Patriot II's attack on citizenship
By Joanne Mariner
Special to CNN.com
(FindLaw) -- 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, the Justice Department's proposed sequel to the 2001 USA Patriot Act, was recently made public after being leaked to the Center for Public Integrity. 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 provide for the presumptive denationalization of American citizens who support the activities of any organization 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 considered grounds only for criminal prosecution, not for the loss of citizenship.
By permitting denationalization based on a person's illegal activities, the Patriot II bill attempts to push the legal rules back toward a time in which Ashcroft and his ilk would feel at home: 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 those in 1976, 1978, and 1986 – that codified Chief Justice Warren's view by tightening 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 of 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.'"
Existing law establishes seven possible "expatriating acts" whose performance, together with the requisite intent, provides the grounds for loss of citizenship. In terms of substance, 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 than 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. In other words, even without being aware of the legal rules, if you knew someone had committed these acts, you might assume that the person was attempting to relinquish his or her nationality.
Four of the existing acts, for example, indicate 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, from this perspective, is that listing 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 rule on 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 are vulnerable to the loss of 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 is dangerously broad.
The government may be free to punish such acts using the criminal law, but citizenship is an entirely different sphere. Chief Justice Warren, in a ruling that helped pave the way to 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 a possibility only if someone commits such acts with the intent to relinquish his or her citizenship. Isn't the intent requirement an important safeguard that nullifies any concerns 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 vigorously will this requirement be interpreted 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 states 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 Chechen orphanage – could provide a sufficient basis for concluding that the person intended to give up his or her citizenship. Although the person would be able to try to challenge this determination in court, he or she would not necessarily succeed.
The prospect of a court's simply inferring intent from disfavored conduct seems especially likely when it is considered in light of the judiciary's inconsistent record of protecting rights from government encroachment in the "war on terrorism." At a minimum, the courts have proven that they will show much more deference than usual to executive actions when the counter-terrorism effort is the justification provided.
Citizens, international citizens 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 exclude them from public concern.
It may be, in fact, that Patriot II's citizenship-stripping provision is 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 there are over 600 foreign citizens similarly detained at the U.S. naval base on Guantanamo Bay, there has been far more public outcry about the detention of Padilla and Hamdi than about all the other detainees 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 an unconstitutional – one might even say un-American – understanding of citizenship.
Joanne Mariner is a FindLaw columnist and human rights attorney.