(specially concurring).
I cannot concur in the opinion of the majority; it is too extreme; it goes further than is necessary to dispose of the case. Therefore, I must state my own reasons for concurring in the result.
In granting citizenship to aliens, the sovereign has no divine power to look into the hearts of applicants and say: “One of you will betray me.” Therefore, every certificate of naturalization is issued upon the condition that it may be revoked if fraudulently or illegally obtained. The doctrine of res judicata does not apply to judgments granting naturalization.
It is said that in the United States the right of citizenship is a precious thing, dearer than the right to life itself. As to the patriot, whether native born or naturalized, this may be true; but to the alien, who is not attached to the principles of the Constitution and does not intend to reside permanently in this country, citizenship may be a mere matter of temporary convenience: but generalities aside, let us go immediately to the point in the case. The strongest evidence in the record against appellant tended to prove the following facts:
Appellant had opinions and expressed them freely, even in the class room, a fertile field for propaganda. He often stated to his classes that he was “in favor of Hitler and his actions.” A student in Freshman German under Dr. Meyer testified that the latter defended German aggression in Europe and compared it with what the United States had done in their relations with the Indians. As to Germany’s failure to observe the various treaties, he said that was just a part of the war; that the breaking of treaties was of small consequence.1 His lectures were of such a character that an officer of Rice University requested him not to discuss politics in class.
*832In September, 1939, appellant wrote in substance that America was to blame for this war. He told his classes that Poland started the war, not Germany, and that Britain had no excuse for declaring war. In April, 1940, he said it would be a good thing to have a “mild form of fascism in America.” In July, 1940, he wrote: “I think a German victory will be a blessing to Europe and to the world.” He considered the American people stupid and their patriotism narrow. He asked Dr. Maraud: “How can a man like you live wi-th those Americans ?” As the war clouds gathered, he sought to return to Germany, which at his age would have meant his entry into the armed service of that country.
On September 30, 1940, he voluntarily applied for a passport. On that occasion, he said he could not remain in this country, because he was not in sympathy with the American attitude “toward the German Reich.” He refused to sign the oath of allegiance printed on the passport, and feared he might become a fifth columnist. He said: “While my lips may not be a fifth columnist, I am uncertain about this” (putting his hand upon his heart). He said his friends and colleagues had fallen away from him, and blamed it on them rather than on himself. Many times he spoke of Germany as “my country”, and the United States as “your country.” He said he could never become a real American.
There was also evidence of other circumstances, such as appellant’s association with German agents and propagandists in this country, his trips to Germany in 1936 and 1938, his request for an interview with Hitler and his alleged effort to see Goebbels while there, his conditional desire to win this case and then become an alien enemy anyway, his covert threat against several hundred Americans in German custody if anything happened to him, and his statement that he would remain in this country only so long as it was to his material advantage. These and the other facts above stated, which are mainly relied on to support the findings, occurred after the grant of citizenship to appellant.
Not being within the crucial five-year' period, they have little relevance and are entitled to little weight under the decision in Schneiderman v. United States, decided June 21, 1943.2 The decision in that case is controlling in this one.
“Direct Examination.
“Q. Do you recall what, if anything, was said about the various invasions that Germany had made? A. Yes, he justified Germany’s grabs in these various countries in Europe by saying that it was nothing more or less than the United States had done in their relations with the Indians.
“Q. What, if anything, did he say regarding 'the observance of the various treaties? A. He said that was just a
part of the war; that breaking the treaties was of small consequence.
“Cross Examination.
“Q. The statements you have attributed. to Dr. Meyer occurred during the school year 1940-1941, is that correct? A. Yes, sir.
“Q. Were those statements all made in open class? A. Yes.
. “Q. Approximately how many students were there in that class? A. It varied from, around 20 to 30, I guess.”
320 U.S. 118, 63 S.Ct. 1333, 87 L. Ed. 1796. Schneiderman was born in Russia. He was granted citizenship in the United States on June 10, 1927. In December, 1939, the District Court held that his naturalization was illegally procured because, as a member of the Communist Party, he advised, taught, and advocated the overthrow of this Government by force and violence, and, therefore, was not attached to the principles of the Constitution. Its decision, 33 F. Supp. 510, which had been affirmed by the Circuit Court of Appeals, 9 Cir., 119 F.2d 500, was reversed by the Supreme Court. Referring to the five years preceding naturalization, the court said, 320 U.S. at page 147, 63 S.Ct. at page 1347, 87 L.Ed. 1796: “Since the immediate problem is the determination, with certainty of petitioner’s beliefs from 1922 to 1927 events and writings since that time have little relevance, and both parties have attempted to confine themselves within the limits of that critical period.” At pages 151, 152 of 320 U.S., page 1349 of 63 S.Ct., 87 L.Ed. 1796, the court said: “The Government also sets forth excerpts from other documents which are entitled to little weight because they were published after the critical period.”