Counterterrorism Blog

As reported extensively in the media over the past two days, including here in the CT Blog, Adam Gadahn was indicted by a Federal Grand Jury in southern California for treason and providing material support to al-Qaeda. Gadahn, a 28 year old native-born American citizen, has surfaced as an alleged video mouthpiece and recruiter for al-Qaeda, ranting vindictive threats against his own country and countrymen. Today, an in-depth article by law professor Henry Mark Holzer appeared in FrontPage magazine analyzing the background and validity of the treason charge against Gadahn and Professor Holzer determined the Government is on very solid ground with its indictment.

Gadahn is an accused suspect and, as heinous as the accusations may be and no matter how strong the evidence in the case might seem, in America the accused is presumed innocent until proven guilty beyond reasonable doubt in a court of law. Hopefully, Gadahn will soon get his days in a US court.

The charge of treason has been rarely brought in America. As noted in the various press reports, the last such cases were more than fifty years ago, stemming from WW-II. The circumstances of America’s current conflict against radical Islamic terror organizations and their state sponsors are presenting opportunities for Federal prosecutors to potentially pursue such violations. We have, most unfortunately, seen a number of successful Federal terrorism prosecutions involving other violations wherein the defendants have been either naturalized or native-born US citizens. The recruitment of US citizens, especially native-born citizens, by al-Qaeda and affiliated/similar terrorist organizations, is something they aggressively pursue. As noted from the convictions brought to date, the Government has had some success in targeting such operatives with various terrorism-related and other criminal violations.

When such cases are pursued and especially when convictions result against US citizens who are involved in foreign terrorist organizations targeting America, issues invariably arise about the loyalties of those US citizen defendants. Clearly, when such defendants are convicted of terrorism related violations, especially violations such as conspiracy to levy war against the United States as some have been, it can be presumed their loyalties no longer reside with America.

When such defendants are naturalized US citizens and their criminal “bad acts” predate their naturalization, the Government can and usually does pursue revocation of the convicted defendant’s naturalization status. Sometimes, a separate felony naturalization fraud violation under 18 USC 1425 will be incorporated into the larger indictment when the evidence allows. Otherwise, a separate civil de-naturalization proceeding may be initiated under 8 USC 1451.

But what happens if the “bad acts” occurred after the naturalization? The unfortunate answer is the naturalized US citizen, now a convicted terrorist or terror supporter, gets to remain a US citizen. And for the native-born US citizen, that citizenship is sacrosanct. This even though such “citizens” have been convicted of offenses tantamount to being engaged in terrorist warfare, or supporting that activity, against their homeland. Or, does the law really say it must be that way?

Actually, no. At least under certain circumstances. A little known provision of the Immigration and Nationality Act, 8 USC 1481, that has been on the books for decades but is an even more rarely utilized statute than the treason law (and possibly may never have been used in an adversarial, involuntary case), allows for both naturalized and native-born US citizens to be stripped of their citizenship if they engage in certain activities. Among the most notorious such activities, as defined in subsection (a)(7) of the statute, are: “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.”

Clearly, this statute might provide an additional powerful tool to the Government in its counter-terrorism efforts. As noted previously, a number of naturalized and native-born US citizens have already been convicted in terrorism-related cases wherein the underlying activities supporting the convictions appear to fall within those defined in 8 USC 1481(a)(7). In fact, some of those defendants have even been convicted specifically of conspiracy to levy war against the US.

A full review of the 8 USC 1481 statute is quite revealing. There are other proscribed activities. These essentially relate to becoming a naturalized citizen of a foreign country or taking an oath of allegiance to a foreign country; under certain circumstances serving in the armed forces of a foreign country; or, under certain circumstances serving in any official position of a foreign government or political subdivision thereof. These are not in and of themselves “bad acts” but are proscribed acts under US nationality law. What is clear is those proscribed acts relate to the loyalty of the person performing the acts. The acts are indicative of loyalty to a foreign state and not loyalty to the United States, therefore the US citizen performing the acts is presumed to have abandoned his/her loyalty to the United States.

Of particular interest in this regard is the fact that some cases have been identified wherein terrorist and terror-supporting suspects who are US citizens have been found to hold dual nationalities with other countries. Could some of those suspects have served in foreign militaries while holding US citizenship? Did they take a foreign oath of allegiance? There are even cases wherein dual-national individuals have been publicly identified as holding public office in certain terrorist organization strongholds in a foreign land.

Of course, there is virtually no precedent with this law. Revocation of citizenship has almost always been against naturalized US citizens wherein there was evidence of fraud or misrepresentation with the underlying naturalization process, often linked to the larger criminal activity of the defendant. In the rare case where a native-born person loses their US citizenship, it is done through voluntary renunciation, something for which 8 USC 1481 also provides. Interestingly, 8 USC 1481(b) indicates that any citizenship revocation action would be civil in nature, meaning the rules of evidence and standards of proof would not be as strict as in criminal procedures.

Just because a legal statute and process may have been little (if ever) employed does not mean it has no value. Under the current circumstances of the GWOT, wherein the Government should be pursuing every legitimate lawful tool available to it to bring to bear against terrorist suspects and enemies, why shouldn’t such an avenue not be further explored?

What is the value in stripping a US citizen terrorist of their citizenship? The terrorist then becomes an alien. In the case of a naturalized citizen, they revert back to the nationality they held before naturalization and ultimately subject to potential deportation to their home country. In the case of a native-born US citizen, they would become a stateless alien, unless some other country conferred citizenship upon them or they held dual-nationality. Even with a stateless alien, such a person also, upon serving any criminal sentence, would be subject to deportation proceedings and could be detained during those proceedings and could be detained until a final removal order is obtained. If they are determined to be a national security threat, they could even be detained, indefinitely, after a final removal order is obtained if they could not be physically deported because no country would take them. For those stripped of their citizenship who are already outside the US, they could be barred from entering this country. For serious terrorist threats, therein lies another rationality behind the effort beyond the fact the law allows for it.

While these issues present serious considerations, they would invariably be highly controversial, especially relative to native-born American citizens. It should be remembered, however, that such persons would be citizens who, by their own actions, have demonstrated hatred and the ultimate disloyalty for their country. Do such persons really deserve discretionary shielding from a legitimate law that happens to be waiting for action?