Don’t Get Your Legal Advice From Edward Snowden
If Edward Snowden were a superhero, I’m pretty sure his superpower would be the ability to make otherwise intelligent people say remarkably stupid things. This post from University of Michigan professor and Middle East expert Juan Cole is a prime example:
Edward Snowden released a statement from Moscow on Monday, slamming Barack Obama for revoking his passport and rendering him stateless and unable to seek asylum even though Snowden has not been found guilty of any crime. (The US denies that revoking a passport is the same as deprivation of citizenship, but in this case it is hard to see the difference.)
Um, no. To argue that revoking Snowden’s passport is tantamount to revoking his citizenship is, in the language of my lawyer people, patently frivolous.
The authority to revoke a passport stems from 22 U.S.C. § 211a, which empowers the Secretary of State to “grant and issue passports . . . under such rules as the President shall designate and prescribe for and on behalf of the United States.” By Executive Order 11295, Pres. Johnson delegated that rulemaking authority to the Secretary of State, “without the approval, ratification, or other action of the President,” and the State Department then issued regulations governing passports which are codified at 22 CFR Part 51.
With regard to revocation, 22 CFR § 51.62 provides that “[t]he Department may revoke . . . a passport when . . . [t]he bearer of the passport may be denied a passport under 22 CFR [§] 51.60 or 51.61.” 22 CFR § 51.62(a)(1). 22 CFR § 51.60, in turn, provides that a passport can be denied “in any case in which the Department determines or is informed by competent authority that . . . [t]he applicant is the subject of an outstanding Federal warrant of arrest for a felony. . . .” 22 CFR § 51.60(b)(1). Reading Sections 51.62 and 51.60 together, then, the State Department has the power to revoke a passport in any case where the individual holding the passport is the subject of a federal arrest warrant for a felony. Which, of course, applies to Snowden.
None of this, of course, has anything to do with revocation of citizenship, which is governed by Section 1481 of the Immigration and Nationality Act, 8 U.S.C. § 1481. Section 1481(a) provides an exclusive list of the ways in which a natural-born American citizen can lose his or her citizenship: By “voluntarily performing” one of the enumerated acts “with the intention of relinquishing United States nationality.” Those acts include, among other things, becoming a naturalized citizen of another country; taking an oath of allegiance to another country; joining another country’s military, if that country is at war with the U.S. or if the individual becomes a commissioned officer in that country’s military; making a formal renunciation of U.S. citizenship; and committing treason. See 8 U.S.C. § 1481(a)(1) through (7).
The Supreme Court held in Vance v. Terrazas, 444 U.S. 252, 259-60 (1980), that Congress has no “general power, express or implied, to take away an American citizen’s citizenship without his assent,” quoting Afroyim v. Rusk, 387 U.S. 253, 257 (1967). Accordingly, the Court held that, in order to expatriate a natural-born citizen, the government must prove not only that the citizen voluntarily committed one of the acts enumerated in Section 1481(a), but that he or she did so with the specific intent to relinquish his or her citizenship. Terrazas, 444 U.S. at 261. So both parts of that test–that the individual has done something inconsistent with U.S. citizenship, and that he or she did so with the specific intent to renounce citizenship–are written into the statute.
In Snowden’s case, the Obama Administration has neither asserted that Snowden committed any of the acts enumerated in Section 1481 of the Immigration and Nationality Act, let alone that he did so with the intent to surrender his U.S. citizenship; nor, of course, has the Administration commenced proceedings to revoke Snowden’s citizenship under applicable law. More to the point, the idea that revoking Snowden’s passport, which effectively prevents him from traveling outside the United States, is the equivalent of revoking his citizenship, is absurd. In fact, if anything, revoking Snowden’s passport has the opposite effect. Rather than rendering him “stateless,” as he so dramatically put it, it means that he should be required to return to the United States. Naturally, he doesn’t want to do that because then he’ll have to face the charges against him.
You might ask why I care whether Snowden understands the legal distinction between revoking a passport and revoking citizenship. In fact, I don’t. What I do care about, however, is that every time Snowden speaks, his words–however absurd or illogical–ricochet around the internet as though they’re gospel truth. As I’ve argued before, the cult of personality surrounding the key figures in the NSA surveillance dustup–Snowden, Glenn Greenwald, President Obama–serves only to obscure the important civil liberties issues at stake here. And that’s compounded when otherwise smart people like Juan Cole provide a bullhorn to amplify even the craziest legal theories this twenty-nine-year-old kid espouses.
Poor Prof. Cole. If only there was some way a guy who works for a major university with a top-ranked law school could get competent legal advice other than from a high school dropout. . . .