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Who is an American Citizen?
by George de Poor Handlery, Ph.D.
25 February 2004

Jose Padilla has done everything to justify the allegation that he has renounced his US citizenship.

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 Americans.

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

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