Thoughts on Peter Schuck’s Wall Street Journal Editorial

by Kevin Jon Heller

Ken has already flagged the editorial, in which Schuck — a superb scholar who teaches at Yale — argues that it would be constitutionally permissible to strip Faisal Shahzad’s US citizenship because of his attempt to set off a car-bomb in Times Square.  I’m skeptical of Schuck’s argument, so I thought I’d explain why.  Here are the key paragraphs:

Revoking the citizenship of Awlaki and the Fort Hood killer, both U.S.-born, presents a more complicated constitutional question. Under a 1940 statute that is still in force, the government can de-nationalize citizens who serve in a foreign military; vote in a foreign election; swear allegiance to, hold office, or naturalize in a foreign state; expressly renounce their citizenship before certain U.S. officials; or conspire to make war against the nation.

But a 1967 Supreme Court decision, Afroyim v. Rusk, held that Congress cannot revoke citizenship without the citizen’s consent. Thus, in the case of the Times Square bomber, the government would have to prove that when he committed any of the actions listed in the statute, he intended to relinquish his citizenship.

In a 1980 case, Vance v. Terrazas, the Court reaffirmed this “intent to relinquish” requirement, but allowed the government to prove it by a mere “preponderance of the evidence.” Afroyim and Terrazas, which were both 5-4 decisions, accepted that a jury might infer intent to relinquish citizenship based on conduct—that is, even if the individual didn’t utter the magic words “I intend to renounce my citizenship”—so long as he had fair opportunity to show otherwise.

The question, then, is which acts might prove the specific intent demanded by these two rulings. In Shahzad’s case, if the government can show that he placed a bomb in Times Square at the behest of a terrorist group seeking to kill people simply because they are Americans, I believe that it should easily suffice. Unlike the citizen’s act in Afroyim—voting in an Israeli election—the Times Square plot precludes any notion of allegiance.

First off, I’m not sure what we gain by adopting Schuck’s argument.  The argument appears to be evidentiary, not substantive: as I read the editorial, Schuck is not claiming that it is acceptable to strip Shahzad’s citizenship because he engaged in an abhorrent act; instead, he believes that we can infer the requisite intent to renounce citizenship from the abhorrent act.  After all, Schuck acknowledges that Shahzad would have to be given a “fair opportunity to show otherwise” — to rebut the presumption of intent to renounce citizenship — before his citizenship would be taken away.  Presumably, then, all Shahzad would have to do is say, “no, I did not intend to renounce my citizenship.”  End of story.

Perhaps I’m wrong about Schuck’s argument.  Perhaps he is arguing that certain acts are so inconsistent with the idea of allegiance that the commission of one of those acts establishes an irrebuttable presumption of the intent to renounce citizenship.  If so, that argument seems to have two very significant problems.  To begin with, I don’t know how it could be reconciled with the “fair opportunity to show otherwise” requirement.  In effect, such a presumption would covertly restore the 1940 statute’s objective test for loss of citizenship; that objective test would simply be cloaked in subjective garb via the fiction that anyone who commits one of the acts in the 1940 statute must have intended to renounce citizenship, regardless of what he might claim now.

Such an irrebuttable presumption would also be underinclusive.  What is it about Shahzad’s act that makes it possible to conclude that it “precludes any notion of allegiance” to the US?  It can’t be that Shahzad was willing to kill innocent Americans.  If that was the case, common murderers would also lose their citizenship.  Is it that Shahzad was willing to kill innocent Americans to make a political point — one of the defining features of terrorism?  If so, pro-lifers who kill abortion doctors should lose their citizenship, as well.  As should the Hutaree Nine.  As should, perhaps, Obama if he follows through with his plan to assassinate Americans abroad who advocate terror.

To be sure, the civilians in Times Square are much more innocent than Americans abroad who advocate terror, such as Anwar Al-Awlaki.  Innocence, however, is in the eye of the beholder.  Pro-life murderers believe that doctors who perform abortions are not innocent, even though what they do is legal and constitutionally protected.  Christian terrorists like the Hutaree Nine no doubt genuinely believe that they are doing battle with the forces of Satan.  And Shahzad almost certainly believes that ordinary Americans are complicit in US crimes against Muslims in the Middle East.

But what does any of this have to do with “allegiance” to the US?  I doubt many people would conclude that pro-life murders or Christian terrorists must want to renounce their citizenship because they are willing to kill innocent Americans to further their political goals.  So how can we infer anything about Shahzad’s attitude toward his citizenship from his willingness to set off a bomb in Times Square in pursuit of his ideology?  Schuck infers Shahzad’s lack of “allegiance” to the US from the fact that he placed the bomb “at the behest of a terrorist group seeking to kill people simply because they are Americans.”  But that is an unpersuasive understanding of Shahzad’s motivation.  Indeed, it simply echoes the right-wing talking point that terrorists “hate us for our freedom.”  No, they don’t.  They hate us for our policies in the Middle East (and elsewhere).   Presumably, if the US stopped engaging in the acts that motivated Shahzad to turn to terrorism, he would no longer have any interest in committing terrorist acts.

To be sure, such a transformation of American policy is extremely unlikely.  Shahzad might even believe that the only acceptable US would be one governed solely by Sharia.  But that still wouldn’t tell us anything about his ostensible desire to renounce his citizenship.  I imagine that Shahzad would be more than happy to be a citizen of a Sharia-based US.  If so, his acts would indicate that he wants to be a citizen of a different kind of America, not that he doesn’t want to be an American citizen.

I know what many readers are thinking.  “But Kevin, a US based on Sharia wouldn’t be the US.  The US isn’t supposed to be a theocracy.”  I completely agree — but I don’t see anyone clamoring to take away Sarah Palin’s citizenship because she said this: “Go back to what our founders and our founding documents meant – they’re quite clear – that we would create law based on the God of the Bible and the Ten Commandments, it’s quite simple.”  That is no less a call for theocracy than a call to turn the US into a Sharia state.

The point, of course, is this: any attempt to infer an intent to renounce citizenship from a particular kind of abhorrent act, such as setting off a car-bomb in Times Square, necessarily depends upon a particular conception of what the US “really” is.  Only such a conception allows us to plausibly maintain that a particular act “precludes any notion of allegiance” to the US.  And it is precisely that idea — the idea that acts like voting in a foreign election or serving in a foreign military are per se inconsistent with being a “real” American — that the Supreme Court rejected in Afroyim.  The genius of that decision was the simplicity of its basic assumption: that the only way to determine whether someone wants to renounce their citizenship is to ask them.

6 Responses

  1. Kevin,

    In my humble opinion, you attempt to prove too much and it undermines your argument.  As a criminal lawyer, you well know that a fact finder always infers intent from conduct or a course of conduct.  I think Schuck’s only point is that a fact finder may infer the requisite intent from this act and the related course of conduct.  Shahzad is free to testify otherwise, but the fact finder is always free to be unpersuaded by his testimony.  Murderers sometimes claim the death was an accident and are nonetheless convicted of murder.

    Carried to its loosely logical extreme, as you demonstrate, allowing this inference in every remotely similar case has potentially odd consequences.  I see no reason for it to go to that extreme.  Fact finders are people of reason.  Killing many innocent Americans on behalf of a foreign entity that is engaged in armed conflict against the U.S. elsewhere on the globe more strongly supports an inference regarding citizenship in Shahzad’s case than the solely domestic crimes you mention.  Simply allowing that inference does not create a rebuttable or irrefutable presumption.  From what Schuck writes, the statute with the gloss of case law does just that.  It allows the inference and creates no presumption (although the statute may originally have been intended to do just that).

    I will grant you that ‘making war against the U.S.’ could be interpreted quite broadly.  However, I do not see that as necessarily resulting from allowing an inference in Shahzad’s case.  There are many protections against that in the legal system — ones that we commonly rely upon in other contexts.  First, attorneys must file the case based on a good faith belief that in its legal propriety.  Next, judges must find the case legally sufficient to proceed.  Finally, fact finders must resolve doubtful questions of fact, to include the mental state of the defendant.  Each of these would likely prevent most or all of the other cases you mention from resulting in a loss of citizenship.

    I agree with you that killing a U.S. citizen does not necessarily convey an intent to relinquish U.S. citizenship.  However, nobody is arguing that such an act or attempt, even when coupled with an anti-current-U.S.-policy/action motive, is necessarily sufficient.  An increasingly declining number of citizens and judges have taken an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic” but that does not mean that they cannot resolve doubtful questions regarding who those enemies are.

    I, for one, am fairly comfortable with the notion that enemies of the Constitution and its government are not part of “the people” and do not share their constitutional protections or other rights of citizenship.  I recognize that reasonable (as well as politically radical) minds might differ on who should be considered an enemy of the Constitution, but our legal system makes these types of legal and factual distinctions every day, with the fallibility of all human endeavors.

  2. I should clarify that the oath of federal judges includes the quoted language above, and that my comment was directed to the increasing number of citizens, etc. who have not served as members of the armed forces.

  3. John,

    If you think juries can reliably determine whether a citizen terrorist not only wanted to influence the American government but also intended to renounce his citizenship, you have much more faith in jurors than I.  As I said in the post, inferring the requisite intent in the face of an explicit denial is an objective test masquerading as a subjective one — effectively an assumption that no one could possibly engage in any of the acts listed in the 1940 statute without intending to renounce citizenship.  (An irrebuttable presumption, de facto if not de jure.)  Because if the meaning of those acts is equivocal, the jury will have nothing to base its decision on other than the citizen terrorist’s equivocal act and his explicit denial that he intended to renounce his citizenship through that act.  What other evidence is there?

  4. I, for one, am fairly comfortable with the notion that enemies of the Constitution and its government are not part of “the people” and do not share their constitutional protections or other rights of citizenship.

    That comment simply makes my point.  The Supreme Court says that a person is entitled to citizenship unless they intentionally renounce it.  You say that a person who is an “enemy of the Constitution” — whatever that means; Sarah Palin? — should not be allowed to be a citizen.  And you want me to believe that, if you were on a jury in a removal-of-citizenship case, you would decide the case solely on the basis of your empathetic reconstruction of the defendant’s subjective intent, without any consideration of whether he is, in your view, objectively an “enemy of the Constitution”? Wouldn’t you simply assume that anyone who engages in an act that you believe makes someone an enemy of the Constitution must have intended to renounce citizenship? But how could you have any confidence in that determination?

    Jurors make accurate mental-state determinations in two situations; (1) when they are sociologically similar to the defendant; and (2) when they have accurate prototypes of how a particular mental state is normally manifested through action.  Neither condition is likely to hold when the mental state in question is a citizen terrorist’s intent to renounce citizenship; indeed, I find it hard to imagine a mental-state determination that is likely to be less accurate.

    Interested readers should see my essay “The Cognitive Psychology of Mens Rea,” published last year by the Journal of Criminal Law & Criminology.  It’s available here.

  5. Kevin,

    Regarding your first point, I am sure that the statute as written intended a presumption.  I submit that as limited by the Court (at least as describe by Schuck), it does not.  The Court’s requirement (for intent to “relinquish,” not “renounce” citizenship, a distinction with a difference if accurately portrayed by Schuck) seems to make the acts jurisdictional but not determinative or even presumptive, at least as a legal matter.  I have as much faith in jurors here as I do in criminal cases — which is to say that I recognize they are fallible but it is the system we have.  No system is perfect nor should perfection be expected.  I definitely do not think that an explicit denial by a defendant should be determinative in this context any more than it should be in a criminal case.

    As to your second comment, I will first say that there is a fair amount of Supreme Court precedent supporting my (quoted-by-you) position in the context of armed conflict.  I am comfortable that some (myself included) can make a balanced, objective assessment of an individual’s intent (or utter lack thereof) in this context — and even take into account that things have changed since this statute’s enactment, such as the rise of countries allowing dual citizenship.  I also recognize that even objective assessments are sometimes wrong, and that jurors and others sometimes react rather than deliberate.

    Regarding “enemies of the Constitution,” who would you have determine that?  I get that you think it is a malleable term (“whatever that means”) but it is the oath most U.S. government officials swear.  It must be ascertainable in at least some contexts.  The elected branches necessarily make these determinations every time they declare war, authorize the use of military force, or engage in defensive action.  Are juries more or less likely to make a correct determination?  Is it solely a political and not a legal standard, as you seem to suggest at certain points?  If so, then why not simply allow the elected branches, the presumptive representatives of “the people,” decide?  I understand your mistrust of juries, I truly do.  I am simply unable to subscribe to the notion that only a defendant can determine their mental state at the time of an overt act or during a course of conduct.  We all know, of course, that defendants never lie, right?

    Let’s not bring Sarah Palin or targeted attacks by the President into this.  Those diversions are not fairly within the scope of what we are discussing.

    At bottom, your argument essentially appears to be that there is no true, or perhaps fair, legal standard — or at the very least not one that can ever be accurately adjudged in our current legal system.  My counterpoint is that such an argument basically argues against determining any issues of mental state in our legal system, except perhaps in the circumstances that you argue jurors are capable of making accurate judgments.  On that issue, does your thesis extend to judges in civil law systems?  Surely they are not “sociologically similar” (whatever that means – Can that change over time, for instance?  What if one “remembers their roots” even though their sociological status has changed/elevated or declined?) to most defendants they face.  Can any legal system accurately do this in every case?  How much error is acceptable?

    By the way, I do enjoy your intellectually stimulating thoughts, even when I find it hard to agree with you.

  6. John C. Dehn
    I invite you to Google the phrase “enemies of the constitution and its government.” You’ll find some really scary stuff. Kevin is right to point out that the process of inferring intent to relinquish citizenship from an act of terrorism aimed at changing or retaliating against U.S. government policy is easily infected by one’s politics. Correct me if I’m wrong about this, but I doubt that either Timothy McVeigh or the failed Time Square bomber ever  gave a moment’s thought to relinquishing his U.S. Citizenship before he acted.

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