I relinquished 20 years ago, and they know it. If they decided to re-write history, they obviously can’t play nice, and I’m not going to play with them. I got as far as talking to the vice consul, and she wanted me to start by taking an oath that we both knew was false. I am proudly Australian, let them prove otherwise. — ProudAussie, 1 February 2015

We’ve suggested here several times that Washington should bear the burden of proving continued U.S. citizenship in the event an emigrant claims loss of citizenship occurred long ago — especially if the claim of continued citizenship is accompanied by a demand that an emigrant fulfill one of the alleged duties of U.S. citizenship or submit to punishment for failure to fulfill such duties. The U.S. government should have to prove not only that an emigrant took actions which could only be performed lawfully by U.S. citizens but that such actions were actually taken with intent to retain U.S. citizenship. To require otherwise is a deliberate perversion of the spirit of the Warren Court’s efforts to prevent the executive from using nationality law as a tool of punishment.

Unfortunately, the law as it stands — 8 USC § 1481(b) — places the burden of proof “upon the person or party claiming that such loss occurred”, and in October 2014 the State Department updated the relevant sections of the Foreign Affairs Manual to ensure that consular officers understand all the nuances of their power to make negative recommendations in relinquishment cases when they feel the emigrant has not provided sufficient evidence of action or intent to meet the burden of proof.

The legislator who wrote § 1481(b) — a detractor of the Warren Court’s rulings on nationality — falsely claimed he intended to place the burden of proof on the government. He was certainly aware that it would not always be the government asserting loss of citizenship; a very peculiar phrase in § 1481(b) suggests he was not only aware of such instances in general terms but knew in detail the legal strategies used by an individual in one such case. So this legislator lied to his colleagues and the public to get his law passed. He apparently expected he could avoid any scrutiny of his lies by making vague and jingoistic speeches, and he was correct — half a century later, it’s beyond the power of any mortal to hold him to account.

This legislator was quite famous, too: if you were alive when he was in office you’ll likely be familiar with his name, and even if you weren’t you’ll recognise the name of the infamous committee he headed, whose annual report crowed about its great achievement of getting this law passed.

Table of contents

1. Researching old lies & old laws for free at home
2. The original provision
3. Won’t somebody please think of the children?
4. The sponsor keeps his mouth shut
5. Candid discussion of Section 19 — after it passed
6. He knew what he was doing, but why did he do it?
7. Conclusion

Researching old lies & old laws for free at home

Figure out when the provision was created: First, head over to the U.S. Legal Information Institute website and pull up the notes for the U.S. code section that interests you. For example, the notes to 8 USC § 1481 tell us that subsection (b) was originally subsection (c) until Public Law 99-653 (a law of the 99th Congress, passed in 1986) struck out the old subsection (b), and that subsection (c) was created by Public Law 87-301 (a law of the 87th Congress, which makes sense given the in-text reference to 1961). Alternatively, U.S. Code Table III (warning: three-thousand page PDF file) lists the corresponding Statutes at Large citation (“xx Stat. yy”) for each Public Law.

Get the text of the law which created that provision: That means finding the relevant section of the Statutes at Large. For laws passed in 1951 and later, the Government Printing Office (GPO) has divided the Statutes at Large into individual PDF files corresponding to each slip law and published an online list indexed by law number; you can usually find the one you want without even navigating their website just by Googling “Public Law XX-YYY”. For laws passed between 1789 and 1937, Wikisource has posted scans of Volumes 1–50 of the Statutes at Large, divided into individual pages. Browse around until you hit the right date, or use Table III linked above to get the exact citation. For laws passed between 1938 and 1950, you’ll have to download full PDFs of the relevant volume of the Statutes at Large (e.g. from Constitution Society or the Library of Congress). In our case, we find Public Law 87-301 at 75 Stat. 650; the portion of the bill which created the burden-of-proof provisions, namely Section 19, is found on page 656. That tells you about the law itself; your next step is to figure out what lies Congressmembers told about that law.

Search the Congressional Record for references to the bill: In the Statutes at Large, there’s a margin note right next to the title of each law telling you the number of the bill which was eventually passed to become that law (in this case, S. 2237). If you’re lucky, this was the bill that actually created the provision in the first place. (If you’re unlucky, the provision was copied from an earlier bill or simply replaced a then-existing law with similar effect, in which case your goose chase continues again from Step 1.) Get the index for the relevant volume of the Congressional Record on the Internet Archive, browse around until you find the “History of Bills and Resolutions” section (somewhere around halfway for the first session, or towards the end for the second session), and look up the bill number. That gives you a list of individual pages; again you’ll have to search the Internet Archive to find the appropriate Congressional Record volume.

Look for committee reports: in the case of this bill, the Congressional Record index referred to several Senate and House committee reports. Some committees (e.g. the Joint Committee on Taxation) have reports going all the way back to the 1920s available for download, but others don’t. Older committee reports also aren’t printed in the Record itself, but rather in one of the volumes of the “Congressional serial set”. For laws from the 85th Congress (1957–1958) and later, the GPO has tables which allow you to find the serial set volume number in which a given report appears; you can then browse that volume online at the Hathi Trust website, for example.

The original provision

Section 19 of S. 2237 added the following text to the Immigration and Nationality Act’s provisions on loss of nationality:

Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the enactment of this subsection under, or by virtue of, the provisions of this 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. Except as otherwise provided in subsection (b), any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this 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.

The current provisions are basically the same, besides the “subsection (b)” part. Subsection (b) lowered the bar for proving voluntariness in case a person had lived in his country of other citizenship for ten years or more, but as mentioned above it was repealed in 1986.

This burden of proof — passed into law with a lie — has created problems for many Brockers. Some of us cannot prove that we have committed relinquishing acts; others’ accidental or coerced “assertion” of one of the so-called benefits of U.S. citizenship has been taken by the State Department as irrefutable evidence of “intent” to retain U.S. citizenship.

Won’t somebody please think of the children?

S. 2237 was originally called “a bill to permit the entry of certain eligible alien orphans”, and as far as I can see nearly all of the debate on it was indeed about adoptees from Korea. Buried somewhere in the tens of thousands of pages of Volume 107 of the Congressional Record I have found no lucid explanation of the purpose of Section 19. The section number itself offers something of a clue: the original “orphans” bill only had four sections, according to the Senate Immigration Subcommittee report. This suggests that the burden-of-proof provision was the pet project of someone in the House that he stuck into the bill with minimal debate, following the example of his fellow Representatives who added a total of nearly two dozen other extra sections.

The lie I mentioned in the introduction of this post was told in House Report 1086, “Amending the Immigration and Nationality Act”. At page 41, the House Judiciary Committee first condemned the majority’s comments on the government’s burden of proof in Nishikawa v. Dulles (356 U.S. 129), praised Harlan and Clark’s dissent, but then grudgingly claimed they would follow the path laid out for them by the majority:

In order to forestall further erosion of the statute designed to preserve and uphold the dignity and priceless value of U.S. citizenship with attendant obligations, regardless of whether such citizenship was acquired at birth or by legal processes, section 17 of the amendment sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest on the Government. The presumption of voluntariness under the proposed rules of evidence would be rebuttable—similarly—by preponderance of the evidence, thus leaving undisturbed the body of judicial decisions in which it is held that expatriation shall not occur if involuntariness, duress, or compulsion is established in rebuttal of the Government’s contention that expatriation was voluntary.

The reference to “section 17” appears to be a typo; the actual Section 17 of the bill discussed earlier in the House report was about the standards for judging naturalisation petitions, and appears to be the same Section 17 that made it into the final bill. If indeed this passage was referring to Section 19 (and I don’t see to what else it could refer), then it was a gross mischaracterisation: the burden of proof was on the individual if the Government disagreed that loss of citizenship had taken place. A few dozen pages back in the House report, the actual text of Section 19 is quite clearly identical to that which eventually became law. The bare-bones conference report indicates that there were no conference changes to Section 19, and apparently not even any discussion of it.

The sponsor keeps his mouth shut

So what was the actual motivation behind Section 19? The House Judiciary Committee didn’t tell us; they concluded their discussion of Section 19 by stating:

In a report submitted in connection with a similar provision contained in H.R. 192, the Department of Justice raised the specter of unconstitutionality allegedly apparent in the event that the proposed amendment would have retroactive effect. The committee has therefore amended H.R. 192 so as to make it applicable only prospectively, in actions or proceedings commenced on or after the effective date of the proposed amendment.

So we’re back to digging through old documents again. H.R. 192 (“a bill to amend sections 212, 310, 340, and 349 of the Immigration and Nationality Act”) is nearly a dead end, but we do learn one thing by looking it up: it was sponsored by Francis Walter (D-PA), the chairman of the House Committee on Un-American Activities (HCUA). In the 86th Congress, Walter had previously introduced H.R. 10512, a standalone bill with the expatriation proof-of-burden amendment. As I belatedly noticed, Walter was also the man who submitted House Report 1086 — he either wrote the misleading statement about the burden of proof himself, or at minimum lied by omission in declining to point out that it was wrong.

Before Walter got his pet project made into law, he and the HCUA appear to have maintained deliberate “radio silence” about its purpose and effect. Walter made no comment on H.R. 10512 when he introduced it in 1960, nor on H.R. 192 when he introduced it the following year. When Walter brought S. 2237 up for passage in the House on 6 September 1961, he mentioned Section 19 (at page 18284) only in vague and jingoistic terms, without giving any clue as to its purpose. Nor do the Congressional Record indices of Walter’s remarks either in the second session of the 86th Congress or the first session of the 87th Congress indicate that he made any other remarks about expatriation.

The HCUA, for its part, was definitely paying attention to nationality law issues by 1959 (see for example the report of their hearings on “Problems Arising in Cases of Denaturalization and Deportation of Communists”). However, the HCUA’s annual reports for 1959 or 1960, which contain extensive discussions of their other “legislative recommendations”, failed to mention that the HCUA’s chairman was pursuing the expatriation burden-of-proof amendment, let alone the reason for it.

Candid discussion of Section 19 — after it passed

The House Committee on Un-American Activities finally did discuss Section 19 in far greater detail and honesty in its Annual Report for Year 1961 — published in January 1962, after the passage of the “alien orphans” bill in which it was contained (S. 2237). We find this quote at page 147 of the report:

Public Law 87-301, § 19 — Loss of United States nationality — burden of proof. (See Item 115, Part III of this chapter, p. 164, for details.) Section 19 of this act establishes evidentiary rules governing the adjudication of cases arising pursuant to provisions of law, where it is claimed that an act causing the loss of nationality was involuntary. The provision is aimed at proceedings affecting loss of citizenship (expatriation) and not at revocation of naturalization (denaturalization). While the burden of proof of loss of nationality is upon the party alleging such loss, there is by the provisions of this law a presumption of voluntariness in the case of any person who commits an act of expatriation. Although it is true that the presumption is rebuttable, yet the burden of proving the involuntariness of such act is now imposed upon the party claiming it, for such evidence would normally lie in his possession. Thus the act does not disturb the body of judicial decisions which held that expatriation shall not occur through an involuntary act; rather, it shifts the burden of proof of such involuntariness to the person who would normally have such proof.

And turning to page 164:

Item 115. Committee recommendation — The committee’s recommendation is contained in H.R. 10512, 86th Congress, introduced by its chairman, Mr. Walter, on February 17, 1960. It provides that when loss of United States nationality is put in issue in any action under a Federal statute, the burden of proving such loss by a preponderance of the evidence shall be upon the party claiming that such loss occurred. The bill raises a rebuttable presumption of voluntariness in the case of any person who commits an act of expatriation.

Action — The identical provision is contained in H.R. 192 (Mr. Walter) dated January 3, 1961.

S. 2237 (Mr. Pastore, for himself and Mr. Dirksen), dated July 12, 1961, was passed by the Senate with provisions covering only the entry of certain eligible alien orphans. It was referred to the House Committee on the Judiciary on August 15, 1961, which reported it out on August 30, 1961 (House Report No. 1086), with the provisions of § 5 of H.R. 192 (covering burden of proof of loss of U.S. nationality) incorporated as § 19 of S. 2237. The bill was enacted with this provision and is now Public Law 87-301.

This was the first time that Walter or anyone associated with him had clearly stated that Section 19 imposed a burden of proof on the party claiming loss of U.S. nationality, not on the government. It would have been nice if he had clarified that little matter before encouraging his fellow legislators to vote for the bill — even if it wouldn’t have made any difference.

He knew what he was doing, but why did he do it?

The general public — Homelanders with an unshakeable belief in the value of their own country’s citizenship — might have thought that it would always be the government claiming loss of nationality while the individual tried to defend against that claim, but even in 1961 well-informed people were aware that this was not so. Though it would be decades before the U.S. would declare the tax war against its own diaspora, there was already one well-known reason why an individual might claim to be an American no longer while the government demurred: lack of U.S. nationality would be an absolute defence to a charge of treason or other crime which by definition could only be committed by a person owing allegiance to the United States.

The first example of an American emigrant attempting to defend himself in this manner is nearly as old as the Constitution itself: Talbot v. Janson, 3 U.S. 133. Talbot had become a citizen of France, but the Supreme Court ruled he still owed allegiance to the United States and upheld his conviction for violating the presidential proclamation of neutrality in the war between France and the Netherlands — not exactly an auspicious beginning for American recognition of the fundamental right of expatriation.

Francis Walter was almost certainly familiar with the most prominent case in which the accused offered such a defence — Kawakita v. United States, which went all the way to the Supreme Court (343 U.S. 717). I say this not just because HCUA members generally paid close attention to treason cases and Walter became a member of the HCUA in 1949 at the same time as the lower courts were hearing Kawakita and other similar cases (e.g. Gillars, 182 F.2d 962), but also because of a curious phrasing in Walter’s amendment: “act of expatriation under the provisions of this chapter or any other Act”.

In the “main body” of U.S. nationality law — in Kawakita’s time the Nationality Law of 1940, today the Immigration and Nationality Act of 1952 — that passage is the only recognition that loss of citizenship might occur otherwise than “under the provisions of this Act”. Given that Walter himself was a major contributor to the 1952 INA (hence the nickname “McCarran-Walter Act”), something must have happened between the time of its drafting and the time he wrote Section 19 to make him realise that loss of nationality might occur under the provisions of some “other Act”, and the most famous such “something” around that time was Kawakita’s attempt to claim he’d lost U.S. citizenship under the Expatriation Act of 1868:

Section 408 provides, ‘The loss of nationality under this Act shall result solely from the performance by a national of the acts of fulfillment of the conditions specified in this Act.’ The District Court therefore charged the jury that the only methods of expatriation are those contained in § 401. Petitioner claims that charge was error. He argues that § 408 is applicable only to the loss of nationality ‘under this Act’ and that there are other methods of losing it. He refers to R.S. § 1999, 8 U.S.C. 800, 8 U.S.C.A. § 800, which survived the Nationality Act of 1940 and is not part of it, and which proclaims the right of expatriation as ‘a natural and inherent right of all people’.

However, the Supreme Court didn’t even need Walter’s amendment; they could reject Kawakita’s argument under the existing law:

We do not undertake to resolve the question for the reason that it is not squarely presented. On this issue of expatriation, petitioner tenders no question of fact which was inadmissible under § 401. Petitioner merely says that ‘by his conduct’ he had ‘expatriated himself from United States citizenship.’ But he has failed to show that that issue is narrower than or different from the issue presented on this record under § 401(b)—the declaration of allegiance to Japan. As we have indicated, the major factual problem on the issue of expatriation revolved around the entry of petitioner’s name in the Koseki. All of the other conduct referred to, including the paying of respects to the Emperor and the expressions of hostility to the United States, were relevant and admissible on that issue. If it could not in the eyes of the jury make the signing of the Koseki and the changes in the registration that followed that event tantamount to renunciation under § 401(b), it hardly could do so standing alone. Hence, if there was error in the charge, it was harmless.

Both Kawakita and Gillars were convicted by jurors convinced beyond a reasonable doubt — a far higher standard than “preponderance of the evidence” — that the accused were U.S. citizens and aware of their U.S. citizenship at the time they committed their overt acts of treason. In both cases, the defendants’ claimed expatriating acts were open to question: Kawakita, a dual citizen at birth, tried to claim that establishing Japanese household registration constituted naturalisation in a foreign state, while Gillars for her part alleged that a piece of paper her boss asked her to sign in the aftermath of a workplace dispute was effectively an oath of allegiance to Germany. Kawakita’s intent to give up U.S. citizenship was also not entirely clear — he’d held off on identifying himself to the Japanese government as a Japanese citizen as long as he could to in order to evade the draft in Japan, and later told prisoners of war that he’d be going back to the U.S. after the war ended.

Nevertheless, a different jury might reasonably have come to the conclusion that the two actually did lose U.S. citizenship (in fact, three Supreme Court justices dissented in Kawakita, concluding that the accused had indeed expatriated himself) and so my best guess at why Walter wrote his burden-of-proof amendment the way he did is this: he was worried that accused traitors in future cases might have too easy a time defending themselves by claiming loss of U.S. citizenship.

Conclusion

Those two cases notwithstanding, from the early 20th century all the way up to the 1980s, most court cases on nationality issues were brought by individuals who wanted to retain their citizenship. Each one built up the standards of burden of proof a little bit higher — something you might think of as a victory for the “rights of citizens”, until it comes to the rights of people who are deemed citizens and don’t want to be.

Kawakita enslaved and tortured captive enemy soldiers, while Gillars made propaganda broadcasts for a dictator who was murdering his own citizens. But court cases often have despicable people at their centre, precisely because such people cannot rely on bureaucratic forbearance or societal goodwill in exercising their rights. They can only rely on the letter of the law, and if the law is not clear you ask a judge to clarify it. That hardly means that clear laws and legal rights solely or even primarily benefit despicable people. Everyone benefits from a clear statement of what their rights are under the law, in particular people to whom the adjective “law-abiding” is often applied, who will never find themselves in a courthouse in their whole lives — those who would otherwise shy away from a legal course of conduct for fear that an unclear law made it illegal.

Francis Walter lied: he falsely characterised a provision of law he wrote, which he intended to make it more difficult for certain people to exercise one of their rights — a right which is a “natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness”. He may have believed he had a noble intention behind it — protecting his country by ensuring that the government could punish the despicable. But cutting corners like this is detrimental to the rule of law, and fifty years later, Walter’s lies are taking away our rights too.