• Monthly
  • $25
  • $50
  • $100
  • $other
  • use PayPal

ONE WEEK TO DOUBLE YOUR DONATION!

We are inching along, but not as quickly as we (or you) would like. If you have already donated, thank you so much. If you haven’t had a chance, consider skipping the coffee this week and drop CounterPunch $5 or more. We provide our content for free, but it costs us a lot to do so. Every dollar counts.
FacebookTwitterRedditEmail

Patriot Act II’s Attack on Citizenship

A basic principle of American democracy is that members of government serve at the behest of the citizenry, and not vice-versa. The people, being sovereign, can use their votes to “throw the bastards out,” even though the government has no reciprocal power to jettison disfavored citizens.

Our leadership may distrust or despise certain people, but it cannot strip them of their citizenship involuntarily. Murderers, child molesters, and tax evaders are subject to criminal punishment, not denationalization.

Yet with the Domestic Security Enhancement Act, informally known as Patriot II, this basic rule is under attack. The draft legislation, a proposed sequel to the 2001 USA Patriot Act drafted by the Justice Department, was recently made public after being leaked to the Center for Public Integrity. As commentators David Cole, Nat Hentoff, and Anita Ramasastry have suggested, the bill would go well beyond its predecessor in threatening essential civil liberties.

Among Patriot II’s most worrying provisions are those affecting citizenship. Section 501 of the bill, deceptively titled “Expatriation of Terrorists,” would allow the presumptive denationalization of American citizens who support the activities of organizations that the executive branch has deemed “terrorist.” While it is already illegal to provide material support to such groups, even for their lawful activities, such support is grounds only for criminal prosecution, not for the loss of citizenship.

By permitting denationalization as a punishment for illegal conduct, the Patriot II bill attempts to push the legal rules backward to a time that Ashcroft and his ilk no doubt remember fondly: the McCarthy era.

Citizenship as a “Constitutional Birthright”

The Supreme Court’s current jurisprudence gives Americans robust protections again involuntary loss of citizenship. But it was not always so. The current rule ­ that citizenship can only be relinquished voluntarily — was established in a landmark 1967 case.

Just a decade earlier, the government’s power to strip citizens of their citizenship seemed quite secure. In 1940 and again in 1954, the government had passed statutes containing several grounds for loss of citizenship. A person could be denationalized for, among other things, advocating the overthrow of the government by force or violence.

In Perez v. Brownell, a 1958 case, the Court rejected a constitutional challenge to a provision of the 1940 law that denationalized American citizens for voting in foreign elections. Justice Felix Frankfurter, who wrote the majority opinion, ruled that Congress’s power to conduct foreign affairs included an implied power of denationalization.

Frankfurter summarily dismissed the notion that the Bill of Rights, in particular the Fourteenth Amendment, set any limits on this power. “[T]here is nothing in the terms, the context, the history or the manifest purpose of the Fourteenth Amendment,” he stated in a footnote, “to warrant drawing from it a restriction upon the power otherwise possessed by Congress to withdraw citizenship.”

In a famous dissent, Chief Justice Earl Warren directly challenged this view. Under his reading of the Fourteenth Amendment, citizenship is “the constitutional birthright of every person born in this country.” Although citizenship could be voluntarily relinquished, in his opinion, it could not be taken away.

Warren’s conception of citizenship was grounded in a strong view of popular sovereignty. As he explained: “This Government was born of its citizens, it maintains itself in a continuing relationship with them, and, in my judgment, it is without power to sever the relationship that gives rise to its existence.”

It was in Afroyim v. Rusk, a 1967 case, that the Supreme Court adopted Warren’s view, explicitly overruling its previous holding in Perez. In Afroyim, the Court affirmed that the Fourteenth Amendment establishes “a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.”

Voluntary Expatriation or Involuntary Denationalization?

In the wake of Afroyim, Congress passed a number of amendments to the denationalization statute, including in 1976, 1978, and 1986, that codified Chief Justice Warren’s view by tighting the legal rules on the loss of citizenship. If passed, Patriot II would be Congress’s first step back from this trend, and toward a more expansive view of the government’s power to denationalize its citizens.

Patriot II attempts to loosen both the substantive and procedural protections on the right to citizenship. Under Patriot II, as described in the Justice Department’s official summary of the bill, a U.S. citizen may be expatriated “if, with the intent to relinquish his nationality, he becomes a member of, or provides material support to, a group that the United States has designated as a ‘terrorist organization,’ if that group is engaged in hostilities against the United States.”

Existing law establishes seven possible “expatriating acts” whose performance, together with the requisite intent, provides the grounds for loss of citizenship. On its face, the draft legislation simply adds another possibility to this list of expatriating acts. Notably, however, the act of providing “material support” to an organization deemed terrorist is qualitatively different from the other acts listed in the loss of citizenship statute.

All of the existing acts, albeit to varying degrees, bear a strong intuitive relation to voluntary expatriation. That is, they all tend to indicate a person’s voluntary desire to relinquish his or her nationality.

Four of the existing acts, for example, point toward a transfer of allegiance to another country: obtaining naturalization in another country, serving in another country’s armed forces, etc. An additional two acts involve a citizen’s formal and explicit renunciation of citizenship. While the most problematic of the existing expatriation provisions, in terms of the voluntary nature of the expatriation, is that involving the attempted overthrow or destruction of the government, it is obvious, at least, that someone committing such acts has a profound hostility toward the United States.

Consider, in contrast, Patriot II’s new ground for the loss of citizenship. Patriot II extends to a citizen’s support of even the legal activities of an organization that the executive branch has deemed terrorist.

In other words, if you help fund an orphanage administered by one of the three Chechen separatist groups that the government has labeled as terrorist, or if you give pharmaceutical supplies to a medical outpost run by the East Turkestan Islamic Movement, or if you are on the wrong side of any of a number of other political conflicts in the world, you may be vulnerable to losing your citizenship. Considering the almost non-existent due process safeguards of the laws on labeling terrorist organizations, the political uses of the terrorist label, and its inherent malleability, this is dangerously broad. Nor does the requirement that the terrorist group be engaged in hostilities against the U.S. provide much protection, given that the government claims to be engaged in a general war on terrorism, and maintains that groups officially listed as foreign terrorist organizations are by definition a threat to U.S. interests.

It is far from obvious that supporting a group that the government has deemed terrorist indicates a desire to rid oneself of American citizenship. While the government may be able to punish such support using the criminal law, citizenship is an entirely different sphere. Chief Justice Warren, in a ruling that helped pave the way for the Afroyim decision, emphasized this point. As he insisted: “[T]he deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.”

Inferring Intent to Relinquish Citizenship

But, you may object, the loss of citizenship is possible only if someone commits the wrongful act with the intent to relinquish his or her citizenship. Isn’t this intent requirement an important safeguard that nullifies any worries one would otherwise have about the substantive breadth of the proposed law?

That brings us to the procedural side of Patriot II’s proposed citizenship-stripping provision. Yes, the constitutionally-imposed intent requirement is critically important. The question is, however, how stringently the courts will interpret this requirement in practice.

On this point, as well, Patriot II gives grounds for concern. Although the draft law’s reference to intent reflects the constitutional rule, it does so with an important caveat.

The law specifies that a person’s intent to relinquish his or her citizenship can be inferred from conduct. Indeed, the same conduct that constitutes the “expatriating act” ­ for example, the act of funding the orphanage ­ could provide a sufficient basis for concluding that the person intended to give up his or her citizenship. Although the person might try to challenge this determination in court, he or she would not necessarily succeed.

The prospect of a court simply inferring intent from disfavored conduct seems especially likely when considered in light of the judiciary’s inconsistent record of protecting rights from government encroachment in the “war on terrorism.” To date, most courts have shown a marked reluctance to question the government’s factual assessments relating to terrorism. The prospect of judicial rubberstamping of prosecutors’ denationalization decisions is thus quite real. It is obvious, at minimum, that courts will be unusually deferential when the counter-terrorism effort is the justification for such actions.

Citizens, Foreigners, and Enemy Combatants

If the government is free to incarcerate American supporters of terrorist groups, why would it even want to strip them of their citizenship? One can only speculate. But perhaps by expelling these people from the national community, the government believes that it can banish them from public concern.

It may be, in fact, that Patriot II’s citizenship-stripping provisions are the Bush Administration’s imaginative response to the criticism it has faced for its treatment of Jose Padilla and Yaser Hamdi. Padilla and Hamdi, as you’ll recall, are the two American citizens that the government currently holds in incommunicado detention as “enemy combatants.” Although more than 600 foreigners are similarly detained at the U.S. naval base on Guantanamo Bay, the detention of Padilla and Hamdi has raised far more public outcry than that of all the Guantanamo prisoners combined.

The government would no doubt prefer that Padilla and Hamdi had no claim to U.S. citizenship. But to give the government the power to pick and choose among its citizens would reflect a narrow, grudging, and undemocratic ­ one might even say un-American ­ understanding of citizenship.

JOANNE MARINER is a human rights lawyer based in New York. An earlier version of this article appeared in FindLaw’s Writ. She can be reached at: mariner@counterpunch.org.

 

More articles by:

JOANNE MARINER is a human rights lawyer living in New York and Paris.

bernie-the-sandernistas-cover-344x550
October 22, 2019
Gary Leupp
The Kurds as U.S. Sacrificial Lambs
Robert Fisk
Trump and the Retreat of the American Empire
John Feffer
Trump’s Endless Wars
Marshall Auerback
Will the GOP Become the Party of Blue-Collar Conservatism?
Medea Benjamin - Nicolas J. S. Davies
Trump’s Fake Withdrawal From Endless War
Dean Baker
Trump Declares Victory in China Trade War
Patrick Bond
Bretton Woods Institutions’ Neoliberal Over-Reach Leaves Global Governance in the Gutter
Robert Hunziker
XR Co-Founder Discusses Climate Emergency
John W. Whitehead
Terrorized, Traumatized and Killed: The Police State’s Deadly Toll on America’s Children
Evaggelos Vallianatos
A World Partnership for Ecopolitical Health and Security
Binoy Kampmark
The Decent Protester: a Down Under Creation
Frances Madeson
Pro-Democracy Movement in Haiti Swells Despite Police Violence
Mike Garrity
Alliance for the Wild Rockies Challenges Logging and Burning Project in Methow Valley
Chelli Stanley
Change the Nation You Live In
Elliot Sperber
Humane War 
October 21, 2019
Jeffrey St. Clair
The Wolf at the Door: Adventures in Fundraising With Cockburn
Rev. William Alberts
Myopic Morality: The Rehabilitation of George W. Bush
Sheldon Richman
Let’s Make Sure the Nazis Killed in Vain
Horace G. Campbell
Chinese Revolution at 70: Twists and Turns, to What?
Jim Kavanagh
The Empire Steps Back
Ralph Nader
Where are the Influentials Who Find Trump Despicable?
Doug Johnson Hatlem
Poll Projection: Left-Leaning Jagmeet Singh to Share Power with Trudeau in Canada
Thomas Knapp
Excuses, Excuses: Now Hillary Clinton’s Attacking Her Own Party’s Candidates
Brian Terrell
The United States Air Force at Incirlik, Our National “Black Eye”
Paul Bentley
A Plea for More Cynicism, Not Less: Election Day in Canada
Walter Clemens
No Limits to Evil?
Robert Koehler
The Collusion of Church and State
Kathy Kelly
Taking Next Steps Toward Nuclear Abolition
Charlie Simmons
How the Tax System Rewards Polluters
Chuck Collins
Who is Buying Seattle? The Perils of the Luxury Real Estate Boom
Weekend Edition
October 18, 2019
Friday - Sunday
Anthony DiMaggio
Trump as the “Anti-War” President: on Misinformation in American Political Discourse
Jeffrey St. Clair
Roaming Charges: Where’s the Beef With Billionaires?
Rob Urie
Capitalism and the Violence of Environmental Decline
Paul Street
Bernie in the Deep Shit: Dismal Dem Debate Reflections
Andrew Levine
What’s So Awful About Foreign Interference?
T.J. Coles
Boris Johnson’s Brexit “Betrayal”: Elect a Clown, Expect a Pie in Your Face
Joseph Natoli
Trump on the March
Ashley Smith
Stop the Normalization of Concentration Camps
Pete Dolack
The Fight to Overturn the Latest Corporate Coup at Pacifica Has Only Begun
Jeremy Kuzmarov
Russophobia at Democratic Party Debate
Chris Gilbert
Forward! A Week of Protest in Catalonia
Daniel Beaumont
Pressing Done Here: Syria, Iraq and “Informed Discussion”
Daniel Warner
Greta the Disturber
M. G. Piety
“Grim Positivism” vs. Truthiness in Biography
John Kendall Hawkins
Journey to the Unknown Interior of (You)
FacebookTwitterRedditEmail