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Chapter 9 Baumgartner: The Program Ends, but Denaturalization Continues Schneiderman v. United States was the first case in which the Supreme Court ruled on a charge that a naturalized American lacked attachment to his or her new country. The decision was a blow for the government and for the Denaturalization Program, and Dewey Balch, the head of the program within the Criminal Division, was pessimistic: “I believe that we cannot escape the fact that the Supreme Court has clearly shown a reluctance to cancel naturalization and has imposed a burden upon the government which will make it difficult, if not impossible, to prevail in a very large number of our cases.”1 On August 20, 1943, Balch had assessed the program: 515 complaints had been filed, 155 had been completed, and 115 had ended with a denaturalization decision (38 in contested cases, 77 by default or consent decrees)—22 judgments went for defendants and 18 ended because of deaths or withdrawals. Ninety-one cases were still pending. In the two months following the Schneiderman decision, the government had won only one case on appeal (Krause, Seventh Circuit Court), had won no case in District Court, and had lost seven.2 Balch warned: “If we do not face it now and salvage as much of the program as we can, I am afraid that we may get enough unfavorable lower court opinions so that the precedent that we have been relying upon will be pretty largely overcome by others to the contrary.”3 But Balch had to acknowledge that, “at the same time, the policy has been laid down by the Attorney General and is being followed, namely, to go ahead with the program without retrenchment.”4 In fact, Schneiderman had done little to weaken the “determination” of Baumgartner 125 the attorney general. Francis Biddle had decided to continue to fight. First, Solicitor General Charles Fahy was ordered to file a petition for rehearing, which he did on July 15, 1943.5 At the same time, lawyers in the Justice Department carefully studied the decision in order to develop a narrower but still proactive strategy for denaturalization. In a circular sent on September 4, 1943, Biddle instructed all U.S. attorneys to give the closest possible attention to the denaturalization cases in order “to make sure that they are thoroughly investigated and prepared and so that the strongest cases may be heard in court and decisions obtained at an early stage.”6 Biddle insisted that, to meet the new burden of proof imposed by the Schneiderman decision, “the government must produce ‘clear, unequivocal and convincing’ evidence ‘which does not leave the issue in doubt.’”7 In cases involving activity in a subversive organization, it became “important clearly to prove, by overt acts if possible, that the defendant knew the subversive aims and doctrines of the organization and agreed with them.”8 Biddle emphasized that three distinctions could be made between the Schneiderman case, dealing with a Communist, and the denaturalization of Nazis, the main target of the program started in March 1942: Illegality Versus Fraud: The government proceeding in the Supreme Court against William Schneiderman was based on the charge of illegal procurement, not on fraud,9 which remained a ground for complaint against the Bund members. Lack of Attachment Versus Lack of Allegiance: The complaint charged that Schneiderman was not a person attached to the principles of the Constitution of the United States or “well disposed to the good order and happiness of the United States.” But another legal ground of denaturalization—lack of allegiance—was not an issue in the case. On the contrary, Justice Frank Murphy’s opinion had “called attention to the fact that Schneiderman ‘would bear arms against his native Russia if necessary.’”10 Nazism Versus Communism: Precisely on the ground of allegiance, an “important distinction” could be made between the Schneiderman case and Nazi cases: “the element of ambiguity which the Supreme Court found to inhere in communist doctrines is clearly not present in the case of Nazi aims and doctrines. . . .which have been recognized, without dissent, to be diametrically opposed to the principles of the Constitution.”11 126 War in the Supreme Court After the instructions of September 4 were sent out, good news arrived from the courts. Balch’s pessimistic forecasts about the lower courts were proved to be wrong. In the large majority of the cases before them, courts held in favor of the United States.That being said, some courts had...

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