No Ex Post Facto Laws, No Easy Loss of Citizenship

[Tim May]

First, even non-citizens have court rights now being denied to the concentration camp detainees. (Many of you reading this list are residents of the U.S. but not U.S. citizens. You must surely know that if you are charged with some crime you will have the same constitutional protections that actual citizens have--our courts are filled with trials of resident aliens.)

Second, losing citizenship is not easy. Check Google on "loss of citizenship" to find precedents, laws, etc. Basically, even serving in a foreign army does not cause loss of citizenship. (Which is symmetric with how we want other countries to behave when we draft their citizens into our armies--yes, when the draft was in place we expected all males reaching age 18 to register with our draft boards and expose themselves to serving in our military. Many foreigners served in our military.)

Basically, citizenship is not revokable. Not even traitors have their citizenships revoked. It can be given up, but not lightly and not without the initiative of the party giving up the citizenship.

In any case, this guy's citizenship has not been given up by him.

Third, even if it is argued that his actions caused him to lose his citizenship, he would then only be liable for prosecution as a noncitizen (whatever that may be, pace the first point above). To argue otherwise is to argue for an ex post facto law, which the Constitution specifically forbids.

He should be charged, if any charges are valid, as any other person should be charged and brought to trial in a U.S. court. (A non-U.S. resident, non-U.S. citizen, such as a German soldier in World War II, may be subject to capture and imprisonment as a POW, and perhaps even to trial in a military court. This is not being done in this case.)

In any case, a claim that a state of war exists is flimsy. No declaration of war has been made, neither by the Congress ("Congress shall have the power to declare war") nor by the Executive Branch (scholars debate whether the President has this power; in any case, Bush hasn't tried to do it).

The 9/11 attackers may or may not have been connected to Bin Laden's group (I think they were), but the state and people of Afghanistan were not in a state of war with the U.S. Possibly Mullah Omar knew of Bin Laden's plans in advance of 9/11, but I have seen no evidence of this. And certainly the rank and file Taliban were not apprised of this sneak attack plan. It looks like Afghanistan's guilt as a country (??) came from its unwillingness to round up Bin Laden and his men after 9/11. ("Harboring.")

(I could go on about harboring fugitives, extradition treaties, moral responsibilities, U.N. resolutions, etc. The U.S. attacked Serbia basically for harboring Milosevich. And so on. But the real issue is whether this unwillingness to turn over Milosevich, or Chile's unwillingness to turn over its former leaders, and so on, is the same as a country going to war.)

Back to Bush declaring this citizen to be unworthy of normal trial procedures. He was and is a citizen. His presence in Afghanistan and even his service in their military does NOT cause him to lose his citizenship. Even if it did, he could not then be tried as a noncitizen for alleged crimes committed when he WAS a citizen, by the "no ex post facto laws" provisions of the Constitution.

Finally, practically speaking, why not have normal trials for these Americans? The Rosenbergs got a real trial, not a military tribunal in Cuba or Diego Garcia. And so on for Walker, Hanssen, etc.

Even an obvious foreigner, General Manuel Noriega, received a trial in a U.S. court.

It is inconceivable that a low-level American serving in Afghanistan's military knows something which cannot be mentioned in open court (not that this is justification for secret military tribunals, but I mention it anyway).

If Bush is not overruled on this "declaration of being an Evil Doer" end-run of the Constitution, the implications will be dire.

The Supreme Court should overrule the Appeals Court and say very simply:

"This man was and is a citizen. His presence overseas did not cause him to lose his citizenship. If he faces charges, he faces them in a U.S. court with full access to lawyers, full habeas corpus rights, full rights to face his accusers, and so on."

And the Supremes ought to chastise the Bush Administration for thinking otherwise.

--Tim May