John Yoo on Stripping Citizenship for Americans Who Work for U.S. Enemies

Tuesday, February 16, 2010 at 2:19 pm

This is a bit flashbacky, but in June 2002, John Yoo, then the deputy chief of the Justice Department’s Office of Legal Counsel, considered the question of what acts a U.S. citizen might commit that would indicate an implicit renunciation of his or her citizenship. Apropos of my piece today about radical American cleric Anwar al-Awlaki — and pointed out to me by NYU’s Karen Greenberg, a source for that story — Yoo didn’t mention al-Qaeda or terrorism, but the category of behavior described here would appear to encapsulate membership in al-Qaeda:

An individual who voluntarily “enter[s], or serv[es] in, the armed forces of a foreign state” (13) may be expatriated, “if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer.” 8 U.S.C. § 1481(a)(3). Nonetheless, no person may be expatriated unless he acts “with the intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a). That said, although the performance of an expatriating act cannot be used as “the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen,” such conduct “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” Terrazas, 444 U.S. at 261 (quotations omitted).

Voluntary service in a foreign armed force that is engaged in hostilities against the United States has frequently been viewed as a particularly strong manifestation of an intention to abandon citizenship. As Attorney General Clark once opined, “it is highly persuasive evidence, to say the least, of an intent to abandon United States citizenship if one enlists voluntarily in the armed forces of a foreign government engaged in hostilities against the United States.” 42 Op. Att’y Gen. at 401. See also 22 C.F.R. § 50.40(a) (although “intent to retain U.S. citizenship will be presumed” when an individual “naturalize[s] in a foreign country” or “take[s] a routine oath of allegiance,” no such presumption is provided “[i]n other loss of nationality cases”).

So a couple of things here. First, al-Qaeda isn’t the agent of any state, so it’s unclear whether al-Qaeda would fall into this framework. Second, even if it does, al-Awlaki is not necessarily a member of al-Qaeda. Third, at the time Yoo wrote this memo, the Bush administration had three American citizens in its custody that it contended were agents of either al-Qaeda or the Taliban: Yaser Hamdi, Jose Padilla and John Walker Lindh. (Hamdi later claimed to renounce his citizenship.) And it did not claim any of them implicitly renounced their citizenship. While I think Yoo’s 2002 memo is technically still operative, it hasn’t been a guide to either the Bush or Obama administration’s behavior. I’m referencing it just to show that the citizenship-and-counterterrorism question has been around for years now.

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Comment posted February 16, 2010 @ 3:27 pm

“Americans who work for US enemies” reflexively produced a mental image of the infamous photo of Rumsfeld and Saddam Hussein shaking hands and grinning from ear to ear.

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Comment posted February 16, 2010 @ 8:27 pm

“Americans who work for US enemies” reflexively produced a mental image of the infamous photo of Rumsfeld and Saddam Hussein shaking hands and grinning from ear to ear.
Then there was Ollie North, who sold US weapons to Iran while Ronnie Reagan pronounced them a terrorist state.
Which was subsequent to the Reagan camp meeting with said terrorists to make it worth their while to hold the American hostages until after the 1980 presidential election
How about Cheney's Chief of Staff outing a CIA agent
Where does Yoo stand on those 'transactions'?

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Comment posted May 7, 2010 @ 2:31 pm

Who is Behind Sen. Joe Lieberman’s Proposed Fascist Legislation?

Sen. Joe Lieberman has already endorsed McCain’s March 4th bill S.3081 that would strip Americans of Habeas corpus: Under the McCain bill, U.S. Government would need only designate an American Citizen was an “Unprivileged Enemy Belligerent” suspected of; having engaged in hostilities against the United States or its coalition partners; or purposefully and materially supported hostilities against the United States or U.S. civilians to cause their indefinite detention in military custody, without right to an attorney or trial.

Joe Lieberman’s proposed bill would make it easy to strip Americans of their Citizenship and hold them as “Unprivileged Enemy Belligerents” as U.S. Government would only have to show a U.S. Citizen or group had slight-interaction with a foreign group that touched a terrorist organization, for example Irish Americans living on the east coast of the United States contacting their alleged IRA relatives in Northern Ireland. Since many political groups intersect, even unknowingly with alleged terrorists, Lieberman’s bill would make it possible for a U.S. Government administration to do large sweeps of U.S. Citizens denying Americans Habeas corpus, to try them in military tribunals. One might want to ask who put Lieberman up to introducing this fascist bill that favors Israel. It should be noted Joe Lieberman’s June 4th endorsement of McCain’s bill S.3081, The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010” strips Americans of Habeas corpus; there appears to be a pattern here between McCain and Lieberman legislation. McCain’s bill S.3081 would eliminate several Constitutional protections allowing Government to arbitrarily pick up Americans on mere suspicion—with no probable cause. Your political opinions and statements made against U.S. Government could be used by Authorities to deem you a “hostile” “Enemy Belligerent” to cause your arrest and indefinite detention. S.3081 is so broadly written innocent anti-war protesters and Tea Party Groups might be arrested and detained just for attending demonstrations; Government could charge that attending demonstrations “materially supported hostilities.”
McCain’s legislation S.3081 could like Lieberman’s proposed bill be used by a corrupt U.S. government administration to crush anyone that dared question government. Under McCain’s S.3081, an “individual” need only be Suspected by Government of “suspicious activity” or “supporting hostilities” to be dragged off and held indefinitely in Military Custody. Government would have the power to detain and interrogate any individual including Americans without probable cause. Government need only allege an individual kept in detention, is an Unprivileged Enemy Belligerent suspected of; having engaged in hostilities against the United States or its coalition partners; or has purposefully and materially supported hostilities against the United States; its coalition partners; or against U.S. civilians. How could one prove to Government they did not purposely do something? “Materially Supporting Hostilities” against the United States could include any person or group that spoke out or demonstrated disapproval against an agency of U.S. Government. It is foreseeable many Americans might go underground to Resist Government Tyranny. Definition for Unprivileged Enemy Belligerent: (Anyone Subject to a Military Commission)

At least under the Patriot Act, law enforcement generally needed probable cause to detain a person indefinitely. Passage of S.3081 will permit government to use “mere suspicion” to curtail an individual’s Constitutional Protections against unlawful arrest, detention and interrogation without benefit of legal counsel and trial. According to S.3081 Government is not required to provide detained individuals U.S. Miranda Warnings or even an attorney. It is problematic under McCain’s S.3081 that detained individuals in the U.S. not involved in terrorism or hostile activities, not given Miranda Warnings or allowed legal counsel will be prosecuted for ordinary crimes because of their alleged admissions while in military custody.

S.3081 if passed will frighten Americans from speaking out. S.3081 is so broadly written, it appears any “individual” who writes on the Internet or verbally express an opinion against or an entity of U.S. Government or its coalition partners might be detained on the basis he or she is an “unprivileged enemy belligerent”, “supporting hostilities against U.S. Government.” The “supporting hostilities” provisions in S.3081 are so broad Government could use “suspicion” to detain U.S. corporate executives on the premise their corporations “supported hostilities” by providing goods or services to a nation engaged in hostilities against the United States.

(Make Your Own Determination If The Analysis Herein Is Correct) See McCain’s 12-page Senate bill S.3081 at:

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