The War on Terror

8

The War on Terror

While several years passed until Congress implemented the Court’s perspective on expatriation, it took even longer for the administration to recognize and implement the changing interpretation of expatriation policies that the Supreme Court and Congress had expressed. When Congress repealed most of the grounds for expatriation, and more importantly, followed the Court and established that citizenship cannot be taken away without the consent of the citizen, it changed more than a bureaucratic lacuna. Henry Ansgar Kelly, who studied State Department leaflets, came to the conclusion that the recognition of dual citizenship was formally introduced to consular offices around the world only in 1990. However, this shift does not represent a philosophical transformation but a practical acknowledgment of this status. As Secretary of State James Baker explicitly asserted in a telegram of April 1990 in regard to Americans having dual citizenship, “This action should not be seen as an endorsement of dual nationality.”1

Today, the United States tolerates dual citizenship on the part of the millions of Americans who have it. Unlike courts in the past, courts today maintain that actions that indicate dual or split allegiance or even the abandonment of American allegiance are not sufficient for compulsory expatriation. The state has to prove that any act of expatriation on the part of a citizen was performed voluntarily and with the intention to relinquish American citizenship. Nevertheless, it is questionable whether Americans have really adopted a political philosophy that embraces multiple national loyalties.

The changes in the United States Supreme Court since Trop v. Dulles (1958), the subsequent repeals of many of the legislative measures regarding expatriation, and finally the 1990 written acknowledgement by the Department of State that expatriating acts are not to be taken as indications of the intent to relinquish citizenship, all suggest that in the United States divided and multiple national loyalties have become acceptable. As Spiro maintains, “Recent trends toward acceptance of the status [of dual citizenship] reflect the erosion of the allegiance paradigm,”2 which has now been replaced by a residence paradigm. Today, we are experiencing the consolidation of a new stage in the history of citizenship.

The many studies of the acceptance of dual citizenship around the world reinforce this perspective. Martin argues that the current conditions of globalization, peace, complex identities, an effective human rights regime, and expanding democratization all make dual citizenship more likely and more acceptable.3 Blatter, Erdmann, and Schwanke4 present the combined empirical data gathered by the United States Office of Personnel Management, along with the studies of several other citizenship scholars.5 All of these studies show that acceptance of dual citizenship has been rising steadily since the Second World War. Moreover, the trend is towards an expansive and nonexclusive notion of citizenship.

Spiro argues that the acceptance of dual citizenship is another stage, and may be the most dramatic one, in the diminishing of American national identity in the face of globalization. While in the past “dual nationality was not merely unacceptable. It was an abomination,”6 today it is not unusual, problematic, or freakish to hold more than one citizenship. The United States tolerates dual citizenship, and it is improbable that this trend will change in the future.

This viewpoint was also presented by David Martin. “With the end of the Cold War, and a host of other developments that promote a more tightly linked, more peaceful, and more democratic globe, it is indeed time to reconsider the classic aversion to dual nationality, and to eliminate some of the rules and practices that have constricted it.”7 Martin envisioned a new world order that embraces dual citizenship and multiple national allegiances. I do not dispute such standpoints that portray the growing acceptance of dual citizenship, but I do call on us to be cautious in such declarations. Throughout the book, I have shown how entrenched is the notion of exclusive national loyalty in the minds of administrators and legislators (although the matter was overruled long ago by the Supreme Court). Moreover, even if we do agree that substantial change in the perception of dual nationality has occurred since the end of the Cold War and in the face of globalization, the War on Terror signifies how fragile and temporary this transformation can be.

The Re-Emergence of Exclusive National Allegiance

On the morning of September 11, 2001, terrorists attacked America without warning. In a series of coordinated suicide attacks, nineteen Al-Qaeda terrorists hijacked four commercial passenger jet airliners and crashed them into the Twin Towers of the World Trade Center in New York City, the Pentagon in Arlington, Virginia, and a field near Shanksville in rural Pennsylvania, killing altogether 2,923 individuals. The overwhelming majority of casualties were civilians, including nationals of over seventy countries. The impact of those attacks on the United States and on the entire world was immediate and dramatic. The very next day, President Bush declared war on terrorism. A month later, President Bush signed into law the USA Patriot Act, giving law enforcement agencies expansive powers and increased resources to fight terrorism at home and abroad. In response to the attacks, the United States also invaded Afghanistan (in 2001) and Iraq (in 2003). Those wars created new conditions in which American citizens could become involved in terrorism against the United States. In the view of many, such Americans manifested in those acts their rejection of the United States and therefore deserved to have their citizenship rescinded. However, the current expatriation statutes do not provide for the revocation of citizenship in cases where an American serves in a hostile foreign terrorist organization. They thus fail to take account of the myriad ways in which, in the modern world, war can be waged against the United States. Thus, the administration wanted to change its expatriation policies.

On February 7, 2003, a confidential draft of the Domestic Security Enhancement Act of 2003, more commonly known as Patriot Act II, was released to the public by the Center for Public Integrity. A month earlier, the Bush administration had prepared this bold, comprehensive sequel to the USA Patriot Act passed in the wake of September 11, 2001, which would have given the government, in the name of anti-terrorism, sweeping new powers to increase domestic intelligence-gathering, surveillance, and law-enforcement prerogatives, and simultaneously decrease judicial review and public access to information.8 In connection with expatriation, this provision would have amended 8 U.S.C. Section 1481 to make clear that just as an American can relinquish citizenship by serving in a hostile foreign army, so can he or she relinquish citizenship by serving in a hostile terrorist organization.