(Fwd from Jeff Renz) Re: Expatriation, treason, etc.
Volokh, Eugene
VOLOKH at mail.law.ucla.edu
Mon Dec 17 14:08:15 PST 2001
Sorry for the repost, but I'm not sure whether the original version
went through.
> -----Original Message-----
> Date: Mon, 17 Dec 2001 08:48:13 -0700
> From: Jeff Renz <jeff at selway.umt.edu>
> To: "Volokh, Eugene" <VOLOKH at mail.law.ucla.edu>
> CC: "Conlawprof (E-mail)" <conlawprof at listserv.ucla.edu>,
> "crimprof (E-mail)" <crimprof at chicagokent.kentlaw.edu>
> Subject: Re: Expatriation, treason, etc.
>
> Does the fact that the Taliban were not recognized by the U.S. (and were
> recognized by only, what, three countries?) alter this insightful
> analysis?
>
> Jeff
>
> "Volokh, Eugene" wrote:
>
> >
> >
> > Intrigued by the claims that Walker might lose his citizenship
> > for fighting with the Taliban, I decided to do some research, and came
> > up with the following. This is just my tentative conclusion so far,
> > and I realize that I might well be mistaken -- if I am, please let me
> > know ASAP, so I don't embarrass myself further! Thanks,
> >
> > Eugene
> >
> > FYI, here's what seems to be the scoop on claims that John Walker's
> > service in the Taliban might strip him of his citizenship:
> >
> > 1. A federal statute, 8 U.S.C. § 1481(a)(3), provides that persons
> > automatically lose their citizenship for
> >
> > "entering, or serving in, the armed forces of a foreign
> > state if
> > (A) such armed forces are engaged in hostilities against
> > the United States, or
> > (B) such persons serve as a commissioned or
> > noncommissioned officer."
> >
> > I assume that the Taliban forces would be seen as forces of a "foreign
> > state," since they were forces of the de jure government of
> > Afghanistan.
> >
> > 2. This statute, though, is probably unconstitutional. A Supreme
> > Court case, Afroyim v. Rusk, 387 U.S. 253 (1967), held that holding
> > that a U.S. citizen "has a constitutional right to remain a citizen .
> > . . unless he voluntarily relinquishes that citizenship," and
> > therefore struck down a companion section of the statute, which
> > purported to take away citizenship from those who voted in foreign
> > elections. Vance v. Terrazas, 444 U.S. 252 (1980), reaffirmed this.
> > This would on its face seem to invalidate § 1481(a)(3).
> >
> > The State Department seems to take this view, too, subject to some
> > qualifications that might become clearer shortly. According to
> > http://travel.state.gov/military_service.html, "Military service in
> > foreign countries usually does not cause loss of citizenship since an
> > intention to relinquish citizenship normally is lacking. Service as a
> > high-ranking officer, particularly in a policy-making position, could
> > be viewed as indicative of an intention to relinquish U.S.
> > citizenship."
> >
> > [Note: Section 1481(a)(3) was upheld in United States ex rel. Marks
> > v. Esperdy, 315 F.2d 673 (2nd Cir. 1963), which was affirmed by an
> > equally divided court, 377 U.S. 214 (1964). But the later Afroyim
> > case, if indeed read as broadly as its language suggests, would
> > overrule that decision, just as it overruled earlier cases (including
> > earlier Supreme Court cases) upholding other parts of this statute.]
> >
> > 3. But wait, there's more! Though merely serving in an enemy army
> > doesn't strip Walker of citizenship, a court could conclude that
> > Walker actually intended such service as a renunciation of
> > citizenship. Though the Court in Vance v. Terrazas held that such
> > acts cannot be "treat[ed] . . . as the equivalent of or as conclusive
> > evidence of the indispensable voluntary assent of the citizen," they
> > can be "highly persuasive evidence in the particular case of a purpose
> > to abandon citizenship." "[T]he trier of fact must in the end
> > conclude that the citizen not only voluntarily [served in an enemy
> > force], but also intended to relinquish his citizenship."
> >
> > In fact, a single-judge federal trial court in United States v.
> > Schiffer, 831 F. Supp. 1166 (E.D. Pa. 1993), used this reasoning to
> > conclude that a U.S. citizen who fought in the Romanian army in World
> > War II, when Romania was at war with the U.S., voluntarily surrendered
> > his citizenship. (He also joined the German SS, but that wasn't a
> > necessary element of the court's decision.) "[N]o conduct," the court
> > said, is "more demonstrative of an intent to relinquish American
> > citizenship than voluntary service in the armed forces of a country at
> > war with the United States." A federal appellate court case, Breyer v.
> > Meissner, 214 F.3d 416 (3rd Cir. 2000), supports this approach.
> >
> > The question then is one of fact -- did Schiffer (or Walker)
> > subjectively intend to renounce citizenship? A judge or jury might
> > conclude, based on Walker's actions and testimony, that he did intend
> > to do so; or it might conclude the contrary. The burden of proof is
> > on the party that's claiming that Walker lost his citizenship (8
> > U.S.C. § 1481(b)).
> >
> > 4. What makes all this even more significant is that Walker, not just
> > the government, might want to argue that Walker lost his U.S.
> > citizenship. After all, the treason case against Walker would rest on
> > him owing "allegiance" to the U.S., which requires that he be either a
> > citizen of the U.S. or a resident. And if he did lose his
> > citizenship, he lost it as soon as a state of war was created between
> > the Taliban and the U.S., so he never had an opportunity to commit
> > treason. See U.S. ex rel. Marks v. Esperdy ("loss of nationality
> > occur[s] immediately upon the commission of expatriating acts"); 8
> > U.S.C. § 1488 ("The loss of nationality under this part shall result
> > solely from the performance by a national of the acts or fulfillment
> > of the conditions specified in this part."). (Note that neither the
> > loss of citizenship nor a treason conviction would require a
> > declaration of war, only a state of war.)
> >
> > This is not a harebrained theory: The U.S. Supreme Court in Kawakita
> > v. United States, 343 U.S. 717 (1952), seriously considered a similar
> > theory, though there it concluded that Kawakita had not in fact
> > renounced his citizenship.
> >
> > 5. Note that Walker could avoid a treason conviction by showing that
> > he acted under duress. It wasn't treason for him to join the Taliban,
> > because he joined before war broke out. It would have been treason
> > for him to continue fighting with the Taliban while we were enemies,
> > but at that point, he might argue, he had no choice: He'd be shot as
> > a deserter or a spy if he tried to quit then. According to D'Aquino
> > v. United States, 192 F.2d 338 (1951) (the Tokyo Rose case), such a
> > defense would work, but only if Walker could show that he
> >
> > "manifest[ed] a determination to resist commands and orders
> > until such time as he is faced with the alternative of
> > immediate injury or death. . . . The person claiming the
> > defense of coercion and duress must be a person whose
> > resistance has brought him to the last ditch."
> >
> > Not a slight burden to meet, but not impossible, either. Walker would
> > have to show that he wanted to quit, but would have faced injury or
> > death if he had tried.
> >
> > 6. Finally, note that if the government prosecutes Walker for
> > treason, its case would thus rely (or so it seems to me) on the
> > unconstitutionality of its own statute: "True, under the U.S. Code,
> > Walker wouldn't be guilty of treason, since he stopped being a citizen
> > as soon as hostilities broke out. But that statute is
> > unconstitutional, given the implications of Afroyim v. Rusk, so
> > because it's unconstitutional, Walker has committed treason." This is
> > not a legally ridiculous argument by any means; but it might be
> > somewhat problematic nonetheless.
> >
>
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> Content-Transfer-Encoding: 7bit
>
> <!doctype html public "-//w3c//dtd html 4.0 transitional//en">
> <html>
> Does the fact that the Taliban were not recognized by the U.S. (and were
> recognized by only, what, three countries?) alter this insightful
> analysis?
> <p>Jeff
> <p>"Volokh, Eugene" wrote:
> <blockquote TYPE=CITE>
> <p> <font face="Arial">Intrigued
> by the claims that Walker might lose his citizenship for fighting with
> the Taliban, I decided to do some research, and came up with the
> following.
> This is just my tentative conclusion so far, and I realize that I might
> well be mistaken -- if I am, please let me know ASAP, so I don't embarrass
> myself further! Thanks,</font>
> <p> <font
> face="Arial">Eugene</font>
> <p><font face="CG Times">FYI, here's what seems to be the scoop on claims
> that John Walker's service in the Taliban might strip him of his
> citizenship:</font>
> <p><font face="CG Times">1. A federal statute, 8 U.S.C. §
> 1481(a)(3),
> provides that persons automatically lose their citizenship for</font>
> <ul>
> <ul><font face="CG Times">"entering, or serving in, the armed forces of
> a foreign state if</font>
> <br><font face="CG Times">(A) such armed forces
> are engaged in hostilities against the United States, or</font>
> <br><font face="CG Times">(B) such persons serve
> as a commissioned or noncommissioned officer."</font></ul>
> </ul>
> <font face="CG Times">I assume that the Taliban forces would be seen as
> forces of a "foreign state," since they were forces of the de jure
> government
> of Afghanistan.</font>
> <p><font face="CG Times">2. This statute, though, is probably
> unconstitutional.
> A Supreme Court case,<i> Afroyim v. Rusk,</i> 387 U.S. 253 (1967), held
> that holding that a U.S. citizen "has a constitutional right to remain
> a citizen . . . unless he voluntarily relinquishes that citizenship," and
> therefore struck down a companion section of the statute, which purported
> to take away citizenship from those who voted in foreign
> elections. <i>
> Vance v. Terrazas,</i> 444 U.S. 252 (1980), reaffirmed this. This
> would on its face seem to invalidate § 1481(a)(3).</font>
> <p><font face="CG Times">The State Department seems to take this view,
> too, subject to some qualifications that might become clearer
> shortly.
> According to <a href="http://travel.state.gov/military_service.html"
> TARGET="_blank">http://travel.state.gov/military_service.html</a>,
> "Military service in foreign countries usually does not cause loss of
> citizenship
> since an intention to relinquish citizenship normally is lacking.
> Service as a high-ranking officer, particularly in a policy-making
> position,
> could be viewed as indicative of an intention to relinquish U.S.
> citizenship."</font>
> <p><font face="CG Times">[Note: Section 1481(a)(3) was upheld
> in</font><i>
> <font face="CG Times">United States ex rel. Marks v.
> Esperdy,</font></i><font face="CG Times">
> 315 F.2d 673 (2nd Cir. 1963), which was affirmed by an equally divided
> court, 377 U.S. 214 (1964). But the later</font><i> <font face="CG
> Times">Afroyim</font></i><font face="CG Times">
> case, if indeed read as broadly as its language suggests, would overrule
> that decision, just as it overruled earlier cases (including earlier
> Supreme
> Court cases) upholding other parts of this statute.]</font>
> <p><font face="CG Times">3. But wait, there's more! Though
> merely serving in an enemy army doesn't strip Walker of citizenship, a
> court could conclude that Walker actually</font><i> <font face="CG
> Times">intended</font></i><font face="CG Times">
> such service as a renunciation of citizenship. Though the Court
> in</font><i>
> <font face="CG Times">Vance v. Terrazas</font></i><font face="CG Times">
> held that such acts</font><i> <font face="CG Times">cannot</font></i><font
> face="CG Times">
> be "treat[ed] . . . as the equivalent of or as conclusive evidence of the
> indispensable voluntary assent of the citizen," they</font><i> <font
> face="CG Times">can</font></i><font face="CG Times">
> be "highly persuasive evidence in the particular case of a purpose to
> abandon
> citizenship." "[T]he trier of fact must in the end conclude that
> the citizen not only voluntarily [served in an enemy force], but also
> intended
> to relinquish his citizenship."</font>
> <p><font face="CG Times">In fact, a single-judge federal trial court
> in</font><i>
> <font face="CG Times">United States v. Schiffer,</font></i><font face="CG
> Times">
> 831 F. Supp. 1166 (E.D. Pa. 1993), used this reasoning to conclude that
> a U.S. citizen who fought in the Romanian army in World War II, when
> Romania
> was at war with the U.S., voluntarily surrendered his citizenship.
> (He also joined the German SS, but that wasn't a necessary element of the
> court's decision.) "[N]o conduct," the court said, is "more
> demonstrative
> of an intent to relinquish American citizenship than voluntary service
> in the armed forces of a country at war with the United States." A federal
> appellate court case,</font><i> <font face="CG Times">Breyer v.
> Meissner,</font></i><font face="CG Times">
> 214 F.3d 416 (3rd Cir. 2000), supports this approach.</font>
> <p><font face="CG Times">The question then is one of fact -- did Schiffer
> (or Walker)</font><i> <font face="CG Times">subjectively
> intend</font></i><font face="CG Times">
> to renounce citizenship? A judge or jury might conclude, based on
> Walker's actions and testimony, that he did intend to do so; or it might
> conclude the contrary. The burden of proof is on the party that's
> claiming that Walker lost his citizenship (8 U.S.C. §
> 1481(b)).</font>
> <p><font face="CG Times">4. What makes all this even more
> significant
> is that</font><i> <font face="CG Times">Walker</font></i><font face="CG
> Times">,
> not just the government, might want to argue that Walker lost his U.S.
> citizenship. After all, the treason case against Walker would rest
> on him owing "allegiance" to the U.S., which requires that he be either
> a citizen of the U.S. or a resident. And if he did lose his
> citizenship,
> he lost it as soon as a state of war was created between the Taliban and
> the U.S., so he never had an opportunity to commit
> treason. </font><i>
> <font face="CG Times">See U.S. ex rel. Marks v. Esperdy</font></i><font
> face="CG Times">
> ("loss of nationality occur[s] immediately upon the commission of
> expatriating
> acts"); 8 U.S.C. § 1488 ("The loss of nationality under this part
> shall result solely from the performance by a national of the acts or
> fulfillment
> of the conditions specified in this part."). (Note that neither the
> loss of citizenship nor a treason conviction would require a</font><i>
> <font face="CG Times">declaration</font></i><font face="CG Times"> of war,
> only a state of war.)</font>
> <p><font face="CG Times">This is not a harebrained theory: The U.S.
> Supreme Court in</font><i> <font face="CG Times">Kawakita v. United
> States,</font></i><font face="CG Times">
> 343 U.S. 717 (1952), seriously considered a similar theory, though there
> it concluded that Kawakita had not in fact renounced his
> citizenship.</font>
> <p><font face="CG Times">5. Note that Walker could avoid a treason
> conviction by showing that he acted under duress. It wasn't treason
> for him to join the Taliban, because he joined before war broke out.
> It would have been treason for him to continue fighting with the Taliban
> while we were enemies, but at that point, he might argue, he had no
> choice:
> He'd be shot as a deserter or a spy if he tried to quit then.
> According
> to</font><i> <font face="CG Times">D'Aquino v. United
> States,</font></i><font face="CG Times">
> 192 F.2d 338 (1951) (the Tokyo Rose case), such a defense would work, but
> only if Walker could show that he</font>
> <ul>
> <ul><font face="CG Times">"manifest[ed] a determination to resist commands
> and orders until such time as he is faced with the alternative of
> immediate
> injury or death. . . . The person claiming the defense of coercion
> and duress must be a person whose resistance has brought him to the last
> ditch."</font></ul>
> </ul>
> <font face="CG Times">Not a slight burden to meet, but not impossible,
> either. Walker would have to show that he wanted to quit, but would
> have faced injury or death if he had tried.</font>
> <p><font face="CG Times">6. Finally, note that if the government
> prosecutes Walker for treason, its case would thus rely (or so it seems
> to me) on the unconstitutionality of its own statute: "True, under
> the U.S. Code, Walker wouldn't be guilty of treason, since he stopped
> being
> a citizen as soon as hostilities broke out. But that statute is
> unconstitutional,
> given the implications of</font><i> <font face="CG Times">Afroyim v.
> Rusk</font></i><font face="CG Times">,
> so because it's unconstitutional, Walker has committed treason."
> This is not a legally ridiculous argument by any means; but it might be
> somewhat problematic nonetheless.</font>
> <br> </blockquote>
> </html>
>
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