December 5, 2013
The rights of citizenship are among the most crucial to a democracy– from citizenship flows the full range of legal protections against unwarranted government interference, and the ability to travel freely.
Citizenship for an American is made plain by the issuance of a U.S. passport by the U.S. Department of State. That passport once could only be seized and revoked by State under clear rules, and with a form of redress made explicit. Those strictures may still apply to most Americans, everywhere. Everywhere but in Yemen.
NSC: 500 Unlawful Passport Seizures in Yemen?
According to exclusive information obtained through a U.S. government whistleblower involved directly with U.S.-Yemeni affairs, the American Embassy in Sanaa, Yemen unlawfully seized over one hundred U.S. passports from Yemeni-Americans (some place the number at 500 passports), resulting in multiple lawsuits in Federal court. The Department of State, responsible for all U.S. passport matters, lost one case, and settled three others out-of-court. Yemenis in the U.S. are bringing the issue to the attention of the National Security Council and Congress, demanding oversight and assistance. State’s response has been to stonewall the inquiries inside the U.S., and to award and promote the person at the U.S. embassy in Yemen responsible for the seizures.
The leaked information supports the contention that passport seizures are a bigger problem than was originally believed. The Yemen Post cited only twenty cases. A forum for legal advice includes accusations of the same, prompting one attorney to comment "The U.S. consular officers in Yemen believe they are God and act accordingly."
However, in emails from the National Security Council to the State Department obtained by this blog, the Director for Yemen cites contact from "another" immigration attorney on the subject, and, more significantly, an inquiry that involves 500 seized/revoked passport cases. She asks State "Can you tell me what he is referring to?" State’s response was to promise to hold a meeting with some Yemeni-Americans to "hear their concerns." The last email in the chain is again from the NSC, pleading for confirmation that any such meeting actually took place.
Abdulhakem Alsadah, who coordinates a Yemeni-American society in Michigan, said though he initiated calls to the State Department, he has never been contacted by them. He knows of no meetings held "to hear concerns." The publisher of a Yemen-American news site also says he has heard of no meetings held by State. Both men would welcome the chance to speak directly to the officials responsible for what they see as a significant violation of rights at the U.S. embassy in Sanaa.
The Case of Abdo Hizam
The use of extra-judicial passport seizures by State against Yemeni-Americans extends back several years, and appears connected to the case of drone-assassinated al Qaeda propagandist and American citizen Anwar al-Awlaki.
Yemeni-American Abdo Hizam immigrated with his parents to the U.S. at age nine, growing up a typical American kid outside Detroit. He was issued a U.S. passport, and in fact renewed it twice through the State Department. As an adult, Hizam traveled to Yemen in 2009. In the course of a routine immigration matter regarding his own children, the U.S. embassy unlawfully seized Hizam’s passport, providing no explanation. After three weeks of silence, he was permitted by the embassy to return to the U.S.
Two years after returning home, around the same time as the more spectacular passport case of Anwar al-Awlaki, the State Department told Hizam that he had received his citizenship "in error" twenty two years earlier. The mistake was no fault of his or his parents. In fact, the government adjudicated the original application wrong, and admitted so. Nonetheless, State revoked his passport and stripped Mr. Hizam of his nationality, plunging him into statelessness, declaring he was, at the stroke of the pen, no longer an American. Hizam could not leave the U.S., and his wife and children in Yemen were not issued visas by State to come to the U.S., actions that kept the family apart for three years. Hizam was offered no chance to argue, no recourse by the State Department but to accept his forced expatriation.
Hizam was however one of the lucky ones. Still in the U.S. physically but no longer legally, he sued the government. While the State Department argued in part that it could retroactively apply a law passed long after Hizam became a citizen to revoke his citizenship, in Hizam v. Hillary Clinton, a court ordered State to give Hizam back his passport. The court scolded the State Department that at the time it approved Hizam’s citizenship it was "impossible for him to have received any notice whatsoever that his status could be revoked in the future."
"It’s certainly a scary power that the State Department is asserting here," one of Hizam’s lawyer said. "The fact that the State Department can go back and ask these questions when somebody has, from childhood, been a U.S. citizen, is very frightening."
But instead of accepting it could not go back to the future in Hizam’s case, State doubled-down and instead tried to stay the court order until it completed a lengthy appeal of the case, claiming the Department "will suffer irreparable injury because the Order undermines its 'sole discretion’ to withhold passports." The court disagreed and for the time gave Hizam back his passport, his citizenship, his right to travel and the ability to reunite with his family. State continues to appeal; the U.S. Court of Appeals for the second circuit the government’s arguments two months ago, but has yet to issue a decision. A lawyer familiar with the case stated "The government recognizes that their position is causing great unfairness to this man and suggests that the only remedy is to get a special law passed specifically for him."
After failing to establish legal precedent for its unlawful passport revocations, the State Department appears to have shifted gears, simply ignoring the law to physically seize passports from Yemeni-Americans seeking routine services at the embassy in Sanaa, or those tricked into coming in. Supporters of the affected Yemenis report regular but often vague accusations of fraud being used as excuses to simply grab a passport. Others say that elderly Yemeni-Americans coming to the embassy for routine social security questions have been subjected to interrogations and again, after being accused of fraud, losing their passports without further explanation. While regulations require a formal, deliberative process to legally seize a U.S. passport, especially abroad where such seizure can strand an American and subject him to host-country immigration penalties, in Sanaa these regulations were bypassed simply by labeling the seizures as a case in need of "additional administrative processing."
The embassy in Sanaa gave itself top cover for its actions. In a cable obtained by Wikileaks, the embassy noted that "all immigrant visa cases are considered fraudulent until proven otherwise. Interviews are complex, due not only to fraud, but also to the illiteracy and poor education of applicants."
Rashid al-Novili, publisher of the Michigan-based Yemeni-American, believes 100 or more Yemeni-Americans have had their passports taken away in Sanaa under dubious circumstances. He met with Congressman John Dingell not only to seek assistance but to remind him that word spreads fast in Yemen: these American citizens who could be serving as helpful bridges between the two countries are instead passing the word that the U.S. government seems to be singling them out for punishment (Dingell’s Dearborn office acknowledged the passport issue, but referred formal comment to the Congressman’s Washington office, who in turn refused to comment on the matter.)
A Bigger Picture
The actions at the American embassy in Yemen, while at first appearing to be little more than spiteful bureaucracy, fit into a larger pattern. For example, at the same time in 2011 the U.S. was ramping up its actions against Yemeni-Americans, Australia appeared to be doing much the same thing. "Withholding passports is an important means of preventing Australians from traveling overseas to train, support or participate in terrorism," an Australian government spokesperson said. "It may also be used to help prevent an Australian already overseas from participating in activities that are prejudicial to the security of Australia or another country."
The Government of the United States can also take away passports from American Citizens if "The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States."
If the government feels it is against its interest for you to have a passport and thus the freedom to travel, to depart the United States if you wish to, it will just take it away. The law allows this prospectively, the "or are likely to cause…" part of the law, meaning you don’t need to have done anything. The government just needs to decide that you might.
A Judicial Watch Freedom of Information Act request revealed that prior to having him and his 16 year old son killed by a drone in 2011, then-Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, al Qaeda propagandist and U.S. Citizen. The State Department even tried later to invite al-Awlaki into the U.S. embassy in Yemen so that they could encourage him to return to the U.S. to face charges. In a cable to the embassy in Sanaa, al-Awaki’s street address was listed. The embassy was to send him a written letter inviting him into the embassy, specifying that he was to bring along photo ID "to preserve his privacy rights." Six months later (al-Awlaki never dropped by the Embassy, by the way), the U.S. government simply killed him. Two weeks after that it killed his 16 year old son, also an American citizen.
Because the passport revocations at the Secretary of State’s pleasure can be secret, it has been difficult to track down recent examples where the U.S. government revoked the passport of an American simply because his/her presence abroad bothered– or might bother– the Secretary of State. In fact, the only example found was that of infamous ex-CIA officer Phillip Agee, who in the 1970′s exposed CIA officers identities. It was in Agee’s case that the Supreme Court coldly stated that "The right to hold a passport is subordinate to national security and foreign policy considerations."
There is at least one other case of extra-judicial forced expatriation, this one outside of Yemen, though it follows an identical pattern of action by the State Department. Officials at the American embassy in Kuwait told an American working as a U.S. military contractor there that after they confiscated his passport that "he should no longer consider himself a U.S. citizen."At issue is a 20 year old problem that occurred before the Moroccan-American resident of Oregon even was a U.S. citizen. "American citizenship is too important to be subject to the whims of low level bureaucrats," a lawyer for the subject wrote. "If there are any concerns about my client’s citizenship, he has the right to have those concerns addressed through the judicial process once he returns to the United States." The State Department referred questions about the case to its Bureau of Consular Affairs, where an official said she could not discuss the case because of privacy concerns.
State Department’s Response
Though the State Department did not respond to requests for comment on this article either, in response to a Yemeni newspaper inquiry the Department said "While we do not comment on individual cases, we take all passport fraud allegations seriously. U.S. passports are the property of the United States Government and under certain circumstances can be revoked."
Perhaps more telling is the State Department’s actions toward the American embassy official in Yemen in charge of the passport revocations. On November 13, via a cable sent worldwide to all embassies and consulates but curiously not yet made public, the State Department named the official consular officer of the year, an award for excellence that the cable said acknowledged "outstanding individual contributions… with a particular emphasis on efficiency and quality… the committee was impressed with (her) inspired leadership." According to that official’s Facebook page, she was also promoted, and given a dream follow-on assignment from Yemen to Australia.
State’s generous actions toward its official in Yemen are more than the usual puffery. They strongly imply sanction of the passport seizures and revocations, and thus encourage additional such actions despite the concerns at the White House and lawsuits that have followed. In the world of bureaucracy, no career action survives public chastisement without having official sanction.
The War Hits Home
Despite the devastating effect on individual lives, it is hard to see what is truly being accomplished in Yemen for the United States. Perhaps like the NSA hoovering up our Facebook posts, the point may be not that they need to do it, but that they can. A bureaucracy unchecked just continues to reach deeper into citizens’ lives.
On the other hand, open season on Yemeni-Americans appears more than simple bureaucratic zeal. Since 9/11, the U.S. has stopped considering law and regulation in favor of unilateral, and often times secret, extra-judicial actions. From the more significant steps of indefinite imprisonment without trial, to torture to daily violations of Constitutional freedoms, the tentacles of the war on terror now reach as far as the forced expatriation of individual American citizens.
Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well, and writes about current events at his blog. Van Buren’s next book, Ghosts of Tom Joad: A Story of the #99Percent, will be available April 2014 from Luminis Books.