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CounterPunch
March 8,
2003
Patriot Act II's Attack on Citizenship
Denationalization
as Punishment
By JOANNE MARINER
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.
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