A lovely tax writer, Kelly Philips Erb, has written an article for Forbes magazine suggesting that Edward Snowden would have to pay taxes in to the United States if he were to work in his country of refuge, asking a presumed expert Richard S. Goldstein:
For now, Snowden remains a citizen. And so long as he remains a citizen, he is subject to our laws – and that includes our tax laws. He still has to file and he still has to pay any applicable tax. Goldstein agrees. But, he chuckled, “Good luck trying to collect it.”
She maintains that he would have to renounce his US citizenship if he wants to avoid US taxes and filing requirements. This entails paying the $450 dollar renunciation fee to the US consulate.
Philips Erb discusses the possibility that the US could strip him of his US citizenship for treason. Thus, she asks the question of his on-going citizenship status. First she addresses the issue of his passport:
The revocation of Snowden’s passport by government officials “is separate from revoking citizenship” according to Elena Park, an immigration attorney at Cozen O’Connor. “Passport revocation,” she explains, “deals more with limiting travel and can be initiated by law enforcement.” But merely pulling the right to travel is not the same as stripping citizenship.
It is interesting then that the US can deny a passport can to a citizen in order to restrict their travel. Several of us who have gone into the Consulate to relinquish have been told that because we have used a US passport since becoming a foreign citizen, we did not actually relinquish our citizenship. This is not true. The use or non-use of a passport is not definitive of citizenship because it is about travel not necessarily citizenship. Thus, the US may deny a citizen a passport, but they may, in some cases, grant a passport to those who are not citizens. It is all a matter of arguing one’s case effectively. Be that as it may, it is interesting that the US feels it can restrict the travel anyone it feels, at any time for any reason at all, without due process of law. I think this is a violation of the Fifth Amendment, which restricts the power of the Federal government to deny life, liberty or property without due process.
Next, Philips Erb asks if the US could strip Snowden’s citizenship because of his alleged act of treason:
Snowden, I noted, has been charged with crimes against the government. Could that result in a loss of citizenship? Not without a formal prosecution, posits Goldstein. A simple claim or charge of treason – as opposed to a formal conviction – is not going to be sufficient.
Ok. So Goldstein maintains that the US government at least cannot strip a person of US citizenship unilaterally without an actual conviction of treason. Yet let’s look at the appropriate law and see if Snowden would have to renounce, as Philips Erb suggests:
(7) committing any act of treason against, … (b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
Snowden would only have to demonstrate with a preponderance of evidence that he has committed an act of treason. Sufficient bi-partisan accusations from notable political figures have accused him of treason that he should be able to make such a claim. The downside would of course be that an attempt to relinquish in this manner would be tantamount to a confession to the alleged crime, but I think he could avoid the $450 renunciation fee.
I wrote a blog post in February, 2011, explaining that those who relinquish citizenship should be able to avoid the new $450 renunciation fee that the State Department had begun to assess to renunciants. Later, I learned that I was right and I and many other readers of the Isaac Brock Society have been able to avoid the $450 fee by making a claim to have already relinquished their US citizenship. This is a good route to go if you begrudge even paying one red cent to an evil regime that persecutes its expats around the world.
Finally, if Snowden wishes to follow through on this suggestion, he should indicate his loss of citizenship at a US consulate not an embassy. Philips Erb suggests that Snowden must enter an embassy to renounce or do so on US soil. This is actually a factual error in her otherwise only sometimes misleading article.
https://twitter.com/quant18/status/367159436420198402
When did Edward Snowden change his name to Eric?
@PoliticalXpat: I must be out of practice with this blogging. Thanks.
This is a good topic…
Let me throw up a theoretical situation…
If one’s US Citizenship is re-instated retroactively by virtue of 1986 changes to the “EXPATRIATION” rules, then wouldn’t someone committing an ACT of TREASON while not a US Citizen (thus not an ACT of TREASON) suddenly be caught in a predicament of JEOPARDY by fault of the US rules being retroactively applied?
I will elaborate someday…
@Benedict Arnold, US citizenship may not be reinstated against the will of the person. If a former citizen has a citizenship “reinstated” against their wishes, the reinstatement is arguably invalid, just as a forced renunciation may be invalidated.
Thus, it would seem to me that an act of treason may not be committed by a person who has relinquished their citizenship.
Petros…
While I would totally agree with that…
WhatAmI pointed out a specific section in the 1986 INA changes that said:
Notice the : ‘‘The amendments made by sections 18, 19, and 20
[amending this section and section 1483 of this title]
shall apply to actions taken before, on, or after November
14, 1986.’’
I find it troubling that they inserted the BEFORE…
It is my belief that based on US Costitution…they cannot retroactively apply laws…
Thus..back to my comment…if they are trying to apply ammendments on ACTS BEFORE..then certainly they are contributing to the potential conflict of an ACT OF TREASON after the fact…
@Benedict Arnold, Be careful not to get too caught up in the fine print. What I am saying applies to what I know to be the practice of the State Department. A person who relinquished citizenship before 1986 may go into a US consulate and obtain a CLN based upon a claim that they committed a relinquishing act with the intent to lose citizenship. Many people have done this recently.
I know of two cases where a person who even obtained a US passport, BECAUSE they were told by a border guard to enter the United States only with a US passport, claim later that they did not want the US passport but had years ago relinquished their US citizenship. The State Department acknowledged the claim and gave them a back dated CLN. Thus, in principle, US citizenship is not “reinstated”, at least, not against the will of the person. The actions of the State Department in these cases, and they are many, back up what I am claiming.
Petros…
Thanks
Good to know…
Contrary to popular belief, US embassies and consulates are not “US soil”:
“The status of diplomatic and consular premises arises from the rules of law relating to immunity from the prescriptive and enforcement jurisdiction of the receiving State; the premises are not part of the territory of the United States of America.”
http://www.state.gov/documents/organization/86755.pdf
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Why would Edward Snowden even step into a US embassy at this point, where he would very likely be placed under arrest? And if he can’t even step onto an US embassy or consulate without being arrested, then how can he legally renounce?
He’s already defacto stateless due to his inability to legally renounce, plus the revocation of his US passport, as long as he doesn’t submit to US law for his ‘crime’.
Or am I missing the point somewhere?
This business of retroactively making people US citizens is not exactly cut and dried, eh? I believe the law change was retroactive because the Supreme Court ruled that the previous laws and actions of the Stat Department (stripping US citizenship against one’s will) were in fact unconstitutional. So, how can we say that undoing unconstitutional acts is also unconstitutional?
When I first heard about the retroactive change, I thought it was horrible because of the tax implications of people suddenly being delinquent in tax and FBAR filings. It’s not so bad if everybody who deserves back-dated CLNs gets them “easily”. And if as Petros says, they don’t force USC on you against your will. Still look at all the anguish it’s causing people because they have to take action to straighten things out, with no guarantee of success until you expose yourself to them by applying.
I’ve since noticed that Canada also retroactively reinstated citizenship with similar law changes. In fact, even going back to being declared a “Canadian born abroad” if only your mother was Canadian. The difference, of course, is that there are no tax issues involved and nothing to make you a criminal retroactively as there is in the US. In effect, I think it could perhaps be viewed as voluntary, if you want it.
@mjh, yeah, if I am not mistaken, a consulate is not considered the soil of the foreign country unless it is located in the embassy (e.g., Ottawa?). Thus, I could step into the US Consulate General in Toronto and I am still in Canada and the US can’t arrest me. Presumably, there are many US consulates in Russia that Snowden could enter without fear.
@mjh49783 US embassies aren’t US soil, so he couldn’t be arrested (see Shadow Raider’s link). Of course, he could still be held at gunpoint on embassy grounds and the Russians wouldn’t be able do anything. For the Russians to enter the embassy without the consent of the ambassador or to arrest the ambassador would be an outright Vienna Convention violation; all they could do legally would be to stand outside the building and glare like the British are doing at the Ecuadorean embassy in London.
Basically, embassies have a much higher level of “inviolability” than consulates do. For example, there’s broader Vienna Convention exceptions for the host state police to enter a consulate (it’s Russia … the FSB will set a fire and claim it’s an emergency for which consent is implied). More importantly, they can arrest a consular officer in case of “grave crime”, which would almost certainly include kidnapping & false imprisonment. So if Snowden’s really going to renounce, a consulate is a much safer choice.
@WhatAmI, it is relatively easy provided that you can make the argument based upon the preponderance of evidence. When some of the evidence is against you, it becomes trickier. E.g., you didn’t give up your US passport and continued to use it, or you admit voting in a US election. The preponderance of evidence arguments aside, most of the time it depends on your state of mind when you became the citizen of another country: only you can say whether it was your intention to lose US citizenship. So the biggest factor is your stated intention. For most of those who took on a second citizenship, they can argue effectively that their intention was to lose their citizenship, unless they swore and affidavit that said that their intention was to keep US citizenship.
IIRC someone can be arrested in a diplomatic mission, but the problem lies in what to do with them then. They can’t be detained indefinitely, even if the mission was set up to hold somebody in custody, which none of them will be (let alone for any period of time). If they leave the grounds, they’re free.
Here is an example:
Imagine a Canadian doing this while thinking they were not a US Citizen:
As Beyonce visits Cuba
Washington’s 51-year embargo makes it illegal for U.S. citizens to visit Cuba for mere tourism, although the Obama administration eased many of the restrictions in 2011.
just a bit of humour…to expand on the catch 22…
@Shadowraider, Eric: thanks for clearing up whether embassies are US soil. It seems however, that Snowden would still face more trouble in an embassy than in a consulate, and that is my original point.
Okay. I think I got it.
Still, if I was Snowden, there would be no way that I would step foot in a US embassy or consulate.
While they might not be able to hold him indefinitely if he did do something like that in order to renounce, I can see them try and hold him for at least as long as Julian Assange gets to sit in the Ecuadorean embassy, and then raise up a public stink about it.
But perhaps at a consulate, provided I’m understanding this correctly, he might have a better chance of walking back out of there freely. Maybe. I don’t know. Even if he did renounce, they will still want him for the ‘crime’, and I’m 100% sure that they will use his renunciation against him in court, provided it even goes to trial. I can’t forget however, that they’ve managed to divert, and ground, Bolivia’s presidential plane, simply on suspicion that Snowden was on board. So if they can do that, then who’s to say that Snowden wouldn’t be in danger if he went to the consulate to renounce?
So he’s basically defacto stateless, and living in exile. At least in my view. Screw those US tax filing requirements! ;^)
On the subject of Snowden – as some may know his preferred email provider, Lavabit closed its doors rather than submit to US government demands for information. After much resesearch I found a good and very secure alternative in Canada called CryptoHeaven. It is not free but the business package is reasonable. There are others out there as well. Moreover, I am seeing a definite trend AWAY from the use of email and cloud servers in the US. Frankly, I avoid US clouds and have migrated off of iCloud to a large extent despite its convenience.
@Steve Klaus
To start with, I’ve dumped Dropbox and Microsoft Skydrive, and went with something called Spideroak for moving data in and out of the cloud. It purports to encrypt your data before it is stored on their servers, leaving your private data private.
Meanwhile, I’m going to have to reevaluate whether or not I want to continue using my Gmail account. Lavabit would’ve been a good substitute. Too bad they had to shut it down, though.
They probably can’t do drone strikes there, but traffic accidents are a tried-and-true method for all of the administration’s agencies. No doubt that the agents in Russia and their electronic devices up on the roof have Snowden as their number one job priority.
@mjh49783
“Still, if I was Snowden, there would be no way that I would step foot in a US embassy or consulate.”
Indeed. As we’ve seen countless times on other issues, the USG has no scruples about ignoring it’s own laws when it’s convenient.
Regarding US-based internet services. I’ve eliminated just about everything. No Skype, no Google (except for Google Play for my Android smartphone…), no Yahoo, no Dropbox, no Microsoft, no Amazon, no Twitter. Other things like Facebook or LinkedIn I never used in the first place, and never will.
And of couse no Apple either.
Going to be hard for me to let go of Skype for the moment, but I’ll be on the lookout for a suitable replacement all the same.
As for email, I don’t really use it for all that much these days, and certainly for nothing private. For the paranoid among us, if it’s POP3 or IMAP based, the headers will be transmitted in the clear even if the message itself is encrypted, If the pipe between your email client, and the mail server is encrypted via SSL, is there any way for the email to be encrypted throughout the whole route? Probably not. So, they know you’re sending something encrypted, they can just get the key from you by using rubber hose cryptanalysis.
I take it that Lavabit probably didn’t use those protocols so that it can then send messages encrypted from end to end by it’s own way?