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: firstname.lastname@example.org.