The sad events last week in France were not surprising to me except the fact that the French knew that at least one of the brothers involved in the Charlie Hebdo attack had trained in Yemen with Al-Qaeda (2011) while the other was actually imprisoned from 2005 to 2006 for trying to join the jihad in Iraq (and then imprisoned again in 2008). As Al-Qaeda is a military opponent of France, why were these guys allowed to roam free around France? An American who joins a foreign military that is engaged in hostilities against the U.S. loses his or her citizenship (State Department site) and therefore the right to roam free with the U.S. (though perhaps under our new immigration policies he or she would be welcomed back anyway?). In addition to the periodic prosecutions and imprisonments, the French put in the time and effort to track these guys for years, though surveillance had recently been dropped. Why wouldn’t they simply have put that time and effort instead into moving them out of France?
Related:
- British government’s attempts to terminate citizenship for terrorism suspects: Independent; Daily Mail
- Wikipedia article on statelessness, a possible consequence for people who lose citizenship (perhaps international laws need to be updated given that now there are “stateless” organizations waging wars?)
- United Nations web site on the subject of statelessness and the UN’s efforts to eliminate it
I think it is pretty difficult to determine when, and if, anybody will actually commit a crime. It is easy to second guess after the facts. Neither brother seems to have ever fought against French troops directly (no french troops in Iraq or Yemen), so I fail to see how a court of law could ever strip them of anything, or commit them to long detentions. I am not aware of any attempt to have them extradited to the US or the UK to face terrorism charges. In fact there are plenty of people like them as we speak, walking around free in Europe and the US. Some might be embattled and dreaming to start anew, some might just be kicking themselves for being stupid and getting involved in the first place. How can we tell them apart in the eyes of the law?
Secondly, when one is born, no citizenship contract is signed, a citizenship is just issued. Thus it is difficult to say ‘these are the legally enforceable terms of citizenship’ for any citizenship given at birth. In the links you provide there is an awful lot of ‘may’: what a government might want to do and what can lawfully be done are two different things, though a private citizen might not have the resources to challenge a decision taken against them.
To be charitable, I’d say the known Al-Qaeda-trained citizens were spied on, rather than deported/imprisoned, in order to discover additional intelligence. By all means look closer, though – there may be genuine incompetence afoot.
Looking at the U.S. State Department link Philip provided, the rules for foreign military service in the U.S. appear somewhat convoluted.
“Although a person’s enlistment in the armed forces of a foreign country may not constitute a violation of U.S. law, it could subject him or her to the provisions of Section 349(a)(3) of the INA [8 U.S.C. 1481(a)(3)] which provides for loss of U.S. nationality if a U.S national voluntarily and with the intention of relinquishing U.S. nationality enters or serves in the armed forces of a foreign state engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer.”
Here’s the relevant text of Section 8 U.S. Code § 1481 from http://www.law.cornell.edu/uscode/text/8/1481:
“(a) 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—
…
(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States
”
Are al-Qaeda or ISIS considered foreign states by the U.S.? I doubt it, so perhaps this provision would not apply. Even if someone did enlist in the military of a hostile foreign state, as long as they didn’t intend to relinquish their U.S. nationality, it still doesn’t seem like this particular provision applies.
Federico: “I think it is pretty difficult to determine when, and if, anybody will actually commit a crime.” — I don’t think this was an issue in this case. One of the shooters had already been convicted of crimes twice and imprisoned twice. Also, signing up with a foreign military that is engaged in hostilities against France should have been sufficient. That’s not a crime, just an expression of allegiance to some organization other than the country of France.
Patrick: Good point. Maybe they can’t strip anyone of citizenship here unless he or she says “I don’t want to be a U.S. citizen anymore” (in which case why bother with the stuff about armed hostility against the U.S.?) But on the other hand perhaps we should be able to say that someone who serves with Al Qaeda is now a citizen of Al Qaeda.
I looked for actual legal cases when someone lost their citizenship due to foreign military service and I wasn’t able to find much. There was a case which went to the Supreme Court involving military service in Japan during WWII: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=356&invol=129.
The following quote from that case makes it seem like it would probably be difficult to use the existing law as a security measure to strip citizenship from potential malefactors. Citizenship is considered to be a precious right and the burden of proof is on the Government.
” Likewise, the parties are agreed that when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence. In Gonzales v. Landon, 350 U.S. 920 , we held that the rule as to burden of proof in denaturalization cases 4 applied to expatriation cases under Section 401 (j) of the Nationality Act of 1940. We now conclude that the same rule should govern cases under all the subsections of Section 401.
The parties disagree as to whether the Government must also prove that the expatriating act was voluntarily performed or whether the citizenship claimant bears the [356 U.S. 129, 134] burden of proving that his act was involuntary. 5 Petitioner contends that voluntariness is an element of the expatriating act, and as such must be proved by the Government. The Government, on the other hand, relies upon the ordinary rule that duress is a matter of affirmative defense and contends that the party claiming that he acted involuntarily must overcome a presumption of voluntariness.
Because the consequences of denationalization are so drastic petitioner’s contention as to burden of proof of voluntariness should be sustained. This Court has said that in a denaturalization case, “instituted . . . for the purpose of depriving one of the precious right of citizenship previously conferred we believe the facts and the law should be construed as far as is reasonably possible in favor of the citizen.” Schneiderman v. United States, [356 U.S. 129, 135] 320 U.S. 118, 122 . 6 The same principle applies to expatriation cases, and it calls for placing upon the Government the burden of persuading the trier of fact by clear, convincing and unequivocal evidence that the act showing renunciation of citizenship was voluntarily performed. While one finds in the legislative history of Section 401, and particularly Section 401 (c), recognition of the concept of voluntariness, 7 there is no discussion of the problem of the burden of proof. What is clear is that the House Committee which considered the bill rejected a proposal to enact a conclusive presumption of voluntariness in the case of dual nationals entering or serving in the military forces of the nation of their second nationality. 8 It is altogether consonant with this history to [356 U.S. 129, 136] place upon the Government the burden of proving voluntariness. The Court has said that “Rights of citizenship are not to be destroyed by an ambiguity.” Perkins v. Elg, 307 U.S. 325, 337 . The reference was to an ambiguity in a treaty, but the principle there stated demands also that evidentiary ambiguities are not to be resolved against the citizen. “
Closer to [your] home: The Tsarnaev brothers were roaming free in the Boston area even though the Russian government warned the FBI Tamerlan Tsarnaev was a connected to radical Islamic groups.
The short answer is, French citizens have high expectations of services from the government, such as universal health care and free education, and that doesn’t leave money for a hypertrophied police state or military industrial-complex. It takes 20 police to monitor someone round the clock, and there are simply too many people who had some sort of dalliance with jihadism in the past. The Kouachi brothers and Coulibaly were known to the security services, and monitored, but then deemed lower-risk (possibly because they got older without doing much) and deprioritized, with tragic consequences. Presumably the risk assessment models will be revised accordingly.
As for stripping of citizenship, it is a very fraught issue in France because it was used by the collaborationist Vichy regime of Marshall Pétain to strip Jews of their citizenship and justify handing them over to the Germans (for some odd reason, the traditionally antisemitic right-wing in France thought of Jews as fifth columnists for the Germans, see the Dreyfus affair). It makes sense to strip someone like Anwar Al-Awlaki, who lived abroad and is clearly held the citizenship as an accident of history, but for others, including those who took arms against their country, the proper course is to try them for treason and jail them.
J: I don’t think the Tsarnaev case is comparable. Neither of them had been convicted or imprisoned here for trying to wage war against the U.S. (http://en.wikipedia.org/wiki/Dzhokhar_and_Tamerlan_Tsarnaev#2008 says that one brother was arrested for beating up a girlfriend). Neither of them had gone to a foreign military’s training camp.
Fazal: Maybe you’re right about “try them for treason and jail them” but if the war in which the person was trying to fight is ongoing can you safely release someone?
Interesting point J. Peterson. According to an article in the New York Times “F.B.I. Interview Led Homeland Security to Hold Up Citizenship for One Brother”. http://www.nytimes.com/2013/04/21/us/tamerlan-tsarnaevs-citizenship-held-up-by-homeland-security.html. Another indication that the legal procedures involving citizenship status may have deficiencies as a public safety measure.
“Department of Homeland Security officials decided in recent months not to grant an application for American citizenship by Tamerlan Tsarnaev, one of two brothers suspected in the Boston Marathon bombings, after a routine background check revealed that he had been interviewed in 2011 by the F.B.I., federal officials said on Saturday.
Mr. Tsarnaev died early Friday after a shootout with the police, and officials said that at the time of his death, his application for citizenship was still under review and was being investigated by federal law enforcement officials.
It had been previously reported that Mr. Tsarnaev’s application might have been held up because of a domestic abuse episode. But the officials said that it was the record of the F.B.I. interview that threw up red flags and halted, at least temporarily, Mr. Tsarnaev’s citizenship application. Federal law enforcement officials reported on Friday that the F.B.I. interviewed Mr. Tsarnaev in January 2011 at the request of the Russian government, which suspected that he had ties to Chechen terrorists. “
From today’s NYTimes:
“The group of young Muslim men, some still teenagers, became known to the French authorities as the Buttes-Chaumont group after the police in 2005 broke up their pipeline for sending young French Muslims from their immigrant neighborhood to fight against American troops in Iraq. …. [S}ome officials and experts were skeptical that members ever posed a threat to France.”
http://www.nytimes.com/2015/01/12/world/europe/jihadism-born-in-a-paris-park-and-fueled-in-the-prison-yard.html
In other words, France thought that they were going to Iraq to kill Americans and therefore it was not their problem. Karma is a bitch.
Fazal Majid, Anwar Al-Awlaki is indeed an interesting case. This individual was in fact a U.S. citizen, falsely claimed he was not a U.S. citizen in order to fraudulently obtain a scholarship intended for foreign students and finally ended up being killed by a drone strike in Yemen.
According to his Wikipedia article, he was born in New Mexico and lived in the U.S. until his family returned to Yemen when he was seven. From Wikipedia:
“In June 2002, a Denver federal judge signed an arrest warrant for al-Awlaki for passport fraud.[94] On October 9, the Denver US Attorney’s Office filed a motion to dismiss its complaint, and vacate the arrest warrant. Prosecutors believed that they lacked sufficient evidence of a crime, according to US Attorney Dave Gaouette, who authorized its withdrawal.[2] Al-Awlaki had listed Yemen rather than the United States as his place of birth on his 1990 application for a US Social Security number, soon after arriving in the US. “The bizarre thing is if you put Yemen down (on the application), it would be harder to get a Social Security number than to say you are a native-born citizen of Las Cruces”, Gaouette said.”
…
“The New York Times suggested later that al-Awlaki had claimed birth in Yemen (his family’s place of origin) to qualify for scholarship money granted to foreign citizens.[61] US Congressman Frank R. Wolf (R-VA) wrote in May 2010 that it was his understanding that by doing so, al-Awlaki fraudulently obtained more than $20,000 in scholarship funds reserved for foreign students, for which he was not legally eligible”