On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 89-cv-02544).
Before: Sloviter, Chief Judge, Nygaard and McKEE, Circuit Judges.
Appellant Ferenc Koreh appeals from the district court's order granting summary judgment to the United States on three counts of its complaint revoking Koreh's naturalization and requiring the return of his certificate of naturalization. The United States based its lawsuit on conduct by defendant of a different order than the direct involvement in physical atrocities that has characterized many other denaturalization cases. The legal principles, nonetheless, are equally applicable.
Facts and Procedural History
Koreh was born on September 4, 1909 in Sepsimagyaros, Northern Transylvania, an area that moved between Romania and Hungary but which was part of Hungary in 1940, when most of the events relevant to this case began. As did the district court we rely only on facts that the parties do not dispute.*fn1 Because the relevant facts are set forth in detail in the district court's comprehensive published opinion, see United States v. Koreh, 856 F. Supp. 891 (D. N.J. 1994), we repeat only those essential to our holding.
Hungary was the site of virulent anti-Semitism during the late 1930s and early 1940s. In 1938, shortly after Nazi Germany annexed Austria and established a common border with Hungary, the Hungarian Parliament passed its first major piece of anti-Semitic legislation. See Act No. XV of 1938 To More Effectively Safeguard the Balance of Social and Economic Life, Budapesti Kzlny, May 29, 1938, at 132-44; App. at 1620-52. The legislation limited the proportion of Jews that could be employed in the free professions (e.g. law, journalism, and the arts) and in business enterprises with ten or more employees. Id. at §§ 4, 7-8; App. at 1622-24. This legislation was followed in 1939 by a second law that attempted to define "Jewishness" in racial terms and implemented further social and economic restrictions upon Hungarian Jews. See Act No. IV of 1939 Concerning Limitations on the Economic and Political Expansion of Jews; App. at 1653-1706. This law prevented Jews from obtaining Hungarian citizenship, barred them from serving in public offices or holding significant positions in the press, and further reduced the proportion of Jews that could be employed in Hungarian businesses. Id. at §§ 3-21; App. at 1657-69.
In September 1940, as a result of an agreement between Hungary and Romania, Hungary annexed Northern Transylvania. Immediately after the annexation, the anti-Semitic legislation that had been previously enacted by the Hungarian Parliament was applied to the approximately 164,000 Jews living in Northern Transylvania. Under Hungarian law at the time, no newspaper could publish without a government license. App. at 435. In the fall of 1940, Koreh applied for and received a license from the Hungarian Prime Minister's office to publish Szekely Nep, a private daily newspaper in Northern Transylvania.
After obtaining the license, Koreh became the "Responsible Editor" of Szekely Nep. The parties agree that Koreh served as Responsible Editor at Szekely Nep from January 18, 1941 to April 19, 1942; from approximately August 1, 1942 to August 29, 1942; and from October 24, 1942 to October 28, 1942.*fn2 There is no dispute that during these periods, approximately fifty-five anti-Semitic and/or anti-Allies articles appeared in the pages of Szekely Nep. Fifty-one of those articles were unsigned.
Koreh has admitted that he was aware that the paper had to demonstrate an anti-Semitic profile to please the Germans and the Hungarian government. Although Koreh's byline appeared on some of the anti-Semitic articles and the government produced evidence of his extensive involvement in editorial decisions, referred to by the district court, Koreh disputes the government's contentions that his duties included writing, reading, editing and reviewing the paper's contents. At oral argument, counsel clarified Koreh's position as asserting that he wrote articles but not the anti-Semitic articles. For the purposes of summary judgment, the government accepts that Koreh did not write or edit any of these articles. There is no question, however, that the person holding the position of Responsible Editor on the masthead was criminally and civilly liable for all unsigned articles and for those for which the author was unavailable.*fn3 Moreover, Koreh concedes that he served as an emissary between the paper and the government.
His testimony at deposition was as follows:
Q: Well, besides getting the license, then what did you do at Szekely Nep?
A: I was first man there, you know.
Q: What does that mean, you were first man there?
A: I was representing here and there. I went up to Budapest, I talked with politicians, with ministers, you know, about things how to behave, what to do, what kinds of articles they thought were useful, and so on, so, but I did not stay there, you know, to make the paper every day.
Q: Are you saying that you were the person that the government told [what] had to be in the paper?
A: No, but anyhow I talked very much with politicians, with other newspapermen, and about the whole situation. . . .
Q: So you discussed political issues with people in Budapest?
Q: And you discussed articles that should appear in Szekely Nep in Budapest?
A: No, we didn't discuss that.
See App. at 721-22 (emphasis added).
Koreh does not challenge the characterizations of these fifty-five articles as either "anti-Semitic" or "anti-Allies," nor could he, as made clear by an objective review of the unsigned articles appearing in Szekely Nep during the period for which Koreh was legally accountable for them to the Hungarian government. See, e.g., App. at 1141 (Oct. 2, 1941: emphasizing the "alien-character" of the Jews in Hungary); App. at 1140 (Oct. 2, 1941: discussing "the Jewish question" in Hungary); App. at 1143 (Oct. 2, 1941: quoting a German publication which stated that "a final solution may be achieved only by deporting Jewish elements"); App. at 1190 (Oct. 31, 1941: referring to the works of Jewish writers as "highly undesirable 'literature'"); App. at 1312 (Jan. 29, 1942: stating that "Jews must not be permitted to plunder the people"); App. at 1473 (Aug. 12, 1942: referring to Jews as "the enemies of our race, who have stampeded over our bodies and continue to do so in their merciless plan to destroy Hungarians"); App. at 1416 (Apr. 11, 1942: "There are still others who say that we should not have harmed the Jews, but thank God, today we are beyond these types of sentimentality"); App. at 1515 (Aug. 29, 1942: attacking the author of a book questioning Hungarian anti-Jewish laws, and noting that the author "is certainly unaware of that part of the Holy Scriptures in which Jesus, the Lord, regarded Jewry not as his own race, but as a 'brood of vipers'").
Many of the articles published by Szekely Nep combined this anti-Semitic sentiment with anti-Allies rhetoric regarding World War II. See, e.g., App. at 1085 (July 24, 1941: discussing the "New York Jewish plan" to destroy Germany); App. at 1320 (Jan. 31, 1942: "The Role of Jewish Capital in the Present World War"); App. at 1328-30 (Feb. 15, 1942: article entitled "How the World's Jews Forced the American People to Go to War," which argued that "it was exclusively Jews who, by an irresponsible representation of the facts, have incited the American people to wage war against Japan"); App. at 1330 (Feb. 15, 1942: referring to "President Roosevelt and the Jewish clique behind him," and stating that "the Jews believe that they, as 'the chosen people,' are destined to rule over all the other peoples of the earth, and therefore they are willing to use any means to achieve this end"); App. at 1321 (Jan. 31, 1942: discussing an alleged plan for "Jewish world hegemony"); App at 1353 (Mar. 18, 1942: "Washington, London and Moscow are waging a war in order to establish Jewish world domination").
In addition, Szekely Nep frequently coupled its strong anti-Semitic tone with statements supporting or encouraging the Hungarian government's steps to enact or to enforce various anti-Jewish measures. See, e.g., App. at 1402 (Apr. 9, 1942: demanding that the Hungarian government "send the Jews packing from the homes they continue to arrogantly occupy even today"); App. at 1115 (Aug. 29, 1941: "In particular in the field of commerce, we strive to permit the Jews the smallest possible room to act, and to encourage Hungarian commerce to expand"); App. at 1416-17 (Apr. 11, 1942: calling for stricter rules against Jews "in the areas of housing and purchasing"); App. at 1472 (Aug. 12, 1942: calling for the "purification" of Hungarians through stricter enforcement of laws against those who serve as front men for Jewish business owners); App. at 1486 (Aug. 14, 1942: referring to Jews as "elements harboring alien interests and driven by the desire of self-enrichment," and calling for legal reform); App. at 1492 (Aug. 20, 1942: blaming Jews for the overcrowding on trains and buses and applauding efforts taken by the government to limit Jewish use of sleeping cars).
In April 1941, the Hungarian Government enacted a decree requiring all Jewish males to serve in a Forced Labor Service to assist the Hungarian Army. The implementation of that decree between 1941 and 1944 led to the deaths of many Hungarian Jews who were forced to work behind Hungarian lines on the Eastern Front. Also in 1941, Hungary ordered and implemented a decree resulting in the deportation of between 17,000 and 18,000 Jews who were deemed "foreign" by the Hungarian government because they could not prove their Hungarian citizenship. These "foreign" Jews, many of whom were from Northern Transylvania, were deported to German-occupied Ukraine, where they were placed in the custody of members of the German Schutzstaffel ("SS") and subsequently executed.
In August 1941, the Hungarian Government enacted legislation copied from the Nazis barring marriages and sexual relations between Jews and non-Jews. See Act No. XV of 1941, Amending and Protecting the Matrimony Act; App. at 1707-38. The law contained provisions attempting to define Jewishness, and included criminal penalties to be applied to the participants and to any officials who oversaw such marriages.
In 1943, Koreh moved to Budapest and began working in the Royal Hungarian Ministry of National Defense and Propaganda. Koreh has admitted that he served as an officer in the Information Section of the Ministry in 1943 and 1944. See App. at 189, 345, 358. The Information Section was responsible for "monitoring of the country's public opinion and provision of accurate and objective information concerning matters of national ...