,summary judgment is available in denaturalizationactions. There is no right to a jury trial. If theUnited States prevails, the defendant's certificateof citizenship is canceled, and he reverts toresident alien status. Denaturalization actions areappealable to the circuit courts and the SupremeCourt.

The next step, which is also the starting point forsubjects who never became U.S. citizens, is aremoval proceeding before the Executive Officefor Immigration Review. As with all removalproceedings, OSI cases begin with hearings beforean immigration judge, in an administrativehearing. Decisions of the immigration judge areappealable first to the Board of ImmigrationAppeals, and subsequently through the federalappellate system.

Q. What role do U.S. Attorneys' Offices playin OSI prosecutions?

USAOs typically play no role in removal casesagainst non-U.S. citizens, as all proceedings insuch cases will be in immigration court. Withdenaturalization actions, historically, USAOshave acted as local counsel for OSI. The actualrole of an AUSA assigned to an OSI matter maybe more or less substantive, depending on factorssuch as the AUSA's interest in the case,workload, and experience. In many cases,AUSAs have taken on primarily supportivefunctions, such as filing the initial complaint,arranging for court reporters and depositionfacilities, and advising OSI on local rules andpractices. In some cases, AUSAs have been moreactively involved in the litigation, assisting withdiscovery and motion practice and handlingwitnesses at trial. Such active participation byAUSAs is more the exception than the rule, andwhile OSI welcomes it, OSI would not expect anAUSA to litigate a case actively absent anindication of interest from the AUSA.

Q: Do AUSAs need any special expertise tohandle OSI cases effectively? Should OSI casesbe assigned to AUSAs with experience in, forexample, immigration law?

Familiarity with immigration law is helpful butthe statutes under which OSI proceeds are quitespecialized. The best qualifications for assistingOSI are a solid background in general civillitigation and knowledge of the local rules, aswell as the practices of the judge assigned to thecase. AUSAs can often assist by providinginformation about the local community, whichmay be relevant to an investigation. Additionally,AUSAs may be familiar with defense counsel. Ifan AUSA is going to be an active participant inlitigation, OSI attorneys and staff historians canhelp him or her become familiar with the relevantstatutes and case law, as well as the historical andfactual background of the case.

Q: How does OSI identify potentialdefendants? What if I come across informationabout a suspected human rights violator?

As discussed in detail in another article in thisissue, most Nazi-era defendants have beenidentified through the work of OSI's staffhistorians who review wartime records and


submit names extracted from those documents forchecking against U.S. immigration records. Leadson modern human rights abusers come from avariety of sources. One primary source is theDepartment of Homeland Security (DHS),especially its Immigration and CustomsEnforcement (ICE) and U.S. Citizenship andImmigration Services (the DHS componentresponsible for adjudicating naturalizationapplications). OSI also relies on its own research,leads provided by human rights organizations,media reports, and referrals from foreigngovernments and international tribunals regardingU.S. citizens who may have participated in theperpetration of human rights violations.

As OSI's new jurisdiction expands the geographicand temporal scope of its work, public referralswill likely increase. Some of these calls may cometo U.S. Attorneys' Offices. It is also possible thatAUSAs will realize that defendants or targets ofinvestigation in seemingly unrelated matters havea history which suggests they could haveparticipated in the commission of human rightsviolations. AUSAs who come into possession ofinformation about naturalized citizens who mayhave participated in the commission of humanrights abuses are asked to contact OSI. If thesuspected human rights violator is not anaturalized citizen, the information should insteadbe transmitted to ICE in the DHS. If the suspect'scitizenship is not known, it may be ascertained bycontacting OSI.

Q: What if I get press inquiries about an OSImatter?

OSI cases frequently attract press attention, andreporters who are not aware of OSI's involvementsometimes direct their inquiries to the local U.S.Attorney's Office. If you or someone in youroffice receives a call from the press, or from anyparty seeking information, please direct the callerto the Department's Office of Public Affairs, at(202) 514-2007.�

ABOUT THE AUTHOR

�Michelle Heyer was a Trial Attorney with theOffice of Special Investigations from 2000 to2003. Since 2003, she has been an AssistantUnited States Attorney in the Northern District ofOhio's Affirmative Civil Enforcement Unit.a

OSI's Expanded Jurisdiction under theIntelligence Reform and TerrorismPrevention Act of 2004Gregory S. GordonSenior Trial AttorneyOffice of Special InvestigationsCriminal Division

I. Introduction

For twenty-five years, it has been the missionof the Office of Special Investigations (OSI) to

investigate naturalized U.S. citizens and U.S.residents suspected of participating in crimes ofpersecution sponsored by Nazi Germany or itsallies from 1933-1945, and take legal action todenaturalize and remove (deport) or extradite suchpersons. The 1979 Attorney General Order thatcreated OSI tasked the unit with this soleresponsibility. See Order No. 851-79 (Sept. 4,1979).


On December 17, 2004, the President signedinto law the Intelligence Reform and TerrorismPrevention Act of 2004 (IRTPA), Pub. L. No.108-458, 118 Stat. 3638 (2004), which grants OSIauthority, in addition to its existing World War II-related responsibilities, to investigate and takelegal action to denaturalize any naturalized U.S.citizen who participated abroad in acts ofgenocide or, acting under color of foreign law,participated in acts of torture or extrajudicialkilling. It also mandates the exclusion andremoval of such persons, which will be handledby the Department of State (State) and theDepartment of Homeland Security (DHS).

This new jurisdiction means a vastlyexpanded geographic scope for OSI. Over thesixty years since World War II ended,government-sponsored torture and extrajudicialkilling have been perpetrated in numerouscountries. Genocide has been committed as well,most notoriously in Rwanda during 1994.

In enacting the provisions relating to post-World War II human rights violators, Congressexpressed a clear desire for coordinated andeffective law enforcement action in cases of state-sponsored atrocities. In a November 2003 report,the Senate Judiciary Committee outlined thejustification for the legislative provisions thatwere ultimately enacted as part of IRTPA. Afternoting OSI's success in the Nazi-era cases ("Thesuccess of the OSI in hunting Nazi war criminalsdemonstrates the effectiveness of centralizedresources and expertise in these cases. The OSIhas worked, and it is time to update its mission."),the Committee opined:

Not enough is being done about the newgeneration of international human rightsabusers living in the United States, and thesedelays are costly. Such delays makedocumentary and testimonial evidence moredifficult to obtain. Stale cases are the hardestto make. The mistakes of the past–whendecades passed before Nazi war criminalswho settled in this country were tracked downand brought to justice–should not be repeated.

S. REP. NO. 108-209, in support of S. 710, theAnti-Atrocity Alien Deportation Act of 2003(Nov. 24, 2003) at 7.

II. Background

Recent data confirm that the concerns ofCongress were well-founded. DHS announced inApril 2005, for example, that its Bureau ofImmigration and Customs Enforcement (ICE) wastracking and litigating more than 900 casesinvolving human rights violators from more thansixty countries in immigration courts nationwide.

The nature of the problem is dramaticallyexemplified by the case of Kelbessa Negewo, anEthiopian citizen, who immigrated to theUnited States and was eventually naturalized.Negewo served as a local official under therepressive military regime that ruled Ethiopiafrom 1974 to 1991. In September 1990, threeEthiopian women filed suit against Negewo underthe Alien Tort Claims Act (28 U.S.C. § 1350) inU.S. District Court in Atlanta, alleging that theyhad been tortured in a jail he controlled. SeeAbebe-Jira v. Negewo, 72 F.3d 844, 844-46 (11thCir. 1996).

In August 1993, the district court found thatNegewo had both supervised and directlyparticipated in the torture of the women and thecourt awarded damages. Id. at 846. In its decision,the district court described the torture. It found,for example, that one of the plaintiffs had beenforced to remove her clothes, then was bound byher hands and feet, hanged from a pole, andbeaten severely while water was poured on herwounds to increase the pain. Abebe-Jira v.Negewo, 1993 WL 814304 (N.D. Ga., Aug. 20,1993) at *2, aff'd, 72 F.3d 844 (11th Cir. 1996).

Negewo's application for citizenship wasgranted in 1995 while his (unsuccessful) appealwas pending, even though some personnel of theformer Immigration and Naturalization Servicewere aware of the district court judgment againsthim. That judgment had been reported and evenfeatured in a front-page article in the AtlantaJournal and Constitution (August 21, 1993). Adenaturalization action was filed against Negewoin May 2001 by the U.S. Attorney's Office inAtlanta. Negewo's U.S. citizenship was finallyrevoked pursuant to a settlement agreement inOctober 2004, eleven years after a federal districtcourt found that he had committed torture.

Negewo is currently in federal custodypending the outcome of removal proceedings.That case, initiated by ICE in January 2005, wasthe first removal action brought under IRTPA's


human rights violator provisions. If theUnited States is successful in these proceedings,Negewo likely will be removed to Ethiopia, wherein 2002 he was convicted in absentia andsentenced to life imprisonment for numeroushuman rights violations, including thirteen countsof murder, three counts of disappearance, onecount of torture, and one count of unlawful takingof property. See Teresa Borden, Deportation inMotion for Torturer, ATLANTA JOURNAL

CONSTITUTION, Jan. 5, 2005, at A1.

Another human rights violator who became anaturalized U.S. citizen faced criminalprosecution. Eriberto Mederos, a Cuban-Americanwho immigrated to south Florida in the 1980s,was alleged to have used electroshock equipmentto torture opponents of the Castro regime whileworking at a Cuban psychiatric hospital. In 1991,these allegations were published in a book andwere soon examined by the FBI. When Mederosapplied for citizenship in 1993, the INSnaturalization examiner was unaware of theallegations against Mederos and permitted him togain naturalization. See, e.g., Madeline Baro Dias,Former Inmate Alleges Torture, SOUTH FLORIDA

SUN-SENTINEL, Jul. 18, 2002 at 3B and ChitraRagavan, A Tale of Torture and Intrigue, U.S.NEWS & WORLD REPORT, Sept. 10, 2001 at 33.

In September 2001, Mederos was charged bythe U.S. Attorney's Office in Miami with unlawfulprocurement of U.S. citizenship. The criminalcomplaint alleged that Mederos lied under oathwhen he applied for citizenship by falselyclaiming he had not assisted in persecution andhad not been a member of the Communist party.Mederos was convicted on those charges inAugust 2002, but died before he could besentenced. See, e.g., Charles Rabin, AccusedCuban Torturer Dies After Trial, THE M IAMI

HERALD, Aug. 24, 2002 at B1.

III. The legislative response

During the 106th, 107th, and 108thCongresses, a bipartisan group of lawmakers ledby Senators Orrin Hatch and Patrick Leahy andRepresentatives Mark Foley and Gary Ackermansponsored legislation intended to address thisproblem. Their proposed Anti-Atrocity AlienDeportation Act (AAADA) would have mandatedthe exclusion, removal, and denaturalization ofpost-World War II human rights violators,specifically participants in genocide and, where

carried out under color of law of a foreign nation,torture and extrajudicial killings as well. Thatlegislation also sought to provide OSI withauthority to investigate and litigate the pertinentdenaturalization actions.

The original version of the AAADA passedthe Senate by unanimous consent in November1999, but it repeatedly failed to reach the Housefloor, having stalled in the Subcommittee onImmigration, Border Security, and Claims of theHouse Committee on the Judiciary as a result ofdisagreements on a peripheral issue involving theConvention Against Torture. However, onOctober 8, 2004, as the House of Representativeswas in its closing hours of considering the Houseversion of the 2004 intelligence reform bill (H.R.10), Rep. Foley introduced an amendment thatwould, in effect, insert the text of the AAADAinto the intelligence reform bill. He, Rep.Ackerman, and House Immigration, BorderSecurity, and Claims Subcommittee ChairmanJohn Hostettler, spoke in favor of the amendment.Their comments stressed the nexus betweenhuman rights violator cases and terrorism cases,and also referenced OSI's record over the pasttwenty-five years in investigating and prosecutingNazi cases.

When the intelligence reform legislation (S.2845 and H.R. 10) went to conference committeein October 2004, the Foley amendment was one ofthe comparatively few immigration provisions inthe House version found acceptable by the Senateconferees. It was retained in the compromiselegislation that was hammered out on December6. The bill was approved by the House ofRepresentatives on December 7, 2004 by a vote of336-75, and it was passed by the Senate thefollowing day, in the closing legislative action ofthe 108th Congress, by a vote of 89-2. Ten dayslater, it was signed into law by President Bush.

IV. The relevant provisions of IRTPA

To deal with modern human rights violatorcases in a centralized and systematic way, IRTPAnames the Office of Special Investigations as thespecific government unit with authority to detect,investigate, and take legal action to denaturalizeany naturalized U.S. citizens who participatedabroad in acts of genocide or in acts of torture orextrajudicial killing committed under color offoreign law. It does so through Title V, Subtitle E,which consists of six sections, numbered 5501


through 5506. Collectively, these provisionscontain the full text of the AAADA. For purposesof this article, three changes effected by IRTPA tothe Immigration and Nationality Act are mostpertinent.

A. Expanding the human rights violatorexclusion/removal provisions

IRTPA amended the grounds of exclusion andremoval set forth in Immigration and NationalityAct (INA) §§ 212(a)(3)(E) and 237(a)(4)(D), 8U.S.C. §§ 1182(a)(3)(E) and 1227(a)(4)(D),respectively. Previously, those sections providedfor the exclusion and removal of persons who"ordered, incited, assisted, or otherwiseparticipated" in Axis-sponsored acts ofpersecution, as well as those who "engaged" ingenocide. The provisions relating to Axis-sponsored persecution are unchanged, but thegenocide provision was amended and newprovisions were added.

Pursuant to IRTPA, the existing exclusion andremoval provisions relating to genocide nowapply to persons who "ordered, incited, assisted,or otherwise participated" in genocide. See 8U.S.C. § 1182(a)(3)(E). In addition, Title 8previously referred to conduct that is defined asgenocide for purposes of the Convention on thePrevention and Punishment of the Crime ofGenocide. The Senate Judiciary Committeeexplained that, for clarity and consistency, thenew statute substitutes the definition of genocidecontained in 18 U.S.C. § 1091, "which wasadopted to implement United States obligationsunder the Convention and also prohibits attemptsand conspiracies to commit genocide." S. Rep.No. 108-209, at 9 (2003). While the federalcriminal statute is limited to those offensescommitted within the United States or by a U.S.national, the grounds for exclusion and removaladded by IRTPA relate to acts committed outsidethe United States that would be criminal under 18U.S.C. § 1091 if committed in the United States orby a U.S. national. See S. REP. NO. 108-209, at 10(2003).

The new provisions of Title 8 also provide forthe exclusion and removal of aliens who, undercolor of foreign law, "committed, ordered, incited,assisted, or otherwise participated" in "torture" (asdefined in 18 U.S.C. § 2340—the domesticfederal criminal prohibition enacted pursuant toU.S. obligations under the Convention Against

Torture), or any "extrajudicial killing" committedunder color of foreign law (as defined in section3(a) of the Torture Victim Protection Act (TVPA)of 1991, Pub. L. No. 102-256, 106 Stat. 73(1991)). The Senate Judiciary Committeeemphasized that the phrase "committed, ordered,incited, assisted, or otherwise participated" isintended "to reach the behavior of persons directlyor personally associated with the covered acts,including those with command responsibility."S. REP. NO. 108-209, at 10 (2003). Attempts orconspiracies to commit torture or extrajudicialkilling are encompassed in the "otherwiseparticipated in" language. S. REP. NO. 108-209, at10 (2003).

As defined in Title 18, "torture" means "an actcommitted by a person acting under the color oflaw specifically intended to inflict severe physicalor mental pain or suffering (other than pain orsuffering incidental to lawful sanctions) uponanother person within his custody or physicalcontrol." 18 U.S.C. 2340(1).

"[S]evere mental pain or suffering" is furtherdefined to mean the

prolonged mental harm caused by or resultingfrom (A) the intentional infliction orthreatened infliction of severe physical pain orsuffering; (B) the administration orapplication, or threatened administration orapplication, of mind-altering substances orother procedures calculated to disruptprofoundly the senses or the personality; (C)the threat of imminent death; or (D) the threatthat another person will imminently besubjected to death, severe physical pain orsuffering, or the administration or applicationof mind-altering substances or otherprocedures calculated to disrupt profoundlythe senses or personality.

18 U.S.C. § 2340(2).

As defined in the TVPA, the term"extrajudicial killing" means "a deliberated killingnot authorized by a previous judgmentpronounced by a regularly constituted courtaffording all the judicial guarantees which arerecognized as indispensable by civilized peoples."Extra-judicial killing, however, does not include"any such killing that, under international law, islawfully carried out under the authority of aforeign nation." TVPA, Pub. L. No. 102-256, 106Stat. 73 (1991). As of yet, there are no publishedcourt decisions addressing whether particular


conduct constitutes an extrajudicial killing forpurposes of this provision.

It is important to bear in mind that thedefinitions of both "torture" and "extrajudicialkilling" require that the alien be acting under colorof law. A criminal conviction, criminal charge, orconfession, is not required for an alien to beinadmissible or removable under the new groundsadded by IRTPA. Cf. INA § 212(a)(2)(A)(i), 8U.S.C. § 1182(a)(2)(A)(i), (barring admission ofalien who has been convicted of a crime involvingmoral turpitude or who admits committing actsthat constitute the essential elements of such acrime).

B. The moral character provision

INA § 101(f)(9), 8 U.S.C. § 1101(f)(9), asadded by IRTPA, also provides that a persondescribed in INA § 212(a)(3)(E), 8 U.S.C.§ 1182(a)(3)(E), shall not, as a matter of law, beregarded as a person of good moral character.Thus, persons who participated in Axis-sponsoredpersecution, genocide, torture, or extrajudicialkillings, are now statutorily barred fromnaturalization as U.S. citizens. See INA § 316(a),8 U.S.C. § 1427(a) (requiring applicant fornaturalization to prove good moral character).They are also barred from certain otherimmigration benefits, most notably cancellation ofremoval under INA § 240A, 8 U.S.C.§ 1229(c)(4). Before the enactment of IRTPA,Axis persecutors and persons who had "engaged"in genocide were already barred from obtainingsuch benefits.

C. Consideration for criminal prosecution

Finally, INA § 103(h)(3), 8 U.S.C.§ 1103(h)(3), as added by IRTPA, provides thatconsideration shall be given, where possible, tothe criminal prosecution or extradition of personswho participated in Axis-sponsored persecution,or in genocide, torture, or extrajudicial killing.This provision directs that the Attorney General"shall consult with the Secretary of HomelandSecurity in making determinations concerning thecriminal prosecution or extradition" of suchpersons.

V. Application of IRTPA

A. Civil prosecutions

Questions have arisen as to whether the newdenaturalization grounds in IRTPA can be appliedonly to persons who were naturalized after IRTPAwas enacted. As a result, the government mayhave to rely on remedies available pre-IRTPA inprosecuting human rights violators naturalizedbefore IRTPA's enactment. This may include,inter alia, seeking the denaturalization of humanrights violators who had not been lawfullyadmitted because they engaged in genocide,pursuant to 8 U.S.C. § 1182(a)(3)(E) (relying onthe pre-IRTPA language), otherwise lack goodmoral character, pursuant to 8 U.S.C.§ 1427(a)(3), concealed material facts or madewillful misrepresentations in procuringnaturalization, pursuant to 8 U.S.C. § 1451(a), ordid not properly procure citizenship pursuant toany other relevant law or regulation (including,for example, on the basis of initial entry throughan invalid visa).

B. Potential criminal prosecutions

The possibility of prosecution under variouscriminal statutes, such as 18 U.S.C. § 1425(obtaining naturalization by fraud), 18 U.S.C.§ 1001 (making a false statement regarding amatter within the jurisdiction of a federal agency),18 U.S.C. § 2340 (torture, if committed afterNovember 20, 1994), or 18 U.S.C. § 2441 (warcrimes, if committed after August 21, 1996)should always be considered. In the CriminalDivision, prosecutions for torture and war crimesare the responsibility of the Domestic SecuritySection or, if there is a terrorism nexus, theCounterterrorism Section. Any such prosecutionwould arise from the same nucleus of operativefacts as the civil case. Prosecuting under thecriminal statutes might, at least initially, permitthe government to imprison human rightsviolators upon conviction and it would beconsistent with IRTPA Section 5505's injunctionthat consideration be given, where possible, to thecriminal prosecution of such violators.Fortunately, a criminal conviction under 18U.S.C. § 1425 automatically results in revocationof U.S. citizenship under 8 U.S.C. § 1451(e), thussetting the stage for removal proceedings to beinstituted by ICE.


Criminal prosecutions could confer otherimportant advantages. In the first place, theywould permit the use of grand juries to investigatecases. This would help ensure secrecy during theinvestigative stage and provide for compelledtestimony and production of evidence through theuse of grand jury subpoenas. The secrecy feature,in particular, may be of utmost importance in themodern human rights violator cases, where thereis the potential for witness intimidation. This isquite possible in cases where younger perpetratorscommitted crimes on behalf of regimes that arestill extant and active. Moreover, in casesinvolving multiple parties, where some subjectsmight be persuaded to testify on behalf of thegovernment, grand jury investigations facilitategranting immunity from criminal prosecution anddeveloping cooperating witnesses.

Criminal investigations can also employsearch warrants. Again, given the relative recencyof the criminal conduct at issue, it is possible thatOSI's new generation of defendants, as well astheir cohorts, will still have evidence of theircrimes within their constructive possession. Civildiscovery methods (such as document requestsand depositions), which necessarily rely on thehonesty of the defendants, would likely be far lesseffective than search warrants in obtaining suchevidence. Moreover, in certain instances in civilprosecutions, defendants might invoke their FifthAmendment right not to incriminate themselvesthrough the act of producing incriminatingdocuments. See, e.g., United States v. Hubbell,530 U.S. 27 (2000). The ability to collectevidence pursuant to valid search warrants incriminal proceedings would provide a solution tothis potential problem.

VI. Conclusion

With the enactment of IRTPA, the scope ofOSI's jurisdiction has been significantlyexpanded. After a quarter-century of investigatingand prosecuting individuals who participated inAxis-sponsored persecution, OSI is well-positioned to identify and take legal action againstother naturalized human rights violators who havecome to the United States. We look forward toworking on these important cases with ourcolleagues in the U.S. Attorneys' Offices, andencourage prosecutors to call OSI at (202) 616-2492 with any questions regarding OSI's newjurisdiction.�

ABOUT THE AUTHOR

�Gregory S. Gordon served as law clerk to U. S.District Court Judge Martin Pence from 1990-1991 (D. Haw.). After a stint as a litigator in SanFrancisco, he worked with the Office of theProsecutor for the International Criminal Tribunalfor Rwanda from 1996-1998. He then became acriminal prosecutor with the U. S. Department ofJustice, Tax Division. After a detail as a SpecialAssistant U.S. Attorney for the District ofColumbia from 1999 through 2000, he wasappointed in 2001 as the Tax Division's Liaison tothe Organized Crime Drug Enforcement TaskForces (Pacific Region) for which he helpedprosecute large narcotics trafficking rings. Hebecame an OSI prosecutor in 2003. In 2004, hisarticle "A War of Media, Words, Newspapers andRadio Stations": The ICTR Media Trial Verdictand a New Chapter in the International Law ofHate Speech was published in Vol. 45, No.1 of theVirginia Journal of International Law.a


Intra- and Inter-Agency Cooperationin the Investigation and Litigation ofCases Involving Modern HumanRights ViolatorsStephen J. PaskeySenior Trial AttorneyOffice of Special InvestigationsCriminal Division

I. Introduction

From the beginning of OSI's existence in1979, cooperation between OSI and other officesand agencies, including the U.S. Attorneys'Offices (USAOs), has been an important factor inthe successful prosecution of civildenaturalization cases against persons whoassisted in Nazi persecution. In each of thosecases, OSI has received valuable assistance fromimmigration authorities (previously Immigrationand Naturalization Service (INS), nowDepartment of Homeland Security (DHS)) duringthe investigation phase, and from the USAOsduring subsequent litigation in the federal courts.The flow of expertise and assistance, however, hasnot been a one-way street. OSI continues to reachout to the USAOs to offer its assistance andexpertise in civil and criminal cases involving theillegal procurement of naturalized U.S. citizenshipand other matters, including those involvingsuspected terror-linked individuals.

Despite the assistance provided by DHS andthe USAOs, to a great degree, OSI has been self-reliant in the World War II cases. OSI possessesthe expertise and resources needed to pursue eachcase from the initial investigation through a trialand any appeals. In cases involving post-WorldWar II human rights violators, however, thesituation will be very different.

The World War II cases involved countries inwestern and eastern Europe, while the moderncases involve a far greater number of countries, aswell as relatively recent conflicts. As a result,modern investigations present a much broaderrange of factual issues. The State Department(State) and components of the intelligence

community may have an interest in the underlyingcircumstances and/or significant informationabout an investigative subject. In many of themodern cases, it may be possible for the U.S.Government to pursue criminal prosecution, eitherfor human rights abuses committed overseas(under the torture statute at 18 U.S.C. § 2340A),or for offenses committed during the process ofobtaining a visa or naturalization (such as falsestatements and/or the unlawful procurement ofcitizenship in violation of 18 U.S.C. § 1425).Because the abuses committed under Naziauthority during World War II were notprosecutable under U.S. laws when they werecommitted, the criminal prosecution of OSI'sWorld War II subjects for any such offenses hasnot been an option. In addition, in all but a fewWorld War II cases, the statute of limitations hasexpired on any action involving the illegalprocurement of citizenship in violation of 18U.S.C. § 1425 or other fraud-related offensescommitted during the naturalization process.

Consequently, the successful investigationand litigation of the modern cases will requireextensive cooperation and coordination, bothwithin the Department of Justice (Department)and between the Department and other federalagencies. The discussion that follows is intendedto give the reader an overview of key issuesrelating to this cooperation, the role of the USAOsin the modern cases, and the assistance that OSIcan provide to USAOs in other types of casesinvolving the illegal procurement of U.S.citizenship.

II. The legal framework for the moderncases

The legal framework for the investigation andlitigation of cases involving the unlawfulprocurement of U.S. citizenship arises fromprovisions contained in Titles 8 and 28 of the


United States Code. The Secretary of HomelandSecurity (the Secretary) is charged with theadministration and enforcement of U.S.immigration and nationality laws, including theinvestigation of civil and criminal cases involvingany person who has illegally procured U.S.citizenship. See INA § 103, 8 U.S.C. § 1103(detailing the Secretary's authority). See also 8C.F.R. § 340.2 (discussing investigation ofmatters involving unlawful naturalization). Aswith other criminal matters, the Federal Bureau ofInvestigation (FBI) has investigative authority forcriminal violations of U.S. immigration andnaturalization laws–in this instance, an authoritythat runs concurrently with that of DHS. See 28U.S.C. § 533 (outlining the authority of FBIofficials, and noting that other agencies may haveconcurrent investigatory authority).

In general, responsibility for the litigation ofsuch cases (whether criminal or civil) rests withthe U.S. Attorneys. Pursuant to 28 U.S.C. § 547,the U.S. Attorneys are directed to prosecute allcriminal offenses against the United States, and allcivil actions "in which the United States isconcerned." Moreover, with regard to civildenaturalization cases, the INA expressly providesthat "[i]t shall be the duty of the United Statesattorneys . . . to institute proceedings" for thedenaturalization of any naturalized citizenresiding in their district whose U.S. citizenshipwas illegally procured or procured byconcealment of a material fact or wilfulmisrepresentation. See INA § 340(a), 8 U.S.C.§ 1451(a).

For the past twenty-five years, however, civildenaturalization cases involving persons who tookpart in Nazi-sponsored acts of persecution havebeen handled differently. As discussed elsewherein this issue, in 1979 the Attorney General issuedan order directing that OSI shall have theresponsibility to "investigate and take legalaction" to denaturalize and deport persons whoassisted in Nazi persecution. See Order No. 851-79 (Sept. 4, 1979). With the passage of newlegislation, OSI now also has authority toinvestigate and take legal action in casesinvolving modern human rights violators. Asamended by the Intelligence Reform andTerrorism Prevention Act of 2004 (IRTPA), Pub.L. No. 108-408 §§ 5501-06, 118 Stat. 3638(2004), the INA provides that OSI has authority"to detect and investigate, and, where appropriate,take legal action to denaturalize" any naturalized

person who assisted in genocide, Nazipersecution, torture, or extrajudicial killingcommitted abroad under color of foreign law. SeeINA § 103(h)(1), 8 U.S.C. § 1103(h)(1); INA§ 212(a)(3)(E), 8 U.S.C. § 1182(a)(3)(E).

In enacting the new provisions concerninghuman rights violators, Congress noted thatpriority should be given to the criminalprosecution of such persons, or their extradition toa foreign jurisdiction that is prepared to undertakeprosecution. INA § 103(h)(3), 8 U.S.C.§ 1103(h)(3). Congress also specified that, inmaking determinations concerning criminalprosecution or extradition, the Attorney Generalmust consult with the Secretary. INA § 103(h)(3),8 U.S.C. § 1103(h)(3).

Taken together, these various provisionsimplicate the involvement of multiple componentswithin both the Department and DHS in any caseinvolving the unlawful procurement of U.S.citizenship by a modern human rights violator.The interests of other federal agencies arise fromthe nature of their own missions, such as State'srole in foreign affairs and the intelligenceagencies' responsibility for gathering andanalyzing foreign intelligence.

III. The organizational framework forintra- and inter-agency cooperation

As the preceding statutory framework makesclear, close cooperation between interested officesand agencies is essential for the successfulinvestigation and litigation of cases involving theunlawful procurement of U.S. citizenship bymodern human rights violators. To that end, theDepartment and DHS have spearheaded thecreation of an ad hoc interagency working groupto facilitate the coordination of federal lawenforcement efforts in such cases. Through anextensive series of meetings that began in early2005, this interagency working group has begunto develop procedures for gathering and sharinginformation about human rights violators, and fordetermining what measures should be taken bywhich federal components in individual cases.The group has also undertaken an effort to revisevarious immigration and naturalization forms, asneeded, to ensure that applicants provide swornanswers to appropriate questions about theiractivities abroad before they are granted benefitsunder the INA. False statements may, of course,


provide a basis for denaturalization and/orcriminal prosecution.

Within the Department, current participants inthis group include representatives from OSI andseveral other components of the CriminalDivision, as well as the FBI. DHS has beenrepresented by officials from Citizenship andImmigration Services and both legal andinvestigative offices within the agency's Bureau ofImmigration and Customs Enforcement (ICE).The other participating agencies are the CentralIntelligence Agency and State, the latter of whichhas been represented by the Office of theAmbassador at Large for War Crimes Issues, aswell as by consular officials. Additional agenciesand components have been, and will continue tobe, consulted and invited to participate asappropriate.

In addition to these interagency efforts, theCriminal Division has formed an internal workinggroup to coordinate investigations andinformation sharing, as well as criminal and civilprosecutions. That group is comprised of seniormanagers and attorneys from OSI, the DomesticSecurity Section (DSS), the CounterterrorismSection (CTS), and the Office of InternationalAffairs (OIA) (all of whom also participate in theinteragency group). Any matter that is referred to,or otherwise comes to the attention of, any one ofthese Department components is shared with theother components, and each such matter is thenreviewed for potential investigation, criminalprosecution, extradition, and/or civildenaturalization proceedings. Depending on thecircumstances, this assessment may includeconsideration of the potential for successfulcriminal prosecution under 18 U.S.C. § 1425(unlawful procurement of citizenship ornaturalization), which, upon conviction, results indenaturalization under 8 U.S.C. § 1451(e).

Through extensive consultation, informationsharing, and other cooperative activities, both theinteragency working group and the CriminalDivision group have already made significantprogress in promoting the effective enforcementof the provisions relating to modern human rightsviolators. With respect to civil denaturalizationinvestigations in the modern cases, OSI and theICE Office of Investigations have established aclose working relationship. Currently, when ICEbecomes aware of a suspected human rightsviolator who has become a naturalized U.S.citizen, that information is provided to OSI, along

with the names of the ICE personnel assigned tothe investigation. Similarly, if OSI identifiessuspected human rights violators living in theUnited States (regardless of whether those personsare aliens or naturalized citizens), it notifies ICEat the headquarters level. This mutual notificationsystem ensures that joint investigations ofnaturalized citizens can be commenced promptly.In addition, OSI ensures that the other participantsin the Criminal Division working group areadvised of all such investigations. OSI and ICEhave already utilized these procedures innumerous cases involving both aliens andnaturalized citizens, and joint investigations are inprogress.

Cases involving human rights violators arereferred to the Department in a number of ways.Federal law enforcement agencies, including ICE,FBI, the Diplomatic Security Service, and others,may refer these matters directly to the CriminalDivision or to the local USAO. Foreigngovernments may identify suspects incommunications sent to OIA or to other CriminalDivision components in connection withextradition requests, requests for legal assistance,and the like. In addition, OSI is working closelywith State, whose staff, both those based inWashington D.C. and officers serving at U.S.embassies and consulates overseas, have beenbriefed on the relevant provisions of IRTPA andadvised to refer any potential cases involvingnaturalized citizens to OSI. U.N.-sponsored warcrimes tribunals have been yet another source ofinformation, especially the International CriminalTribunal for the former Yugoslavia (ICTY).Finally, some investigative leads have come fromnongovernmental sources, including human rightsgroups, the media, and concerned citizens.

IV. The role of the USAOs in modernhuman rights violator cases

A. Civil denaturalization cases

The role of the USAOs in civildenaturalization cases involving modern humanrights violators is largely a matter of each U.S.Attorney's discretion, and each USAO isencouraged to assist OSI in the investigation andlitigation of these cases in whatever manner bestsuits its individual priorities, expertise, andresources. Obviously, in any related criminalprosecutions (whether for abuses committed


overseas or immigration violations), the USAOshave primary responsibility for the litigation ofthe case, as they do in other criminal cases.

Historically, the USAOs generally have notbeen involved in the investigation phase of theWorld War II cases, except to a limited extentwhen OSI has conducted a voluntary prefiling,sworn interview with a prospective defendant.Nonetheless, there have been exceptions. Forexample, in the fall of 2002, the USAO for theEastern District of Michigan worked closely withOSI and investigators from both the FBI and theformer INS in a successful effort to locate JohannLeprich, a former concentration camp guard whowent into hiding after his naturalized U.S.citizenship was revoked. Leprich was arrested inJuly 2003, was ordered removed from theUnited States in November 2003, and remains inDHS custody pending his appeals from thatdecision. In re Johann Leprich, In RemovalProceedings, File A 08 272 762 (Detroit, MI,Nov. 21, 2003), aff'd, In re Leprich, File A 08 272762 (BIA, Mar. 5, 2004), appeal docketed, No.04-3337 (6th Cir. Mar. 17, 2004).

To some extent, the ability of the USAOs toprovide input during the preliminary investigativephase of cases involving the illegal procurementof naturalization has been limited by the fact that,as a general rule, DHS (like its INS predecessor)does not always notify a USAO of any suchpreliminary investigations in its district.Normally, until the preliminary investigation hasbeen completed and DHS personnel haveconcluded that the case should be pursued as acriminal or civil matter, local USAOs are notcontacted.

During the litigation phase of civildenaturalization cases involving World War IIsuspects, USAOs have generally acted as localcounsel for OSI. It is hoped that this practice willcontinue in the modern denaturalization cases.The actual role of an AUSA assigned to an OSImatter will vary depending on factors such as theAUSA's interest in the case, workload, andexperience. A more complete description of theAUSAs role in an OSI prosecution may be foundon page 23 of this issue of the United StatesAttorneys' Bulletin.

B. Criminal cases

In criminal prosecutions involving naturalizedU.S. citizens who participated in human rights

violations, OSI and other Criminal Divisioncomponents will provide whatever assistance isnecessary.

Litigation-related activity involving suspectedparticipants in torture, genocide, and war crimes,is subject to additional Department notificationand approval requirements. In a January 25, 2005Memorandum, the Deputy Attorney Generalissued guidance to all United States Attorneysconcerning notification in such cases. Pursuant tothis Memorandum, U.S. Attorneys are required tonotify the Criminal Division before initiating ordeclining to initiate investigations, as well as toprovide notification of any significantdevelopments in these matters. In addition, priorapproval of the Assistant Attorney General (AAG)in charge of the Criminal Division, or the AAG'sdesignee, is required before taking certain actionsin torture, war crimes, and genocide matters. Suchactions include, inter alia, filing an application fora search warrant or a material witness warrant;filing a criminal complaint or seeking return of anindictment; and dismissing a charge for whichprior AAG approval was initially required,including as part of a plea agreement. Theserequirements apply in all investigations in which aU.S. Attorney contemplates charging an offenseinvolving torture (18 U.S.C. §§ 2340 and 2340A),war crimes (18 U.S.C. § 2441), genocide (18U.S.C. §§ 1091-1093), or any other statute (suchas 18 U.S.C. §§ 1001 or 1425) in which proof ofthe offense (for example, a false statement orfraud) will require proving that torture, a warcrime, or genocide, was committed.

Deputy Attorney General Comey's guidanceof January 2005 concerning matters involvingterrorism, genocide, war crimes, and other relatedoffenses has been implemented on a temporarybasis for a period of one year, at the conclusion ofwhich the Attorney General's AdvisoryCommittee and the Assistant Attorney General forthe Criminal Division will confer with the DeputyAttorney General and the Attorney General todetermine whether these provisions should beadopted on a permanent basis, and, if so, whetherany modifications are appropriate. The guidanceis scheduled to be finalized in January 2006 andwill then be included in the United StatesAttorneys' Manual.


V. Assistance that OSI can provide toUSAOs in other cases

Over the past twenty-five years, the majorityof reported appellate cases involving the unlawfulprocurement of naturalized citizenship have beeninvestigated, litigated, and won, by OSI. As aresult, OSI has developed the broad range ofexpertise needed to prevail in such cases,including expertise in foreign archival research,the ability to locate fact witnesses to events thathappened overseas decades earlier, and the use ofexpert historian witnesses at trial. OSI has alsodeveloped expertise in the full range of pertinentlegal issues, such as evidentiary issues relating toancient foreign documents and the scope of 8U.S.C. § 1451(a)'s provisions dealing with theillegal procurement of naturalization. In addition,OSI has developed significant expertise in legalissues relating to expatriation.

Even before OSI's jurisdiction was expandedto include the modern cases, OSI had begunproviding advice and assistance to the USAOs inother civil and criminal matters involving theunlawful procurement of naturalized U.S.citizenship, including one case in which a Cubanimmigrant was successfully prosecuted in theSouthern District of Florida for lying on hisnaturalization application about his formerCommunist Party membership and his role in thepersecution of political dissidents. (The defendant,Eriberto Mederos, had worked in a Cubanpsychiatric hospital and had administered severe,debilitating electric shocks, without any legitimatemedical purpose, to dissidents who were beingdetained there.) See Charles Rabin, AccusedCuban Torturer, 79, Dies, M IAMI HERALD, Aug.24, 2002, at 1B. As civil and criminaldenaturalization actions are increasingly utilizedin terrorism cases, including cases in which aprosecution for a terror-related offense cannot bemounted, OSI has also provided advice to USAOsregarding the prosecution of such cases.

Upon request, OSI assists the USAOs by,among other things, reviewing prosecution memosand indictments, discussing legal issues andstrategy, and providing samples of briefs, expertreports, and other materials. OSI is also able toquery DHS databases to determine whether asuspect is a naturalized citizen, is developing awide range of contacts with human rights expertsand organizations that are able to assist in thesecases, and can provide such information on

request. OSI welcomes any request for assistanceon matters within its areas of expertise.

VI. Conclusion

Modern-day perpetrators of torture, genocide,and other serious human rights abuses, were longable to immigrate to the United States with near-impunity, but that has now changed. The legal andorganizational frameworks needed to detect andinvestigate such persons, and to pursueappropriate criminal and civil actions againstthem, are largely in place. With the cooperation ofall interested federal offices andagencies–including the USAOs–we cancollectively ensure that the perpetrators of humanrights violations committed overseas will not finda safe haven in the United States.�

ABOUT THE AUTHOR

� Stephen J. Paskey has been a trial attorneywith the Office of Special Investigations since1998. He entered the Justice Department under theAttorney General's Honors Program in 1995, andserved from 1995 through 1998 as AssistantDistrict Counsel for the former Immigration andNaturalization Service in Arlington, Virginia.From 1994 through 1995, he was law clerk to theHonorable Arrie Davis of the Maryland Court ofAppeals. He has taught immigration law at theUniversity of Maryland School of Law as anadjunct professor.a


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