As this is being
written, even the press here in Europe is carrying the news that the Supreme
Court is about to decide the case of Jose Padilla, or as some here like to
put it, Bush’ right to throw and keep people in prison at his whim. Mr. Padilla
is likely to prefer to be called, conforming to the label of the new identity
he has assumed, Abdullah al Muhajir. This would be his private business,
assuming that the name change was official and had it not signified the “civic
death” of Padilla as a US citizen and the rebirth of al Muhajir a Jihadist.
This might have remained an infraction had the new name not underlined newly
assumed loyalties. We are talking here about new attachments of the sort
that negate whatever previous obligations under oath Mr. Padilla has affirmed
his commitment to.
We can rest assured that Padilla’s signing up for a war on behalf of radical
Islam was meant seriously. More sincerely, at any rate, than his earlier
formal commitment to the USA as a country and its civic and political values
had ever been. While the man’s Americanism is unproven, he has served ample
proof that he fully meant his promises to his new calling as a soldier of
Islam and against the United States. Whatever Padilla might have felt toward
America previously is unclear. On the other hand, the dirty nuclear device
he wished to use against "his country" speaks eloquently. The reader shall
be reminded: intending to use a WMD is a matter that transcends the deeds
that are normally covered by the term “hostility.” Is it then a sign of extremism
to suggest that special acts create the kind of exceptional situations which
require the adjustment of existing legal concepts and practices to a previously
unanticipated deed? At this juncture it is of interest to refer to a decision
of Australia’s government. Two of her citizens are held in Guantanamo. Canberra
has decided not to request their extradition because it has no law dealing
with the unexpected crime. If Australia obtained custody she would be forced
to let the Jihadist go free. Unwilling to do this, the two are left in the
care of the US that has a legal basis to deal with the matter.
Let us examine the case seeking insights as to how, in keeping within the
rationally determined limits of the Constitution, the case might be judged
by the standards of common sense.
Understandably, as a naturalized American, this author has strong feelings
about citizenship. His past has provided the writer with time and motives
to ponder matters involving loyalty and belonging. This is why his anger
is made to rise by the Padillas who ooze out of the gutters.
Citizenship is more than a ticket to a standard of living and to freedoms
cast into right by laws. A citizen by birth or by virtue of naturalization
has obligations, the least of which is filing with the IRS. You cannot have
the former without accepting the latter. When you become naturalized in a
country, you have to commit yourself to her. Any similarities to the act
of marriage are not accidental. If marriage -- an exclusive commitment to
a person -- can be ended by divorce then so should citizenship. Some acts,
if proven, are a ground for divorce. Some deeds, if established, disbar the
perpetrator. Regardless of the analogy, the question must be raised whether
citizenship can be lost or revoked. In doing so it does not appear to this
writer that citizenship by birth and naturalization should be treated as
different cases. Except for the practical matter of the qualification for
the Presidency, US citizenships are of equal legal standing.
There was a time when a naturalized US citizen living abroad could lose his
citizenship unless he returned every two years to the US. Cognizant of new
forms of living, this law has been revoked. Properly so, since the measure
did not test what it intended to ascertain. Nevertheless, American citizenship
could be lost. Democratic societies allow the revocation of citizenship if
due process is applied. Switzerland, with 700 years of experience, revoked,
based on an “old” law, the citizenship of those who served (voluntarily)
in the Waffen SS. All democratic countries allow their citizens to renounce
their citizenship. Often the requirement is a clear statement and proof that
another country is willing to issue the individual a passport. Assuming foreign
citizenship is frequently considered as causing an automatic cancellation
of citizenship. Serving in a foreign army, or accepting election into its
legislature have the same effect.
Admittedly, totalitarian dictatorships are known to have used the revocation
of citizenship against persons when they felt that they could not afford
to give them the “silent treatment” by killing them. The most famous
case that comes to mind is that of Alexander Solzhenitsyn. This, however,
is a weak argument against revocation in principle regardless of its specific
circumstances. Even though dictatorships incarcerate people, democracies
need not prove themselves as such by patting their criminals on the back.
Although it is, for this writer, not the crux of the matter, it is relevant
to mention that the crimes of globalized terrorism cannot be effectively
combated if they are handled as though they would be conventional misdeeds
or versions of free speech and dissent. For this reason alone, the condition
of incarceration meted out to Padilla and his ilk, is not properly evaluated
if only the standards applied in cases of say the attempted murder of a mother-in-law
are rigorously applied. It is neither practical from the standpoint of protecting
society, nor realistic to treat apprehended activists of foreign organizations
at war to the extent of their means with America, as though they would be
normal individuals accused of a common crime.
The issue here is whether the “Padillas” -- we already have several comparable
cases -- are, properly judged, US citizens or, in view of their comportment,
aliens, enemy combatants, or whatever. If the answer is in the negative,
then from the outset, the constitutional guarantees protecting citizens become,
by definition, not applicable. This issue must, therefore, be resolved before
we can get to the matter of the correct interpretation of the rights of accused
Padilla has done everything to justify the allegation that he has virtually
renounced his US citizenship. What did he do while he was free to act? He
has taken membership in an alien organization sworn to undermine, not only
the government but also the way of life and value system of his country.
Now caught, the man is asking for favorable treatment and protection from
the consequences of his actions. This claim he raises by appealing to the
values and the protection of a public culture expressed in the form of laws
he has rejected. Doing so defies the rules of consistency but might prove
to be useful in case he is allowed to "get away with it." Padilla’s inability
to accomplish his purpose is no mitigating circumstance: he did not fail
because of the limitations imposed by his inner humanistic restraints. With
Padilla we were lucky. Luck does not frequently come knocking on our door.
Hopefully, the Supreme Court will find, on whatever grounds, against Padilla.
Nevertheless, irrespective of the adjudication the case will get, a practical
legal basis for dealing effectively with agents of alien forces intent to
destroy the country by means of violence should be developed. The commitment
to freedom must not become a self-imposed handicap to defending our liberty.
A significant step toward this might be that the sworn armed enemies of the
USA, when apprehended, will not be able to claim partial immunity from the
consequences of their actions as citizens of the Great Satan they consciously
chose to fight with any means and in every form.
George Handlery is a recently retired professor of European and American history. He has lived and taught in Europe since 1976.