Enemy Expatriation Acts: A stain on America

Learning from USWGO about this bill, I decided to investigate further. Theie blog claims that these laws are a repeat of Hitler's actions. I disagree.

The law (House version) is as follows:
HR 3166 IH
112th CONGRESS
1st Session
H. R. 3166
To add engaging in or supporting hostilities against the United States to the list of acts for which United States nationals would lose their nationality.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 12, 2011
Mr. DENT (for himself and Mr. ALTMIRE) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To add engaging in or supporting hostilities against the United States to the list of acts for which United States nationals would lose their nationality.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Enemy Expatriation Act’.
SEC. 2. LOSS OF NATIONALITY.
(a) In General- Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481) is amended--
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(1) in subsection (a)--
(A) in each of paragraphs (1) through (6), by striking ‘or’ at the end;
(B) in paragraph (7), by striking the period at the end and inserting ‘; or’; and
(C) by adding at the end the following:
‘(8) engaging in, or purposefully and materially supporting, hostilities against the United States.’; and
(2) by adding at the end the following:
‘(c) For purposes of this section, the term ‘hostilities’ means any conflict subject to the laws of war.’.
(b) Technical Amendment- Section 351(a) of the Immigration and Nationality Act (8 U.S.C. 1483(a)) is amended by striking ‘(6) and (7)’ and inserting ‘(6), (7), and (8)’.
[http://www.opencongress.org/bill/112-h3166/text]

The senate version is exactly the same (http://www.opencongress.org/bill/112-s1698/text).

The major question is, what does the bill actually do? Well, I looked in the U.S. Code to find out.

Currently the U.S. Code of that section reads as follows:
§ 1481. LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN; VOLUNTARY ACTION; BURDEN OF PROOF; PRESUMPTIONS
(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—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(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, or
(B) such persons serve as a commissioned or non-commissioned officer; or
(4)
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or
(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
(b) 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.

[http://www.law.cornell.edu/uscode/html/uscode08/usc_sec_08_00001481----000-.html]

The text would be amended in both bills to say:
"§ 1481. LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN; VOLUNTARY ACTION; BURDEN OF PROOF; PRESUMPTIONS
(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—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years;
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years;
(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,
(B) such persons serve as a commissioned or non-commissioned officer;
(4)
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state;
(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required;
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State;
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense;
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
(b) 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; or
(8) engaging in, or purposefully and materially supporting, hostilities against the United States.;
(c) For purposes of this section, the term ‘hostilities’ means any conflict subject to the laws of war."

I have major concerns with this legislation. The changes have eeriely similar ideas as other legislation passed in the past. Remember the Smith Act, like (7) in the proposed amendments to the U.S. Code. The Act still on the books is as follows:
"§ 2385. ADVOCATING OVERTHROW OF GOVERNMENT
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—
Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons."

Under this proposed law, the Enemy Expatriation Act the crime of professing overthrow of the U.S. government expands. Under the Smith Act of 1940, if you advocate abet, advise or say it it is one's duty and is desirible to "overthrow...or destroy...the government of the United States or the government of any State, Territory, District or Possession...by force or violence." you can be imprisoned for 20 years, fined or blacklisted from any future federal government jobs. Also under the 1940 law if you intend to destroy and overthrow government and you "print...publish...edit...issue... circulate...sell...distribute...or publicly display...any written or printed matter [that] advocat[es], advis [es] or [preaches that such action is a] necessity [or is] desirabil[e]...by force or violence" then you can be blacklisted from a government job, put prison for twenty years or fined. Also if you organize, help organize such action or "become...a member of, or affiliate.... with, any such society, group, or assembly of persons" that supports the violent overthrow of government, you
face the same punishment. If it includes two or more people, they face the same punishment.

This law, the Enemy Expatriation Act, would force renouncement of citizenship on a U.S. citizen if they commit treason, attempt to overthrow (violently or non violently) the United States government, conspire to commit treason or overthrow government, destroy by force the government itself or fulfill the vague statement and "levy war against them [the establishment]."

Most of the provisions in the original amended law were in a sense dormant, as the U.S. government had a number of reasons why one would lose their citizenship. Now they have been reawakened in this this legislation. One of the more disturbing revivals is the power to the Attorney General, who "shall approve such renunciation [of citizenship] as not contrary to the interests of national defense." So, if you are considered as not advancing the "interests of national defense" (interests of the military-industrial-complex) your citizenship can be revoked. Under the proposed law if you obtain "naturalization in a foreign state" at age 18, your citizenship can be taken away. At the same age, allegiance can have the same effect. "Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision" can take away one's citizenship. Serving in armed forces "engaged in hostilities against the United States" can remove one's citizenship. It is unsure what "engaged in hosilities" means, which seems to be another ambiguity of the law. Being employed in a "foreign state or a political subdivision thereof" after age 18 (if you are a citizen of that country) and taking an oath or affirmation for such a job removes citizenship. Also, "making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state" removes citizenship ( only good part of the bill).

Of the proposed legislation, the laat part is the most troubling. Under (8), if a U.S. citizen engages in "purposefully and materially support[s] hostilities against the United States" citizenship can be revoked. This could br used for the purpose of stopping peace activists from standing up to the war machine. In (8)(c) this is not clarified as it defines as "any conflict subject to the laws of war." I am not sure what laws of war means but if it is talking about the Hague Conventions in 1899 and 1907, the law is mistaken. In both conventions, treaties came out which required peaceful settlement before war. The later Kellogg-Briand Pact, renounced war as an instument of foreign policy, in a sense outlawing it.

I am concerned about this legislation not only because phrases like "laws of war" are ambigious, but because of the expanded power given to government. My fear is that this law could be used to stamp out peaceful protest and is just a way for the establishment to maintain control. Tell your "Congressmen and Senators to please heed to call" and vote against the Enemy Expatriation Act.
- Burkely Hermann

Names of legislation in Congress:
S. 1698
H. 3166
Use opencongress.org to send letters, or find your specific senators or representatives and sdnd them letters.

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