dissenting.
The story of this litigation is depressing. The Government failed to prove its right to relief on any of several theories advanced in the District Court. The Court of Appeals reversed on an untenable ground. Today this Court affirms on a theory that no litigant argued, that the Government expressly disavowed, and that may jeopardize the citizenship of countless survivors of Nazi concentration camps.
The seven-count complaint filed by the Government in the District Court prayed for a revocation of petitioner’s citizenship on four different theories: (1) that his entry visa was invalid because he had misstated his birthplace and place of residence and therefore he had never been lawfully admitted to the United States; (2) that he committed war crimes or atrocities and therefore was not eligible for admission as a displaced person; (3) that he made material misstatements on his application for citizenship in 1970; and (4) that he was not a person of good moral character when he received his American citizenship. After a long trial, the District Court concluded that the Government had failed to prove its case.
The trial judge was apparently convinced that the suggestive identification procedures endorsed by the prosecution *531had resulted in a misidentification of petitioner; that petitioner had not performed the atrocious acts witnessed by the survivors of Treblinka who testified;1 that Vice Consul Jenkins’ testimony was not entirely reliable;2 and that for the most part petitioner was a truthful witness. 455 F. Supp. 893, 906-909. The District Judge specifically found that petitioner’s visa was valid and that petitioner therefore lawfully entered the United States, id., at 916; that his service at Treblinka was involuntary, id., at 914; that he made no misstatements in his application for citizenship, id., at 917; and that he was a person of good moral character. Ibid. *532As an alternative basis for decision, the District Court concluded that because the Government had failed to prove that petitioner committed any atrocities at Treblinka, his record as a responsible and law-abiding resident of the United States for 29 years provided an equitable ground for refusing to revoke his citizenship. Id., at 918-920.
The Court of Appeals reversed, holding that the District Court committed two errors of law. 597 F. 2d 946. First, the Court of Appeals held that the District Court in assessing the materiality of the misstatement in petitioner's 1949 visa application had misapplied this Court’s decision in Chaunt v. United States, 364 U. S. 355; second, the Court of Appeals rejected the equitable basis for the District Court’s judgment. The Court of Appeals did not, however, disturb any of the District Court’s findings of fact.
Today the Court declines to endorse the Court of Appeals’ first rationale. Because the Chaunt test was formulated in the context of applications for citizenship, and because the only misstatements here were made on petitioner’s visa application,3 the Court acknowledges that the Chaunt test is not *533automatically applicable. The Court does not reach the question of the applicability of Chaunt in the visa context, however, because it concludes that at the very least a misrepresentation is material if disclosure of the true facts would have rendered the applicant ineligible for a visa. Because the Court holds as a matter of law that petitioner’s service as a guard at Treblinka, whether or not voluntary, made him ineligible for a visa, petitioner was not legally admitted to the country and hence was not entitled to citizenship.
I cannot accept the view that any citizen’s past involuntary conduct can provide the basis for stripping him of his American citizenship. The Court’s contrary holding today rests entirely on its construction of the Displaced Persons Act of 1948 (DPA). Although the Court purports to consider the materiality of petitioner’s misstatements, the Court’s construction of the DPA renders those misstatements entirely irrelevant to the decision of this case. Every person who entered the United States pursuant to the authority granted by that statute, who subsequently acquired American citizenship, and who can be shown “to have assisted the enemy in persecuting civil populations” — even under the most severe duress — has no right to retain his or her citizenship. I believe that the Court’s construction of the DPA is erroneous and that the Court of Appeals misapplied the Chaunt test.
I
Section 2 (a) of the DPA was “adopted” from the Constitution of the International Refugee Organization (see ante, at 510, n. 31), which described in Part II of Annex I “Persons who will not be [considered as displaced persons].” The second listing had two classifications:
“2. Any other persons who can be shown:
“(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
*534“(b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.”
The District Court recognized that the section dealing with assisting enemy forces contained the word “voluntarily,” while the section dealing with persecuting enemy populations did not. The District Court refused to construe the statute to bar relief to any person who assisted the enemy, whether voluntarily or not, however, because such a construction would have excluded the Jewish prisoners- who assisted the SS in the operation of the concentration camp. 455 F. Supp., at 913. These prisoners performed such tasks as cutting the hair of female prisoners prior to their execution and performing in a camp orchestra as a ruse to conceal the true nature of the camp. ' I agree without hesitation with the District Court’s conclusion that such prisoners did not perform their duties voluntarily and that such prisoners should not be considered excludable under the DPA.4 The Court resolves the dilemma perceived by the District Court by concluding that prisoners who did no more than cut the hair of female inmates before they were executed could not be considered to be assisting the enemy in persecuting civilian populations. See ante, at 512-513, n. 34. Thus the Court would give the word “persecution” some not yet defined specially limited reading. In my opinion, the term “persecution” clearly applies to such conduct; indeed, it probably encompasses almost every aspect of life or death in a concentration camp.
The Court’s resolution of this issue is particularly unper*535suasive when applied to the “kapos,” the Jewish prisoners who supervised the Jewish workers at the camp. According to witnesses who survived Treblinka, the kapos were commanded by the SS to administer beatings to the prisoners, and they did so with just enough force to make the beating appear realistic yet avoid injury to the prisoner. Record 293-295, 300-302 (Kohn), 237 (Turowski).5 Even if we assume that the kapos were completely successful in deceiving the SS guards and that the beatings caused no injury to other inmates, I believe their conduct would have to be characterized as assisting in the persecution of other prisoners.6 In my view, the reason that such conduct should not make the kapos ineligible for citizenship is that it surely was not voluntary. The fact that the Court’s interpretation of the DPA would exclude a group whose actions were uniformly defended by survivors of Treblinka, id., at 236-239 (Turowski), 300 (Kohn), 1157-1159 (Epstein), merely underscores the strained reading the Court has given the statute.7
The Government was apparently persuaded by the force of the District Court’s reasoning. In the Court of Appeals the Government unequivocally accepted the District Court’s *536view that § 2 (a) should be construed to read “persons who can be shown to have voluntarily assisted the enemy.” 8 The Government did not retreat from that concession before this Court.9 The reasons for agreeing with the Government’s interpretation of the statute are compelling.
II
If the DPA is correctly construed, petitioner is entitled to retain his citizenship unless the Government proved that he made a material misstatement in his application for citizenship in 1970 or that he was ineligible for citizenship in 1970. Given the District Court’s findings that he made no willful misstatement in 1970 and that he had not committed any crimes because his service at Treblinka was involuntary, the challenge to his citizenship rests entirely on the claim that he was not lawfully admitted to the United States in 1949 because he made material misstatements in his visa application. Even if the Chaunt test applies equally to visa applications and citizenship applications, I would hold that the Government failed to satisfy its burden under what I believe to be the proper interpretation of that test.
The Court and the parties seem to assume that the Chaunt test contains only two components: (1) whether a truthful answer might have or would have triggered an investigation, and (2) whether such an investigation might have or would *537have revealed a disqualifying circumstance. Under this characterization of the Chaunt test, the only dispute is what probability is required with respect to each of the two components. There are really three inquiries, however: (1) whether a truthful answer would have led to an investigation, (2) whether a disqualifying circumstance actually existed, and (3) whether it would have been discovered by the investigation. Regardless of whether the missstatement was made on an application for a visa or for citizenship, in my opinion the proper analysis should focus on the first and second components and attach little or no weight to the third. Unless the Government can prove the existence of a circumstance that would have disqualified the applicant, I do not believe that citizenship should be revoked on the basis of speculation about what might have been discovered if an investigation had been initiated. But if the Government can establish the existence of a disqualifying fact, I would consider a willful misstatement material if it were more probable than not that a truthful answer would have prompted more inquiry. Thus I would presume that an investigation, if begun at the time that the misstatement was made, would have been successful in finding whatever the Government is now able to prove. But if the Government is not able to prove the existence of facts that would have made the resident alien ineligible for citizenship at the time he executed his application, I would not denaturalize him on the basis of speculation about what might have been true years ago.
The Government in this case failed to prove that petitioner materially misrepresented facts on his citizenship application. Because I do not believe that “adopted” § 2 (a) of the DP A applies to persons whose assistance in the persecution of civilian populations was involuntary, and because the District Court found that petitioner’s service was not voluntary, it necessarily follows that the Government failed to prove the existence of a disqualifying circumstance with respect to peti*538tioner’s visa application.10 The misstatements in that application were therefore not material under a proper application of Chaunt.
The gruesome facts recited in this record create what Justice Holmes described as a sort of “hydraulic pressure” that tends to distort our judgment. Perhaps my refusal to acquiesce in the conclusion reached by highly respected colleagues is attributable in part to an overreaction to that pressure. Even after recognizing and discounting that factor, however, I remain firmly convinced that the Court has committed the profoundest sort of - error by venturing into the unknown to find a basis for affirming the judgment of the Court of Appeals. That human suffering will be a consequence of today’s venture is certainly predictable; that any suffering will be allayed or avoided is at best doubtful.
I respectfully dissent.
The District Judge’s opinion contains a suggestion that the witnesses’ identification of petitioner may have been a case of mistaken identity inasmuch as petitioner resembled another guard who had a position of greater authority. See 455 F. Supp. 893, 908.
In view of the extensive references to Jenkins in the Court’s opinion, some of the District Court’s observations should be quoted: “Unfortunately, and inexplicably, the Government did not find the Vice-Consul who approved defendant’s application.
“Jenkins’ testimony about the structure of the death camp organization was hardly expert and conflicts consistently with other evidence presented at the trial. For example, he testified that the Ukrainian guards had the same uniforms as the SS with only slightly different insignia. However, the unanimous testimony was the Germans wore their usual gray-green uniforms but the prisoner-guards didn’t. He testified that the camp guards could get leave and get away from the camp and could transfer. The testimony was clear that they could not take leave (and go to Berlin, as Jenkins opined) but could only get a two-to-four-hour pass to visit a small village a couple of miles away.
“Jenkins also would have considered the kapos as excludable because they assisted the Germans. This is totally contrary to the reaction of every witness who survived Treblinka; each of the Israeli witnesses testified the kapos did only what they had to do and the witnesses were quite indignant when asked if they had ever testified against the kapos. The witnesses replied that there was no reason to do so. In addition, Jenkins speculated that the kapos were probably shot in 1945 during a period of retaliation, but the testimony was to the contrary.” Id., at 911-913.
In Count 4 of its complaint the Government alleged that petitioner did not truthfully answer the question on his citizenship application whether he had ever committed a crime. Having found that his service in Treblinka was not voluntary, the District Court concluded that petitioner’s negative answer was truthful. In Count 5 of its complaint (as amended at a pretrial conference) the Government alleged that petitioner had a duty to disclose his guard service at Treblinka in answer to the following question:
“7. List your present and past membership in every organization, association, fund, foundation, party, club, society, or similar group in the United States and in any other place, and your foreign military service.” The District Court concluded that because petitioner regarded himself as a prisoner of war, and because he had listed his Russian military service, this omission could not be considered willful. See id., at 917. That conclusion was certainly permissible; indeed it is arguable that the Treblinka guard service was neither the sort of "membership” in a club or organization nor the sort of “military service” that the question contemplated.
One particular squad of Jewish prisoners was responsible for undressing the aged and infirm prisoners and leading them to the lazaret, the eternally burning pit, where they were shot. Record 287 (Kohn). One of the prisoners who worked in the camp stated when asked whether this squad “assist[ed] in bringing [prisoners] to their death”: “We automatically assisted, all of us, but ... it was under the fear and terror.” Id., at 293 (Kohn).
Two of the witnesses, Czarny and Boraks, testified that they did not recall or hear of any kapos beating prisoners, id., at 551, 686, and one witness, Epstein, did not see or hear of beatings inflicted by kapos. Id., at 1159.
Moreover, the Court’s distinction between the kapos and other Jewish workers on the one hand and the Ukranian guards on the other is based in large part on such factors as the issuance of a uniform and weapons, the receipt of a stipend, and the privilege of being allowed to leave the camp and visit a nearby village. These supposedly distinguishing factors are essentially unrelated to the persecution of the victims of the concentration camp.
We also note that Vice Consul Jenkins, upon whose testimony the Court heavily relies, indicated that he would have considered kapos to be ineligible under the DPA if they could be proved to be “internal camp inmate collaborators.” Id., at 828.
Emphasis added. Footnote 11 on p. 17 of the Government’s brief in the Court of Appeals states:
“The district court held that, in Section 2 (a), 'persons who can be shown to have assisted the enemy’ should be construed to read ‘persons who can be shown to have voluntarily assisted the enemy.’ 455 F. Supp., at 913. The United States has no quarrel with such a construction in this case.”
Inasmuch as the Attorney General of the United States argued this case himself, presumably the decision not to question the District Court’s construction of the statute was reached only after the matter had been reviewed with the utmost care.
Under my interpretation of the Chaunt test, the Government should not prevail on the speculation that it might have been able to uncover evidence that petitioner committed war crimes while at Treblinka. Similarly, I would hold that the District Court’s findings with respect to willfulness of alleged misstatements on petitioner’s citizenship application were not clearly erroneous. See n. 2, supra. I surely would not rest decision in this Court on a de novo evaluation of the testimony of the witness Jenkins rather than the findings of the District Court.