753 F.Supp. 251 (E.D.Wis. 1990), Civ. A. 89-C-1068, United States v. Tittjung

Docket Nº:Civ. A. 89-C-1068
Citation:753 F.Supp. 251
Party Name:United States v. Tittjung
Case Date:December 14, 1990
Court:United States District Courts, 7th Circuit, Eastern District of Wisconsin
 
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Page 251

753 F.Supp. 251 (E.D.Wis. 1990)

UNITED STATES of America, Plaintiff,

v.

Anton TITTJUNG, Defendant.

Civ. A. No. 89-C-1068.

United States District Court, E.D. Wisconsin.

Dec. 14, 1990

Page 252

Elliot M. Rockler and Denise Noonan Slavin, Office of Special Investigations--Criminal Div., Washington, D.C., for plaintiff.

David J. Cannon, Michael Best & Friedrich, Milwaukee, Wis., for defendant.

DECISION AND ORDER

REYNOLDS, Senior District Judge.

I. BACKGROUND

On September 1, 1989, plaintiff, United States of America ("the Government"), brought this action pursuant to Section 340(a) of the Immigration and Nationality Act of 1952, as amended ("INA"), 8 U.S.C. § 1451(a), to revoke the United States citizenship of defendant Anton Tittjung ("Tittjung"), to set aside the January 9, 1974 order of this court admitting Tittjung to citizenship, and to cancel Tittjung's Certificate of Naturalization, No. 9785345, issued pursuant to that order. As the basis for its complaint, the Government alleges that Tittjung served as an armed concentration camp guard and therefore procured his citizenship illegally.

On August 16, 1990, the Government filed a motion for summary judgment. This court denied the Government's motion for summary judgment on October 19, 1990, because material issues of fact remained in dispute. Subsequently, this court held a trial on this matter, which commenced on October 31, 1990, and concluded on November 2, 1990. During the trial, this court heard live witness testimony and received various Government exhibits regarding the nature of concentration camps and the role of armed prison guards in such camps. This court also received, and heard testimony authenticating, Government exhibits establishing that Tittjung had served in the Waffen-SS as an armed concentration camp guard. At trial, Tittjung offered no evidence or testimony to the contrary. On the basis of the trial, this court concludes that Tittjung did serve as an armed concentration camp guard and therefore holds that Tittjung's citizenship must be revoked and his Certificate of Naturalization cancelled as a matter of law.

II. JURISDICTION

The following statutes grant this court jurisdiction over this matter: (1) 28 U.S.C. § 1345 (except as otherwise provided, the United States district courts shall have original jurisdiction of all civil actions commenced by the United States); (2) 8 U.S.C. § 1421(a) (jurisdiction to naturalize persons as citizens is conferred on United States district courts); and (3) 8 U.S.C. § 1451(a) (action to revoke citizenship to be brought in any court specified in 8 U.S.C. § 1421(a)).

Venue is proper in this district under 8 U.S.C. § 1451(a), which permits an action to revoke citizenship to be brought in the judicial district in which the naturalized citizen resides at the time of bringing suit.

III. FINDINGS OF FACT

A. Defendant Tittjung's Background.

Tittjung was born on November 17, 1924, in Erdud 1, Yugoslavia (Exh. 1 at 2, 4, 9, 21, 23, 27, and 35; Exh. 10 at 4; Exh. 12). From birth until 1933, Tittjung lived in Erdud where he attended primary school (Exh. 12). Between 1933 and 1937, Tittjung attended secondary school in Belgrade, Yugoslavia ( Id.). Thereafter, Tittjung returned to Erdud where he resided until 1942 ( Id.; Exh. 1 at 5).

B. Defendant Tittjung's Service as an SS Guard.

Tittjung joined 2 the Waffen-SS in October 1942 and remained in the Waffen-SS

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until the conclusion of the war in 1945 (Exh. 1 at 5; Exh. 12 at 3). Tittjung was a member of the Totenkopf-Sturmbann. 3 (Exh. 14 at 1, entry 100). Tittjung wore that organization's symbol, a skull and crossbones, on the collar of his uniform (Testimony of historian Charles Sydnor, Jr.). While a member of the Totenkopf-Sturmbann, Tittjung served as a guard at the Mauthausen Concentration Camp and its subcamp Gross Raming (Testimony of Sydnor; Exh. 14, entry 100).

Tittjung's service as an armed guard is clearly and convincingly documented by an SS-prepared roster dated July 26, 1944. The roster indicates that an Anton Tittjung was a member of the 5th Company of SS Death's Head Battalion headquartered at Mauthausen who was stationed at Gross Raming (Testimony of Sydnor; Exh. 14). The roster specifically lists the names, dates of birth, and next-of-kin addresses for the guards at Mauthausen and its subcamps. Entry 100 of the roster bears the following information: the name "Anton Tittjung," the rank "lance corporal," the date of birth "17 November 1924," and the address "Parents: in Erdud, Croatia." This guard roster was seized at Mauthausen on May 6, 1945, by Major Eugene Cohen of the U.S. Army during his official investigation of war crimes committed at Mauthausen and its subcamps (Testimony of Sydnor; Exh. 15). This roster, as well as other similar rosters, are contained in the report of Major Cohen's investigation ("Cohen Report"), portions of which subsequently were admitted into evidence at Nurnberg as Exhibit USA 249 (Testimony of Sydnor; Exh. 15). In the unrebutted opinion of Dr. Charles Sydnor, Jr., a respected historian who has written extensively on the history of Nazi concentration camps, the roster is authentic and lists only guards at the Gross Raming subcamp.

C. The Nature of Guard Service at Mauthausen and Gross Raming.

The Totenkopf-Sturmbann was a distinct organization within the Waffen-SS which was responsible for the operation of the Mauthausen camp complex, including its subcamp at Gross Raming, which were concentration camps established and operated by Nazi Germany in Nazi-occupied Austria (Testimony of Sydnor; Exhs. 14 & 15). All guards of prisoners in the Mauthausen concentration camp system were members of the Totenkopf-Sturmbann (Testimony of Sydnor; Exh. 15).

Guards at concentration camps such as Mauthausen and Gross Raming performed various duties, including guarding prisoners to ensure that they performed forced labor and that they did not escape from the labor site; guarding prisoners on forced marches from the main camp to subcamps; and guarding prisoners from the camp perimeter and its watchtowers to ensure that they did not escape (Testimony of Sydnor; Testimony of Zivadin Ljubisavljevic, a former prisoner at Mauthausen and Gross Raming). The guards were armed with rifles or submachine guns while performing their guard duty, and they were under orders to shoot at any prisoner attempting to escape (Testimony of Sydnor; Exhs. 54 & 55).

While performing such guard duties, members of the Totenkopf-Sturmbann ordered, incited, assisted, and generally participated in the persecution of prisoners because of their race, religion, national origin, or political opinion (Testimony of Sydnor). This persecution included, but was not limited to forcible confinement, slave labor, deprivation, physical and emotional abuse, torture, and exterminations (Testimony of Sydnor and Ljubisavljevic).

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During the period from 1943 to 1945, persons were imprisoned at the Mauthausen camp complex because of their race, religion, national origin, or political opinion, and from approximately January 1943 until August 1944, persons were imprisoned at the Gross Raming subcamp for the same reasons (Testimony of Sydnor). Among the prisoners incarcerated at Mauthausen and Gross Raming were: Jews; Russian, British, and American prisoners of war; and political opponents of the Nazis, including citizens of Yugoslavia, Poland, the Soviet Union, Spain and many other European countries ( Id.). Some prisoners at Mauthausen and its subcamps wore symbols corresponding to the racial, religious, or national origin reasons for their imprisonment, in addition to symbols corresponding to their country of origin (Testimony of Sydnor and Ljubisavljevic). Mauthausen and Gross Raming were concentration camps, the operation of which was entrusted exclusively to the Totenkopf-Sturmbann Company to which Tittjung belonged.

During the period of Tittjung's service, the death toll at Mauthausen ranged from 200 to 300 per day in 1943, and from 350 to 400 per day in 1944 (Testimony of Sydnor). In all, thousands of prisoners died in Mauthausen as the result of shooting, gassing, hanging, electrocution, starvation, forced labor, lethal injection, and other forms of killing ( Id.). At Gross Raming alone, at least 185 prisoners were killed during the period of Tittjung's service ( Id.).

D. Defendant Tittjung's Efforts to Obtain Admission to and Residence in the United States.

Following World War II, Tittjung resided in Austria for several years. Then, Tittjung applied for entry as a permanent resident pursuant to the Displaced Persons Act of 1948 ("DPA"), Pub.L. No. 87-774, 62 Stat. 1009, amended by Pub.L. No. 81-555, 64 Stat. 219 (1950). The purpose of the DPA was to enable European refugees driven from their homelands by the war to immigrate to the United States without regard to traditional immigration quotas. Fedorenko v. United States, 449 U.S. 490, 495, 101 S.Ct. 737, 741, 66 L.Ed.2d 686 (1981). The Act specifically excluded from the category of "displaced persons" individuals who had "assisted the enemy in persecuting civil[ians]." Id.; § 2(a), 62 Stat. 3051. The DPA also established an...

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