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December 28, 1984


The opinion of the court was delivered by: Moran, District Judge.


The government here seeks the denaturalization of Liudas Kairys, pursuant to 8 U.S.C. § 1451(a), on the grounds that he secured his immigration and citizenship by misrepresentation and concealment of material facts and because the facts concealed legally barred him from entering the United States at the time of his immigration. The central factual issue in this case is whether the defendant is the person the government contends he is. It is not disputed that in the determination of that factual issue all inferences in the evidence must be drawn as far as reasonably possible in favor of the citizen; and that with those inferences drawn favorably to the accused the government must prove each element of its case by clear, unequivocal and convincing evidence, with the government's proof not leaving the issue in doubt on any element of the case.

Defendant is not charged with war crimes. What is under attack is his status as a citizen. The basis for that attack is his alleged status some forty years ago, as a guard at the Treblinka labor camp. While the government contends that defendant was personally involved, on one or perhaps more occasions, in atrocities, its proof of that, as later more fully discussed, is insubstantial. What an individual guard by the name of Kairys may or may not have done at that camp is now lost in the mists of time.

It is perhaps helpful to begin by discussing the larger context in which this case arose. That context is historical, with much of it stipulated to by the parties.

In modern times Lithuania has existed as an independent national state only during the period between the World Wars. The district of Vilnius, the historical site of the Lithuanian capital, was originally under Lithuanian sovereignty when it became independent. However, in 1920, it was invaded by Poland and placed under Polish sovereignty. The period between the wars was marked by difficult relations between Poland and Lithuania, in large measure because of the Polish control of Vilnius. Germany, for reasons of its own, gave comfort to Lithuania during that period in its aspirations for a recovery of Vilnius.

In September 1939, following the German-Soviet nonaggression pact, Germany and the Soviet Union invaded and partitioned Poland. The Soviet Union thereafter occupied the eastern portions of Poland, including the Vilnius district. A month later, in October, it returned the City of Vilnius to Lithuanian sovereignty. In June 1940 the Soviet Union invaded and occupied the Baltic states and Lithuania ceased to exist as an independent nation. A year later, on June 22, 1941, Nazi Germany invaded the Soviet Union and Lithuania was rapidly overrun. During the remainder of the war the Germans employed Baltic nationals in paramilitary formations and in other capacities. Their status was not that of Germans but, although subordinate, it was considerably better than that of Poles, Russians, and Jews. The Balts occupied a rung on the Nazi "hierarchical principle of racism," which exploited "the antisemitic assertion of the existence of a `worst' people in order properly to organize the `best' and all the conquered and oppressed in between . . . so that each people, with the necessary exception of the Jews, could look down upon one that was even worse off than itself." Arendt, The Origins of Totalitarianism (1951), p. 241.

In 1942 the Germans initiated "Aktion Reinhard," which was a plan for the systematic total extermination of all Jews in Europe. The German Schutzstaffel ("SS") was in large part responsible for carrying out this plan. One method for carrying out its plans, vis-a-vis Europe's Jews, was Nazi Germany's operation of numerous concentration camps, extermination camps and forced labor camps. The SS was responsible for the operation of these camps.

Although defendant did not so stipulate, it is beyond dispute that the SS recruited numerous Soviet prisoners who were to act as guards. Prisoners deemed politically reliable, such as various Baltic and Ukrainian prisoners, were inducted into guard units known as the SS Wachmannschaft. Many members of those units received training as camp guards at the Trawniki training camp in Poland. Some of the guard units served in the SS Commando Lublin in Poland. That unit had several functions over time, including guarding the Warsaw and Lublin Jewish ghettoes, guarding concentration camps and labor and extermination camps in and around Lublin, and participating in rounding up Jews in the Polish ghettoes and in their subsequent transportation. That guard service included service at the Treblinka labor camp.

The Treblinka labor camp was originally erected in late 1941 or early 1942 as a penal camp for Poles who committed various infractions of Nazi law. After the institution of Aktion Reinhard in 1942 the Germans erected the Treblinka extermination camp a few kilometers from the labor camp. Jews and others from Poland and elsewhere were thereafter sent to Treblinka (in addition to other similar camps) by the tens of thousands. Jewish prisoners sent to Treblinka were selected immediately for either death by gassing at the extermination camp or, if healthy, for forced labor in the labor camp or extermination camp. Approximately 900,000 Jews were murdered at the Treblinka extermination camp during the period of its existence.

The Treblinka labor camp was under the administration of German SS officers. Food rations for prisoners at the labor camp were inadequate and medical care for prisoners was virtually non-existent. Much of the labor performed by prisoners was exceedingly strenuous, including loading coal at a railroad station, breaking up and transporting stones from a quarry, chopping wood, paving and repairing roads, and loading sand from the banks of a nearby river. Prisoners at the labor camp were forced to work year-round, regardless of the weather. They worked six days a week from early morning until evening. As a result of these conditions the death of prisoners by disease or exhaustion was a weekly, and sometimes a daily, occurrence. Prisoners who became too weak to continue working were killed by members of the guard unit and the German SS. In addition to those deaths, prisoners of the Treblinka labor camp were shot, hanged, beaten or stabbed to death with and without apparent reason by the German SS and the camp's guards. During the course of its operation several thousand Jewish prisoners died at the labor camp. As they died or were killed, they were replaced by new prisoners. The total number of prisoners generally varied between 500 and several thousand, including men, women and adolescents.

While the camp was not a death camp as such, unlike the nearby Treblinka extermination camp, it was anticipated that the prisoners at the Treblinka labor camp would, in due course, die from disease, malnutrition or overwork. As a matter of policy prisoners who could no longer work were — in the evening upon returning from work details — left between the fences on the perimeters of the camp for the purpose of being killed before the following day.

Besides the German SS officers, there were four platoons of non-German SS Wachmaenner, each platoon comprising between 10 and 25 guards. The guards were armed. Only Germans were generally authorized to enter the prisoner compound. The guards resided on the premises nearby and acted generally as perimeter and work detail guards.

The extermination camp was closed in the fall of 1943. In July 1944, as the Soviet army approached the vicinity of Treblinka, the labor camp was abandoned and burned. Over 300 Jewish prisoners were shot at that time, with only 10 to 15 survivors. Members of the guard unit participated in that massacre.

After evacuating Treblinka, the guards retreated westward into Germany. In February 1945 they were in Dresden, where they participated in the search for survivors, the burial of the dead and the clearing of the rubble following the firebombing of the city. From there, as the war came to a close, the unit moved into Czechoslovakia, where it was at the war's end.

The government contends the defendant was born Liudvikas Kairys on December 24, 1920, in the Village of Svilionys, Svencionys County, in eastern Lithuania. That area is in the Vilnius district, then under Polish sovereignty. His father's name was Petro and his mother's maiden name was Maria Meskelyte. Sometime prior to March 1940 defendant moved to Vilnius. In the spring of 1940 a Liudvikas Kairys, son of Petro, born December 24, 1920 in Svilionys Village, and residing in Vilnius, was granted Lithuanian citizenship. A Lyudvik Kayrov, son of Petr and Mariya, nee Meshkel, born December 24, 1920, had previously been baptized in the Village of Svilyany in 1921. The personal data underlying that application for citizenship specifies that Kairys completed a four-grade grammar school in the Village of Svilionys.

According to the government, defendant shortly thereafter entered service in the Lithuanian military. When the Soviet Union invaded and occupied all of Lithuania it absorbed the Lithuanian military into the Red Army. Defendant remained with his military unit and, within a few days after the invasion, he was captured. At some later time he was taken to the German prisoner-of-war camp in Hammerstein, Pomerania.

Defendant does not seriously dispute that a Liudvikas Kairys, son of Petro, born December 24, 1920 in Svilionys, lived on his parents' farm and thereafter moved to Vilnius where he was granted Lithuanian citizenship on May 4, 1940. The so-called Lithuanian documents, Government's Exhibits 40, 41, 42, 43, 44, 45 and 50, are all admissible as ancient documents, as self-authenticating and, for the most part, as public records. Indeed, no one has seriously questioned their authenticity and defendant testified that the newspaper announcement of the grant of citizenship, containing virtually all the information previously described, was an announcement in a Lithuanian publication. It is defendant's contention, however, that he is not the person referred to in those documents. Handwriting experts were unable to conclude that the signatures on certain of those documents were or were not in the handwriting of defendant.

That contention becomes important because of the evidentiary indications that the person in those documents was later a guard at the Treblinka labor camp. It is the whereabouts of the defendant during the period 1942-1944 that is the principal dispute. The government contends that defendant was recruited from the Hammerstein prisoner-of-war camp in 1942 by the Germans for service to them, that he was thereafter trained at Trawniki and, in July 1942, assigned to the SS Commando Lublin. In March 1943, according to the government, defendant was transferred to the Treblinka labor camp, where he served until the abandonment of camp, thereupon retreating westward with the guard unit. Toward the close of the war he participated with the guard unit in the burial details in Dresden and, again according to the government, was in Prague at the end of the war.

Defendant has consistently maintained that he was born December 20, 1924 in Kaunas. He agrees that his father's name was Petro and his mother's maiden name was Mariya Meskelyte and that he grew up on the family farm in Svilionys. He agrees that he moved to Vilnius and was living there in 1940, although he has testified that he resided there from 1938 on. He denies that he was naturalized in the spring of 1940, which would have been unnecessary if he had been born in Kaunas, which was at all times between the wars under Lithuanian sovereignty. He contends that the Liudvikas Kairys naturalized at that time is someone else, and he is unable to recall anyone of that name in the village, although he related that there were only 128 people there in 1939. His visa application recites that from 1938 to 1944 he was in Radviliskis and other places in Lithuania and from 1944 for a period thereafter was in Leitneritz in Czechslovakia.

In the job application to the company by which he was employed it is recited that he attended grammar school in Kaunas for six years and secondary schools in Radviliskis for four years, a total of ten years, the same period of education as listed on the visa application. In his deposition and trial defendant testified that he attended grammar school in Svilionys for four years, secondary school in Svencionys (near Svilionys) for four years and secondary school in Vilnius for three years. He testified that he was in Radviliskis and Vinuto, Lithuania, in 1941 and early 1942, in the Hammerstein POW camp for the remainder of 1942 and was, for the rest of the war, doing forced labor in Poland and Germany. He further testified that he did participate in the digging out of Dresden after the firebombing and that he was in Prague when the war ended. Finally, the defendant places a great emphasis on DX-1, an identity card purportedly issued in Radviliskis on August 7, 1941, indisputably bearing his signature and photograph. That card indicates that he resided in Radviliskis until May 1942 and then moved to Vinutas. It gives his eyes as blue and his hair as dark. It cites that he was born in Kaunas on December 20, 1924.

There seems little dispute that defendant lived and worked with a farmer near Regensburg for the period shortly after the war. He thereafter, from October 1946 until February 1947, lived and worked as a farm laborer in the Village of Wiesent. In 1947 defendant entered the United States Army labor service, a civilian auxiliary force made up ...

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