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Some foes of the Republic revealed themselves by sponsoring the Enemy Expatriation Act

30 January 2012

Summary:  The Republic is dying, its foundation whittled away by a thousand cuts during the past century.  Now its enemies become bolder, assaulting its heart and core.  Sometimes they win; sometimes they fail but prepare the way for the next assault.  Now we must become bolder.  As a sign of our weakness none dare name as enemies those attacking the Republic.  This is the next in a series taking that small but important step; links to previous chapters appear at the end.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
— 14th Amendment of the Constitution

… free government is founded in jealousy, and not in confidence; it is jealousy, and not confidence, which prescribes limited constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which, and no farther … In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.
— Thomas Jefferson’s draft of Kentucky Resolutions; approved by the Kentucky House of Representatives on 10 November 1798

Contents

  1. The Bill
  2. Ugly Details
  3. The guilty parties, revealed by their actions as enemies of the Constitution
  4. Analysis of the Bill
  5. For More Information about the quiet coup against the Constitution

(1)  The Bill

From the Thomas database:  H.R.3166 and S.1698:  Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, the Enemy Expatriation Act: a bill to amend Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481), adding engaging in or supporting hostilities against the United States to the list of acts for which United States nationals would lose their nationality

The current text of Section 349:  a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality.

  1. obtaining naturalization in a foreign state;
  2. taking an oath, affirmation or other formal declaration to a foreign state;
  3. entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state;
  4. accepting employment with a foreign government if (a) one has the nationality of that foreign state or (b) an oath or declaration of allegiance is required in accepting the position;
  5. formally renouncing U.S. citizenship before a US diplomatic or consular officer outside the US;
  6. formally renouncing U.S. citizenship within the US;
  7. conviction for an act of treason

The Act would add the following to that list:

(8) engaging in, or purposefully and materially supporting, hostilities against the United States.

And add at the end the following:

(c) For purposes of this section, the term `hostilities’ means any conflict subject to the laws of war.

(2)  Ugly Details

(a)  What is “material support” of “hostilities against the US”?

Pretty much whatever the government considers it to be, and history suggests its meaning will only expand over time.  From the Wikipedia entry (can anyone provide a better analysis?)

In June 2010 the United States Supreme Court ruled on Holder v. Humanitarian Law Project regarding the PATRIOT Act (18 U. S. C. §2339B) which prohibits material support to groups designated as terrorists. The court held that a prohibition of these types of support – “training,” “expert advice or assistance,” “service,” and “personnel” — were constitutional as applied to the forms of support that plaintiffs in the case, represented by the Humanitarian Law Project, sought to provide to foreign terrorist organizations. The court noted that the proposed actions of the Humanitarian Law Project were general and “entirely hypothetical” … The plaintiffs sought to help the Kurdistan Workers’ Party in Turkey and the Liberation Tigers of Tamil Eelam learn means of peacefully resolving conflicts. This case represents the only time in U.S. First Amendment jurisprudence that a restriction on political speech has passed the Strict scrutiny test.

(b)  Who decides when strip away your citizenship?  Section 39 (b) says:

Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence.

Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.

The code does not say what government official can strip you of your citizenship — in secret.  If you sue — and can get a Court to hear you — the burden of proof is upon you to prove what the government has done in secret.  That makes even more powerful the broad but vague expansion of this power.

(3)  The guilty parties, revealed by their actions as enemies of the Constitution

Since 2001 our enemies have succeeded — almost without opposition — in shredding the Constitution.  Even defeats merely laid the basis for their next assault.  While stopping them seems beyond our powers at present, at least we can identify our enemies by their actions.  Such as the sponsors of this Bill:

  • Representatives Charles W. Dent (R-PA), Jason Altmire (D-PA), Robert E. Latta (R-OH), Frank R. Wolf (R-VA)
  • Senators Joseph Lieberman (I-CT) and Scott Brown (R-MA)

(4)  Analysis of the Bill

Since this Bill strips away vital elements of our freedom and overturns two centuries of America legal precedent, the news media does not bother to mention it.  We turn instead to more vigilant sources of information.

(a)  Revoke Citizenship, Then Gitmoize: The Latest Chapter In The Assault on American Civil Liberties“, Shikha Dalmia, 13 January 2012 — Excerpt:

All the bill would do is add “engaging in or supporting hostilities against the United States”to the list of acts for which United States nationals would lose their nationality.

The big difference of course is that everyone knows what the definition of army is. But  only the executive branch knows what a terrorist group is and what counts as “hostilities.” And it could include anyone and anything in that: Timothy McVeigh. Branch Davidians. Freeman Militia. Occupy Wall Streeters. Tea Partiers. H&R commenters.

The FBI and State/local police have historically cast a wide — indiscriminate — net when deciding who deserves intensive surveillance, even black ops to suppress them.  During the War on Terror many explicitly Constitutionally protected activities have been criminalized.

(b) The Enemy Expatriation Act and the NDAA: Due Process Destroyed?“, Joe Wolverton II, The New American, 25 January 2012 — Excerpt:

A careful reading of the {Act} reveals that as with so many of these unlawful acts which are suffocating the American body politic, cutting off the air of liberty by which we are made free, the key terms in this bill are intentionally vague so as to provide plenty of hazy cover for the federal government’s assault on the bedrock principles upon which our Republic was founded.

… And also hiding effectively behind the smokescreen of safety is the fact that the Enemy Expatriation Act “does not say which government body — say a military tribunal or a congressional panel — has the power to brand suspected persons as hostiles.”

… The long list of presidential precedents of ignoring core constitutional principles inconveniently cluttering the path toward tyranny continues to grow. With the Enemy Expatriation Act, the 14th Amendment is one of those pesky impediments that will be cleared by the congressional lictors of the Oval Office autocrat.

(c)  The Proposed Enemy Expatriation Act: Sending American Citizens into Exile“, Herbert W. Titus and William J. Olson, American Thinker, 20 January 2012 — Excerpt:

Sparked by the nation’s so-called war on terrorism, the government has been charging full-throttle into another war — a war on liberty. Drawing on its almost limitless technological arsenal, the government surreptitiously tracks and spies on our every movement, places under surveillance our internet and cell phone communications, and screens our bodies and personal effects.

… On  their face, S. 1698 and H.R. 3166 make it appear that any citizen “engaging in,  or purposefully and materially supporting, hostilities against the United  States” would lose his citizenship.  This is unlike current law, which also  requires proof that the citizen does so “with the intention of relinquishing  United States nationality.”  Thus, the new bills would make it much easier  for the government to strip a dissenting citizen of his  citizenship.

Six  of the seven expatriating acts in the current law require proof of formal  actions — either a direct renunciation of citizenship, or a similar act  unmistakably demonstrating a change of allegiance to another country.   These bills would require neither.  Rather, they describe a newly minted  offense, the commission of which may give rise to the inference of an intent to  renounce citizenship, but without requiring any direct evidence of such an  intent.

To  be sure, current law provides that the commission of treason or other serious  acts may justify an inference of renunciation of citizenship.  However,  before such an inference can be made, the person previously must have been  convicted beyond a reasonable doubt of one or more specified criminal  acts.  Under the proposed bills, the government could take away a person’s  citizenship in a civil action without that person having been previously  convicted of a crime in a court governed by traditional procedural safeguards of  trial by jury, confrontation of witnesses, and proof beyond a reasonable  doubt.

Under  the new bills, the government would be required only to prove by a preponderance  of the evidence that a person “engag[ed] in, or purposefully and materially  support[ed] hostilities against the United States” with the intent of  relinquishing his citizenship.  Further, “hostilities” is defined as “any  conflict subject to the laws of war” — as if this definition narrowed the  grounds upon which a person could be deprived of citizenship.  The American  people are constantly being reminded that the nation is at war against  terrorism, albeit undeclared by Congress, and against an as-yet-to-be-defined  enemy.  Anyone voicing opposition to the war in Afghanistan, or  contributing to an Islamic charitable organization, is thus in jeopardy of being  charged with committing the expatriating act set forth in these two  bills.

At  the height of the Cold War, the Supreme Court rashly decided Perez v.  Brownell, 356 U.S. 44 (1957), which held that “Congress has the  constitutional authority forcibly to take away a person’s citizenship,  regardless of his intention not to give it up.”  However, a decade later in Afroyim v. Rusk, 387 U.S. 253, 254 (1967), the Court corrected its  error, holding that United States citizenship, once vested by birth or  naturalization, may not be “take[n] away … without [the citizen’s] assent: ‘In  our country, the people are sovereign and Government cannot sever its  relationship to the people by taking away their citizenship'” (Afroyim  at 257).

This  remains the law of the land.  As a unanimous Court ruled in 1980, “[i]n the  final analysis, expatriation depends upon the will of the citizen rather than on  the will of Congress and its assessment of his conduct” (Vance v.  Terrazas, 444 U.S. 252, 260).

Unfortunately,  the Court ruled in that same case that the Constitution required the government  to prove by only a “preponderance of the evidence,” a standard of proof  acceptable in civil cases.  But charging an American with committing an act  with the intention of relinquishing one’s citizenship is not an ordinary civil  matter.  Rather, as dissenting Justice Thurgood Marshall pointed out, “[an]  expatriate has lost his right to have rights.  This punishment is offensive  to cardinal principles for which the Constitution stands[.] … He may be  subject to banishment, a fate universally decried by civilized people.  He  is stateless, a condition deplored in the international community of  democracies” (Terrazas, 444 U.S. at 271).

Justice  Marshall was right.  Expatriation is not just a civil matter; it is a  serious criminal punishment.  Any American citizen charged with having  voluntarily renounced his citizenship should be entitled to all the criminal  procedures secured by the Bill of Rights.  Nothing less will satisfy due  process of law.  S. 1698 and H.R. 3166 move the nation in just the opposite  direction, adding more uncertainty where more precision is needed.  If  American citizenship is to be protected against involuntary forfeiture,  government officials must be reminded that in America, the People, not the  government, are sovereign.

Herb  Titus taught constitutional law for 26 years, concluding his academic career as  founding dean of Regent Law School.  Bill Olson served in three positions  in the Reagan administration.  They now practice constitutional law  together, defending against government excess, at William J. Olson,  P.C. 

(5)  For More Information about the quiet coup against the Constitution

About the enemies of the Constitution:

  1. The guilty ones responsible for the loss of our liberties, 11 September 2010
  2. Another bill before Congress pushing the USA further into the dark of endless war, stripping away our liberties, 28 November 2011
  3. RIP, Constitution. The Second Republic died this week. Of course, we don’t care (that’s why it died)., 5 December 2011
  4. Fear the enemies within America more than those without, 21 December 2011
  5. “Lawfare” – using the law to undermine the Constitution (a powerful tool in the quiet coup now in progress), 22 December 2011

About the dying Constitution:

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. Congress shows us how our new government works, 14 April 2008
  3. See the last glimmers of the Constitution’s life…, 27 June 2008
  4. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  5. A report card for the Republic: are we still capable of self-government?, 3 July 2008
  6. Another step away from our Constitutional system, with applause, 19 September 2008
  7. More about the tottering structure of the American political regime, 17 August 2009
  8. Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
  9. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
  10. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  11. Code red! The Constitution is burning., 5 August 2010
  12. An Appalling Threat to Civil Liberties and Democracy, 8 August 2010
  13. Every day the Constitution dies a little more, 1 September 2010 — About US government assassination programs
  14. What do our Constitution-loving conservatives say about our government’s assassination programs?, 2 September 2010
  15. Cutting down the tree of liberty, 9 September 2010 — Government secrets trump fair trials.
  16. A great philosopher and statesman comments on the Bush-Obama tweaks to the Constitution, 10 October 2010
  17. This week’s news: many stories showing that the Constitution is dead, 8 December 2010
  18. Conservatives tells us not to worry about the Constitution’s death, 23 March 2011
  19. Tearing the Constitution is a bipartisan sport!, 4 April 2011
  20. Watch the Constitution die right now as we burn a 2452 year old vital legal precedent, 11 October 2011
  21. Let’s gaze upon the corpse of the Fourth Amendment, 12 October 2011
  22. An important article to read about another example of the fading rule of law in America, 29 December 2011
6 Comments leave one →
  1. Lee Wood permalink
    30 January 2012 2:45 am

    Shared on FB…

    Like

  2. 30 January 2012 2:24 pm

    Excellent analysis, and thank you for the links to further information. The death of our constitution actually started about a century ago. Hayek describes it well in Chapter 12 of The Constitution of Liberty. The legislative and judicial branches stopped “discovering” law in the spirit of the constitution and began overwhelming us with diktats and imperial commands.

    Courts no longer consider the strict constitutionality of of a law, but rather weight its supposed merits and demerits, rights be damned.

    Like

  3. guest permalink
    30 January 2012 9:55 pm

    For your attention: the links to Wikipedia entries in the blue-background boxes are garbled — they are a mixture of wikipedia and fabiusmaximus URL, and hence point to 404 messages.

    Like

    • 31 January 2012 12:19 am

      Fixed! Thank you very much for catching this and posting a comment about it.

      Like

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