Full opinion text
DECISION AND ORDER VAN ANTWERPEN, District Judge. I. INTRODUCTION This is a non-jury civil action under section 340(a) the Immigration and Nationality Act of 1952 to revoke the citizenship of defendant Nikolaus Schiffer, who was a member of the Waffen-SS Death’s Head Battalion during World War II. 8 U.S.C. § 1451(a). We have jurisdiction under 8 U.S.C. § 1451 and 28 U.S.C. § 1345. We previously discussed this matter in some detail in our opinion dated February 25, 1992. United States v. Schiffer, 798 F.Supp. 1128 (E.D.Pa.1992). Beginning on March 16, 1993, this court heard 7 days of testimony regarding the plaintiffs claims and the defendant’s defenses. After carefully reviewing the extensive record in this case, including the trial transcript, the exhibits and the parties’ post-trial memoranda and briefs, we set forth the following findings of fact and -conclusions of law. II. FINDINGS OF FACT A. Defendant’s Pre-War and Citizenship Background 1. Defendant was born on April 9,1919 in Philadelphia, Pennsylvania to non-citizen parents. (Schiffer, March 30, 1993, p. 34.) 2. In late 1920, the defendant moved with his parents to Moravitza, Romania, an ethnic German community. (Schiffer, March 30, 1993, pp. 34, 36). In Romania, defendant attended school through the sixth grade. At age 13 he went to Timisora, Romania for three years to learn his trade as an apprentice pastry chef. (Schiffer March 30,1993, p. 37) Starting at about age sixteen, Schiffer worked variously as a baker and a farmhand in Romania. (Id., p. 38). 3. Defendant had relatives who remained in the United States, including his maternal grandparents and uncles. Defendant’s parents remained in contact with these relatives while defendant and his parents resided in Romania. (Schiffer, March 31, 1993, pp. 45-46.) 4. Defendant’s parents were both born in an area of Romania known as the “Banat,” which prior to 1918 belonged to Austria-Hungary. As a result of the treaty ending World War II, the Banat was ceded to Romania, and all residents of the Banat were accorded Romanian citizenship by Romanian law. (Stanoiu, pp. 92-93; P-102; P-9 at nos. 4 and 5.) 5. Under Romanian law, the defendant automatically acquired Romanian citizenship derivatively from his father. (Stanoiu, p. 94.) 6. As a minor, defendant possessed dual United States and Romanian nationality. (Stanoiu, p. 94; P-102; P-9 at nos. 4 and 5.). As a Romanian national, defendant was subject to be called for military service, (Stanoiu, p. 96), but as a United States citizen, he could not be compelled to serve. (Stanoiu, pp. 95, 96). 7. Neither the- United States nor Romania recognized the concept of “dual nationality” or dual citizenship for adults at the time defendant attained his majority. (Stanoiu, p. 94; P-102.). As a minor, however, defendant was able to maintain dual citizenship; upon reaching majority at twenty-one years of age, he had to choose citizenship in one’or the other country. (Stanoiu, pp. 91, 94-95.) 8. At all times prior to his service in the Romanian Army, defendant knew he was an American citizen. (Schiffer, March 31, 1993, pp. 39-40; Defendant’s Memorandum In Support of Motion to Dismiss, pp. 2-4; Defendant’s Response to Government’s First Set of Interrogatories, P-157 at No. 12; Defendant’s Response to Government’s Second Set of Interrogatories, P-158 at No. 2; Defendant’s Response to Government’s Request for Admissions, P-158 at Nos. 3, 6, 7, 12, 17; Defendant’s Deposition, P-14, Vol. I, at pp. 11, 30, 32, 36, 55.) 9. Between 1921 and December 12, 1941, the United States continuously maintained diplomatic relations with Romania, and staffed a Legation in Bucharest. The Legation was closed after Romania declared war on the United States. (Callow, pp. 136, 137-139.) 10. At the time of his induction and entry into the Romanian Army, defendant was aware of an American diplomatic presence in Romania. (Schiffer, March 31, 1993, pp. 54-55; P-14, Vol. L, pp. 44-45.) 11. The Legation in Bucharest provided a full range of consular services, including the issuance of passports to United States citizens and providing assistance to citizens living or travelling abroad. (Callow, pp. 137-39, 140-41.) 12. Despite the presence of an American Legation in Romania and defendant’s knowledge that he was an American citizen, defendant never sought the assistance of the Legation or inquired as to his rights as an American citizen. (Schiffer, March 31, 1993, pp. 54-55; P-14, Vol. I, pp. 44-45.) B. Defendant’s Romanian Army Service 13. On March 25, 1940, defendant presented himself for registration for the Romanian Army. Defendant’s Personnel Record and Personnel Military Record indicate that upon entering the Romanian Army,' defendant’s only objection to service was as the only son of a widow. (P-17, P-18.) These records do not indicate any objection on the grounds of, or claim by defendant of, American citizenship when he registered for or entered Romanian Army service. (P-17, P-18.) 14. All Romanians were obligated to serve in the Romanian Army. (Stanoiu, p. 96; P-23.) Subjects of foreign countries were prohibited from serving. (Stanoiu, p. 96; P-23.) United States citizens were exempt from service in the Romanian Army. (Stanoiu, p. 96; P-23.) There is no documentary evidence that defendant asserted to anyone in the Romanian military or American Legation that he was a United States citizen and, therefore, exempt from service. Had defendant asserted his United States citizenship, he would not have been permitted to serve in the Romanian Army, (Stanoiu, p. 96; P-23.), and his induction into service would have been deferred for one year so that he could obtain documentation of his claim, such as a birth certificate. (Stanoiu, pp. 107-108; P-23.) 15. In 1941, defendant was notified to report for basic training for Romanian Army service. At that time, defendant did not protest service on the grounds that he was an American citizen. Like his fellow soldiers, defendant swore an oath of allegiance to the Romanian monarch, King Carol II. (Schiffer, March 30, 1993, pp. 38-39; March 31, 1993, p. 58; P-9 at nos. 3, 4, 5 and 7; P-14, Vol. I, pp. 37-38; P-17.) 16. On May 24, 1941, upon completion of basic training in the Romanian Army, defendant was released in accordance with Romanian law, since he was the sole son of a widow. (Schiffer, March 30, 1993, p. 39; P-14, Vol. I, p. 37; P-17.) 17. Upon release from basic training, defendant made no effort to contact the American Legation in Bucharest to seek help in avoiding military service or returning to the United States, or to determine his rights as an American citizen. Defendant made no effort to contact his relatives in the United States to inquire about returning to the United States. (Schiffer, March 31,1993, pp. 59-60; P-14, Vol. I, pp. 45-47.) 18. Romania entered World War II on June 22, 1941 as an ally of Nazi Germany. Romania remained an independent sovereign state and an ally of Germany throughout World War II. (Sydnor, March 16, 1993, p. 66, 74.) 19. Romania declared war on the United States on December 12, 1941, following Hitler’s declaration of war on the United States. The next day, the United States declared war on Romania. (Sydnor, March 16, 1993, pp. 88-89.) 20. Defendant was recalled into the Romanian Army after Romania had declared war on the United States and served therein until July 17, 1943. At the time he was recalled, although he knew that he was an American citizen and that Romania had.declared war on the United States, defendant did not protest serving in the Romanian Army. (P-14, Vol. I, p. 63.) 21. Defendant’s induction into the service in the Romanian Army was willful and voluntary. (P-9, at nos. 4 and 5; P-13; P-17; P-18.) 22. By voluntarily joining and serving in the Romanian Army, defendant chose to retain his Romanian citizenship and to relinquish his United States citizenship. (Stanoiu, pp. 96-97.) 23. The Nationality Act of 1940, 54 stat. 1171, specified certain acts which' constituted expatriating acts, including taking an oath of allegiance to a foreign sovereign. (Callow, pp. 140-41.) 24. By willingly serving in the Romanian Army, defendant committed an expatriating act. Defendant’s service in the Romanian Army at a time when Romania was an ally of Nazi Germany and at war with the United States constitutes objective evidence of his intent to relinquish his United States birth citizenship. (Callow, pp. 136, 151, 154, 164, 165, 170; P-21.) 25. Defendant’s service in the Romanian army at a time when Romania was at war with the United States also constituted an expatriating act pursuant to the Immigration and Nationality Act of 1952. (Callow, p. 143, 151.) 26. Contemporary standards of review under Vance v. Terrazas, 444 U.S. 252, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980), establish an administrative presumption of intent to retain United States citizenship unless there is objective evidence of conduct inconsistent with retention of citizenship. Romanian military service and oath of allegiance to King Carol II constitute expatriating acts inconsistent with the retention of citizenship. (Callow, pp. 151, 164.) C. Historical Background 27. On February 29, 1933, following the rise to power of Adolf Hitler and the Nazi Party in Germany, a state of emergency was declared in Germany and all constitutional guarantees of individual liberty and civil rights were suspended. Pursuant to decree, the SS (Schutzstaffel or protection squads) was authorized to arrest, without warrant and without judicial recourse, persons who were suspected of being enemies of Hitler and the Nazi Party and hold them in “protective custody.” This decree was in effect until May 7, 1945. (Sydnor, March 16, 1993, pp. 53-55, 57-58, 89, 90, 102; P-71.) 28. The SS implemented the aims and objectives of Nazi Germany. All police power was centralized into the hands of the SS. The SS was responsible for the administration of the concentration camps. (Sydnor, March 16, 1993, pp. 61, 63-64, 100, 111.) 29. Enemies of Hitler and the Nazi Party included political opponents, such as members of dissenting political parties or moderate parties who criticized the regime; • “asociáis,” which included the unemployed, mentally disturbed, and physically handicapped; homosexuals; homeless people; religious dissenters such as Jehovah’s witnesses' and the Catholic clergy-; Communists; Marxists; Gypsies; Jews; and Poles. (Sydnor, March 16, 1993, pp. 92, '95, 97, 116-117; P-70; P-95.) 30. Between 1933 and 1945 the policy of protective custody was broadened and enabled the SS and police to arrest anyone for any reason and put that person in a concentration camp indefinitely. (Sydnor, March 16,1993, pp. 92, 93.) Prisoners in concentration camps were physically abused by SS guards. They were subjected to corporal punishment, including beatings and executions. The regiment to which they were subjected was consistently harsh, brutal and often fatal. Treatment of prisoners grew worse as the war went on. (Sydnor, March 16, 1993, pp. 92-93, 102-103, 144-145; Chakin, pp. 17, 22-24, 28-29; Fenster, pp. 53-54, 67, 70; Messer, pp. 107, 115-116, 123-124; P-38; P-46; P-72.) 31. By 1938, anyone arrested on a protective custody warrant was put in a concentration camp. (Sydnor, March 16, 1993, p. 102.) By 1939, persons arrested pursuant to protective custody could be subjected to execution, euphemistically referred to as “special treatment,” by order of the police. Persons slated for special treatment were shot, at the’ concentration camp to which they were sent. (Sydnor, March 16, 1993, pp. 115, 177-179; P-72; P-41; P-52; P-73; P-101.) 32. In September 1939, Nazi Germany invaded Poland, starting World War II. (Sydnor, March 16, 1993, p. 88.) Hitler’s objective was total victory, which encompassed the complete destruction of his enemies, ie., defeat of the army, the massacre of political leadership, deportation of the population, liquidation of the educational and intellectual human infrastructure of the society. (Sydnor, March 16, 1993, p. 107.) 33. The outbreak of World War II dramatically increased the power of -the SS, whose police and security responsibilities were extended into the areas that Germany annexed, occupied or influenced after the start of World War II. (Sydnor, March 16, 1993, p. 104.) 34. The Waffen -SS (“Armed SS”), formed in 1939, was an elite guard within the SS. The Waffen -SS included military units. that fought on the front, and all of the guard units in concentration camps. Guard units in the concentration camps were referred to as Waffen-SS Death’s Head Battalions or SS Totenkopfsturmbann. (Sydnor, March 16, 1993, pp. 136, 151; P-137,) 35. The Wehrmacht constituted the armed forces of Germany, consisting of the Army, the Navy, and the Air Force. The Waffen-SS was a Nazi party organization originated and organized as a paramilitary force of the Nazi Party; it considered itself an elite Nazi organization. The Waffen SS was not part of the Wehrmacht or the German Army. (Sydnor, March 16, 1993, pp. 67-69; Ziemke, pp. 13-15, 61, 72-73; United States v. Schellong, 717 F.2d 329, 331, (7th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984).) One could not be a member of both the Waffen - SS and the German Army. The German Army played no role in the running of concentration camps. (Sydnor, March 16, 1993, p. 104.) Recruitment, training, discipline, pay and uniforms differed between the Waffen -SS and the Wehrmacht. (Sydnor, March 16, 1993, p. 68; Ziemke, p. 13.) 36. After the outbreak of World War II, concentration camps rapidly grew in number and size. The camps came to have an enormous significance for the German war effort because of the utilization of concentration camp prisoners as slave laborers. Prisoners were intentionally worked to death. (Sydnor, March 16, 1993, p. 105; P-67.) It was intended that prisoners would be exterminated through hard labor. (Sydnor, March 16, 1993, pp. 105, 106, 126, 172; P-88.) 37. The population of concentration camps included American citizens who were in Europe when World War II broke out. Some of these people perished while imprisoned at the camps. During the War, some Allied POWs were held at concentration camps and murdered. (Sydnor, March 16, 1993, pp. 106-107; March 17, 1993, p. 16; P-36; P-63.) 38. Estimates for the total number of persons killed in Nazi concentration camps range between seven and nine million persons. (Sydnor, March 19, 1993, pp. 69-70.) 39. Nazi ideology considered the Jews responsible for all of the problems of the twentieth century and advocated the extermination of all Jews. By 1941 a plan was initiated for the extermination of European Jews. The SS referred to the extermination of European Jews as “the Final Solution to the Jewish Question” (Sydnor, March 16, 1993, pp. 107-109, 111; P-90.) Concentration camps were created in Poland to serve as extermination centers for the Jews of Europe. (Sydnor, March 16, 1993, p. 110; March 18, 1993, p. 134.) 40.. Prior to World War II there were 11 million Jews in Europe; from five to eight million Jews died in concentration camps. (Sydnor, March 19, 1993, pp. 66-70.) D. Concentration Camp Guards—General Background 41. The guards in the concentration camps played an essential role in the Final Solution. SS guards were responsible for clearing Jews from ghettos where they were already concentrated, transporting them to the various extermination camps, and guarding and securing the process of extermination at the camp, location or facility itself. Guards administered the looting and confiscating of effects of the people who' were murdered in the camps. (Sydndr, March 16, 1993, p. 111-112.) 42. Guards at concentration camps were responsible for the security of the camp, keeping the prisoners in the camp, guarding the prisoners during work details, and enforcing the rules and regulations that governed the concentration camps. (Sydnor, March 16, 1993, pp. 137-139, 147.) 43. Guards were always armed when they performed guard duty. Guards were trained to.fire their weapons if a prisoner attempted escape, if attacked by a prisoner, or if the prisoners mutinied. (Sydnor, March 16, 1993, pp. 142-143; Chatón, p. 20; Fenster, pp. 53-54; Messer, p. 115; P-154, pp. 19, 43, 48.) 44. Guards received training prior to and during their service as guards. Training included physical conditioning, .weapons training, combat assault tactics, riot control, rules and regulations relating to guard duty and ideological and political indoctrination sessions. Training was typically continuous throughout the individual’s service as a guard. (Sydnor, March 16, 1993, pp. 137, 139-140, 153-158; March 17, 1993, p. 66; P-44; P-83.) 45. Concentration camp guards received continuous ideological training including the history of the SS, the purpose of concentration camps, the reasons that people were imprisoned in camps, and the claim that the camps housed the most dangerous enemies of the state. (Sydnor, March 16,1993, pp. 103-104, 140, 141, 145, 156; P-97; P-82.) 46. Guards were paid and received days off during which they were allowed to leave the camp. (Sydnor, March 16, 1993, p. 148; Schiffer, March 31, 1993, p. 73.) 47. If someone refused duty as a concentration camp guard, he was transferred. There is no evidence that guards were killed for refusing to perform guard duties. (Sydnor, March 16, 1993, p. 146.) 48. Concentration camp guards participated in the Nazi program of persecution carried out in the concentration camps by preventing the escape of prisoners and by escorting prisoners to and from slave labor sites. (Sydnor, March 19, 1993, pp. 72-73.) E. Concentration Camp Prisoners—General Background 49. Upon entry into a concentration camp, a prisoner was “processed”: he was branded with a tattoo, issued a uniform, had his head and genital area shaved; and all of his personal effects were confiscated. (Sydnor, March 16, 1993, pp. 161, 180; P-27; Messer, pp. 120-121.) 50. A prisoner uniform consisted of striped trousers and a coat, similar in weight' to pajamas, and a pair of wooden clogs. (Sydnor, March 16, 1993, pp. 161, 164; Chakin, p. 21; Fenster, p. 52; Messer, P. 112.) A prisoner received no additional clothing in winter. (Sydnor, March 16, 1993, p. 164; P-154, p. 33.) 51. Prisoners wore a triangular colored badge on the left breast and the right leg of their uniform which designated why they were imprisoned; these patches were designed to be seen at a distance by the guards. Professional criminals wore green triangles, Jehovah’s Witnesses purple, homosexuals pink, political prisoners red, asociáis black; Jews wore two yellow triangles inverted on each other so that they formed the Star of David. Jewish inmates who were judged to be politically dangerous had the Star of David bordered in red. Prisoners considered high risk for escape had a target painted on the back of their jacket. Guards were trained to recognize what each of the color codings meant. (Sydnor, March 16, 1993, pp. 162-163; March 19, 1993, pp. 7-8, 14, 89-90; Chakin, p. 25; Messer, p. 112-113; P-154, pp. 34-36, pp. 79-80; P-103a.) 52. Prisoners were treated differently depending on their ethnic background. In all concentration camps, Jews received the most severe mistreatment. Soviets, Poles and Gypsies were also subjected to severe mistreatment. (Sydnor, March 19, 1993, pp. 76-87; P-56; P-32; P-37; P-26.) Guards were not punished for committing acts of brutality against prisoners. (Sydnor, March 16, 1993, pp. 170-171.) 53. Camp conditions subjected the prisoners to extreme physical abuse. There were no sanitary facilities, running water or heat. The food was so inadequate that people starved to death. Jews were given even less to eat than other prisoners. (Sydnor, March 16, 1993, p. 165; Chakin, pp. 24, 29; Fenster, pp. 59, 66; Messer, p. 117; P-154, pp. 34-36, 124-125.) Prisoners developed dysentery and typhus as a result of the conditions in the camps and received no medical attention. These conditions existed in the camps between 1943 and 1945, when defendant was a concentration camp guard. (Sydnor, March 16, 1993, p. 170; Sydnor, March 19, 1993, p. 72; Fenster, pp. 59, 64-66, 73; P-154, pp. 53, 90, 145.) 54. A- prisoner worked a minimum 11-hour day, six days a week. If prisoners were employed at a work site outside of the camp, the SS guards would escort the prisoners to the work site in time for them to begin work by dawn. (Sydnor, March 16, 1993, pp. 166, 183; Fenster, p. 63; P-77.) 55. Prisoners were counted twice each ■day: in the morning, prior to leaving for work, and in the evening when they returned. Prior to beginning work, all prisoners were required to be present in the roll call square for counting. The tally from the evening roll call had to match that of the morning roll call. If anyone had died during the night, that person’s body was dragged to roll call to be counted. Similarly, the evening roll call number had to match that morning’s roll call number. The bodies of those shot or those who had died during the day from other causes, including beatings or exhaustion, had to be returned to the camp by the prisoners. At the conclusion of the evening roll call, the gates of the protective custody portion of the camp were locked. (Sydnor, March 16, 1993, pp. 166-168.) If the count did not tally, prisoners were forced to stand, sometimes for several hours, until the missing prisoners were accounted for. (Fenster, pp. 60, 64; Messer, pp. 114r-116, 118; P-154, pp. 36-39.) 56. Prisoners in concentration camps were subjected to a code of conduct consisting of disciplinary and penal regulations. (Sydnor, March 16, 1993, p. 171.) The Dachau Regulations, P-40, served as the basis upon which all subsequent rules and regulations were modeled. (See also P-42.) Subsequent disciplinary and penal regulations became increasingly more stringent over time. Prisoners in concentration camps were subjected to both official and unofficial punishments. (Sydnor, March 16, 1993, pp. 168, 175-176; P-24.) 57. Official punishments were administered by the SS personnel at the camp. These punishments included beatings with whips and sticks or placing a prisoner in solitary confinement. Examples of infractions for which a prisoner could be punished included escape attempts, talking back to an SS guard, attempting to commit an act of violence against an SS guard, shirking or slacking off at work, trying to smuggle something into or out of the camp, carrying a comb (construed as carrying a deadly weapon), or wearing extra clothing (construed as sabotage). It was the practice to have corporal punishment inflicted on prisoners with all of the prisoners and guards of the camp present. (Sydnor, March 16, 1993, pp. 168-169, 172-173; March 18, 1993, p. 165; Messer, p. 123-124.) 58. Prisoners who attempted escape were either executed or tortured. If executed, the prisoner would be hanged in the presence of all other prisoners, who were forced to watch the hanging. (Sydnor, March 16, 1993, p. 170; Messer, p. 124.) 59. Bodies of deceased prisoners ■ were disposed of through burning, either in a camp crematorium or in large pits. Prior to burning a body, the corpse was examined by a special team of prisoners who were assigned the task of removing any gold fillings from the teeth of deceased prisoners. That gold was then collected, melted down, and deposited in an SS bank account. (Sydnor, March 16,1993, pp. 173,182; Chakin, pp. 16-17, p. 38.) F. Defendant’s Voluntary Enlistment and Service In the Waffen-SS 60. On May 12, 1943, a diplomatic agreement was reached between Germany and Romania which permitted Wehrmacht and Waffen-SS recruiters to set up recruiting stations in Romanian towns and villages where Volksdeutsche (ethnic Germans) lived, to enlist Romanian citizens or nationals- of ethnic German origin for voluntary service. Pursuant to the terms of the agreement, Romanian citizens or nationals of ethnic German origin “wishing to enlist” in the Wehrmacht or Waffen -SS had to execute a written declaration stating that their enlistment was voluntary. Ethnic Germans of Romanian citizenship or nationality serving in the Romanian Army had three voluntary military options according to the agreement: they could join the Wehrmacht, serve in the WaffenSS, or remain in the'Romanian Army. Romania guaranteed that no sanctions would be imposed on those ethnic Germans who did not enlist in the Wehrmacht or Waffen-SS. (Sydnor, March 16, 1993, pp. 73-74; P-81; P-68.) The recruitment of ethnic Germans in Romania by the Waffen -SS and Wehrmacht produced a substantial number of volunteers. (Sydnor March 16, 1993, p. 78; P-67; P-68) 61. On June 4, 1943, defendant, an ethnic German from Romania, volunteered to serve in the Waffen-SS in accordance with the terms of the aforementioned agreement between Romania and Germany and was, consequently, discharged from the Romanian Army. (Sydnor, March 16,1993, p.-87; P-ll at 3; P-15; P-17; P-18.) 62. Defendant was a member of the Waffen-SS Totenkopfsturmbann (Death’s Head Battalion) and served as a concentration camp guard from July 28, 1943 through May 4, 1945. (P-11 at 3, 4.) 63. Like his fellow SS members, defendant swore an oath of allegiance to Adolf Hitler when he joined the Waffen -SS. (Sydnor, March 19, 1993, pp. 5, 88.) 64. Defendant, while serving as a concentration camp guard, never requested a transfer and never refused any assignment. (Schiffer, March 31, 1993, p. 69.) G. Defendant’s Service As a Concentration Camp Guard 1. Sachsenhausen 65. Sachsenhausen Concentration Camp, located in Oranienburg about fifteen miles north of Berlin, operated from 1935 until 1945. The purpose of Sachsenhausen was to incarcerate political prisoners and other enemies of the German state. Jews were imprisoned at Sachsenhausen solely because they were Jews. (Sydnor, March 17,1993, p. 13; Messer, p. 126.) From July through December 1943, there were between 8,000 and 15,000 persons imprisoned at Sachsenhausen from virtually every country in Europe because they were considered enemies of national socialism (Nazism). (Sydnor, March 17, 1993, p. 24; March 18, 1993, pp. 156-158; Messer, p. 120-121; P-112; P-114.) 66. Defendant, as a member of the Waffen SB Totenkopfsturmbann (Death’s Head Battalion), served as an armed concentration camp guard at the Sachsenhausen Concentration Camp from July 1943 until December 1943. While stationed at Sachsenhausen, defendant’s ■ duties included receiving training and performing guard duty. (Sydnor, March 17,1993, pp. 5,110; Schiffer, March 31,1993, p. 65; P-11 at 3, 31; Complaint, ¶ 11.) 67. Sachsenhausen was enclosed by an electrified .fence. From the guard barracks, one could, see into the protective custody compound. P-63 accurately depicts Sachsenhausen as it existed in 1943. (Sydnor, March 17, 1993, pp. 13-15, 18, 19; P-63.) 68. Sachsenhausen included a Special Camp for POW officers and soldiers of the Western Allies. (P-63.) This special camp housed a number of Allied officers and bomber crews, including Americans, while defendant served as a guard at Sachsenhausen. (Sydnor, March 17, 1993, p. 16; P-63.) These Allied officers and soldiers were easily recognizable because they remained in their military uniforms. In the summer of 1943, a group of American and British airmen who were imprisoned at Sachsenhausen were executed. (Sydnor, March 17, 1993, pp. 16-18; March 18, 1993, p. 156; March 19, 1993, p. 14; Messer, p. 120.) 69. Sachsenhausen contained firing squad, ditches, where SS guards executed prisoners, and “Station Z” where, under the guise of a medical examination, a prisoner would be placed against the wall and shot by an SS guard in the back of the head through an opening in the wall. It also contained a crematorium, where corpses of prisoners were burned, and a gas chamber. The gas chambers at Sachsenhausen were used to kill prisoners who were no longer physically able to work. (Sydnor, March 17,1993, pp. 19-21; March 19, 1993, pp. 39, 50; Messer, pp, 123-124; P-63.) 70. From 1942 through 1944 medical experiments were conducted on prisoners at Sachsenhausen. Prisoners selected to be experimented upon had no choice but to submit to the experimentation. During the later half of 1943, while defendant was a guard at Sachsenhausen, prisoners were involved in experiments in which they were deliberately given phosphorus burns and typhus. (Sydnor, March 17, 1993, pp. 22-24; P-57; P-58; P-60; P-86; P-87; P-113.) All prisoners experimented upon died. (Sydnor, March 17, 1993, pp. 21-22; P-30.) 71. The normal life expectancy of a prisoner at Sachsenhausen from July to December 1943 was three to five months. (Sydnor, March 17, 1993, p. 25.) The primary causes of death were shooting, starvation, exhaustion and disease. (Sydnor, March 19, 1993, pp. 42-43.) 72. Defendant received a uniform, blood group tattoo, rifle and ammunition upon arrival at Sachsenhausen. Defendant’s uniform had a Totenkopf (death’s skull or “death’s head”) on it. Defendant retained the rifle issued to him at Sachsenhausen the entire time he was in the Waffen-SS. Defendant received a salary as a member of the Waffen-SS Totenkopfsturmbann. (Schiffer, March 31, 1993, pp. 65-67.) 73. Guard duty at Sachsenhausen included watchtower duty, walking the perimeter of the camp and accompanying prisoners to slave labor details outside of the camps. The main reason for the guards was to prevent prisoners from escaping. (Sydnor, March 17, 1993, pp. 25-26.) 74. By serving as a guard at Sachsenhausen from July through November 1943, defendant performed all of the dutiés required of guards and, thereby, participated and assisted in persecution. (Sydnor, March 17, 1993, p. 26.) 75. Following service as a guard at Sachsenhausen, defendant was transferred to the SS Training Facility Camp Complex at Trawniki. (Sydnor, March 17, 1993, pp. 5, 110; P-11 at 3, 24,' 31.) 2. Trawniki 76. The SS Training Facility Camp Complex at Trawniki, located in the southeastern section of the Lublin district of Poland, operated from October 1941 until the spring of 1944. (Sydnor, March 17, 1993, p. 36.) 77. Defendant, as a member of the Waffen SS Totenkopfsturmbann, served as an armed guard at the SS Training Facility Camp Complex at Trawniki from December 1943 through February 1944. While stationed at Trawniki, defendant’s duties included receiving training and performing guard duty. (Sydnor, March 17, 1993, pp. 6, 43, 110; P-11 at 3, 24, 31.) 78. The SS Training Facility Camp Complex at Trawniki consisted of an SS training compound and an adjoining forced labor camp. The labor camp' was enclosed with concentric fencing that was electrified. (Sydnor, March 17, 1993, pp. 37-38; P-94.) 79. In October 1943 there were over 6,000 prisoners at Trawniki, mostly Jews who had been moved to Trawniki from the Warsaw ghetto. Jews were imprisoned at Trawniki solely because they were Jews. (Chatón, pp. 31-32.) They lived in wooden barracks and were forced to perform slave labor at the camp enterprises. (Sydnor, March 17, 1993, p. 38.) ■ 80. On November 3, 1943, virtually all of the above-mentioned 6,000 prisoners were murdered in “Operation Harvest Festival” as part of “Operation Reinhard,” the code name given to the Nazi program for exterminating all of the Jews of Poland. Large ditches were dug in the eastern perimeter of the camp, and on the morning of November 3, 1943, the camp was surrounded by several battalions of Waffen SS ánd police. The Jewish prisoners were rounded up, marched into the eastern perimeter of the camp, selected out in batches of 100 to 150; they were forced to undress, to climb down into the ditches and to lie down; then they were machine-gunned to death. Operation Harvest Festival lasted for sixteen hours until the last of the prisoners was shot. (Sydnor, March 17, 1993, pp. 38-42; Chatón, p. 14.) 81. The bodies of the victims were originally buried, in the ditches. Subsequently, an order was issued to exhume the bodies and burn them to destroy all evidence of these murders. For approximately six weeks, at a time when defendant was a guard at the camp, a group of Jewish male prisoners was employed in Trawniki to burn the bodies of those who had been killed. These men were themselves shot by the SS guards and police detachments after the burning of the bodies was completed. The only prisoners that remained were a group of women who were left to sort the belongings of the prisoners, clean up the camp and do the laundry of the SS. (Sydnor, March 17, 1993, pp. 42—43; Chatón, pp. 16-17, 23-24, 38.) 82. By serving as a concentration camp guard at Trawniki from December 1943 to February 1944, defendant participated and assisted in persecution. (Sydnor, March 17, 1993, pp. 48-49.) 3. Majdanek 83. Defendant as a member of the Waffen-SS Totenkopfsturmbann, served as an armed guard from February 1944 through July 1944 at the Lublin Concentration Camp, also known as the Majdanek Concentration Camp. (Sydnor, March 17, 1993, pp. 6, 51, 110; Schiffer, March 30, 1993, p. 59; March 31, 1993, p. 68; P-11 at 1, 3, 24, 30, 31.) 84. Majdanek, located on the southeast side of the city of Lublin in Poland, served as one of the principal killing centers for the conduct of Operation Reinhard. As such, it was instrumental in the “Final Solution” to the Jewish question. Between 200,000 and 1.1 million people died at Majdanek during the course, of World War II. (Sydnor, March 17, 1993, pp. 50, 51, 127.) 85. Majdanek was enclosed by barbed wire. The protective custody compound consisted of six compounds, where the prisoners were housed and worked. Each of the six compounds was enclosed by an electrified fence, and the entire protective custody compound was also enclosed by an electrified fence and surrounded by watchtowers. Each of the six compounds also had gallows for executing prisoners who violated rules. There were gas chambers and a crematorium at Majdanek. (Sydnor, March 17, 1993, pp. 52-54; March 19,1993, pp. 41-42; Chakin, p. 26; P-14 at Ex. 12; P-78.) 86. Between February and July 1944, approximately 10,000 to 15,000 prisoners were confined at Majdanek. Prisoners included Jews, political prisoners, prisoners of war, suspected partisans, and children. Jews were imprisoned at Majdanek solely because they were Jews. The prisoners were used as slave labor. (Sydnor, March 17, 1993, pp. 54-56; P-89; Chakin, pp. 31-32.) , 87. From February to July 1944, conditions in the camp worsened as the fighting front approached the camp. The camp became severely overcrowded; sanitary conditions worsened, food became more scarce. Normal life expectancy for a prisoner at Majdanek from February through July 1944 was three months. (Sydnor, March 17, 1993, pp. 56-57; P-115a; P-115b.) ' 88. Guard duty at Majdanek from February through July 1944 consisted of guarding prisoners within the protective custody compound, guarding prisoner work details, and dealing with security tasks outside of the camp involving partisan actions. (Sydnor, March 17, 1993, p. 57; P-61.) 89. While stationed at Majdanek, defendant guarded prisoners from the watchtowers. (Schiffer, March 30, 1993, p. 60.) Defendant was armed with- a rifle while on watehtower duty. (Schiffer, March 31, 1993, p. 68.) The primary purpose of watehtower duty, as with all types of guard duty, was to prevent the escape of prisoners. (Schiffer, March 30, 1993, p. 60.) The standing order for a watehtower guard was to shoot any prisoner who left his barracks during the night. Guard regulations also ordered that prisoners be shot if they approached the camp fences. (P-61.) 90. With the advance of Soviet forces, evacuation of prisoners from Majdanek to Auschwitz began in April 1944 and continued through July 1944. (Sydnor, March 17,1993, pp. 55, 58-59; Chakin, pp. 27-30.) 91. During the evacuation of the Majdanek Concentration Camp, defendant left Majdanek in July 1944 and guarded prisoners as they were moved from Majdanek to Auschwitz. (Sydnor, March 17, 1993, pp. 7, 10, 111; P-11 at 3, 25.) Guards mistreated prisoners during the evacuation. (Chakin, pp. 28-29.) Many prisoners were transported in railroad boxcars with closed doors. As a result many died during the evacuation. (Ziemke, p. 34.) Other prisoners were forcibly marched on foot to Auschwitz. Those who could not march were shot along the way. (Chakin, p. 28.) 92. Upon arrival at Auschwitz, prisoners were subjected to a “selection” to determine who was able to perform slave labor and who would go directly to the gas chamber for execution. Most of the Jews from Majdanek did not survive the selections and were gassed immediately upon arrival. Those who survived were put to work as slave laborers. Many died while performing forced labor at Auschwitz, because of the inhumane conditions to which they were subjected by the SS. (Sydnor, March 17, 1993, pp. 59-60; March 18, 1993, pp. 135-136.) 93. By serving as a guard at Majdanek and during its evacuation to Auschwitz, defendant participated and assisted in the persecution. (Sydnor, March 17, 1993, pp. 60-61.) 4. Hersbruck 94. Hersbruck, located in Northeastern Bavaria in Germany, was the site of the Hersbruck subcamp of the Flossenburg Concentration Camp (hereinafter “Hersbruck”.) (Sydnor, March 17, 1993, p. 72.) 95. Defendant, as a member of the Waffen-SS Totenkopfsturmbann, served as an armed concentration camp guard at Hersbruck from August 1944 through April 1945. (Sydnor, March 17,1993, pp. 7, 111; Schiffer, March 30, 1993, p. 64; March 31, 1993, p. 72; P-11 at 1, 3, 24, 25, 31; P-47.) 96. Hersbruck operated from May 1944 until April 1945 to provide slave labor for the construction of a series of tunnels planned to house underground bomb-proof factories and installation centers in the Hubirge Mountains, above the village of Happburg, near Hersbruck. These facilities were to be constructed underground so that war production facilities would not be interrupted by damage from Allied bombing. (Sydnor, March 17, 1993, pp. 73-76; P-111.) 97. From August 1944 through April 1945, approximately 10,000 prisoners from almost every European country were confined in Hersbruck. After September 1944 there was a large number of Hungarian Jews at Hersbruck. Jews were imprisoned at Hersbruck solely because they were Jews. (Sydnor, March 17, 1993, p. 77; Fenster, p. 74; P-154, pp. 51, 79.) 98. The Hersbruck camp was surrounded ■ by an electrified fence. (Sydnor, March 17, 1993, p. 77; Fenster, p. 68; P-154, pp. 36-39.) Conditions at Hersbruck were horrible; prisoners were overworked, underfed and physically abused. (Sydnor, March 17, 1993, pp. 77-78, 89; Fenster, pp. 59, 63-66; P-34; P-111; P-128; P-134;' P-154, p. 55.) 99. During the period when defendant was a guard at Hersbruck, the normal life expectancy of a prisoner was less than two months. The causes of death included exhaustion, typhus, malnutrition, exposure and murder. The Hersbruck camp was referred to as a death detail because the mortality rate was so high. (Fenster, pp. 59, 63-66; P-139, p. 2262; P-154, pp. 49-53.) Only the Mauthausen Concentration Camp listed a larger number of prisoner deaths. (Sydnor, March 17,1993, pp. 78, 94-96; P-43; P-111.) 100. Bodies of deceased prisoners were cremated. ' Until the fall of 1944, when the number of corpses to be cremated became too great, prisoners were cremated by á firm in Nuremburg. In the fall of 1944 the camp constructed its own crematorium but it was insufficient to dispose of the large number of bodies. By January 1945 large numbers of bodies were being burned in two large open pits that were dug in the forest outside the camp. At least once a week, a large truck pulling a trailer, both of which were loaded with corpses, would leave the camp, along with a prisoners burial detail accompanied by SS guards, to burn the bodies. (Sydnor, March 17, 1993, pp. 78-79; P-133.) . 101. Guard duty at Hersbruck consisted of guarding the camp and guarding prisoners taken from Hersbruck to work sites in Nuremburg, where prisoners were used as slave laborers to repair bomb damage in the railroad yard and to dig out unexploded bombs in and around Nuremburg (Sydnor, March 17, 1993, p. 81), and in the Hubirge Mountains, above- the village of Happburg. (Sydnor, March 17, 1993, pp. 78, 82; Fenster, March 18, 1993, p. 61.) 102. Prisoners were escorted to and from the work sites by Waffen -SS guards. Prisoners were transported'by rail, when available, or marched by the guards. The guards remained at the worksite to guard the prisoners and prevent their escape. Prisoners died while going to and from the worksite. Defendant, armed with a loaded rifle, escorted prisoners to and from the Happburg site where they were forced to dig tunnels. (Sydnor, March 17, 193, pp. 84-85, p. 107; Schiffer, March 30, 1993, pp. 64-65; March 31, 1993, p. 73; Fenster, pp. 60-61, 64.) 103. Prisoners who worked at the Happburg site were grossly mistreated. Prisoner kapos, SS guards, and civilian employees of the construction firms hit prisoners with their hands, sticks, dog whips, and rubber hoses and kicked and shoved them with their feet until they were beaten bloody and collapsed on the ground. Prisoners who worked at the Happburg site worked eight or twelve hour shifts excavating the mountain. The work was hard, dirty and hazardous. Sickened, incapacitated prisoners suffered worsened health as a result of the work and conditions. (Sydnor, March 17, 1993, p. 83; Fenster, pp. 59, 63-67; P-111; P-122; P-126; P-127; P-131; P-132.) 104. In April 1945, with the United States Army advancing close to Hersbruck, the SS evacuated Flossenburg and its subcamps, including Hersbruck, by forced march to Dachau Concentration Camp. This evacuation was a “death march.” Those prisoners who could not continue to march were shot by SS guards. Defendant guarded prisoners during the evacuation of Hersbruck. (Sydnor, March 17, 1993, pp. 10-11, 85-87, 111; Ziemke, p. 25, 154, pp. 56, 71, 78, 133-134; Fenster, p. 70; P—11; P-135; P-140, p. 8347; P-143; P-145.) 105. By serving as a guard at Hersbruck and then as a guard on its evacuation March from August 1944 through April 1945, defendant participated and assisted in persecution. (Sydnor, March 17, 1993, p. 85.) H. Defendant’s Internment as a POW and Suspected War Criminal 106. On or about May 10,1945, defendant was captured and arrested at Altenmarkt near Traunstein, in Germany, and held by United States forces at Bad Aibling, as a prisoner of war. (P-11 at 12, 31, 33 and 35; . P-22 at 6.) 107. At Bad Aibling, members of the SS were separated from members of the Wehrmacht (Schiffer, March 30,1993, p. 72; March 31, 1993, p. 76.) 108. When arrested, defendant was in possession of his soldbuchersatz, or paybook, which listed the dates and the places at which he had served while a member of the Waffen-SS Totenkopfsturmbann. (Ziemke, pp. 32-33; Schiffer, March 31, 1993, p. 67; P-11 at 11.) 109. Defendant was taken from Bad Aibling to Dachau where he was investigated by the United States Army because of his service as a concentration camp guard. (Schiffer, March 30, 1993, p. 72; March 31, 1993, p. 77; P-152.) War crimes suspects were housed at Dachau. (Ziemke, p. 23.) 110. After World War II, the United States Army prosecuted war crimes in accordance with established principles of international law. Because of the atrocities that had occurred in the concentration camps, a new category, “crimes against humanity,” was added to international law. (Ziemke, pp. 17-18.) 111. In 1946 the International Military Tribunal at Nuremburg declared crimes against humanity to be a war crime. The Nuremburg Tribunal adjudged the SS and the Waffen-SS to be criminal organizations. Anyone who was a member of these organizations was automatically a war crimes suspect and subject to automatic arrest. (Ziemke, pp. 19-20.) Members of the German Army, as well as other branches of the Wehrmacht, were not subject to automatic arrest. (Ziemke, p. 31; P-99.) 112. On February 25, 1946 the United States Army issued. Security Memorandum No. 1, stating members of paramilitary organizations, including all ranks of the Totenkopfverbaende (Death’s Head Unit), were subject to automatic arrest. (P-99.) 113. The Counter Intelligence Corps, (hereinafter “CIC”) was the chief investigative unit of the Army during the United States occupation of Germany. War crimes suspects were interrogated by German-speaking interrogators. (Ziemke, pp. 21-22, 81-82.) 114. On February 4, 1946, while he was interned as a war crimes suspect at Dachau, defendant was interviewed by United States Army personnel. In this interview, - defendant admitted he served as a concentration camp guard at Oranienburg (Sachsenhausen), Trawniki, Lublin (Majdanek) and Hersbruek and that he left Hersbruek with prisoners. Nevertheless, defendant stated in this interview “that he knows absolutely nothing concerning mistreatment, if such occurred, in any of the places he was stationed. Did not come into contact with prisoners at any time, except when marching from Hersbruek. Saw no mistreatment of any of the marching prisoners.” Defendant’s statements concerning treatment of prisoners are completely contrary to historical facts and common sense. (Sydnor, March 17, 1993, pp. 10-12, 85-88, 110-111; Ziemke, pp. 34-37.) 115. The original policy of the United States Army in 1945 was to develop and prosecute cases concerning the concentration camps located within the United States occupied zone. (Ziemke, p. 22.) In 1946, the “Law for Liberation and Militarism” transferred the responsibility for prosecuting war crimes eases to the German government. The United States Army was given a deadline of December 1947 to bring to trial the cases it was investigating. From July 1946 until December 1947, the Army transferred war crimes suspects in custody, who were not yet charged with a particular crime, to German civilian control in order to be tried by German courts. (Ziemke, pp. 22-24.) Of the 15,000 persons arrested as suspected war criminals, only 1,600 were actually tried by the United States Army. (Ziemke, p. 83.) 116. Persons who had served in concentration camps were aggressively sought as suspects because status as a concentration camp guard automatically gave rise to the possibility of a charge of murder, or mass murder. (Ziemke, pp. 33-34.) 117. Defendant was held as a Prisoner of War (POW) from May 1945 until July 1946. On July 10, 1946, defendant was discharged as a POW and was arrested by United States authorities as a suspected war criminal. (Ziemke, pp. 28-30; P-11 at 16, 21, 22, 23, 34, 37; P-22; P-99.) Defendant knew he was arrested pursuant to the automatic arrest category authorizing the arrest of all persons who were members of the Waffen-SS Totenkopfverbaende (Death’s Head units). (Schiffer, March 31,1993, pp. 77, 97.) Defendant would have known he was still under arrest because when he was discharged as a POW, he was not released from custody and not permitted to leave the camp. (Ziemke, pp. 28-30, 52.) . . 118. On May 13,1947, defendant completed a form entitled “Military Government of Germany Fragebogenin which he documented his service as a concentration camp guard. Additionally, defendant indicated under section E of this form, requiring him to state whether or not he was a member of any of the organizations listed, that he was a member of the Waffen -SS. (P-11 at 2-7.) 119. In June 1947, defendant was transferred to a civilian camp in Nuremburg-Langwasser as a war- crimes suspect. At that time only 2,000 war crimes suspects remained at Dachau. (Ziemke, pp. 37-38.) 120. During his detention as a POW and while he was held as a suspected war criminal, defendant variously claimed—both orally, and in writing—to be a citizen of Romania, Germany, and Austria; however, at no point did he claim to be a citizen of the United States. (Callow, pp. 165-170;, P-11 at 2, 8, 10, 16, 17, 18, 24, 40.) 121. When defendant was released from civilian internment on December 12,1947, he remained a war .crimes suspect. His release transferred him to a German civilian court for possible trial because the Army was completing its war crimes cases. (Ziemke, pp. 38-39.) I. Defendant’s Attempts To Return To The United States I. 1948 Visit To Consulate 122. On March 31, 1948, only 3% months after his release, defendant contacted the American Consulate in Salzburg, Austria and gave a sworn affidavit wherein he admitted that he had served in the Romanian Army and the Wajfen-SS Wachmannschaft, that he had taken oaths to the Romanian King and Adolf Hitler, and that he had been interned as a POW by Allied troops. (P-9 at no. 7.) 123. On September 29, 1949, the consulate prepared a “Certificate of Loss of Nationality of the United States” (hereinafter “certificate of loss”) based upon defendant’s admitted bath to the King of Romania taken at the time of his Romanian military service. The Certificate of Loss was forwarded to the Department of State, but was never finalized. Although the State Department agreed that defendant had lost his birth citizenship, it sought clarification as to how and when he had expatriated. Before approving the certificate, the State Department asked the Consulate to ascertain whether the defendant acquired Romanian citizenship in his own right by birth or through the acquisition of such citizenship by his father. No further action was taken until defendant made a subsequent application on April 23, 1952. (P-9 at Nos. 6 and 7.) 2. Application Under DPA 124. In 1948 Congress passed Public Law 774, the Displaced Persons Act (hereinafter “DPA”), which provided for the admission of displaced persons (hereinafter “DP’s”) to the United States. (Ziemke, p. 41.) 125. Pursuant to Section 13 of the DPA, members of organizations hostile to the United States were prohibited from admission to the United States under the DPA. Lists were compiled indicating those organizations that were deemed hostile to the United States. These lists were referred to as the “Inimical Lists.” (Ziemke, pp. 42-43; P-107, P-108.) 126. Persons were investigated by the Visa Screening Section of the CIC to determine whether they could be admitted to the United States under the DPA. The CIC maintained a central registry of war crimes suspects. When a person applied for admission to the United States as a DP, his name was sent to the CIC to determine if it had any record of derogatory information concerning the applicant. If the CIC had derogatory information, then the applicant was denied a visa under the DPA. (Ziemke, p. 43.) 127. Initially, all members of the Waffen-SS were precluded from receiving visas under the DPA. In 1951, certain members of the Waffen-SS, primarily those persons involved in combat, were made eligible for visas under the DPA. Members of the Waffen-SS Death’s Head Units, i.e., concentration camp guards, however, remained ineligible to receive DPA visas. Members of the German Army were eligible to receive DPA visas. (Ziemke, pp. 44-46; P-107; P-108; P-109; P-160.) 128. Defendant applied for a DPA visa and was rejected under Section 13 of the DPA after an investigation by the Visa Screening Section of the CIC revealed defendant’s CIC file as a war crimes suspect at Dachau. (Ziemke, pp. 46-47; P-8.) Defendant was rejected prior to October 1951. (P-10.) Subsequently, defendant’s name was placed on List No. 58 of the Displaced Persons Commission (hereinafter “DPC”), reflecting defendant’s rejection under Section 13 of the DPA. (Ziemke, pp. 47-48; P-16.) Defendant was rejected for a DP visa because he was a member of the Totenkopfaerbaende, an organization on the inimical list, which was found to be part of a criminal organization by the Nuremburg Tribunal. (Ziemke, p. 49.) 3. 1952 Application for Registration and Issuance of Certifícate of Loss of Nationality 129. On April 23, 1952, defendant executed an “Application for Registration”, “Affidavit by Native or Naturalized American to Explain Foreign Residence” and supplementary affidavit, and “Questionnaire” at the American Consulate in Salzburg, Austria. (P-9 at Nos. 3, 4, and 5.) 130. In the Affidavit by Native or Naturalized American to Explain Foreign Residence and the supplemental affidavit attached thereto, defendant admitted service in the Romanian Army and stated that he had served in the “German Army (SS Unit)”. Defendant further admitted that he had not contacted an American Consulate during the time he resided in Romania. Defendant stated in the supplemental affidavit that he had acquired Romanian nationality through his father and was included on the Certificate of Nationality as a minor child. Defendant further stated in the supplemental affidavit that he willingly served in the Romanian military because he was a national of Romania and, thus, liable to perform army service, and that he did not protest taking an oath of allegiance to the head of the German State. The Questionnaire, to which defendant responded in German, confirms the information provided in the affidavits. Additionally, in the Questionnaire defendant stated that while in the German Army, he served at various places in Germany between 1943 and 1945. Nowhere, in any of these documents did defendant indicate that he served as a concentration camp guard or that he served in Poland during World War II. (P-9, at Nos. 4 and 5.) 131. The consulate recommended that a Certificate of Loss of Nationality.be issued to defendant based upon his Romanian Army service at a time when Romania was engaged in hostilities with the United States. (P-9 at .No. 4.) 132. On October 17, 1952, the United States Department of State approved the consulate’s recommendation and issued' a duly executed Certificate of Loss to' defendant based upon defendant’s Romanian Army service. (P-9, at No. 3.) 133. The Nationality Act of 1940 specified certain acts which constituted expatriating acts, including taking an oath of allegiance to a foreign sovereign. Voluntary service in the Romanian Army, the taking of an oath of allegiance to King Carol II of Romania, voluntary service in the Waffen-SS and the taking of an oath of allegiance to Adolf Hitler, are all expatriating acts under the Nationality Act of 1940. (Callow, pp. 140-41, 150.) 134. Defendant’s service in the Romanian army and the Waffen-SS at a time when Romania and Germany were at war with the United States constituted expatriating acts pursuant to the Immigration and Nationality Act of 1952. (Callow, pp. 143, 151.) 135. Contemporary standards of review under Vance v. Terrazas, 444 U.S. 252, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980) establish an administrative presumption of intent to retain United States citizenship unless there is objective evidence of conduct inconsistent with retention of citizenship. Defendant’s Romanian military service and oath of allegiance to King Carol II constitute expatriating acts and conduct inconsistent with the retention of citizenship. (Callow,- p. 164.) 136. Defendant has never attempted to appeal or contest this Certificate of Loss. 4. Visa Application ■ 137. Having been denied the rights and privileges of a United States citizen, defendant executed, under oath, an “Application for Immigrant Visa and Alien Registration” (hereinafter “visa application”) and submitted this to the American Consulate at Salzburg, Austria on April 9, 1953. (P-3.) 138. In response to Question 26 of the visa application, defendant stated his places of previous residence were, “1943-1945 German Army; 1945-1946 Prisoner of war, Bad Aibling Germany; 1946-1947 Internee at Dachau and Nuremburg, Germány.” Nowhere did defendant state that he was a member of the Waffen-SS Death’s Head Battalion or that he served as a concentration camp guard in Poland. (P-3.) 139. In response to Question No. 30 of the visa application, defendant stated that he was a former United States citizen and that -he had lost his citizenship by serving in the armed forces of a foreign state. (P-3.) 140. Although Question No. 33 of the visa application expressly asks about prior applications for visas, defendant left this' space blank. He made no mention of his application for a visa under the DPA and the subsequent denial thereof. (P-3.) 141. On April 9, 1953, the American Consulate at Salzburg, Austria, issued to defendant a non-quota immigrant visa based on-his claim that he was a “[fjormer United States citizen having lost his citizenship under the provisions of section 401(c) of the Nationality Act of 1940 (54 Stat. 1169), by entering and serving in the forces of a foreign state, and now desires to apply for reacquisition of citizenship under the provisions of Section 327 of the Act.” (P-3.) 142. On May 19, 1953, defendant was admitted to the United States at the Port of New York, New York. (P-3.) J. Defendant’s Naturalization 143. On June 17, 1958, defendant filed with the- United States Immigration and Naturalization Service (hereinafter, “INS”) in Philadelphia an “Application to File Petition for Naturalization,” (hereinafter “Application”) and a “Statement of Facts for Preparation of Petition” (hereinafter “Statement of Facts”), together comprising INS Form N-400 Application. (P-2.) 144. In 1958, standard procedures and practices were employed by naturalization examiners of the INS in processing naturalization applications and petitions. These standard procedures included application of the Immigration and Nationality Act, the Code of Federal Regulations, INS Operating Instructions and the Nationality Manual. (P-155, pp. 22-24.) 145. Prerequisites for naturalization include that the applicant possess good moral character and attachment to the principles of the Constitution. (P-155, pp. 106-107.) 146. An alien who applied for citizenship by submitting an N-400 application to the Philadelphia office of the INS was scheduled for an interview. At the beginning of the interview, the naturalization examiner placed the applicant under oath. (P-155, pp. 46, 49.) The naturalization examiner then reviewed the N-400 Application with the applicant, going over each and every question, statement and allegation contained therein, checking for correctness, in accordance with INS established practice. Any corrections to be ■made were noted by a number and confirmed answers were checkmarked. (P-155, pp. 40, 43, 50-51.) 147. On June 17, 1958, defendant appeared before a naturalization examiner at the Philadelphia office of the INS and swore that all the answers given on his Form N-400 Application were true to the best of his knowledge and belief. In accordance with INS practice, defendant reviewed and affirmed under oath all the, statements in his application. Additionally, defendant demonstrated his ability to read, write and speak English. (P-2, p. 4; P-20; P-155, p. 61.) 148. At no time during the processing of his naturalization application did defendant either assert his United States citizenship or dispute the earlier finding that he had intentionally relinquished it. Rather, in response to Question No. 5 of the Statement of Facts, which asks, “country of which I am a citizen, subject, or national,” defendant responded “Stateless—Last of Romania”. (P-2.) 149. The purpose of Questions 10 and 13 on the N—400 Application, was to ascertain whether the applicant was ever arrested or belongs or had belonged to any organization that was subversive or inimical to the best interests of the United States. (P-155, p. 86.) 150. In response to Question No. 13 of the Application, which required defendant to list all organizations in which he had been a member before the last ten years, defendant initially responded that he did not belong to any organization. During the interview with the naturalization examiner that answer was stricken, and defendant responded that he had been a member