The rights of citizenship are among the most crucial to a democracy– from citizenship flows the full range of legal protections against unwarranted government interference, and the ability to travel freely.
Citizenship for an American is made plain by the issuance of a U.S. passport by the U.S. Department of State. That passport once could only be seized and revoked by State under clear rules, and with a form of redress made explicit. Those strictures may still apply to most Americans, everywhere. Everywhere but in Yemen.
NSC: 500 Unlawful Passport Seizures in Yemen?
According to exclusive information obtained through a U.S. government whistleblower involved directly with U.S.-Yemeni affairs, the American Embassy in Sanaa, Yemen unlawfully seized over one hundred U.S. passports from Yemeni-Americans (some place the number at 500 passports), resulting in multiple lawsuits in Federal court. The Department of State, responsible for all U.S. passport matters, lost one case, and settled three others out-of-court. Yemenis in the U.S. are bringing the issue to the attention of the National Security Council and Congress, demanding oversight and assistance. State’s response has been to stonewall the inquiries inside the U.S., and to award and promote the person at the U.S. embassy in Yemen responsible for the seizures.
The leaked information supports the contention that passport seizures are a bigger problem than was originally believed. The Yemen Post cited only twenty cases. A forum for legal advice includes accusations of the same, prompting one attorney to comment “The U.S. consular officers in Yemen believe they are God and act accordingly.”
However, in emails from the National Security Council to the State Department obtained by this blog, the Director for Yemen cites contact from “another” immigration attorney on the subject, and, more significantly, an inquiry that involves 500 seized/revoked passport cases. She asks State “Can you tell me what he is referring to?” State’s response was to promise to hold a meeting with some Yemeni-Americans to “hear their concerns.” The last email in the chain is again from the NSC, pleading for confirmation that any such meeting actually took place.
Abdulhakem Alsadah, who coordinates a Yemeni-American society in Michigan, said though he initiated calls to the State Department, he has never been contacted by them. He knows of no meetings held “to hear concerns.” The publisher of a Yemen-American news site also says he has heard of no meetings held by State. Both men would welcome the chance to speak directly to the officials responsible for what they see as a significant violation of rights at the U.S. embassy in Sanaa.
The Case of Abdo Hizam
The use of extra-judicial passport seizures by State against Yemeni-Americans extends back several years, and appears connected to the case of drone-assassinated al Qaeda propagandist and American citizen Anwar al-Awlaki.
Yemeni-American Abdo Hizam immigrated with his parents to the U.S. at age nine, growing up a typical American kid outside Detroit. He was issued a U.S. passport, and in fact renewed it twice through the State Department. As an adult, Hizam traveled to Yemen in 2009. In the course of a routine immigration matter regarding his own children, the U.S. embassy unlawfully seized Hizam’s passport, providing no explanation. After three weeks of silence, he was permitted by the embassy to return to the U.S.
Two years after returning home, around the same time as the more spectacular passport case of Anwar al-Awlaki, the State Department told Hizam that he had received his citizenship “in error” twenty two years earlier. The mistake was no fault of his or his parents. In fact, the government adjudicated the original application wrong, and admitted so. Nonetheless, State revoked his passport and stripped Mr. Hizam of his nationality, plunging him into statelessness, declaring he was, at the stroke of the pen, no longer an American. Hizam could not leave the U.S., and his wife and children in Yemen were not issued visas by State to come to the U.S., actions that kept the family apart for three years. Hizam was offered no chance to argue, no recourse by the State Department but to accept his forced expatriation.
Hizam was however one of the lucky ones. Still in the U.S. physically but no longer legally, he sued the government. While the State Department argued in part that it could retroactively apply a law passed long after Hizam became a citizen to revoke his citizenship, in Hizam v. Hillary Clinton, a court ordered State to give Hizam back his passport. The court scolded the State Department that at the time it approved Hizam’s citizenship it was “impossible for him to have received any notice whatsoever that his status could be revoked in the future.”
“It’s certainly a scary power that the State Department is asserting here,” one of Hizam’s lawyer said. “The fact that the State Department can go back and ask these questions when somebody has, from childhood, been a U.S. citizen, is very frightening.”
But instead of accepting it could not go back to the future in Hizam’s case, State doubled-down and instead tried to stay the court order until it completed a lengthy appeal of the case, claiming the Department “will suffer irreparable injury because the Order undermines its ‘sole discretion’ to withhold passports.” The court disagreed and for the time gave Hizam back his passport, his citizenship, his right to travel and the ability to reunite with his family. State continues to appeal; the U.S. Court of Appeals for the second circuit the government’s arguments two months ago, but has yet to issue a decision. A lawyer familiar with the case stated “The government recognizes that their position is causing great unfairness to this man and suggests that the only remedy is to get a special law passed specifically for him.”
After failing to establish legal precedent for its unlawful passport revocations, the State Department appears to have shifted gears, simply ignoring the law to physically seize passports from Yemeni-Americans seeking routine services at the embassy in Sanaa, or those tricked into coming in. Supporters of the affected Yemenis report regular but often vague accusations of fraud being used as excuses to simply grab a passport. Others say that elderly Yemeni-Americans coming to the embassy for routine social security questions have been subjected to interrogations and again, after being accused of fraud, losing their passports without further explanation. While regulations require a formal, deliberative process to legally seize a U.S. passport, especially abroad where such seizure can strand an American and subject him to host-country immigration penalties, in Sanaa these regulations were bypassed simply by labeling the seizures as a case in need of “additional administrative processing.”
The embassy in Sanaa gave itself top cover for its actions. In a cable obtained by Wikileaks, the embassy noted that “all immigrant visa cases are considered fraudulent until proven otherwise. Interviews are complex, due not only to fraud, but also to the illiteracy and poor education of applicants.”
Rashid A. Abdu, publisher of the Michigan-based Yemeni-American, believes 100 or more Yemeni-Americans have had their passports taken away in Sanaa under dubious circumstances. He met with Congressman John Dingell not only to seek assistance but to remind him that word spreads fast in Yemen: these American citizens who could be serving as helpful bridges between the two countries are instead passing the word that the U.S. government seems to be singling them out for punishment (Dingell’s Dearborn office acknowledged the passport issue, but referred formal comment to the Congressman’s Washington office, who in turn refused to comment on the matter.)
A Bigger Picture
The actions at the American embassy in Yemen, while at first appearing to be little more than spiteful bureaucracy, fit into a larger pattern. For example, at the same time in 2011 the U.S. was ramping up its actions against Yemeni-Americans, Australia appeared to be doing much the same thing. “Withholding passports is an important means of preventing Australians from traveling overseas to train, support or participate in terrorism,” an Australian government spokesperson said. “It may also be used to help prevent an Australian already overseas from participating in activities that are prejudicial to the security of Australia or another country.”
The Government of the United States can also take away passports from American Citizens if “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”
If the government feels it is against its interest for you to have a passport and thus the freedom to travel, to depart the United States if you wish to, it will just take it away. The law allows this prospectively, the “or are likely to cause…” part of the law, meaning you don’t need to have done anything. The government just needs to decide that you might.
A Judicial Watch Freedom of Information Act request revealed that prior to having him and his 16 year old son killed by a drone in 2011, then-Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, al Qaeda propagandist and U.S. Citizen. The State Department even tried later to invite al-Awlaki into the U.S. embassy in Yemen so that they could encourage him to return to the U.S. to face charges. In a cable to the embassy in Sanaa, al-Awaki’s street address was listed. The embassy was to send him a written letter inviting him into the embassy, specifying that he was to bring along photo ID “to preserve his privacy rights.” Six months later (al-Awlaki never dropped by the Embassy, by the way), the U.S. government simply killed him. Two weeks after that it killed his 16 year old son, also an American citizen.
Because the passport revocations at the Secretary of State’s pleasure can be secret, it has been difficult to track down recent examples where the U.S. government revoked the passport of an American simply because his/her presence abroad bothered– or might bother– the Secretary of State. In fact, the only example found was that of infamous ex-CIA officer Phillip Agee, who in the 1970′s exposed CIA officers identities. It was in Agee’s case that the Supreme Court coldly stated that “The right to hold a passport is subordinate to national security and foreign policy considerations.”
There is at least one other case of extra-judicial forced expatriation, this one outside of Yemen, though it follows an identical pattern of action by the State Department. Officials at the American embassy in Kuwait told an American working as a U.S. military contractor there that after they confiscated his passport that “he should no longer consider himself a U.S. citizen.”At issue is a 20 year old problem that occurred before the Moroccan-American resident of Oregon even was a U.S. citizen. “American citizenship is too important to be subject to the whims of low level bureaucrats,” a lawyer for the subject wrote. “If there are any concerns about my client’s citizenship, he has the right to have those concerns addressed through the judicial process once he returns to the United States.” The State Department referred questions about the case to its Bureau of Consular Affairs, where an official said she could not discuss the case because of privacy concerns.
State Department’s Response
Though the State Department did not respond to requests for comment on this article either, in response to a Yemeni newspaper inquiry the Department said “While we do not comment on individual cases, we take all passport fraud allegations seriously. U.S. passports are the property of the United States Government and under certain circumstances can be revoked.”
Perhaps more telling is the State Department’s actions toward the American embassy official in Yemen in charge of the passport revocations. On November 13, via a cable sent worldwide to all embassies and consulates but curiously not yet made public, the State Department named the official consular officer of the year, an award for excellence that the cable said acknowledged “outstanding individual contributions… with a particular emphasis on efficiency and quality… the committee was impressed with (her) inspired leadership.” According to that official’s Facebook page, she was also promoted, and given a dream follow-on assignment from Yemen to Australia.
State’s generous actions toward its official in Yemen are more than the usual puffery. They strongly imply sanction of the passport seizures and revocations, and thus encourage additional such actions despite the concerns at the White House and lawsuits that have followed. In the world of bureaucracy, no career action survives public chastisement without having official sanction.
The War Hits Home
Despite the devastating effect on individual lives, it is hard to see what is truly being accomplished in Yemen for the United States. Perhaps like the NSA hoovering up our Facebook posts, the point may be not that they need to do it, but that they can. A bureaucracy unchecked just continues to reach deeper into citizens’ lives.
On the other hand, open season on Yemeni-Americans appears more than simple bureaucratic zeal. Since 9/11, the U.S. has stopped considering law and regulation in favor of unilateral, and often times secret, extra-judicial actions. From the more significant steps of indefinite imprisonment without trial, to torture to daily violations of Constitutional freedoms, the tentacles of the war on terror now reach as far as the forced expatriation of individual American citizens.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The person who shot up the Canadian Parliament had had his passport taken away by the Canadian government, ostensibly to prevent him from traveling to Syria to join ISIS
Can the U.S. government seize the passports of American citizens who it believes may travel abroad to join ISIS or other terror groups? Yep. The process is almost no-cost to the government, extra-judicial, can be made secret and requires a lengthy court process to even try to contest. No passport, no international travel, the ultimate no-fly tool against would-be jihadis. So why hasn’t this process been used more often?
Leaving aside the not-insubstantial questions about their validity, the warnings are ominous.
With some Americans seeking to join ISIS, there are fears that on their return they may commit terror in the U.S. Unlike foreign citizens, these radicalized Americans would sail through immigration checks and be able to easily disappear into a familiar society. The U.S. is seeking to tackle the problem at the supply end, preventing Americans from departing to join ISIS in the first place, as well as from the other side, blocking citizens from returning freely to the United States.
The arrest at O’Hare airport of Mohamed Khan, a 19-year-old U.S. citizen, is one example. Authorities claim the young man headed to the Middle East to join ISIS, and, citing a left-behind note explaining his choice, waited at the airport to arrest Khan on charges of attempting to provide material support for a terrorist organization. The operation involved significant law enforcement resources to stop one teenager based largely on suspicion.
Another Tool in the Box
The United States can simply seize passports from American citizens if “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”
The law allows this prospectively, the “or are likely to cause” part of the law, meaning the person needn’t have done anything. The government just needs to think they might.
A Judicial Watch Freedom of Information Act request revealed that prior to Obama ordering him and his 16-year-old son to be killed by a drone in 2011, then-Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, alleged al Qaeda propagandist and U.S. citizen. The two would not have been able to travel to the United States without handing themselves over to law enforcement. Indeed, a letter to that effect was allegedly sent to some address in Yemen inviting al-Awlaki to visit the American Embassy to discuss the details.
Al-Awlaki isn’t the only person in Yemen to have his U.S. passport seized.
According to information obtained through a U.S. government whistleblower involved directly with U.S.-Yemeni affairs, the American embassy in Sanaa, Yemen seized over one hundred U.S. passports from Yemeni-Americans (some place the number at 500 passports) between 2011 and 2013. Only after several legal battles did the State Department curtail its actions. Though State publicly claims the seizures were an anti-fraud measure, many in the Yemeni community saw them as a pilot program.
A similar case involved the seizure of a Moroccan-American’s passport in Kuwait.
The actions at the American embassy in Yemen may fit into a larger pattern. For example, at the same time in 2011 the U.S. was ramping up its actions against Yemeni-Americans, Australia appeared to be doing much the same thing. “Withholding passports is an important means of preventing Australians from traveling overseas to train, support or participate in terrorism,” an Australian government spokesperson said. “It may also be used to help prevent an Australian already overseas from participating in activities that are prejudicial to the security of Australia or another country.”
How are Passport Seizures Legal?
Restrictions on travel suffered under the British were part of the list of “injuries and usurpations” in the Declaration of Independence. So don’t Americans have a right to travel?
Nope. The precedent was set by infamous ex-CIA officer Philip Agee, who in the 1970′s exposed CIA officers identities. It was in Agee’s case that the Supreme Court coldly affirmed that “The right to hold a passport is subordinate to national security and foreign policy considerations.” A lower court put it even more bluntly: “The Secretary [of State] may preclude potential matches from the international tinderbox.”
The basic premise is that travel abroad (travel within the U.S. is specifically provided for in the Constitution, though the No-Fly list certainly can limit one’s options) is that it is an “aspect” of liberty subject to restraint under due process. In the 1950’s, American Communists were often denied passports if their travel abroad was believed to be in support of their political beliefs, a policy later overturned by the Supreme Court. The Court struggled to balance national security and personal liberty regarding travel through multiple cases, but has never concluded that travel– or having a passport– is a fundamental right.
The whole concept of Americans requiring passports to travel has its roots in national security restrictions. With the exception of roughly the years of the Civil War and World War I, Americans did not need a passport to enter the United States. Americans were first required as a group to hold passports at the start of the Second World War. The travel requirements instituted in the past only during times of national crisis stuck around after WWII through the present day, formalized in the Immigration and Nationality Act of 1952. With echoes of current government actions, what was created as a wartime contingency morphed into a permanent peacetime restriction. The history of passport restrictions is not long, but does resonate into the post-9/11, Post-Constitutional era.
While no right to travel per se exists for Americans, there is a basic assumption, rooted in the Citizenship Clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment to the Constitution that Americans have something between an expectation, an entitlement and an implied right to return to the United States from abroad, rooted in the concept of citizenship. The ease with which passports can be seized (or boarding an aircraft denied via the No-Fly list) is not seen in conflict; in al-Awlaki’s case, he would have been welcome to come home, albeit in leg irons en route to federal SuperMax. Time is also an issue. How long the government may make a citizen wait before allowing a return to the U.S. under some specific circumstances is not codified and thus can be used as a de facto seizure or punishment without raising a case publicly.
Why Doesn’t the Government Seize More Passports?
In short, for an American citizen to travel abroad, whether for vacation or jihad, the government’s permission, in the form of a passport, is required. So why then does the government not use such a long-tested authority to deny or seize the passports of those suspected for traveling to join terror groups?
While the real answer is obviously unknowable, several ideas may help explain this. First is that in fact such measures might be taking place. Persons who have not yet applied for a passport may find themselves denied issuance, and applications may have been denied or “in processing” without the applicant knowing the reason. The government is under no obligation to tell the person involved nor the media that national security has been invoked.
More likely however, it is a matter of legal timidity and public relations. Arresting and trying someone for material support for terrorism is something of a set-piece case for post-9/11 law enforcement. There is little legal controversy generated, and almost no danger under present circumstances of any nasty precedent being set. Wide-spread passport seizures could easily create a new chance to bring the issue before the Supreme Court, risky business for a government that much prefers to act as it wishes vis-vis American’s rights.
The other reason for restraint may simply be public relations. The public is familiar and appears supportive of arrests. Law enforcement in these circumstances are the good guys. Passport seizures sound a bit harsh, totalitarian-like, and are technically done under the authority of the Department of State, who does not enjoy the good guy reputation many attribute to the law enforcement people who “keep us safe.” It could be as simple as law enforcement not being willing to work with the State Department for bureaucratic reasons.
Regardless, these are dark seas. In a democracy, the right of citizens to depart and return should not on its face be restricted in the interest of the government. The idea of limiting an American citizen’s travel proactively, on the assumption that she or he will end up fighting with ISIS based on documents or web postings, scrapes at liberty, even if the tools are there and it is legal to use them.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
We have covered in detail the ongoing misuse of authority at the U.S. embassy in Sanaa, Yemen, where a pattern of coerced “confessions,” flimsy fraud accusations and outright illegal passport seizures has led to a) promotion by the State Department of the senior consular officer involved and b) a flurry of lawsuits that State consistently loses as Yemeni-Americans are forced into court to correct State. You can catch-up on the story here and here.
Since the original articles, we have learned that a group representing Yemeni-Americans has sought and failed to secure a meeting with the State Department, only getting as far as a local passport office in the U.S. The group then contacted the FBI for help, with concerns about possible civil rights violations based on national origin.
A national rights group, Asian Americans Advancing Justice, also indicated they are working with a number of Yemeni-Americans who were improperly treated at the U.S. embassy in Sanaa.
A Warning Pamphlet for Americans Visiting the American Embassy
The situation in Yemen has gotten bad enough, and is pervasive enough, that now the ACLU, the Asian Law Caucus, and other concerned groups produced a pamphlet warning Yemeni-Americans and others of the situation, and giving advice on how to safeguard themselves. In my own 24 years as a consular officer at State, I am aware of no other embassy, U.S. or other, that has its own warning pamphlet for its own citizens.
You can read the English version of the pamphlet here; if you are traveling to Yemen, you better damn well read it.
The pamphlet states quite plainly:
“Increasingly, individuals, especially of Yemeni origin, report that officials at the U.S. embassy in Sanaa have revoked and taken away their U.S. passports, sometimes pressuring them to sign confessions they do not understand without legal advice.”
Brown is the New Black
The advice in the pamphlet is sound and accurate to my reading. The basics– admit nothing, sign nothing, leave and get legal advice– apply to any interaction with our government. However, to many people traveling abroad, such advice may seem shocking. For the most part, Americans have come to believe that “their” embassy in a foreign country is a place of refuge, not another encounter with yet another form of psuedo-law enforcement. Sad to say, but times have changed and even a visit to an American embassy is now a potentially dangerous act for a citizen to undertake. Citizens are viewed as adversaries, particularly “lessor” citizens such as Hyphenated-Americans. Indeed, we can’t find one case in Sanaa that involved a Mr. or Ms. Whitebread.
Some Friendly Suggestions
In addition to the advice in the pamphlet, I’d like to also pass on some suggestions based on my own consular experience. Of course this is for informational purposes only, is not encouragement to commit fraud or misrepresentation, not an aid to visa cheating and certainly not legal advice or a legal opinion. I am not a lawyer and do not play one on TV.
–Do not trust or speak in detail to any local embassy employee. Because these staffers are local people, speak the local language and often appear sympathetic, many Americans of local origin feel comfortable unburdening themselves or speaking more plainly in this encounter. Do not do so; everything you say will be relayed to the American staff and held against you. Do not fall prey to their appeals based on a shared religion, tribal affiliation or the like.
–In your initial encounter, especially if you walk in on your own to the embassy, expect to outline your reason for being there to a local employee. Be brief and strictly factual. The first American you will see is very likely to be a new or recent hire. If s/he brings in a second American, that person is likely to be either a more senior manager who will make decisions on your case, an antifraud person or law enforcement. If it was me, as soon as that second person appeared, or when the first American left to “consult” or “check with the boss,” I would terminate the interaction and not continue without legal advice.
–Do not casually relinquish physical possession of your passport without considering legal advice. Technically the passport is the property of the U.S. government, not you, but only in very rare circumstances will the embassy ever try and take it from you by force. Of course, when renewing a passport, you do have to surrender the old one.
–If after a first encounter at an embassy you are “invited” back in for additional interaction, consult an attorney first. It is never a good idea to go in alone. Do not believe statements such as “we just want to clear something up” without legal advice.
–If you do not speak English well enough to interact with trained Americans on legal matters, bring along your own trusted translator. The American may insist on using his/her translator, but yours should at least monitor the conversation. The staff who translate in these interactions are not professional translators, merely clerks pressed into service as few of the Americans speak the local language well. The local employee may make mistakes through incompetence, or may misrepresent what you say to favor the boss. Take notes, or have someone with you to take notes, preferably an attorney.
–If the American uses the terms “additional processing” or “administrative processing,” your case is likely to be denied, sent for fraud work or otherwise acted on not in your favor. In the visa world, “administrative processing” often means your case is being referred for security and intelligence checks. These can take months, and you will likely never know why a visa was denied.
–It is typically useless to ask to speak to someone else, or a more senior person. If the first interaction does not go well, you may wish to leave and seek legal advice on how to proceed.
–Interactions at the embassy, even with Americans, are not fully subject to U.S. legal standards. The embassy is not “American soil.” You do not have your full rights standing there. There is no “Miranda” requirement. You do not have to be sworn. They do not have to tell you to what purpose they plan to use your information. U.S. embassy officials working on “administrative matters” are not obligated to keep detailed notes, transcripts or observe standard rules of evidence. In many cases they can turn over your information to local, host country law enforcement if they believe a “crime” has taken place. Information gathered in the course of a passport or visa interview can be shared freely with U.S. law enforcement and intelligence agencies.
–Almost anything to do with visas has no appeal or judicial oversight. Be especially mindful of any visa interaction, as once the visa is denied you have very little recourse or remedy easily available.
The system is not fair, and was not designed to be fair.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Searches of public court records continue to expose the illegal actions of the U.S. Department of State in Yemen. One private attorney connected to cases in Yemen says “Issues with the U.S. Consulate in Sana’a are systemic and reach far beyond seizure of U.S. passports. That is merely the egregious tip of the iceberg. I have dealt with many Yemeni’s experiencing problems with the U.S. Consulate in Sana’a. Most non-litigation options fail, but at the same time most Yemeni nationals are afraid litigation will result in retaliation.”
If you have not read our original report on the issue, see it here.
Abdo Alarir, et al, v. Hillary Clinton, Janice Jacobs
The first case is Abdo Alarir, et al, v. Hillary Clinton, Janice Jacobs, et al, filed October 18, 2012 in the U.S. District Court for Southern New York. Mr. Alarir, a U.S. Citizen, filled paperwork to bring his children from Yemen to the U.S. One of the kids would immigrate to the U.S. on a visa (“Green Card”) and two would qualify already as American Citizens. The latter is made official when the State Department issues what is called a Consular Report of Birth Abroad (a CRBA in State-speak). The reasons why one kid gets a visa and the other two a CRBA are complex but irrelevant to what the State Department, illegally, did with this case.
Actually what State did was… nothing. The Department of Homeland Security approved the visa (it’s a two-agency process) in 2010. At State, nothing was done for three years to process the cases. As for the Consular Report of Birth for the other two kids, these can be approved within an hour, with the official documents available soon after, right at the embassy, no Homeland Security involvement required. That’s pretty much standard practice around the world. But apparently not in Yemen. So, faced with stonewalling out of the U.S. embassy in Sanaa, the American dad sued.
But back to Sanaa. Dad initially pursued the Consular Reports of Birth. He was told at an initial meeting with State on February 7, 2012 to provide more documents. He did on February 12, 2012, via DHL with a tracking number. Embassy Sanaa waited over a month until March 18, 2012 to send Dad a form letter saying the documents had not been received. Meanwhile, Dad’s lawyer was told by Homeland Security that they had done their part of the job on the visa, that the lawyer should contact the U.S. embassy in Sanaa, and to please bug State from here on out, not them. The paper trail as filed with the U.S. District Court ends there. State just dummied up and did… nothing.
The lawsuit found its way through the court system, but before the District Court could issue a decision, wham! State, without comment, apology or explanation, just up and issued the visa and Consular Reports of Birth. The case was thus closed on November 23, 2013, and a State Department fudge-up swept under the rug.
The State Department did not respond to a request for comment.
Next up is Yemeni-American Nashwan Ahmed Qassem v. Hillary Clinton, Janice Jacobs, et al. This case was filed on January 30, 2013 in the U.S. District Court for Western New York and though full documentation is not available electronically, it appears to be similar to the other cases. Embassy Sanaa illegally revoked the U.S. Citizen’s passport, he sued, State turned around and re-issued the passport before the Court could render a verdict. The State Department did not respond to a request for comment.
A third case we were able to unearth in public records is ongoing, that of Yemeni-American Hashed Mousa. This one involves a U.S. Citizen Yemeni-American grandfather, who was somehow made to “voluntarily” admit that years ago he obtained his own U.S. citizenship by fraud. Despite the law being very clear that only Homeland Security can revoke citizenship due to fraud on the original application, Embassy Sanaa just went ahead and confiscated grandpa’s U.S. passport. The embassy then waited for grandpa’s son to come in to apply for citizenship for the grandchildren, denying those applications based on a flimsy chain of a) since the embassy illegally claimed that grandpa was not a U.S. citizen b) his own son was not a U.S. citizen and therefore c) the grandkids could not be U.S. citizens. The case is 3:13-cv-05958-BHS, filed in the Western District of Washington State. The State Department did not respond to a request for comment.
It appears quite clear that something happened at the U.S. embassy in Sanaa. Whether the illegal actions against Yemeni-Americans were part of a State-sponsored process, or the actions of a local bureaucracy poorly supervised and out-of-control, are unclear and largely irrelevant. The problems with State and Sanaa grew so egregious that the National Security Council, and even Homeland Security, raised questions. Some good news; sources inside the Department of Justice suggest that whatever was going on toward Yemeni-Americans in Sanaa has tapered off under new management. State, for its part, selected the former manager as Consular Officer of the Year, promoted her, and reassigned her to a dream job in Sydney. The Consular Officer of the Year did not respond to a request for comment.
That leaves only the question of why the State Department is not seeking to resolve these cases administratively, going back through the files, identifying and reviewing “unusual” actions/inactions and moving to fix things. Instead, State is forcing American Citizens to file expensive lawsuits, which State contests to the last moment before bellying up and doing what it should have and could have done much earlier, issuing the documents it was supposed to.
It is almost as if State, even when caught red-handed in the wrong, still wants to punish those who challenge it.
BONUS: In the past, State has challenged the use of its official seal, as seen above, by this blog. Haven’t heard them this time.
Some 1000 employees at the Department of State are said to have signed a formal memo sent through the “Dissent Channel” in late January, opposing President Donald Trump’s Executive Order initially blocking all Syrian refugee admissions indefinitely, delaying other refugees 120 days, prohibiting for 90 days all other travelers (diplomats excluded) from seven Muslim-majority nations, and other immigration-related issues.
What is the Dissent Channel those State employees used? What effect if any will the memo have on policy? What does the memo say to the new Secretary of State Rex Tillerson about the organization he now heads, and what will he do about it?
What the State Department calls the Dissent Channel is unique inside the American government. Created in 1971 during the Vietnam War, the system allows Foreign Service officers to express their disagreement with U.S. policy directly to senior leaders. The secretary of state is obliged to read and through his staff respond to all Dissent Channel messages, normally within 30-60 days. Persons using the Channel are fully protected against retaliation. Dissent messages are intended to foster internal dialogue within the State Department, and are never intended for the public.
The issues surrounding the most recent dissent memo begin where that previous sentence ends.
What was once understood to be a way to foster internal dialogue is in this case playing out more like an online petition. Multiple versions of the memo circulated within the State Department globally, with persons adding their signatures and making edits as they opened their email. Someone (no one seems to know exactly who) later allegedly melded the multiple versions into the one that was submitted, meaning some signers did not see the final text until it was leaked.
That leak changed everything, making the exercise less an expression of policy dissent than an anonymous press release sent out from a bureaucratic safe place. The intent in going public seems to be a combination of whining about, provoking, and embarrassing the administration. It is unclear anyone could feel that going to the press would foster greater discussion; actually, the opposite – many diplomats hoping to open a channel for discussion were deeply dismayed the memo went public, followed by anonymous interviews.
As one career ambassador stated regarding another dissent message quickly leaked to the media, State Department officers’ “oath of office is to protect and defend the Constitution, but they are not free to debate publicly with their president… If they want to go public they should resign.”
And indeed that sentiment appeared to be contained, albeit indelicately, in the White House’s initial reaction to the memo. White House Press Secretary Sean Spicer said of those diplomats who signed that they “should either get with the program, or they can go.”
Spicer, and the ambassador above, touch on a more fundamental issue underlying the dissent memo.
The average State Department Foreign Service officer has served 12 years, meaning a large number have never worked for any president other than Barack Obama and more than half have not experienced a presidential transition. These employees have never had their oath of service to the Constitution – not to George W. Bush or Barack Obama or Donald Trump – tested. Government carries out the policies of the president on behalf of the United States; it’s called public service for a reason. Those concerned because the wrong candidate won may be learning they are in the wrong business.
That sense of frustration as much with the man in the Oval Office as with his policy appears evident in the text of the dissent memo, which is long on emotional (core values, nation of immigrants, shame of Japanese-Internment camps, yada-yada), and short on concrete policy other than “we shouldn’t do what the Executive Order says” and suggestions for more vetting and social media monitoring. Potential lost revenue figures are mostly global, not limited to the seven countries, and presume none of the people denied entry will visit another time to spend their money.
There is an extraordinary amount of high-caste rhetoric in the memo that appears to describe a situation that many Middle East travelers might not recognize: the welcoming atmosphere of the United States (as if long waits to pay $160 to apply for a visa, two year or more invasive vetting for refugees stuck abroad, and crude TSA treatment did not previously exist.) The memo speaks of souring relations with Middle Eastern nations, increased anti-American sentiment, and creating the impression of a war based on religion, while somehow overlooking that 15 years of the horrors of the War on Terror (torture, drone kills, wedding parties blown up, Guantanamo) have already accomplished those sordid tasks.
The memo also somewhat dramatically raises the specter of humanitarian issues, a child denied medical care in the U.S. for example, when the Executive Order in Section 3(g) clearly allows for such exceptions to be made on a case-by-case basis. The memo brushes that process off as unworkable, when in fact such exceptional processes exist throughout U.S. immigration law and work just fine – it has been the State Department who has in fact implemented them.
Left unsaid is any commentary on pre-Trump U.S. refugee policy. Since 1980, the United States has accepted fewer than two million refugees overall, and 40 percent of those were simply children accompanying their refugee parent(s). By contrast, though not limited to refugees, the Obama administration alone deported 2.5 million people. The FY2016 American quota for Syrian refugees was 10,000. In contrast, Canada in 2016 took in 25,000. Germany admitted 300,000 refugees from various nations in 2016, following close to one million in 2015.
No dissent memos were publicly released about any of that; while the State Department drafters may not even have been aware of the crude reality of pre-Trump policy as they wrote of a welcoming America, one can bet persons in the Middle East affected by those policies are. Same for the Obama-era illegal and unconstitutional denial of passports to Yemenis. Those actions ended up crushed in Federal court, but received no public dissent from inside State.
The memo concludes with an erroneous statement that Federal employees take an oath to whatever “core American and Constitutional values” are. Sources state the memo was drafted largely by persons new to the State Department, and that clearly shows.
(Of ancillary interest, the memo, written by people who work with the nuts and bolts of visa and immigration law daily, makes no assertions that Trump’s executive order is illegal or unconstitutional, just bad policy.)
So what happens next?
Rex Tillerson’s staff owe the signatories a response. Past experience suggests, and the near-certainty that the response will be leaked within minutes assures, that the reply will be of the “we acknowledge your concerns,” content-free variety. It is possible the response could be delayed until near the actual end of the legal wrangling, long after the media have forgotten the dissent memo ever existed.
In characterizing the dissent memo as unprecedented (it is in the number of signatories, claimed to be 1000, albeit out of a workforce of close to 19,000), many media outlets have raised the question of resignations. Will Tillerson one day find himself in a State Department without diplomats?
Experience suggests no.
There were no known State Department resignations of protest during the 15 years of atrocities known as the War of Terror (as well as no publicly released dissent memos.) At the State Department there were only three resignations of conscience over the 2003 Iraq War, and one other related to Afghanistan. The last time more than a handful of diplomats resigned in protest was at the height of the Vietnam War, arguably a more significant foreign policy event than a temporary visa ban aimed at a handful of countries.
That said, emotions are running high inside the State Department, and one should not be surprised by a handful of resignations (one employee announced his resignation was actually a protest 12 days after he handed in his papers and even though he will remain at work until March, saying without explanation that Trump is a “threat to the Constitution”), a few scheduled retirements mediagenically re-categorized as resignations of protest, and an overreaction to all of that. Just remember outside the Beltway there is little love, or even real knowledge of, the State Department. It is doubtful Trump’s core constituency could give a hoot what happens at Foggy Bottom.
Is ISIS a Direct Threat to the U.S.? Doubtful.
First, a few samples of the fear-mongering rhetoric.
“The militant Islamic State group could launch a direct attack on U.S. soil,” warned South Carolina Senator Lindsey Graham, who claimed the militants are a “direct threat to our homeland… They are coming.” Graham, and his running dog accomplice John McCain, have never found a threat they could not exaggerate.
“In reality, ISIS represents the most virulent form of Islamic jihad the planet has ever seen. These folks are not Muslims, they are animals, frankly… another 9/11 is imminent.” said Ali Khedery, who, as an advisor to five U.S. ambassadors in Iraq, is personally responsible for much of the mess there.
“Every day that goes by, ISIS… becomes a direct threat to the United States of America. They are more powerful now than al Qaeda was on 9/11,” Representative Peter King said.
R U Scared Yet?
Well, that is all pretty terrifying. While the fear mongers depend on the idea that there is no way to prove a negative (i.e., ISIS will never attack the U.S., or Paraguay, or Bermuda), there is still room for rational thought. Here are a few of such thoughts:
— ISIS has been in existence in some form since perhaps 2004, as part of Al Qaeda in Iraq. They formed their own organization, such as it is, in 2013. In the nine years of the U.S. Occupation of Iraq, no Mideast group launched an attack on the U.S. Nobody from the Taliban has shown up here since whenever, same for the groups unleashed after the U.S. attacked Libya. No Yemeni or Pakistani terrorists yet either. No Boko Haram, no Abu Sayyaf. Not even al Qaeda after 9/11. What’s different about ISIS?
— Oh, the money? Yep, they seemed to have gotten ahold of a huge amount of Iraqi and U.S. currency, and American weapons, after the Iraqi Army gave up and ran away. Money can help, but in fact the 9/11 attacks may have cost about $400,000, and that included all that expensive flight training. Not small change, but certainly the kind of money that an international terror group could raise. Nope, no big change there either.
— Many/most of the ISIS fighters are unsophisticated people with limited formal education, likely with no English skills and little if any experience outside their own areas. It seems unlikely they are the kind of people who will successfully obtain passports, travel to international airports, blend in, hop on planes, wander into the U.S., acquire weapons and navigate around America to strike important targets.
— But what about the foreign fighters with ISIS? Aren’t there Americans among them who will return to the Homeland and carry out lone wolf attacks? Sure, that it always possible. But again, since 9/11, almost 13 years, it hasn’t happened. Is there something different about the ISIS Americans? Meanwhile, the very few acts of terrorism in the U.S. have been carried out by people already here, such as the hapless Boston kids, likely the post-9/11 anthrax attacks, and Major Hasan, a serving U.S. Army officer who shot up Fort Hood. We’ll leave aside the heavy death toll in America in the meantime by our own army of school mass shooters and workplace psychos.
— And speaking of those Americans who have joined ISIS, perhaps the fear mongers might pause and consider what might encourage a young person to do that, and perhaps tackle the problem from the perspective.
— Thinking ISIS will jump from the battlefields of Iraq to New York fails to understand the point of terrorism. ISIS has exactly what it wants already, and achieved its goal vis-vis the U.S. at almost no cost: they lured the Americans back into Iraq. What had been a struggle for territory among indigenous groups turned overnight into a jihad against the American crusaders, you know, the ones who promised to leave Iraq in 2011 and then instead came back?
Nothing could be more helpful to ISIS in terms of recruitment, raising money and inspiring its forces than to recharacterize the conflict as something broader, with ISIS in the role of protector of Islam. If ISIS wants to kill Americans, they can do it right there at home.
So sleep well America. ISIS is killing us over there because it is more convenient for them than killing us here. The rest is just fear mongering.
This article originally appeared on the Huffington Post.
Though I spent 24 years working for the State Department as a Consular Officer, charged in part with the issuance and (very rarely) revocation of U.S. passports, there is still room to learn something new: The Government of the United States can, and apparently does, take away passports from American Citizens because “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”
If the government feels it is against its interest for you to have a passport and thus the freedom to travel, to depart the United States if you wish to, it will just take it away. The law allows them to do this prospectively, the “or are likely to cause…” part of the law, meaning you don’t need to have done anything. The government just needs to decide that you might.
We learned via a Judicial Watch Freedom of Information Act request that prior to having him and his 16 year old son away blown away via drone in 2011, Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, al Qaeda propagandist and U.S. Citizen. The State Department even tried to invite al-Awlaki into the U.S. Embassy in Yemen so they could hand him a letter announcing the revocation and so that they could encourage him to return to the U.S. to face charges. Six months later (al-Awlaki never dropped by the Embassy, by the way), the U.S. Government simply killed him. Two weeks after that it killed his 16 year old son.
I have been unable to track down many recent examples where the U.S. Government revoked the passport of an American simply because his/her presence abroad bothered– or might bother– the Secretary of State. In fact, the only example I was able to locate was that of infamous ex-CIA officer Phillip Agee, who in the 1970’s exposed CIA officers identities. It was Agee’s case that prompted a Supreme Court review of the Department of State’s ability to revoke passports simply because the government didn’t want you to travel abroad (the Supreme’s upheld the government’s ability to do so based on a 1926 law after lower courts said no. The Court stated that “The right to hold a passport is subordinate to national security and foreign policy considerations.”)
Agee was a naughty boy. According to the Supreme Court:
In 1974, Agee called a press conference in London to announce his “campaign to fight the United States CIA wherever it is operating. He declared his intent “to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating.” Since 1974, Agee has, by his own assertion, devoted consistent effort to that program, and he has traveled extensively in other countries in order to carry it out. To identify CIA personnel in a particular country, Agee goes to the target country and consults sources in local diplomatic circles whom he knows from his prior service in the United States Government. He recruits collaborators and trains them in clandestine techniques designed to expose the “cover” of CIA employees and sources. Agee and his collaborators have repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources. The record reveals that the identifications divulge classified information, violate Agee’s express contract not to make any public statements about Agency matters without prior clearance by the Agency, have prejudiced the ability of the United States to obtain intelligence, and have been followed by episodes of violence against the persons and organizations identified.
In Anwar Al-Awlaki’s case, the Government has not made much of a case (never mind for the passport, remember he was murdered by a drone). In fact, officially, we do not know why al-Awlaki was killed at all, or under what laws or by what decision process. Some reports tie him to the failed idiot underwear bomber, but being part of a failed plot seems not to rise to the usual standard for capital punishment. It is all secret.
The Government of the United States executed one of its own citizens abroad without any form of due process. This is generally seen as a no-no as far as the Bill of Rights goes. The silly old Fifth Amendment to the Constitution guarantees “no person shall be deprived of life without due process of law” and includes no exceptions for war, terrorism, or being a really bad human being.
Could the passport revocation have been simply a ruse, a bureaucratic CYA attempt at providing some sort of illusion of “due process?” Could al-Awlaki’s not dropping by the U.S. Embassy to chat about his passport have been a veiled attempt to justify his killing in that he was thus not able to be arrested? Or was the passport revocation just a simple act of dehumanizing someone to make killing him that much more palatable?
We’ll never know.