The Proposed Enemy Expatriation Act: Sending American Citizens Into Exile

Sparked by the nation’s so-called war on terrorism, the government has been charging full-throttle into another war — a war on liberty.  Drawing on its almost limitless technological arsenal, the government surreptitiously tracks and spies on our every movement, places under surveillance our internet and cell phone communications, and screens our bodies and personal effects. 

Instead of standing for the people against these law enforcement abuses of our liberty, Congress has enacted laws such as the USA Patriot Act that undermine, rather than protect, the Bill of Rights.  And to a large extent the American public are bystanders, watching this erosion, if not destruction, of American liberty, while being manipulated into believing that the loss of a few rights won’t matter to them.

The destructive march against the constitutional ramparts securing our freedoms continued recently with the National Defense Authorization Act, wherein Congress has granted the president unchecked discretionary powers to detain indefinitely American citizens suspected of aiding acts of terrorism, without a warrant, jury trial or any other constitutional safeguards.

James Madison warned the people to be vigilant and take note of the first experiment with our liberties.  But we have already allowed the government far beyond the first encroachment, with only minimal public outrage and opposition.  The founders would be ashamed of the passivity of millions of “patriotic” Americans.

Things may now be going from very bad to even worse.  This January, Senator Joe Lieberman (I-CT) and Congressman Charles Dent (R-PA) introduced legislation to empower the federal government to dispossess citizens of their citizenship and send them into stateless exile.  The fact that reliable weathervanes of the liberal House GOP establishment like Frank Wolf (R-VA) have co-sponsored this bill confirm that this bill is not an outlier.

Introduced as S. 1698 in the Senate and as H.R. 3166 in the House of Representatives, the Enemy Expatriation Act is expressly designed to “add engaging or supporting hostilities against the United States to the list of acts for which United States nationals would lose their nationality.”

These bills are inconsistent with current law and Supreme Court precedent.  They appear to be tailored to cow the American people, without regard for the 14^th-Amendment guarantee prohibiting Congress from divesting an American citizen of his citizenship.

On their face, S. 1698 and H.R. 3166 make it appear that any citizen “engaging in, or purposefully and materially supporting, hostilities against the United States” would lose his citizenship.  This is unlike current law, which also requires proof that the citizen does so “with the intention of relinquishing United States nationality.”  Thus, the new bills would make it much easier for the government to strip a dissenting citizen of his citizenship.

Six of the seven expatriating acts in the current law require proof of formal actions — either a direct renunciation of citizenship, or a similar act unmistakably demonstrating a change of allegiance to another country.  These bills would require neither.  Rather, they describe a newly minted offense, the commission of which may give rise to the inference of an intent to renounce citizenship, but without requiring any direct evidence of such an intent.

To be sure, current law provides that the commission of treason or other serious acts may justify an inference of renunciation of citizenship.  However, before such an inference can be made, the person previously must have been convicted beyond a reasonable doubt of one or more specified criminal acts.  Under the proposed bills, the government could take away a person’s citizenship in a civil action without that person having been previously convicted of a crime in a court governed by traditional procedural safeguards of trial by jury, confrontation of witnesses, and proof beyond a reasonable doubt.

Under the new bills, the government would be required only to prove by a preponderance of the evidence that a person “engag[ed] in, or purposefully and materially support[ed] hostilities against the United States” with the intent of relinquishing his citizenship.  Further, “hostilities” is defined as “any conflict subject to the laws of war” — as if this definition narrowed the grounds upon which a person could be deprived of citizenship.  The American people are constantly being reminded that the nation is at war against terrorism, albeit undeclared by Congress, and against an as-yet-to-be-defined enemy.  Anyone voicing opposition to the war in Afghanistan, or contributing to an Islamic charitable organization, is thus in jeopardy of being charged with committing the expatriating act set forth in these two bills.

At the height of the Cold War, the Supreme Court rashly decided Perez v. Brownell, 356 U.S. 44 (1957), which held that “Congress has the constitutional authority forcibly to take away a person’s citizenship, regardless of his intention not to give it up.”  However, a decade later in Afroyim v. Rusk, 387 U.S. 253, 254 (1967), the Court corrected its error, holding that United States citizenship, once vested by birth or naturalization, may not be “take[n] away … without [the citizen's] assent: ‘In our country, the people are sovereign and Government cannot sever its relationship to the people by taking away their citizenship’” (Afroyim at 257).

This remains the law of the land.  As a unanimous Court ruled in 1980, “[i]n the final analysis, expatriation depends upon the will of the citizen rather than on the will of Congress and its assessment of his conduct” (Vance v. Terrazas, 444 U.S. 252, 260).

Unfortunately, the Court ruled in that same case that the Constitution required the government to prove by only a “preponderance of the evidence,” a standard of proof acceptable in civil cases.  But charging an American with committing an act with the intention of relinquishing one’s citizenship is not an ordinary civil matter.  Rather, as dissenting Justice Thurgood Marshall pointed out, “[an] expatriate has lost his right to have rights.  This punishment is offensive to cardinal principles for which the Constitution stands[.] … He may be subject to banishment, a fate universally decried by civilized people.  He is stateless, a condition deplored in the international community of democracies” (Terrazas, 444 U.S. at 271).

Justice Marshall was right.  Expatriation is not just a civil matter; it is a serious criminal punishment.  Any American citizen charged with having voluntarily renounced his citizenship should be entitled to all the criminal procedures secured by the Bill of Rights.  Nothing less will satisfy due process of law.  S. 1698 and H.R. 3166 move the nation in just the opposite direction, adding more uncertainty where more precision is needed.  If American citizenship is to be protected against involuntary forfeiture, government officials must be reminded that in America, the People, not the government, are sovereign.

Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School.  Bill Olson served in three positions in the Reagan administration.  They now practice constitutional law together, defending against government excess, at William J. Olson, P.C.  They can be reached at wjo@mindspring.com or Olsonlaw@twitter.com.

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