Using Expatriating Acts Against Terrorists to Safeguard the Homeland

By Dan Cadman on May 18, 2016

Twice in recent days I've blogged about a remarkable Department of Justice (DOJ) manuscript documenting the foundation and work of DOJ's Office of Special Investigations (OSI) — see here and here.

DOJ buried the manuscript for several years under cover of confidentiality, and finally released a redacted version only to have the unexpurgated document leaked to the New York Times. I'm not generally a fan of the Times' editorial views — too liberal-progressive for my taste, especially in matters of immigration policy — but, like the Washington Post, perhaps simply by virtue of place and circumstance they sometimes perform a public service by publishing suppressed documents of national interest when aided by angry whistleblowers and scorned bureaucrats (the Pentagon Papers and Watergate come quickly to mind).

The OSI manuscript doesn't rise to the level of importance of either the Pentagon Papers or Watergate, of course, but it is instructive nonetheless. It provides lessons that reverberate for civil servants generally about the importance of honest organizational self-analysis; and for government officials involved in immigration and citizenship matters particularly, given the applicability of OSI's experience in those matters in ways that still resonate in today's troubled world.

There is one last important lesson I'd like to share that comes in the section detailing the case history of "Johann Breyer-An American Persecutor". Breyer's personal history is convoluted beyond belief because of where he and his parents were born, and where they resided at various points in their respective lives. Breyer entered the United States after WWII, and ultimately naturalized. OSI initiated a case against him when his war actions were discovered, but in the end the litigation to strip Breyer of his naturalization failed because he was found, via a circuitous, detailed, and legally technical path, to have derived U.S. citizenship at birth via his mother, even though neither he nor the government was aware of that until the denaturalization lawsuit brought the facts to light.

In the end, after many twists and turns through the federal courts, Breyer did not lose his citizenship — although the focus became an examination of his conduct in the context of expatriation, not denaturalization as one might have expected, because of the last-minute finding that he was a derivative citizen. This is because even though he had taken an oath of naturalization, it was done through ignorance of his derivative citizenship. Only an individual who gains citizenship by naturalization can be denaturalized, and thus be cast back into the status of an alien in the United States, which in turn subjects that individual to the possibility of deportation. And the general rule is that denaturalization must be based on matters that occurred prior to naturalization — for instance, by fraud in obtaining the visa that originally led to admission of the individual as an alien or concealment of material facts such as a criminal history in applying for citizenship.

In contrast, however, all citizens (natural born, derivative, or even naturalized) may be deemed to have expatriated if they engage in certain conduct, which can take place after naturalization in the case of individuals who acquire citizenship that way. But as a general proposition it is extremely difficult for any citizen to expatriate him- or herself, as the guiding Supreme Court case law, Afroyim v. Rusk, makes clear. Treasonous acts are one example of the kind of conduct that can result in expatriation. So, too, is voluntarily acquiring citizenship through naturalization in another country, since it is presumed that in formally assuming the obligations of fealty elsewhere one has surrendered fealty to the United States. Expatriation, when it occurs, conceivably leaves the expatriate stateless if the act(s) of expatriation did not involve taking on a new citizenship or nationality through naturalization somewhere else.

In the final installment of litigation in the Breyer case, both the district court and the Third Circuit Court of Appeals decided that even though Breyer had served the Nazis, he had not done so voluntarily. Though OSI lost, a key principle was articulated by both the district and appellate courts. As the author suggests on page 185 of the manuscript:

The precedential value for OSI [was] minimal. It is highly unlikely that a similar factual pattern will recur — an individual born abroad to a U.S. citizen mother and non-U.S. citizen father who assisted the Nazis in acts of persecution.

The ruling could, however, have ramifications in non-OSI cases. The Circuit's determination that membership in the S.S. was so antithetical to U.S. values that it warranted expatriation even if that was not the defendant's intent might be cited in support of an expatriation argument involving someone who joined another group whose core values are inimical to U.S. interests. It could also apply to someone who committed intentionally destructive acts to the body politic.

That precedent is what makes the decision in the Breyer case so compelling. Only the willfully obtuse could fail to immediately grasp the relevance to current events in our ongoing war against terror. It stands as a glaring rebuke to:

  • The steadfast refusal of the State Department to revoke the passports of U.S. citizens, native-born or naturalized, who have gone abroad to join Islamic State (IS) or other designated terrorist organizations;

  • The past public assertion by the FBI director that nothing can be done against U.S. citizens who have gone abroad to fight or train with extremist groups, including ISIS or al Shabaab, and then return; and

  • The abject failure of the Department of Homeland Security and DOJ, working in tandem, to achieve formal expatriation of United States citizens who "join groups whose core values are inimical to U.S. interests." Examples where it could and should have been used include Adnan al Shukrijumah and Anwar al Awlaki (both now deceased), not to mention many of the hundreds of individuals now being watched by the FBI as a part of its "domestic" terrorist regimen, for having sworn allegiance to ISIS and other jihadist groups.

It seems that the lessons so hard-learned by OSI are being lost by its parent department, as well as DHS, which, parenthetically and ironically, has recently changed its mission statement to: "With honor and integrity, we will safeguard the American people, our homeland, and our values."