Last week, I described how federal authorities arrested Virgil Griffith for the crime of making a presentation on cryptocurrencies and blockchains using information anyone can download from the internet.
The problem for Griffith is that he’s a US citizen and made the presentation in North Korea. US citizens aren’t allowed to travel there without permission from the Treasury Department, which Griffith ignored. Nevertheless, bypassing bureaucratic dispensation hardly amounts to the accusations lobbed against Griffith in the federal indictment against him, which includes charges he “jeopardized the sanctions” on “North Korea’s dangerous regime.”
Griffith could spend up to 20 years in federal prison if he’s convicted of what amounts to a political crime. If he had obtained a second passport and given up US citizenship before travelling to North Korea, he wouldn’t have needed get permission from the Treasury Department to go there. Of course, federal prosecutors still could have indicted him for sanctions-busting. But if Griffith had avoided travel to the US afterward, the Feds would have had a much harder time arresting him, due to the “political offense” exception in extradition treaties.
Griffith is just one example of someone whose US citizenship was used against him. Hoda Muthana, a young woman born in New Jersey who left the US in 2014 to join the Islamic State in Syria, has the opposite problem. Last month, a federal judge ruled that despite the wording of the 14th Amendment, which enshrines birthright citizenship in the Constitution, Muthana isn’t a US citizen. Thus, she has no right to return to the US from Syria, where she and her two year-old son are detained in a refugee camp.
Muthana is hardly a sympathetic figure. Once she arrived in Syria, she married an ISIS fighter and called for terror attacks against civilians in the US. She even burned her US passport, claiming she didn’t need it since she was part of ISIS.
Now that ISIS is in disarray, Muthana says she has renounced her jihadist beliefs. For the sake of her son, she wants to come home to the US, even if that means spending few decades in prison for terrorism-related crimes.
The Immigration & Nationality Act excludes the children of diplomats born in the US from birthright citizenship. And it’s undisputed that Muthana’s father was at one time a diplomat for Yemen. But by the time Muthana was born in 1994, he had been discharged from this post.
Until she arrived in Syria, the State Department acknowledged Muthana was a US citizen and entitled to carry a US passport. But in 2016, the Obama Administration revoked her passport, and informed her that she was not a birthright citizen. The reason was because the State Department hadn’t been officially informed about her father’s dismissal until 1995, the year after her birth.
The court ruling last month upheld this reasoning. Thus, Muthana and her son remain marooned in Syria.
The Disconcerting Truth About Loss of Citizenship
Muthana’s circumstances might make you wonder under what circumstances Uncle Sam can strip you of your citizenship and render you stateless. The answer is disturbing, to say the least.
The general rule underlying birthright citizenship is that if you were born in the US, you’re entitled to US citizenship unless you demonstrate your intent to lose it. But, historically, there have been glaring exceptions.
From 1907 to 1931, female citizens who married non-US citizens lost their citizenship. American-born children of African descent weren’t awarded birthright citizenship until the 14th Amendment came into effect in 1868. Native Americans who occupied the territory that now constitutes the US for thousands of years weren’t given citizenship until 1924. Children born in the US but had Chinese parents had to wait until 1943. Indeed, race-based exclusions to citizenship didn’t end until 1952.
Under current law, the only grounds under which you can lose US citizenship is by:
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Accepting a policymaking position in a foreign government
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Serving in the armed forces of a foreign state at war with the US
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Committing treason
The Treason Exception
If Hoda Muthana committed treason against the US, that would be a lawful reason to strip her of citizenship.
Treason is the only crime defined in the Constitution. It is “the levying of war against [the United States] or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”
This wording suggests that the circumstances of Muthana’s involvement with ISIS satisfies both definitions. Yet the US never declared war on ISIS, so a lawyer defending her in a treason trial could argue the clause shouldn’t apply.
However, federal courts have declared that a non-US citizen can’t commit treason. A non-citizen who levies war against the US or gives aid and comfort to its enemies has no duty or allegiance to Uncle Sam. If Muthana wasn’t a US citizen while she lived in Syria, she couldn’t commit treason. But then, of course, she also wouldn’t have the right to return to the US.
Don’t Get Too Comfortable…
You might be thinking that Muthana’s case is so extreme that it couldn’t possibly affect you. And under current law, that might be true. But in 2016, Senator Raphael “Ted” Cruz (R.-Texas) introduced a bill that would expand the list of offenses for which an American can lose their citizenship to anyone who provides “material assistance” to a “foreign terrorist organization.”
You could lose your citizenship in a secret State Department proceeding. In this situation, there would be no trial, conviction, or independent review.
In theory, you could appeal the decision, but don’t count on getting your citizenship back by going to court. Once the State Department claims you’re involved in terrorist activities, it’s pretty much “game over.” Proof of this came in 2015, after a consular official denied the husband of a US citizen a visa due to his alleged terrorist activities. The official provided no support for the decision. The wife filed a court appeal that eventually came before the Supreme Court. It ruled in a 5–4 decision that the government has the absolute power to deny visas for any reason. No judicial review would be available to those affected by the decisions, erroneous or otherwise, of consular officers.
You might be wondering what “material assistance” to a terrorist group is. The Cruz proposal doesn’t define it, but another law, the Terrorist Material Support statute, forbids giving “material support” to anyone engaged in an terrorism-related crime. Assuming “material assistance” is the same as “material support,” the Supreme Court has applied a clear, albeit frighteningly broad definition.
Not to mention that in 2010, the Supreme Court ruled that you could “materially support” terrorism simply by providing advice on how to “peacefully resolve disputes” to a person or group designated “terrorist.”
You read that correctly. Non-violent actions that have nothing to do with terrorism constitute “material support.”
To be clear, Cruz’s proposal never became law. But if a bill with similar provisions ever comes into effect, I have no doubt that a flood of citizenship revocations will follow. Many will no doubt be related to actual terrorist acts. But any American involved in organizations such as Doctors without Borders that operate in countries where terrorism is prevalent could also lose their citizenship.
Doctors, missionaries or anyone else providing any kind of medical or other service to individuals or groups deemed “terrorists” or “terrorist organizations” could be affected. Activists across the political spectrum, from opponents of abortion to members of the Antifa movement, could likewise lose their citizenship for engaging in non-violent protest.
From the government’s standpoint, the ability to revoke citizenship for what are essentially political crimes is very useful. Once you lose your citizenship, you also lose your ability to travel internationally, as well as any diplomatic protections your country extends to its citizens. You must apply for a visa to reenter your own country, which will now be denied due to your alleged “terrorist activities.” And if you don’t already have another citizenship, you become stateless – a person without a country.
Stripping citizenship from you also makes it easier from a legal standpoint for your (former) government to assassinate you. After all, it’s now acting against an “enemy alien.” That avoids inconvenient due process requirements such as a trial or criminal conviction… much less “innocent until proven guilty.” This is a strategy the UK has used frequently since it enacted amendments to its Citizenship Law in 2006. There’s no reason to think the US would be any different.
The trend is clear. Hoda Muthana’s case proves that Uncle Sam is perfectly capable of using the loss of nationality as a weapon against its political enemies. Given this reality, it only makes sense to obtain a second citizenship and passport, “just in case.”
