Denaturalization and the Origins of the American Republic
by Patrick Weil
University of Pennsylvania Press, 2012, 224 pp.
Every living person is entitled to a nationality, says the Universal Declaration of Human Rights. This right is granted not by a benevolent international body but by individual nations. And every day, governments all around the world wield this power: naturalizing new citizens; denying citizenship to others who apply; and occasionally, revoking the citizenship of a select few.
To be stripped of one’s citizenship rights is to be consigned to a ghetto of one: the most complete form of exclusion, short of death or solitary confinement. The exclusion of Jews from German society or the denaturalization of more than a million Soviet citizens are obvious examples of this form of social control. But it’s not just Nazis, fascists, and dictators from another century who engage in such practices.
Since 2002, at least twenty-one British citizens regarded as threats to the state have had their nationality revoked, according to an investigation by the Bureau of Investigative Journalism. The British government’s rationale for this move appears to be that it would be easier for allied troops and their drones to liquidate them if they weren’t legally British or American. All the individuals held dual citizenship with another country, which allowed the United Kingdom to revoke their nationality under a law passed after the attacks of September 11, 2001 without rendering them stateless. Five of them were born in the United Kingdom. Two were ultimately killed by U.S. airstrikes.
Recently, thirty-one Bahraini Shia activists had their nationality revoked for their political activities. And although they have yet to act on it, earlier this year, Canadian politicians considered revoking citizenship for treasonous or terroristic activity—and eight out of ten Canadians polled on the question agreed.
And then there’s the question of what to do with “homegrown” combatants in the United States—people who, on paper, are U.S. citizens, but act as though they’re anything but. In 2010, a U.S. drone strike in Yemen killed Anwar al-Awlaki, the U.S.-born al-Qaeda P.R. man. Prior to the strike, according to documents obtained by Fox News and Politico, the U.S. Embassy in Yemen had canceled al-Awlaki’s passport, and written to tell him so. It appears that he was also told that he could come to the Embassy to settle his affairs.
Al-Awlaki’s U.S. citizenship wasn’t revoked entirely, but canceling his passport was a symbolic move, one through which the government may have attempted to approximate “due process” before the assassination. After all, to quote Senator Dianne Feinstein, al-Awlaki was one of those ”so-called Americans” whose political behavior disqualified him from the protections of citizenship.
Since the so-called War on Terror began, the question of whether citizenship is a government-bestowed privilege or an irrevocable right has become a particularly thorny topic in the U.S. Civil libertarians have long maintained that a government shouldn’t have the power to take away an individual’s citizenship rights, while politicians like former secretary of state Hillary Clinton and former senator Joe Lieberman have made pronouncements to the effect that undesirables with questionable allegiances should lose their U.S. papers. In 2011, a Republican member of Congress even introduced the Enemy Expatriation Act, a (failed) bill that added “engaging in or supporting hostilities against the United States” to the list of acts for which United States nationals would lose their nationality.
So far, none of the U.S. citizens who have attacked the United States have lost their citizenship—not the Times Square bomber, not al-Awlaki, and not the surviving brother accused in the Boston Marathon bombing. But with each domestic incident, the perception of such people as somehow “less than” American, and the vocabulary used to describe them as such, expands noticeably (why else would Dzhokhar Tsarnaev, by all accounts an all-American teenager who somehow veered off course, be continuously referred to as an “ethnic Chechen”?). This tendency is not entirely surprising: suspicions about split allegiances run deep in the United States. In fact, there used to be administrative ways to deal with “disloyal” Americans. As Patrick Weil notes in The Sovereign Citizen, the United States frequently revokes the citizenship of both naturalized and native-born Americans for reasons both political and administrative.
Weil, a historian at the University of Paris and the author of a book on French nationality, found that more than 22,000 Americans had their citizenship taken away between 1906 and 1967. His latest work is an important, exhaustive, and meticulously researched work on this particular tactic of state control. The Sovereign Citizen begins by outlining the denaturalizations that arose largely from fraud in the early 1900s, and takes us through the lengthy trials that sought to strip individuals of their constitutional rights through the forties and fifties. Weil’s book concludes with summaries of several crucial Supreme Court judgments that put an end to denaturalization and, at the time of this writing, remain law.
In the early 1900s, newly minted Americans were mostly denaturalized because of fraud, or on technicalities that invalidated their applications. Immigration fraud was in fact widespread at the time, writes Weil, and in 1903, President Theodore Roosevelt pledged to address the problem, saying that “forgeries and perjuries of shameless and flagrant character have been perpetrated . . . and it is established beyond doubt that very many so-called citizens of the United States have no title whatever to that right.” (Perhaps that’s where Diane Feinstein got her punchline.) Although it’s possible that xenophobia contributed to such attitudes, immigration reform at the turn of the century was largely an administrative initiative; Weil notes that many denaturalized Americans were encouraged to re-apply and follow the rules.
After reforms made it more difficult to fake naturalization certificates, fraud cases dropped off as more politically motivated denaturalizations, such as Emma Goldman’s, came to the fore.
Goldman is by far the most famous American to have had her citizenship revoked for political reasons. The anarchist activist, who emigrated to the United States from Russia in the late 1800s, wrote about her experience extensively in her letters and essays. Besides being involved in the attempted assassination of Carnegie Steel titan and philanthropist Henry Clay Frick, she was also charged with inciting crowds to riot and arrested for obscenity after advocating for distributing pamphlets about birth control. The authorities regarded Goldman as a dangerous nuisance.
The Department of Justice had originally hoped to get rid of Goldman by deporting her back to Europe. But doing so would have meant proving Goldman had been in the country illegally, and that wasn’t exactly true: she had lived in the United States since she was seventeen and married Jacob Kersner, an immigrant who was naturalized in 1884. The two subsequently divorced, but this had no legal bearing on her status as a new American.
Still, the authorities persisted. Because her marriage was legitimate, the authorities went after Kersner—who, as it turned out, hadn’t fulfilled a five-year residence requirement, or reached his sixteenth birthday, before pledging allegiance to the United States. This invalidated his application, and when Kersner was denaturalized, Goldman lost her citizenship as well.
The Department of Justice did not tell Goldman what had happened. The hope was that she would leave the United States and be barred upon her re-entry. But Goldman, who had been warned by her ex-husband, wasn’t thrown out until 1919, when the Department of Labor (which oversaw deportation cases) decided that she could be deported under the Anarchist Exclusion Act, a rule that allowed the United States to banish foreign activists. She was told she had no constitutional rights and sent to the Soviet Union in a boat known as the “Soviet Ark.”
Many other anarchists and communists had their naturalization applications invalidated. A common way to strip them of their nationality was by accusing them of “lying” while proclaiming their allegiances to the United States under oath during naturalization proceedings, which rendered their pledges fraudulent. During the Second World War, a number of German Bund members had their American citizenship taken away, too, because they were regarded as supporters of the Nazi regime.
The rules for denaturalization were formalized in 1952, when the Immigration and Nationality Act—also known as the McCarran-Walter Act—added requirements to “prove” a prospective American’s commitment to the Constitution: immigrants could not have been members of subversive organizations within five years of naturalization, and a refusal to testify before a congressional committee about any subversive activity became grounds for denaturalization.
Native-born Americans weren’t subject to this treatment because they never went through naturalization proceedings (as Goldman pointed out in her writing, “real” Americans would be tried, imprisoned, and sometimes killed—but not deported). There is some irony in the fact that immigrants who had willingly adopted the United States as their country, rather than being born into it through sheer happenstance, were put through the wringer. But for natives and transplants alike, citizenship was clearly regarded as a privilege bestowed upon an individual by a sovereign government, not the individual’s right.
The contingent nature of citizenship became apparent when both U.S.-born and naturalized Americans began losing their status after spending too much time abroad. In 1940, the United States passed the Nationality Act, which “expanded the automatic loss of citizenship to include several categories of American-born citizens, including those who engaged in foreign military service, voted in foreign elections or were convicted of treason,” writes Weil. The expatriated citizens were considered to have voluntarily renounced their citizenship if they took another passport, voted for another government, or simply took up residence elsewhere. For a while, women married to foreigners would automatically lose their citizenship, too.
Almost all the native-born Americans who lost their citizenship in the 1950s lost it because of their foreign ties. In his book, Weil cites statistics that show that in 1953, 8,350 Americans were expatriated; 32 percent for voting abroad, 32 percent for living abroad, 20 percent for taking another citizenship, and 8 percent for serving in another army.
Things began to change in the mid to late fifties. The Supreme Court, which had heard denaturalization appeals in the past, began to raise the standard of proof needed for denaturalization—largely, writes Weil, thanks to Chief Justice Earl Warren, who maintained throughout the proceedings that expatriation could not be used as a “punishment for doing certain acts” because banishment was too “cruel and inhuman” a punishment. But as Weil notes,
The Court’s expatriation jurisprudence appeared to be confusing, relying on reasoning that was strained at best and contradictory at worst. In 1958, Albert Trop’s American citizenship was saved because, despite his desertion of the army (for twenty-four hours) statelessness was considered a cruel and unusual punishment, and thereby contrary to the Eighth Amendment. But only six years later, Herman was not permitted to retain his citizenship even though, like Albert Trop, the consequence of denationalization would be statelessness. In 1958, the Court determined that Clemente Perez, a dual citizen who voted in foreign elections, could be deprived of his American citizenship on the basis of Congress’ authority over foreign affairs. But in Schneider v. Rusk, the Court limited congressional expatriation authority in instances when statutes treated native-born and foreign-born Americans differently. Noting the “lack of continuity in the court’s opinion” in expatriation cases, Philip Kurland mockingly wrote in his review of the Supreme Court’s 1963 term for the Harvard Law Review, “It would be interesting to know what the ‘law of the land’ is on the subject of expatriation.”
Still, Weil writes that these cases gave Warren and his supporters a chance to make a point in dissenting opinions, and lay the groundwork for cases to come—notably, Afroyim v. Rusk, a landmark case involving a Jewish painter, Beys Afroyim, who came to the United States from Poland in 1912; was naturalized in 1925 ; then, in 1950, moved to Israel, where he voted for the Knesset Party in national elections. When Afroyim tried to return to the United States, the State Department wouldn’t renew his passport, invoking the 1940 law. He appealed to trial and appeals courts, but was rejected; asking the Supreme Court to hear his case in 1967 was a last-ditch effort to get his citizenship back.
The Court was divided on the case, but ultimately, Warren, Black, Fortas, Brennan, and Douglas voted against the expatriation and thus overturned Perez, an earlier case that had served as precedent for upholding expatriation decisions.
“The Constitution…grants Congress no express power to strip people of their citizenship,” wrote Justice Black in the majority opinion, riffing off Warren’s previous dissents. “In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship…we hold that the Fourteenth Amendment was designed to, and does protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed color or race. The judgment is Reversed.”
Americans, Weil writes, feel “secure” in their status today. Congressional power to expatriate or denaturalize citizens has been significantly curbed, and since 1990, the State Department has assumed that a U.S. citizen does not intend to expatriate unless she voluntarily performs a potentially expatriating act (taking another citizenship, serving in a foreign army) with the intent of giving up her citizenship. It’s actually become rather difficult to expatriate—there are forms to fill out, taxes to file, and a second—final—oath to be made.
Denaturalizations can still occur in cases where an American is guilty of fraud in naturalization proceedings or of human rights violations. According to a report from the Department of Justice the agency revoked the citizenship of 107 individuals between 1979 and 2011 who were found to have participated in Second World War–era war crimes. One of these former Americans was John Demjanjuk, a former Nazi guard who, remarkably, managed to get his citizenship revoked not once, but twice—first in 1981, then again in 2002 (he was exonerated between the two denaturalizations). He died stateless in 2012, before his appeal to a German court could be heard.
Although no one has been denaturalized as part of the War on Terror yet, U.S. citizens like al-Awlaki have been killed outright. His U.S.-born son, accused of no crimes, suffered the same fate, which the State Department has termed an “accident.” And some of America’s closest allies—Britain, for instance—are already beginning to regard citizenship as a “privilege, not a right,” to quote British authorities. A future where U.S. citizens can be expelled, then killed, is not inconceivable.
Weil’s account shows us that denaturalizing citizens is a slippery slope; recent events suggest that the United States is already going downhill. Will Americans continue to feel safe when the government is willing to take out its own citizens with drones? Is simple murder the new denaturalization? Emma Goldman’s assessment that “citizenship is a fraud” is looking more accurate with every drone strike and assassination.
Contemporary disputes over citizenship will play out in the context of globalization, in an era where citizenship is becoming more fluid—a little like Alfred Kinsey’s spectrum, with infinite shadings of belonging, rights, and privileges instead of sexual preferences and pleasures. Dual citizenship nowadays is common, as is living in several different countries throughout one’s lifetime, and hyphenated Americans, Canadians, or Belgians are all around us. This isn’t bad; at the very least, it makes for more interesting people. But it creates legal ambiguities of which Britain and other countries engaged in the War on Terror have taken advantage. Governments regard the increasingly transitory nature of populations as compromising national security—and in the twenty-first century, national security prerogatives usually win.
Atossa Araxia Abrahamian is a journalist at Reuters and an editor at the New Inquiry. Her work has appeared in New York Magazine, the New York Times, n+1, and other publications. She last wrote for Dissent about the Freelancers Union.