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Supreme Court, Birthright Citizenship, and Espionage
The Supreme Court will soon decide Trump v. Barbara, in which the president seeks by Executive Order to overturn the citizenship clause of the 14th Amendment. The Amendment says almost any child born on U.S. soil is automatically and forever an American citizen. The Court will most likely reflect long precedent to allow birthright citizenship as it exists today to stand unaltered. But its decision will have profound secondary effects, not the least of which is determining the future of birthright citizenship tourism and its possible effect on national security.
The question of whether most children born in the U.S. are citizens connects back to the deadly omissions of the Founding Fathers when they failed to address slavery in creating the country. The founding documents did not even recognize blacks as full humans, never mind considering granting those born here citizenship. In the lead up to the Civil War, when the right to vote became crucial as new states entered the Union slave or free, the 1857 Supreme Court decision in Dred Scott v. Sandford held that those descended from African slaves could not be citizens of the United States. Some legal scholars drew implications from Scott to mean all children born in the United States to foreign parents were not automatically U.S. citizens.
The 14th Amendment to the Constitution was adopted in 1868, in the aftermath of the Civil War, as part of reconciling the status of millions of then-freed slaves. The Amendment’s citizenship clause specifically overruled Scott v. Sandford, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Controversy erupted even as the Amendment was being drafted. Senator Edgar Cowan of Pennsylvania argued states should not be forced to grant citizenship to the children of “Asiatic” immigrants or “Gypsies” who, he said, did not share American values or owe true allegiance to the country. Senator Jacob Howard of Michigan stated the Amendment was written to exclude the children of “foreigners” and “aliens.” Senator Lyman Trumbull of Illinois went on to successfully clarify that “subject to the jurisdiction” meant completely under the legal authority of U.S. courts. Because immigrants were required to obey U.S. laws, could be tried in U.S. courts, and paid U.S. taxes, their children born on U.S. soil were included. The only noteworthy groups deliberately excluded were children of foreign diplomats, who were not subject to U.S. law via their diplomatic immunity, and initially Native Americans living on sovereign tribal lands. They answered to tribal governments not the U.S. government. The 14th Amendment’s concept of citizenship was fully tested in the 1898 case United States v. Wong Kim Ark. The Supreme Court’s majority opinion confirmed birth on U.S. soil grants automatic citizenship, even if the parents are both foreigners or barred from ever becoming naturalized citizens themselves. Most mainstream constitutional scholars believe the legislative history as a whole, combined with Wong, supports citizenship for the children of aliens.
Birthright citizenship does leave a problem for America to deal with: will a foreign power, say China, use the idea to groom an American citizen who also owes allegiance to China into a spy, perhaps taking advantage of his American citizenship and highly-desired Mandarin language skills, to infiltrate him from the earliest stages into the CIA, State Department, NSA or military? Even short of actual spying, secondary allegiances can complicate decision-making in sensitive positions.
The issue is loyalty, not leverage (i.e., relatives for the Ministry of Truth to pressure in the home country, investments abroad to help or harm), which can be screened for. Intelligence officers of all nationalities have long-known that after money, ideology is the most powerful tool to convince someone to betray his government. Desire for importance, status, or appreciation from the “home” country closely follows. Things like blackmail do exist, just like in the movies, but are crude instruments that lead the target to resent the foreign government, not want to help it. The presence of a vast birth tourism industry, sending an estimated 60,000 Chinese to the U.S. a year to give birth to American citizens, sets the stage and raises the level of concern. Most of those Chinese births are economically-oriented, but the large number leaves room for bad actors. This all involves a lot of speculation, and it is well-known that foreign spies target Americans of all flavors, native born, or naturalized. But any mechanism that increases long-term Chinese access to the United States deserves scrutiny from a national security perspective.
Most debates over birthright citizenship focus on legal interpretation or immigration policy. The espionage question is one of national security. It asks whether a foreign government could exploit the doctrine for long-term intelligence purposes. While publicly known cases are impossible to locate, the job of intelligence professionals is to evaluate threats based not only on demonstrated harm but also on opportunity and intent. Birth tourism creates a mechanism by which foreign governments could establish long-term human footholds inside the United States. Whether that possibility is significant enough to justify changing a constitutional understanding that has existed for more than a century remains a central question. One hopes the Supreme Court gives this its due consideration in adjudicating Trump v. Barbara.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Trump Doctrine
The deranged left claims Donald Trump’s foreign policy is chaotic, that it has no broad goal. So it is good to see Secretary of State Marco Rubio, in a little-noticed statement, lay out the broad outlines of Trump’s foreign policy, and thus his State Department’s own marching orders. Rubio managed to work in some “inside baseball” points as well, leaving clues as to how the State reorganization is proceeding with like-minded individuals seeded into key positions in the bureaucracy.
Rubio began with the bottom line up front: American foreign policy is going to be about American goals, not some sort of global largess.
This President inherited 30 years of foreign policy built around what was good for the world. The decisions we made as a government in trade and foreign policy were basically, is it good for the world and the global community? And under President Trump, we are making foreign policy based on is it good for America. What that means is foreign policy is about three things: Does it make America stronger? Does it make America safer? Does it make America richer? If something doesn’t do those three things—and hopefully all three things—we are not doing it.
This explains Rubio’s gutting of a whole vertical stack of State Department offices on his revised organizational chart whose names begin with the word “global,” such as the office for Global Women’s Issues. The current foreign policy system was built primarily around two ideas: that is was America’s responsibility to right all wrongs world wide to its own liking, and competition with the Russians during the Cold War to gain leverage in the developing nations of Africa and Southeast Asia. The latter faded with the shifts of history (though the Cold Warriors lurking in government would love to revive the Cold War using China as the punching bag) and the former morphed under a succession of presidencies into things like the U.S. scolding the world about human rights (while ignoring the dark stains on our society at home) and pressing social justice programs empowering women, LGBT people, and minorities around the world in tune with the woke America those State Department officials wanted to believe was true. That was former SecState Hillary Clinton’s State Department.
Well, one of the main tools for enacting that kind of foreign policy is now gone, USAID. Rubio reminded everyone:
Foreign aid. We were funding some crazy stuff—crazy stuff! You tell me, how does a puppet show in some country around the world make us stronger, safer, more prosperous? So we got rid of the puppet shows and many other things. I’m sure they were very good puppet shows, and I’m sure some charity can go pay for it, but the American taxpayer should not.
The crazy projects way of doing business reached its high point in the nation building fiascos in Iraq and Afghanistan. The social justice side of things may have found its pinnacle under the Biden administration, when Pride Flags and Black Lives Matter banners were displayed outside many American embassies. It is certainly true many countries treat their minorities poorly. It is less clear, Rubio seems to say, that fixing that as a foreign policy priority is America’s business.
Rubio also made claim to his department’s role in Trump’s mass deportation plans.
I say this unapologetically—we are actively searching for other countries to take people from third countries, not just El Salvador, but other countries, to say, “We want to send you the most despicable human beings to your countries. Will you do that as a favor to us?” The further away from America, the better, so they can’t come back across the border. I am not apologetic for that. The President was elected to keep America safe and get rid of a bunch of perverts and pedophiles and child rapists out of our country.
He then turned to his department’s own reorganization to meet the demands of the new administration.
We have stopped student visas for people who burn down our universities and take over libraries and harass people. Why are we giving student visas to people to create disruption? We have taken away student visas from people who came here to do that.
ICE does the heavy lifting of actually arresting and physically deporting illegal aliens from the United States, it is the State Department, through its Visa Office in the Bureau of Consular Affairs, that actually issues the visas abroad in the first place. Rubio is calling for a new vision in those visa decisions, one that looks to the anticipated behavior of the applicant once in the U.S., not just his paper qualification for the visa itself. It is a change, if fully implemented, as drastic as those following 9/11 when visa officers were repurposed from basically tourism advocates to pseudo-law enforcement.
It is simple—if you are coming to America to start riots, we will not give you, and we will take away, a student visa. By the way, every country I have traveled to, 14 countries in 14 weeks, and you know what they say to me? “Yes, that is what we would do too.” The only people that seem to disagree are a handful of federal judges and a bunch of crazy people who get paid to write a report.
While ICE makes the arrests in the U.S., it is the State Department that makes the actual legal revocations of the visas. In line with this, Rubio announced “his officials are evaluating whether any of the anti-Israel protesters who invaded a Columbia University building [recently] should see their temporary visas revoked.” Rubio said on X the State Department is “reviewing the visa status of the trespassers and vandals” after New York police made 80 arrests at the campus. A State Department spokesperson said “We are upholding the highest standards of national security and public safety through our visa process.” That is a new emphasis under Rubio. Trump critics claim this “America First” policy will collide with the upcoming World Cup matches scheduled this year in the United States. Not so, said Rubio, explaining “We have very talented consular affairs people, but technology, working with consultants, and millions of people coming into the country for this.”
Finally, Rubio praised State’s most public facing office, the one that issues U.S. passports to the public.
Some of us who served in Congress recognized a year and a half ago we had a meltdown under Biden. You couldn’t get a passport. We had people calling in on Friday, “My passport expires,” and in the month of March, 2.78 million Americans got their passports. That’s the largest single-month processing of passports ever.
It is more than a coincidence that Rubio in his statement called out by name only two not-so-well-known offices at State, the Visa Office and the Passport Office. Both have new heads, and both men are members of the Ben Franklin Fellowship (BFF.) The BFF believes “U.S. international engagement should recognize the primacy of American sovereignty and the obligation to defend national borders… The central purpose of U.S. diplomacy is to serve the national interest. We endorse the careful husbanding of limited resources, both budget and staff, rather than engaging in perpetual, unfunded expansion.” In its own words, BFF is “a community of current and past State Department employees and foreign affairs practitioners who support traditional, Constitutional American values in international affairs.”
Layoffs are not expected to hit passport and visa processing within the Bureau of Consular Affairs. That bureau has around 2,400 domestic employees, about half of whom process passports, removing a large swath of the workforce from the RIF pool.
Rubio has seeded other BFF members at key nodes within State, most visibly as Deputy Secretary (Rubio’s Number 2) and as the acting head of the Director General’s office, the part of the State Department which sits atop a pyramid of offices controlling internal budgets, personnel assignments, discipline, and promotions. It grants Rubio a lot of control over the Department, and represents an understanding of the mechanics of the bureaucracy that his predecessors, former Secretaries of State Rex Tillerson and Mike Pompeo, never achieved.
Rubio gave no hints whatsoever that he is done making changes at Foggy Bottom. Keep a close eye on his public statements for clues for which direction he intends to take his department.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Green Card Take-Away from Mahmoud Khalil
Whether you believe Mahmoud Khalil deserves to be deported for his anti-Semitic stance while a student at Columbia University, or whether you believe he was righteously exercising his First Amendment rights there, his green card revocation stinks. It is a perfect example of “we told you so” about powers granted so freely to the government, in this case by a provision of the Immigration and Nationality Act of 1952 covering deportable aliens and a similar one covering American citizens.
Donald Trump made it clear Khalil was arrested and his green card revoked because of his activism. “This is the first arrest of many to come,” wrote Trump in a Truth Social post. “We know there are more students at Columbia and other universities across the country who have engaged in pro-terrorist, anti-Semitic, anti-American activity, and the Trump Administration will not tolerate it.” The actions against Khalil are of a set; Axios reported on Secretary of State Marco Rubio’s plan to use AI to comb the social media accounts of student visa holders in a search of terrorist sympathies. The administration is determined to make an example of Columbia, announcing it was canceling $400 million in grants with the school. It has also warned 60 other colleges of possible anti-Semitism penalties.
In Khalil’s case, following a habeaous corpus petition filed by his lawyers, Khalil was granted a hearing challenging his arrest. The judge did not make any immediate decisions about his detention. He did temporarily bar the government from removing Khalil from the United States.
The significant First Amendment issues aside for now (a big aside) Khalil’s green card was revoked under a little-used part of immigration law. The Government of the United States can take away green cards from legal permanent residents, as well as student visas, 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 card or visa and thus the freedom to travel, to enter and 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.
Secretary of State Marco Rubio accused Khalil of participating in protests that he described as anti-Semitic and supportive of Hamas. Foreigners who come to the United States and do such things, he said, will have their visas or green cards revoked and be kicked out. “This is not about free speech,” Rubio said. “This is about people that don’t have a right to be in the United States to begin with. No one has a right to a student visa. No one has a right to a green card.”
It does not stop with aliens. The Secretary of State may also order the revocation of any U.S. passport for national security reasons, same as Khalil’s green card, albeit without the looming penalty of deportation. The legal authority for the U.S. Secretary of State is primarily found in 22 U.S. Code § 211a and 22 U.S. Code § 2705.
One of the most noteworthy cases of an ordered revocation based on the Secretary of State’s fiat was Phillip Agee. Agee, an ex-intelligence officer, in the 1970’s exposed CIA officers identities. 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.'” Agee, by his own assertion, devoted consistent effort to that plan, and traveled extensively to other countries to carry it out.
Agee’s case prompted the Supreme Court to review the Department of State’s ability to revoke U.S. passports simply because the government didn’t want someone to hold one for “national security” reasons. The Court upheld the government’s ability to do so after lower courts said no. The Court stated that “The right to hold a passport is subordinate to national security and foreign policy considerations.”
That last sentence took on chilling new meaning in the case of Anwar Al-Awlaki. We learned via a Judicial Watch Freedom of Information Act request that prior to having him and his 16-year-old son murdered via drone in 2011, Secretary of State Hillary Clinton secretly revoked their passports, as Al-Awlaki was a Qaeda propagandist, and U.S. Citizen. The State Department 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 later it killed his 16-year-old son via another drone strike.
Though the exact details of these types of revocation cases are classified, they typically fall under the broader legal framework of U.S. foreign relations and counterterrorism policies. In recent years, court challenges have been brought by individuals whose passports or visas were revoked. For example, individuals who have been denied passports or had them revoked argue violations of due process or freedom of movement. However, the courts tend to defer to the government in national security cases, allowing the executive branch wide discretion in handling these issues.
Depending on how his lawyers wish to present the case, Khalil’s revocation may end up at the Supreme Court as a First Amendment issue. It depends, like the old joke, which came first, the chicken or the egg. If the Court is willing to see the result of the revocation — the silencing of Kahlil and thus denial of his free speech rights — as predominant, new free speech legal ground may be broken and the deportation stayed. However, if the Court were to take the position this is just another national security case to be handled by an immigration judge and the revocation thus not reaching to offending the First Amendment (likely) Khalil will simply be deported under the sweeping, long-standing powers granted to the government to control the travel of both aliens and American citizens.
That will leave the biggest issue of the case unresolved. There are so many reasons not to listen to an anti-Semite like Khalil, but few to justify silencing him with an overly-broad law that pends on the Secretary of State’s personal decree. We are not obligated to defend Khalil’s beliefs, but are required to defend his rights. The responsibility for bringing that to the fore will ultimately rest with the Supreme Court if not with this case then the next..
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Chinese Baby Factories Exploit Birthright Citizenship
Even before taking office, Trump’s influence is being felt on birthright citizenship. ICE, taking advantage of Biden’s absence as a leader, saw a California man sentenced to over 3 years in prison for running a business called USA Happy Baby that helped pregnant Chinese women travel to the United States to deliver babies who would automatically get American citizenship.
USA Happy Baby helped several hundred women travel from China to give birth to American citizen babies. The “tourists” paid as much as $40,000 for services including apartment rentals during their stays in Southern California and worked with overseas entities that coached women on what to say during visa interviews and upon arriving in U.S. airports, advising them among other things to wear loose clothing to hide their pregnancies.
“For tens of thousands of dollars each, defendant helped his numerous customers deceive U.S. authorities and buy U.S. citizenship for their children,” federal prosecutors wrote in court papers. USA Happy Baby worked with a multi-million dollar adjacent business called You Win USA which further coached pregnant Chinese women on how to get into the United States. Another business, Star Baby Care, boasted of bringing over 8,000 Chinese women to the U.S. to give birth. The businesses operate openly, and advertise freely in Chinese-language media both here and abroad. It is big business. Yet many of the women, lacking U.S. health insurance, gave birth as public charges using public funds.
Such businesses have long operated in California, Florida, and other states and have catered to people not only from China, but also from Russia, Nigeria, Korea, and elsewhere. It isn’t illegal to visit the United States while pregnant, but lying to consular and immigration officials about the reason for travel is when the primary purpose is to give birth in the U.S. is. Birth travel is driven by birthright citizenship, and Donald Trump wants to do away with both of them.
“I see this as a grave national security concern and vulnerability,” said Mark Zito, assistant special agent-in-charge of Immigration and Customs Enforcement. “Are some of them doing it for security because the United States is more stable? Absolutely. But will those governments take advantage of this? Yes, they will.”
So what is birthright citizenship? A child born in the United States (with limited exceptions) to a foreign citizen, legally or illegally present in the U.S., is by virtue of the 14th Amendment (the so-called Citizenship Clause) automatically and forever an American citizen. The child need only prove he was born in the U.S. At the age of 21 the child can begin filing green card paperwork for his extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.
The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford, which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong is understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.
Doing away with birthright citizenship is another of Trump’s proclaimed Day One initiatives. In a campaign post, Trump wrote “On Day One, President Trump will sign an Executive Order to stop federal agencies from granting automatic U.S. citizenship to the children of illegal aliens. It will explain the clear meaning of the 14th Amendment, that U.S. Citizenship extends only to those both born in and ‘subject to the jurisdiction’ of the United States.”
The Trump campaign also said it would order on Day One the Social Security Administration to refuse Social Security numbers to newborn children without proof of the parents’ immigration status. Trump will issue the same order to the State Department, which issues U.S. passports. This would not require any action from Congress and because it would not grant/take away citizenship per se, would not directly violate the 14th Amendment in Trump’s interpretation.
Currently, a U.S. birth certificate is all that is needed to obtain a Social Security number and passport in most cases. The State Department considers U.S.-born children of illegal aliens to be subject to U.S. jurisdiction, and thus to have citizenship at birth. The State Department’s Foreign Affairs Manual takes the position Wong settled this issue. This means the Trump E.O. would likely be challenged immediately in lower courts and the case would be ripe for the Supreme Court to use to revisit Wong if they wished to. The Court could rule classes of foreigners on U.S. soil such as tourists (included already are children of foreign diplomats) are not subject to the jurisdiction of the United States and therefore their children, if born in this country, are not entitled to citizenship. The Court could also side with long precedent and refuse to even hear the case.
Another option for Trump would be to re-issue and this time enforce an Executive Order from Trump 1.0. Under this E.O., visitors can be denied temporary tourist visas if it’s found the “primary purpose” of their travel is to obtain citizenship for a child by giving birth in the United States. The rule does not currently apply to the 39 countries in the Visa Waiver Program, including Korea, and State in implementing the E.O. forbids its visa officers from even asking in most cases if an applicant is pregnant, making the order near-impossible to enforce. A revised E.O., which refines “tourism” to exclude planning to give birth in the U.S., extends the exclusion to the Visa Waiver Program, applies equally to ICE at the Ports of Entry, and prohibits the State Department from defanging the law in its implementing guidance, could go a long way toward at least slowing the flood of pregnant visitors to the U.S.
Trump could also order ICE to more aggressively pursue the baby facilitators now actively at work in the U.S., places like USA Happy Baby and You Win USA. ICE could productively look into how the organizations move money internationally, likely to find something akin to money laundering and tax evasion, even if the immigration laws themselves are too weak to hold up in court on a large scale.
What Trump cannot do is wipe away the 14th Amendment, and it is possible his other efforts to slow birth tourism will ultimately fail on this point. Then-House Speaker Paul Ryan in 2018 said “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process. But where we obviously totally agree with the president is getting at the root issue here, which is unchecked illegal immigration.”
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Day After: How to Renounce Your American Citizenship
Well, sure, it is an extreme course of action, and not one to be considered with the same hangover I have this morning, you may want to keep your options open. So, here is a basic guide to renouncing your American citizenship.It seems like the most basic of things: the ability to give up one’s American citizenship. But it’s not; the American government must approve your renunciation of citizenship and can say NO, no matter how loudly you say YES. Of course, there are forms to be filled out.
And taxes. Potentially lots of taxes.
The Very Basics
You have to be an American citizen. If you only think you might be, no matter that the Swiss authorities say you are, or what grandma told you, you have to be a full-fledged, documented American, or the renunciation process stops. You can only renounce while overseas. You must have another nationality, and be able to prove it, because the U.S. government will not take part in something that will render you stateless. Only an adult can renounce, and no one can renounce on behalf of someone else, including children.
You can’t renounce your citizenship for the explicit purpose of avoiding U.S. taxes, or to try and skip on an arrest warrant, go AWOL from the military, or otherwise evade the law. You also can’t be of unsound mind.
The Other Basics
Despite what you may see on TV or in the movies, there is only one way to voluntarily renounce citizenship. You can’t do it by tearing up your American passport, or writing a manifesto. It’s done by appointment only.
You start by making an appointment at the nearest American embassy or consulate. You technically can complete the renunciation procedures anywhere a properly-empowered American diplomat will meet you abroad, but in reality it is unlikely s/he will drop by your villa, or come by your prison cell.
At the embassy (the rules are the same at a consulate) you’ll fill out some forms. You can Google and complete, but not sign them, ahead of time if you wish: DS-4079, DS-4080, DS-4081, and DS-4082. Have a look; most of the requested information is pretty vanilla stuff, and is largely to make sure you understand what you are doing and the consequences of doing it.
The reason for making sure of all that making sure stuff is two-fold.
One, the State Department, who handles all this, has been sued by people in the past who claim they were tricked or mislead and did not know what they were doing, and want their citizenship back. The other reason is that barring certain highly-specific situations, renouncing citizenship is a one-way street. The U.S. government considers it a permanent, unrecoverable, irrevocable, decision. You gotta get it right the first time.
At the embassy, one or more staff will go over everything with you, you’ll swear to everything and sign everything. You can usually (but not always, practices vary from embassy to embassy) have a lawyer with you, but often all of the interaction is between you and the embassy people, and is pretty straightforward.
At larger embassies, particularly at the American embassies in places like Canada and the UK, renunciations are frequent, regular parts of a day’s business, and are handled in most cases almost mechanically. Expect them to have to look stuff up and maybe call you back the next day if you try this in some remote African post.
That’s why some Americans suggest more cumbersome processing has taken place at smaller consulates unfamiliar with the process. Persons far from home, such as an American resident in Japan seeking to renounce in Portugal while on vacation, may encounter difficulties. The overall feeling most renunciants encounter is that of a bureaucrat more concerned with getting his paperwork in order than really caring about your life-altering decision. It is rare that the embassy official will actively try to dissuade you, though some may poke at it. Just smile and say thanks.
Who Decides?After your brief appointment at the embassy, all the paperwork goes off to Washington, where your renunciation is approved or denied. The embassy can but is not required to write a memo regarding your case. Those memos, when written, usually argue against approval. In an extreme version, such a memo might say “Mr. Roberts appeared unorganized in thought, and was unable at times to focus on the documents in front of him. He referred often to a Swedish dog who was guiding his actions, and stated his goal in renunciation was to assume the Swedish throne.” It happens.
No one at the embassy can approve or deny your application to renounce. That is done by someone you will never meet, located in Washington, DC. Without that approval, you remain an American citizen. Approval is formally made by issuing a DS-4083, called the CLN, Certificate of Loss of Nationality. Think of this document as an “un-birth certificate.”
CLNs are processed slowly; it can several months or more for yours to be approved or denied. They are usually mailed out to you.
Oh, yes, one more thing.
You have to pay a fee for all this. Note it is a “processing fee,” meaning you pay it whether or not your renunciation is ultimately approved. As the world’s exceptional nation, the U.S. also has the highest fees in the world to renounce citizenship, a cool $2,350 per case, with no family discounts. By comparison, Canada charges it’s soon-to-be-former citizens only $76; for the Japanese and Irish it is free.
Despite these hurdles and costs, in 2015, 4,279 Americans bid Uncle Sam farewell, up 20% from 2014. That’s the third year in a row that’s set a new record. While the U.S. government generally states that every case is a unique, heartfelt choice, the not-so-secret reason behind most renunciations is America’s rapacious tax laws.
Taxes, Taxes, Taxes
If you are a high-wealth individual, this stuff gets complicated, and expensive, very quickly.
After losing your American citizenship, you file a final tax return for your time as a citizen for the period January 1 through the day your renunciation is approved. In addition to all the other tax forms needed for your situation, you must also include IRS Form 8854, the Expatriation Information Statement, otherwise known as the exit tax form. Almost no one files this without help from a tax professional.
Form 8854 is targeted at “covered expatriates,” former American citizens who have a large net worth, certain tax burdens or owe back taxes. The numbers vary from year-to-year and are subject to all the manipulations the U.S. tax code is full of, so actual figures can be slippery. As a very rough guide, while net worth for this purpose is measured in the millions, a yearly tax burden of about $160,000 can trigger things.
There are many, many websites and forums discussing taxes for former American citizens. Many of those sites are well-meaning, some even accurate to an extent. One of the oldest is run by the non-profit group American Citizens Abroad.
But taxes in the American scheme are very much based on an individual’s personal situation, so anything short of specific advice from a competent tax professional is sort of just a way to pass time waiting for your CLN to arrive.
Other Things
A good way to think of the process of renunciation is that you need to exit two American systems — passports and taxes — and join another set of foreign ones. Miss a step and trouble will follow. This is not a quick process. Patience and good legal/tax advice are requirements.
After you have successfully renounced your American citizenship, you are, well, no longer an American.
That means (for example) as Swede you must follow all the U.S. immigration laws applicable to Swedes visiting, working or otherwise in the U.S. You suddenly become a Swede in the eyes of wherever in the world you do live, whatever that means for say, a Swede living in Mongolia. So if your working visa for Mongolia was in your U.S. passport, you may not have a valid visa anymore. Some former Americans instantly become eligible for a military draft in their “new” country.
And dammit, you may still have tax obligations in the U.S. depending on what you own there in terms of investments and property and…
Renunciation of citizenship is an extremely significant decision, with life-changing social, economic and other considerations. This article is for general information purposes only, and is not legal advice. Persons considering renunciation should consult an attorney and financial-tax planner. Any opinions expressed here are the author’s personal beliefs and do not represent those of any former employer.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
U.S. Passports of Sex Offenders to Be Marked
There is of course no “right” to travel. The government, via the Department of State, decides who gets a passport and who may travel on one.The first step is that it is the Department of State which decides you are indeed entitled to a nice, blue passport. No birth certificate? Problem. Born in Canada, albeit to two American parents? Maybe we need to talk. Constitution-level stuff.
Next up are the reasons you can have your passport revoked: treason, national security stuff, swearing allegiance to a foreign power. Pretty heavy stuff, lots of laws, and court challenges can be involved.
Congress Restricts TravelBut the Congress has quietly been side-slipping in restrictions on travel.
An old one is child support. If you owe $2500 of it, no passport. Congress is also flirting with revoking or denying passports to Americans “affiliated” with terror organization and/or seeking to travel abroad for jihad. And there is a move to deny passports to Americans who owe too much in back taxes.
Sex Offenders’ Passports to Be Marked
Now, to that growing list add this one: Legislation requiring the State Department to identify registered sex offenders with a special mark on their passports, and to revoke those passports already issued unmarked, was signed on February 8 by Obama. The law (Public Law No: 114-119) also authorizes notification to a destination country (including its visa-issuing agents in the United States) of impending or current international travel of a child-sex offender to that country.
International Megan’s Law, is supposedly to help prevent sex trafficking, since sex offenders “hop on planes and go to places for a week or two and abuse little children,” the bill’s chief sponsor, Rep. Chris Smith (R-NJ), said. Smith of course had no actual figures to substantiate his argument, nor did he acknowledge that State can already deny a passport to those convicted of sex tourism involving minors.
Offenses Against Minors?
In addition to the new law being the first time in U.S. history that a special class of Americans would be marked on their passports, a chilling event of its own, the law ignores the reality that the sex offender registry is another government “list,” such as no fly, that is relatively easy to get on and very hard to leave.
Prosecutors have been seeking sex offender registration under child pornography charges against teens who sext, building registry cases against peeping toms, and overall unevenly applying state-by-state standards to something that now may have global impact.
In at least ten states, you can earn sex offender designation from innocuous forms of indecency like streaking, mooning, or urinating in public. None of the registries provide any factual details of the offenses, just the names of the crimes, and sometimes not even that. So if a registry lists the offense of indecent exposure, for example, the passport people have no way of distinguishing a high school prankster who streaks a football game from a creep who heads off to a playground to flash children for sexual gratification.
Many registries also contain numerous purely statutory offenders who are often also minors at the time of the offense, such as an 18-year-old who engages in consensual sexual activity with his 16-year-old girlfriend. In many jurisdictions, this would be labeled “sexual assault against a minor.”
This has resulted in ever-growing lists of offenders. California has the largest list in the country with over one hundred thousand registered sex offenders.
Everybody hates people who commit sex crimes, even more so those who commit them against children. But marking their passports represents nothing more than chilling use of government power that will accomplish nearly nothing at the loss of something greater.(example passport shown for illustration only)
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
House Passes Law to Revoke Passports of Americans Affiliated with Terror Organizations
The House of Representatives quietly passed a bill at the end of July allowing the State Department to revoke or deny passports to Americans with connections to “foreign terrorist organizations.”
The measure, which passed by a voice vote after only a 15-minute debate, in theory aims to prevent “lone wolves” from traveling abroad to join a terror organization, or, if their passports are revoked while they are abroad, from returning to the United States.
“The Benedict Arnold traitors who have turned against America and joined the ranks of the terrorist army ISIS should lose all rights afforded to our citizens,” Ted Poe (R-Texas), the bill’s sponsor, said. “These people are not returning to America to open coffee shops, they are coming back to kill. We must stop them from coming back at all.”
The full text of the three-page bill is quite open-ended as to how this process will work, stating the criteria only as “aided, assisted, abetted, or otherwise helped an organization the Secretary of State has designated as a foreign terrorist organization.”
The travel restriction requires no presumption of innocence for the targeted individual, no explanation, no public presentation of evidence, no opportunity for a defense, no checks and balances on the power. The bill does not outline any appeals or other forms of due process for the target. The only stipulation is that the Secretary of State report the action to the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs in either classified or unclassified form. Senate approval is required for the new bill to become law.
The Bill represents another step for a government that increasingly seeks to control its citizens by arbitrary standards (see the No-Fly list). But the bill is evolutionary, not revolutionary.The Government of the United States has had for some time the ability to 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.” That sliver of law means 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.
The last public use of this law was in 2011, when prior to having him and his 16-year-old son away blown away via drone, Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, al Qaeda propagandist and U.S. Citizen.
I have been unable to track down other recent public 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 Philip 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 “The right to hold a passport is subordinate to national security and foreign policy considerations.”
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Interview with NHK, Japanese TV
Japan’s main broadcast station, NHK (similar to PBS here in the U.S.) dropped by for an interview about my new book, as well as a discussion about an event from my past, my brief encounter with chess great turned psycho Bobby Fischer.
Ghosts of Tom Joad is of interest to Japan for two reasons. First, the main time frame in the book, the late 1970s and early 1980s, represents arguably the high point of the Japanese industrial economy. That was the era of Japan as Number One: Lessons for America
, the time when Japanese investors poured money into U.S. real estate, including high-profile purchases such as Rockefeller Center and the Pebble Beach golf course. Of course, Japan’s economic ascendancy was fueled in large part by their industrial exports, especially cars and steel to the U.S. One of the factors of American de-industrialization was the loss of jobs to Japan.
In the way that history loves irony, Japan has interest in Ghosts now also because it is experiencing its own era of de-industrialization. We’re painting in broad strokes here (economists, relax a bit), but much of Japan’s current industrial malaise is due to cheap imports from China and other parts of Asia. Japanese companies are increasingly moving production abroad in search of cheaper labor. Ghosts, to some in Japan, is both a history of Japan’s role in America, and a road map to it’s potential future, with a dash of prophecy.
BONUS: About Bobby Fischer. Bobby you’ll recall was a Cold War hero in America after beating Soviet chess champ Boris Spassky in Iceland in 1972. Fischer went on to lose to his mind, as well as play a for-money chess match in what was then Yugoslavia. The latter violated U.S. trade sanctions of the time, and turned Fischer into a wanted man. He avoided U.S. law enforcement for many years by traveling around the world, until by accident, aided by post-9/11 snooping, Homeland Security found him in Japan. My job at the U.S. embassy there included the revocation of U.S. passports. Homeland Security and State, via me, took away Bobby’s passport in a preview of what would later be done to Edward Snowden.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
ACLU, Others, Advise Americans to Be Wary When Dealing with U.S. Embassy in Yemen
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 © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
More on State’s Illegal Passport Revocations in Yemen
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.
Two More
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.
A Question
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.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
EXCLUSIVE: State Department Seizing U.S. Passports in Yemen
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.”
Extra-Judicial Actions
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.”
Anwar al-Awlaki
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 © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
You are Not a Person, Anwar al-Awlaki
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.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
An Example of Petty Corruption and Cronyism at State
A bit of “inside baseball” for you State Department enthusiasts, this article also illustrates the type of petty corruption and cronyism that helps render our government so ineffective. When “public servants” are more committed to serving their own needs above the nation’s, we are all in trouble.
Note: we are all in trouble.
Get to Know the Score
Part of the the Department of State, the Bureau of Consular Affairs (CA), among other things, issues all U.S. passports. Passports are a huge cash cow, generating enough money alongside visa fees to self-fund the Bureau. Maura Harty was head of CA in 2007 when, after ignoring obvious evidence, the Bureau grossly failed to keep up with demand for passports. Harty tried to cover up the mess she presided over, going as far as (some say) fibbing to Congress, and was fired (er, allowed to retire). More details if you want them, here. I was State’s liaison to Congress during the passport fiasco, and had a ringside seat to it all. I was transferred out of the liaison job for failing to lie adequately to Congressional staffers in accordance with CA’s “talking points,” which I knew to be comically false and purposely misleading.
Slime
Many of her former colleagues in CA thought Harty was treated unfairly– after all, the cover-up was designed not only to hide her own incompetence but also to protect the Bureau of Consular Affairs. The vast sums of money generated by passport and visa fees allow CA to function with far less scrutiny than most parts of the Federal government. CA is allowed to control its own budget in large part, semi-autonomously from even its parent organization the Department of State. CA, for example, maintains a huge budget surplus. Cool tip for Congress: Call up CA and ask them how many millions of dollars in surplus fees are being hoarded by the Bureau of Consular Affairs and demand they return the money to the Treasury, for laffs.
The point was that Harty needed to be taken care of. Step One was to hire her spouse, retired from another U.S. government agency, into a CA position created just for him. Ostensibly having to do with document fraud, Harty’s husband reports directly to senior CA officials instead of through the normal anti-fraud chain. Neat.
Step Two was to hand Harty a prestigious Foreign Service 2009 Presidential Rank Award. As pointed out here, Harty certainly did not earn the Award, and was technically not even qualified to receive it.
And Step Three. Harty was rehired this summer by State to work in its Office of the Inspector General, evaluating and making judgment calls on how others perform their jobs.
What it Means
All this means very little, except as a neat case study in how petty corruption and cronyism affect the way your government works. Whether one person ends up in or out of State means very little; it is possible that Harty and her spouse do little actual work and simply collect their paychecks as sweet, sweet payback. We will never know. The fuller meaning of it all lies in two areas: the first is that when public institutions are more committed to serving their own needs above the nation’s, we are all in trouble. The second is that most all employees in the Bureau of Consular Affairs, and many in State in general, are well-aware of Harty’s story. They see the example, and they get the message that loyalty is valued over competence. Wrought in Latin, that might as well be State’s motto.
And Back to Benghazi
We might as well promote Caligula’s horse as the next Secretary of State. Author Patricia Kushlis, writing on this same topic, stated:
When a human resources system is broken, people without the requisite expertise and judgment occupy positions of authority. When cronyism and worse permeate a system bad things happen. When a security system doesn’t work, people die. When a personnel system fails, incompetent employees make the decisions that result in things like a failed security system.
Bonus: Lots more damning writing by Kushlis on the State Department personnel system and its Human Resources office.
Extra Bonus from Free Republic: In the face of harsh criticism by relatives of September 11 victims, Secretary of State Colin Powell said defended the foreign service officer chosen to head the consular service. The relatives’ group accused Maura Harty of incompetence and negligence and demanded that she resign. They said Harty was a top official in Consular Affairs when visa applications were approved in Saudi Arabia for 15 of the 19 hijackers.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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