concurring:
I feel compelled to write separately because an accusation of personal participation in the atrocities of the Holocaust is a grave matter, and a judicial finding of such participation understandably carries with it extrajudicial, collateral consequences unrelated to citizenship and deportability. While I agree with the court that the government has carried its burden on six counts of its complaint,1 I conclude that the evidence of Stel-mokas’ participation in the Grosse Aktion (Great Action) is not clear, convincing and *323unequivocal, and that the district court clearly erred in finding otherwise.
To be sure, there is substantial evidence that Stelmokas was a member of a platoon of the 3rd Company of the 3rd Battalion of the Lithuanian Schutzmannsehaft and was not on leave on the date of the Great Action. Moreover, there is. substantive evidence that Lithuanians in military uniforms aided the Germans in the mass execution. It is a matter of speculation, however, whether all, some or none of Stelmokas’s Schutzmannsehaft Battalion participated.
On October 28-29, 1941, German troops, aided by “Lithuanian partisans,” conducted an operation they referred to as the Great Action which resulted in the execution of 9,200 Jews from the ghetto in Vilijampole. On the morning of October 28, the Jews were lined up by the Jewish Ghetto Police, and the Germans culled out those who were and were not fit to work. Those not fit to work were marched to the “small ghetto,” which was adjacent to Vilijampole, and the next day they were marched, in groups of five hundred at a time, to Fort IX and executed. They were buried in mass graves dug by Soviet prisoners of war. Two survivors from Vilijampole testified that they saw Lithuanians in military uniforms aid the Germans in the Great Action, but they did not identify whether the men were from Stelmokas’s Schutzmannsehaft Battalion or from some other Lithuanian group.
No testimony and no documentary evidence directly links Stelmokas or the 3rd Battalion to the Great Action. The district court, in finding participation by Stelmokas, relied largely on the opinion of Dr. Raul Hilberg that the entire 3rd Battalion must have participated in the Great Action. Dr. Hilberg’s opinion was based almost entirely on two observations. First, he had “seen documents in which larger forces than one battalion were deployed to kill fewer than 10,000 people.” App. at 411. From this, he inferred that in addition to the personnel of the Einsatzkommando 3, the German unit of security police which carried out the operation, at least 500 men, a full battalion, were required for the Great Action. He acknowledged, however, that the minimum number of men required would vary according to factors such as the terrain and the degree of resistance from the Jews. Second, there was a “shortage of manpower” because German and Lithuanian units stationed near Kaunas had been sent to fight the Soviets. Specifically, the majority of the German 11th Reserve Police Battalion and the entire 2d Lithuanian Battalion were in Byelorussia. Putting these two observations together, Dr. Hilberg concluded that Stelmokas’s entire Battalion must have assisted in the Great Action. The balance of the 11th Reserve Police Battalion and the ghetto police would not, in his opinion, be sufficient in the absence of the entire 3rd Battalion of the Lithuanian Schutzmannsehaft.
I do not question in the least Dr. Hilberg’s qualifications as an expert in Holocaust history, nor do I doubt the conviction with which he believes Stelmokas participated in the Great Action. Nevertheless, I cannot conclude that his observations, by themselves, clearly, convincingly and unequivocally demonstrate that Stelmokas'aided the Germans in their massacre of October 28th and 29th. Dr. Hilberg believed a full battalion was required based on the number of men used in mass executions elsewhere about which he had read. He did not, however, describe the circumstances of the other mass executions and admitted that the minimum requirement would vary according to local conditions and the resistance level. He did not identify any local conditions that would have made the Great Action a particularly labor intensive operation and candidly acknowledged, based on contemporary documentation, that no Jewish resistance was anticipated. He also testified that it was reasonable to assume that some segment of the available manpower would have to have been assigned to the responsibilities that occupied the available troops on a day to day basis, e.g., protection of facilities and communication and the maintenance of security. Given the uncertainty involved in estimating manpower needs based on other, perhaps dissimilar, situations and the reasonable assumption that there were competing manpower demands in the local area, it seems speculative to assert that the entire 3rd Battalion participated despite *324the presence of a portion of the 11th Reserve Police Battalion and the ghetto police.
My concern, however, is not grounded solely in the sufficiency of Dr. Hilberg’s testimony; as Stelmokas points out, the government’s own evidence casts serious doubt on the inferences drawn by Dr. Hilberg. Certain documents suggest that a sizable contingent of Lithuanians not associated with the Sonderkommando was available to help in the Great Action, and that íess than a full battalion of support troops may have been needed. To make my point, a little background regarding the organization of German police forces is helpful.
Following the occupation of -Lithuania by the German Army, German occupation police moved in and kept order. One component of the German occupation police was the security police; the other component was the order police. The security police had mobile units called Einsatzgruppen, about thé size of a battalion, and these were broken down into companies called Einsatzkommando and Son-derkommando. The Einsatzgruppen were in charge of exterminating Jews and other “undesirable” elements of the population. Ein-satzgruppen A was assigned to Lithuania and other Baltic states, and its subdivision Ein-satzkommando 3, commanded by Colonel Jaeger, operated in the area including Kaunas. The order police were much larger than the security police, and included the 11th Reserve Police Battalion mentioned by Dr. Hilberg.
A government exhibit indicates that in addition to Einsatzkommando 3, a sizable contingent of Sonderkommando was available in the Kaunas area. This exhibit, entitled “USSR Situation Report No. 19” and dated July 11, 1941, was prepared for the Chief of Security Police and has a section devoted to the situation in Kaunas. In this section, the report states that “We have retained approximately 205 Lithuanian partisans as a Sonderkommando, sustained them and deployed them for executions as necessary even outside the area.” App. at 1861. The availability of nearly a half-battalion of Son-derkommando substantially undermines the conclusion that the entire 3rd Battalion of the Schutzmannschaft was necessary to carry out the Great Action.
In addition to this Situation Report No. 19, there is another contemporaneously prepared document that calls Dr. Hilberg’s opinion into question. As I have noted, Colonel Jae-ger commanded the Einsatzkommando 3, the unit of German security police assigned to the Kaunas, area. Colonel Jaeger prepared a report, the Jaeger Report, which is dated December 10, 1941, and which refers to the Great Action and many other executions of Jews. Colonel Jaeger there wrote the following chilling lines:
The goal to make Lithuania “Jew free” could only be attained through the formation of a mobile detachment with specially selected men under the leadership of SS Obersturmfuhrer Hamann who shared my goals completely and who would guarantee the cooperation of the Lithuanian partisans and the existing civil offices.
The carrying-out of such actions is, in the first place, a, question of organization .... The Jews had to be collected in one or in several locations. Based on the numbers [of Jews] a place for the necessary pits had to be found and dug up.... The Jews were transported to the execution site in groups of 500 and in intervals of at least 2 km. What difficulties and nerve-racking work that had to be accomplished is shown in the following random example:
In Rokiskis, 3,208 people were to be transported 4¡é km before they could be liquidated. In order to accomplish this work' in 24 hours, 60 of the 80 available Lithuanian partisans had to be detailed for transport duty and perimeter security. The remainder, who had to be repeatedly relieved, carried out the work with my men- Attempts to escape that happened here and there were prevented entirely by my men and with some danger to their lives.... Only through skillful use of time was it possible to carry out up to 5 actions in a week’s time and to handle the work that had accumulated in Kaunas so that no bottlenecks occurred in the official functions.
*325The actions in Kaunas itself, where there were sufficient reasonably well-trained partisans available, were virtually duck shoots compared with the enormous difficulties which were often encountered elsewhere.
All leaders and men in my detachment in Kaunas took an active part in the major actions in Kaunas.
App. 1133-34.
Colonel Jaeger reports the executions of thousands of Jews and hundreds of others in such an impersonal, matter-of-fact manner and with such pride that his account leaves one in a horror-driven state of shock. Nevertheless, the Jaeger Report, as documentary evidence, is important in the present context for a number of reasons. First, in the context of a somewhat smaller but nevertheless substantial mass execution, it provides a contemporary estimate of the manpower necessary to perform the grizzly task of. mass execution from a German official having responsibility for carrying out those executions. The report indicates that the mass execution of 3,208 people at Rokiskis was carried out by Einsatzkommando 3 personnel with the •assistance of only 80 “Lithuanian partisans.”
Second, while Rokiskis provides an example of a mass execution with “enormous difficulties,” the execution of “2007 Jews, 2,920 Jewesses, and 4,273 Jewish children” in the course of the Great Action did not present comparable problems. App. at 1129.
Putting these two pieces of evidence together, even if one assumes that the number of potential victims in the Great Action would require substantially more support from “Lithuanian partisans” than was employed in Rokiskis, Dr. Hilberg’s insistence that a minimum of 500, in addition to the Einsatzkom-mando 3 personnel, seems questionable, at least in the absence of more explanation than he was able to give.
Finally, the Lithuanian partisans who in fact participated in the Great Action are described as “reasonably well trained.” When one puts this together with the U.S.S.R. Special Report 19’s indication that approximately 205 Lithuanian partisans had been formed into a Sonderkommando company specifically to be “deployed ... for executions as necessary,” the most likely inference is that at least a large segment of the need for Lithuanian participants during the Great Action was met by Lithuanians who were not from the Sehutzmannschaft 3rd Battalion. In suggesting that this is the likely inference, I am not unmindful of Dr. Hilberg’s opinion that the reference to “reasonably well trained partisans” in the Jaeger Report meant Sehutzmannschaft personnel. The basis for that opinion, in its entirety, is found in the following excerpt from his testimony:
In this report, Jaeger is trying to impress his superiors. That’s a very common phenomenon in reporting. And so he, first of all, calls attention to the difficulties and complexities of organizing such an operation. He refers to thorough preparation of each individual action and knowledge of the conditions in the area in question....
He then goes into some examples of towns and then, referring on top of page 30 of the English translation, he says that the actions encompass itself a little bit easier because there were well trained partisans, as he calls them. Now what he is referring to, of course, is the schutzmanns-ehaft. And the reference to the training can be explained by the fact that right from the start [of the sehutzmannschaft], June 28th, 1941, the call went out for volunteers who had military experience. In other words, these people knew how to fire a weapon, they knew how to hit their target. And for that reason, the operation was, in his view, like shooting at a parade. It was well coordinated and well done.
App. at 277, 277-78. Dr. Hilberg’s inference is a plausible one. However, once one is aware that a group of Lithuanian partisans had been formed and were available specifically for this purpose, I believe another inference becomes the more plausible one.
I acknowledge that the inferences I suggest based on the Jaeger Report and Special Report No. 19 do not constitute clear, convincing and unequivocal evidence that Stel-mokas did not participate in the Great Action. He may well have participated. It was the government’s burden, however, to pro*326duce clear, convincing, and unequivocal evidence that Stelmokas did participate. In my view, it did not come anywhere close to carrying that burden.
While the district court reached its conclusion about Stelmokas’s participation in the Great Action without reference to his failure to testify at the trial, it noted that it believed an inference could appropriately be drawn from that failure which confirmed its conclusion. I agree with the district court that the Fifth Amendment did not foreclose it from drawing a negative inference from Stelmo-kas’s failure to explain what he was doing on October 28 and 29, 1941. As the Supreme Court cautioned in Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1557-58, 47 L.Ed.2d 810 (1976), however, a party’s silence should not be given “more evidentiary value than [is] warranted by the facts surrounding [the] case.” Here, Stelmokas stands accused of a number of different forms of conduct, any one of which would warrant the revocation of his citizenship. If Stelmokas had taken the stand and denied participation in the Great Action, he would have subjected himself to cross-examination that almost certainly would have established another ground for revocation. Under these circumstances, I do not believe any appropriate, negative inference from silence can boost Dr. Hilberg’s speculative opinion into the realm of clear, convincing and unequivocal evidence.
Finally, I turn to the dissent’s conclusion that there is insufficient evidence to support the district court’s finding regarding Stelmo-kas’s guarding of the Vilijampole ghetto. In contrast to the state of the record regarding Stelmokas’s participation in the Great Action, I find the evidence supporting this finding to be clear, convincing, and unequivocal.
The finding at issue reads as follows:
The Court finds that the Government has not established by clear, unequivocal, and convincing evidence that the shootings on September 16-17,1941 were carried out by either the defendant or Schutzmanns-chaft members under his command. However, the Government has established by clear, unequivocal, and convincing evidence that defendant was commander of the ghetto guard for a 24-hour period commencing September 16, 1941, at 1 p.m., that Jews in the ghetto were subject to extreme deprivation, brutality, and arbitrary shootings during that period, and that defendant was responsible for enforcing the confinement of Jews in such conditions.
On September 1, 1941, Stelmokas’s Battalion Commander entered the following order:
TO THE 3rd AUXILIARY POLICE SERVICE BATTALION
Order Number 1, Secret
Kaunas, 1 September 1941
Operations Section
§ 1.
I announce the Battalion’s schedule of guard deployments and positions:
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*327Two weeks later, on September 15, 1941, the same Battalion Commander entered another order, section 1 of which made the following duty assignments:
Security and service duties for 16 September of the current year:
Battalion Duty Officer Junior Lieutenant TAMULAITIS, VYTAUTAS
Assistant to the Duty Officer — Corporal KVABACIEJUS
Duty Clerk at the Battalion Headquarters — Corporate AUKSORAITIS
Guard Commander in Vilijampole — Junior Lieutenant STELMOKAS
Guards from the 3rd Company
While this order was lengthy and dealt with a variety of subjects, these were the only current duty assignments recorded.
The record discloses that the ghetto was located in a section of the city called ‘Vili-jampole” and that ‘Vilijampole” was frequently used as a synonym for the ghetto. As Stelmokas stresses, the record also indicated, however, that Fort VIII, while in the area called Vilijampole, was not in the ghetto. Based on this evidence, Stelmokas suggests that the order assigning him as “Guard Commander in Vilijampole” is ambiguous — that the assignment might have been merely to guard ammunition at Fort VIII.
While I agree with Stelmokas that the government had the burden of proving Stel-mokas’s participation in the persecution of Jews by clear, convincing and unequivocal evidence, his suggestion of a significant ambiguity in the record is unpersuasive. Dr. Hilberg and the September 1st order itself indicate that in the context of guard duty, the words “Fort VIII” were generally included in the designation of that guard post in order to distinguish duty there from the duty of guarding the ghetto. More importantly, Stelmokas commanded a platoon consisting of something over 30 men and it is far more likely that he was given responsibility for Guard Post 21 or both Guard Posts 21 and 3, than that he commanded only the four guards at Fort VIII. Finally, and most importantly, the September 15th order reports only two command assignments: the “Battalion Duty Officer” and the “Guard Commander at Vilijampole.” The suggestion that this order would record the identity of the commander of a four man unit at Fort VIII and omit entirely any mention of the Guard Commander of the ghetto strikes me as too far fetched to raise even a reasonable doubt.
. Although I conclude that the evidence of Stel-mokas’ participation in the Grosse Aktion is not sufficient, I would affirm the judgment on Count I of the complaint. The district court found both his service as commander of the ghetto guard and his participation in the Grosse Aktion to be independently sufficient bases for concluding that he assisted in the persecution of civilian populations. Because his guard duty is a sufficient basis for revoking citizenship, I would affirm on Count I.