Since Timothy Geithner is, as usual, breaking the law with regards to his obligation to publish the names of all persons losing U.S. citizenship within the meaning of Section 877(a) or 877A by 30 days after the end of the quarter, friends of Isaac Brock who are interested in the number of U.S. Persons abroad cutting off the Homeland’s yoke have to look to other sources of data.

As I discovered recently, the U.S.’ Federal Bureau of Investigation publishes a periodic report entitled “Active Records in the NICS Index”. It breaks down the numbers of different types of records in the National Instant Criminal Background Check System (“NICS”) on persons who are disallowed from purchasing firearms under the Brady Handgun Violence Prevention Act of 1993. One of the types of records: persons who renounced (but not relinquished) U.S. citizenship.

Origins of the system

First, an odd aside about the Brady Act itself: Brady is not the name of the sponsor, but of a Reagan aide who was shot in the assassination attempt on Reagan in 1981. Who exactly is the sponsor, you might ask? A quick trip to THOMAS reveals the answer: then-Representative Chuck Schumer of Ex-PATRIOT Act infamy. Apparently his hatred of people who dare exercise their human right to emigrate and renounce citizenship has longer and deeper roots than we thought, and wasn’t just a bit of instant outrage he summoned up to get his mug in front of a television camera.

NICS was created in 1998, but for the first decade of its existence the FBI only provided reports on its number of records on an annual basis. The report for 1998/99 does not contain statistics on the number of records at all. In 2000, the first year for which statistics were given, NICS had 12,603 records of persons who had renounced citizenship; this number did not move at all for five years. It’s not quite clear how the FBI “bootstrapped” NICS’ list of renunciants. I don’t imagine State would have been too happy with the demand to sort all the Certificates of Loss of Nationality since the beginning of time into piles of relinquishers and renunciants and then hand over the latter; their legal position in forwarding pre-HIPAA CLNs to anyone is rather shaky; and the FBI probably did not start counting from zero and then get twelve thousand renunciations in those three years in the 1990s long before the U.S. started waging the FBAR war against its own diaspora.

Indeed, the lack of updates to the number of renunciants in the first seven years of NICS’ existence smells like fallout from an inter-agency turf war. And the incompleteness of the records appears to be an ongoing issue; just two weeks ago, President Obama ordered the Department of Justice to “issue guidance to agencies regarding the identification and sharing of relevant Federal records and their submission to the NICS”, and the DOJ quickly jumped to comply, producing draft guidance in less than a week.

Numbers include only renunciants, not relinquishers

Given the law’s use of the term “renounce citizenship”, just like the Reed Amendment, it is unclear whether Schumer intended it to include all persons losing U.S. citizenship, or only those who explicitly renounced under INA 349(a)(5) and (6) but not those who committed a relinquishing act under other subparagraphs of INA 349(a). However, in 1997 the Bureau of Alcohol, Tobacco and Firearms finally got around to publishing the NICS regulations, “Definitions for the Categories of Persons Prohibited From Receiving Firearms”, which clearly indicate that they interpret the law to require only the inclusion of renunciants, not of relinquishers.

Persons Who Have Renounced Their United States Citizenship

As proposed in Notice No. 839, the term “renounced U.S. citizenship” is defined as follows:

Renounced U.S. citizenship. A person has renounced his U.S. citizenship if the person, having been a citizen of the United States, has renounced citizenship either—

(a) Before a diplomatic or consular officer of the United States in a foreign state pursuant to 8 U.S.C. 1481(a) (5) and (6); or
(b) Before an officer designated by the Attorney General when the United States is in a state of war

Two Federal agencies commented on ATF’s proposed definition, the Office of Passport Policy and Advisory Services (Department of State) and the Office of Policy Development (DOJ). The Office of Passport Policy and Advisory Services commented that the definition should be written to exclude renunciations that have been reversed on administrative or judicial appeals and renunciations by persons who subsequently regain citizenship through naturalization. ATF agrees that a reversal of a renunciation would remove the person’s Federal firearms disabilities. This is consistent with the removal of disabilities resulting from a felony conviction that has been reversed on appeal. Therefore, the definition will include an exception for reversed renunciations.

On the other hand, a person who has renounced his or her citizenship and has subsequently regained citizenship through naturalization would remain under firearms disabilities. Section 922(g)(7) of the Act makes it unlawful for any person “who has renounced his citizenship” to possess firearms and there is no exception for subsequent naturalization. A similarly worded disability was addressed by the Supreme Court in Dickerson v. New Banner, 460 U.S. 103, 116 (1983), where the Supreme Court held that a person who “has been” committed to a mental institution, but later cured and released, continues to have firearms disabilities.

That means that numbers derived from NICS are strictly smaller than the total number of people giving up U.S. citizenship, and should be (but clearly are not) smaller than the numbers of people whose names are published in the Federal Register.

Strangeness in the numbers

Even once the updates to the numbers begin, the usual caveats apply: it is almost entirely opaque how the FBI gets its information and how it interprets the law requiring inclusion in NICS. We know from the Foreign Affairs Manual that the Department of State forwards CLNs to the FBI, but we have no idea whether they provide all CLNs every and let the FBI sort them, or withhold CLNs either because the individuals are relinquishers, or for diplomatic or other reasons. This could plausibly occur, for example, in the case of accidental Americans who renounce to take a consular position in the U.S. representing a foreign country, who are allowed to purchase firearms regardless of any U.S. disqualification as long as it is part of their official duties — and it may occur for other unknown reasons as well.

These NICS numbers have some extremely odd characteristics. They are updated at different intervals than the Federal Register list, of course. They show trickles of increases followed by huge jumps. In some months, they even decrease. The frequency with which State provides CLNs to the FBI is not known either; State may be “batching” them, just like some consulates in Canada seem to do in their interactions with Washington. Overall the NICS numbers do not agree with the FR whatsoever. Quarters which show huge leaps in the NICS number show little movement at all in the FR list, and vice versa. It might make sense for the NICS number to be smaller than the FR number, but certainly not larger, given that the FR includes a wider class of persons: not just renunciants, but relinquishers and long-term permanent residents as well.

The NICS numbers used to be provided only annually. In mid-2010, they seem to have begun reporting them on a monthly basis, but I could not find the reports for two months: May 2012 and September 2012. By a strange coincidence, those reports are right in the middle of periods which show the largest increases in the total number of renunciant records. Again, I have no idea what these huge jumps mean: did State rush their way through a huge backlog, with all the inevitable errors that probably entailed? Had they been withholding CLNs deliberately but then decided to stop? Did they temporarily cease withholding of CLNs but then started it up again?

Whatever it all means, it adds up to yet another piece of evidence: someone’s numbers are wrong, whether due to incompetence or a deliberate attempt to hide the truth. So, here’s the data. The “increase” column refers to the change in the data since the issuance of the previous report; this means if the previous period’s report was missing, the “increase” number covers two or more months.

Annual/Semi-annual reports: 2000 to 2009

Monthly reports: August through December 2010

Monthly reports: 2011

Monthly reports: 2012

As mentioned above, we do not yet have the total Federal Register number for 2012 because of Treasury’s illegal delay in releasing the required report. The FBI manages to release their statistics a few days after the close of every month; you have to wonder what could possibly be taking Treasury so long that they publish their list as late as two months after the end of a given quarter. Maybe they’re struggling to include the names of those three thousand renunciants from September and October?

Also worth noting: even if we adopt the extremely conservative assumption that the whole 3,220 increase is some kind of error and remove it from the total, the number of renunciants recorded by NICS in the first eight months of 2012 is still greater than the number of renunciants, relinquishers, and former green card holders published by the Federal Register during the same period.

Monthly reports: 2013

One other minor figure, provided mainly for its entertainment value: out of all those 20,830 people who renounced U.S. citizenship, NICS only caught 57 of them attempting to purchase firearms from 30 November 1998 up to 31 January 2013.

Edit: The FBI has the nasty habit of deleting old reports from their website. Some have been captured by the good folks at the Internet Archive; in cases where they were, I’ve updated the links. The links that were not captured are now broken; I have marked those with an asterisk.