Banished: A British Solution to Citizenship, Due Process, and US Drone Strikes

Senator Paul's nearly 13-hour filibuster over domestic drone strikes and executive authority to kill U.S. citizens included both laudable calls for transparency and increasingly absurd---even damaging and distracting---hypothetical scenarios. Here is a non-hypothetical approach to confronting citizen-terrorists: The British executive avoids pesky due process considerations entirely by simply revoking the citizenship of suspected terrorists, even those born in the U.K. A report from the Bureau of Investigative Journalism and published by the Independent finds that since 2010, the U.K. has revoked the passports of at least 16, and as many as 21, citizens with suspected links to terrorist groups. Five of those identified are U.K.-born, and two were subsequently killed in U.S. drone strikes; Bilal al-Berjawi, a British-Lebanese citizen who came to the U.K. as a baby and Mohamed Skar, a British-born dual Egyptian national. The Bureau has a graphic timeline here. According to the Independent,

Laws were passed in 2002 enabling the Home Secretary to remove the citizenship of any dual nationals who had done something "seriously prejudicial" to the U.K., but the power had rarely been used before the current government took office. The Bureau's investigation has established the identities of all but four of the 21 British passport holders who have lost their citizenship, and their subsequent fates. Only two have successfully appealed---one of who has since been extradited to the U.S.

Only Britons who hold dual citizenship are eligible to be stripped, consistent with the British legal prohibition against rendering individuals stateless. In a separate article on the topic, the Bureau notes that this criteria has arbitrary effects:

When people from some countries such as India become British, they are required to give up their original nationalities. And since U.K. law says you cannot be made stateless, the Home Secretary would not be allowed to strip you of your British citizenship. Yet people from Pakistan are allowed to have dual citizenship, and so if your family's roots are from that country, your British citizenship could in theory be at risk.

The protections of British citizenship are especially relevant to individuals who come in contact with U.S. law enforcement, impacting extradition rights and intelligence-information sharing between the allied nations. In April 2003, a U.K. court overturned the attempt to strip terrorism suspect Abu Hamza al-Masri of his British citizenship, finding that because his Egyptian citizenship was previously revoked, he was no longer a dual citizen. That timing proved serendipitous for Abu Hamza, who was extradited to the United States in October of last year. First, because Abu Hamza is a British citizen, the U.K. cannot extradite him to a country where he will face the death penalty.** The U.K. is a signatory to the European Convention on Human Rights, which effectively means it must obtain assurances from the United States that Abu Hamza will not be subject to "inhumane or degrading treatment," including the death penalty. According to the BBC, U.S. Department of Justice officials have said there is "no question of any of the men facing the death penalty, or entering the military justice system at Guantanamo Bay." Second, Abu Hamza's extradition was held up for more than eight years as U.K. lawyers wrangled over whether U.S. supermax prison facilities are too harsh under the prohibition on inhumane or degrading treatment. (See Alan's post from last April on the European Court of Human Rights case that approved of Abu Hamza's extradition.) Deprivation of citizenship also paves the way for information-sharing about a suspect between British and American intelligence agencies. From the Independent:

"It appears that the process of deprivation of citizenship made it easier for the U.S. to then designate Mr. Sakr as an enemy combatant, to whom the U.K. owes no responsibility whatsoever," [Skar's former lawyer] Saghir Hussain said. [Immigration Law Practitioners' Association president Ian] Macdonald added that depriving people of their citizenship "means that the British government can completely wash their hands if the security services give information to the Americans who use their drones to track someone and kill them."

Additional criticism is aimed at the extrajudicial process by which the government deprives citizenship. Human rights lawyer Gareth Peirce says the process "smacks of medieval exile, just as cruel and just as arbitrary." According to the Bureau:

Equally troubling is the process which leads to deprivation. Despite the removal of nationality being perhaps the most extreme sanction a British government can take against its own citizens, the courts have no role in the original decision. Instead the Home Secretary, acting on advice from the intelligence services or others, can simply revoke the citizenship of dual nationals with immediate effect where she believes it is "conducive to the public good." This means she can make the decision based on what she believes an individual might do, rather than because of specific acts.

Critics raise constitutional objections to the executive's undertaking extreme sanctions against citizens without judicial review. Sound familiar? These criticisms map almost identically to the ongoing domestic debate surrounding targeted killings. According to Kat Craig, legal director for Reprieve, a U.K. legal organization dedicated to enforcing human rights for prisoners:

All those at risk of this practice, including those who were born and raised in this country, have never been charged with any crime. The revocation of their citizenship is carried out behind closed doors by the Home Secretary without any sort of due process or transparency.

A Home Office spokesperson responding to the criticisms, told the Daily Mail

Citizenship is a privilege not a right. The Home Secretary has the power to remove citizenship from individuals where she considers it is conducive to the public good. An individual subject to deprivation can appeal to the courts.

Lest we believe this to be a uniquely British phenomenon, U.S. legislators have, in fact, considered the idea of removing natural-born citizenship. (Naturalized U.S. citizens can still lose their citizenship, absent any criminal conviction, for "membership in a subversive organization or group." 8 USC § 1451.) In 2010, Senators Joe Lieberman and Scott Brown introduced the Enemy Expatriation Act which would have allowed the State Department to remove a U.S.-born individual's citizenship upon its determination that he or she was involved with or working for a designated terrorist organization; a sort of compulsory "love it or leave it" policy. The bill was condemned by the ACLU:

This proposal is unconstitutional and ineffective. Removing one’s citizenship is a terribly serious act with far-reaching implications, and it is especially egregious when based upon suspicion and a potentially erroneous determination made by individuals without any constitutional determination of guilt. This bill turns the whole notion of due process on its head.

The bill promptly died in committee, so U.S.-born citizens who become senior operational leaders of al-Qa'ida can sleep soundly knowing their status as citizen is safe---but they should probably do so under pieces of reflective glass and thick trees. As to naturalized citizens who throw in their lot with the bad guys, the U.S. Citizenship and Immigration Services (USCIS) and the State Department make citizenship-revocation determinations. However, DHS regulations and USCIS policies in effect since August 2011 hold that "unlike most other proceedings conducted under the INA which are handled in administrative settings, denaturalization actions must be filed in federal district court." Unlike administrative proceedings and those employed by the U.K. Home Secretary---where decisions go into immediate effect with an appeal remedy---these citizenship decisions do not go into effect until a court reviews. **Update 12:20 pm: An astute reader observes that it is not technically accurate that "because Abu Hamza is a British citizen, the U.K. cannot extradite him to a country where he will face the death penalty." As this reader notes "the prohibition of the European Convention on Human Rights against extraditions of a person to face capital charges is not limited to nationals of the extraditing country. Indeed, Soring v. UK, the European Court of Human Rights' decision that announced the non-extradition rule, involved a non-UK national whom the UK sought to extradite to face capital chargers in Virginia." My understanding---with an open invitation for correction---is British citizenship functionally prevented Abu Hamza from facing the death penalty because the decision prevented his deportation to Egypt, where ECHR obligations would not apply. Because the British were forced---by virtue of his citizenship---to extradite Abu Hamza, they were obligated to seek assurances from the U.S. regarding the death penalty and Guantanamo Bay. Those assurances, and not the ECHR or British law, constrain U.S. action. As an aside, it appears the Brits learned their lesson from Abu Hamza (who was arrested in the U.K.) and now routinely wait to strip citizenship until the target is out of the country. Because the order immediately deprives an individual of citizenship and corresponding rights to assistance from British embassies and consulates, it dramatically impacts the ability to challenge the deprivation order within the mandated 28-day window. Here is a full list of individuals deprived of citizenship.