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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