John Walker Lindh and the Right to Citizenship

Published an. 25, 2002

THIS week marked the return of America’s most curious prodigal son. The long-waited transfer of John Walker Lindh to federal custody has focused the nation’s attention on what to do with the 20-year-old jihadi from Marin County. Regardless of Lindh’s potential criminal liability, there remains the question of his right to be called an American citizen, a son of the nation that he abandoned.

If there is one area where biblical and constitutional images seem to converge, it is in the meaning and the loss of citizenship. Citizenship was once described in quasi-religious terms as a type of covenant with the state; a civic family union that could demand an absolute sacrifice from its members in times of war. It is a sacred bond between citizens; a trust that despite our divisions and our differences we remain loyal to the maintenance of our unique constitutional system.

In Lindh, the constitutional and biblical images seem to merge into a modern variation of Luke’s parable in the Christian Bible of the prodigal son. Like the younger son of the parable, Lindh was blessed with a great wealth of freedom and resources. Yet he chose to go to “a distant land where he squandered” his inheritance, only to find himself in utter destitution. Like the older son, many Americans have a particularly harsh view of Lindh’s return and his embrace of the constitutional protections that he so cavalierly discarded. Yet rather than the perfunctory punishment of a military tribunal, Lindh is given the legal equivalent of the fatted calf in the form of well-paid defense counsel and a publicly subsidized trial.

Of course, even St. Luke would be hard pressed to biblically “spin” the unrepentant young Lindh. Yet the constitutional and biblical elements come together for Lindh in one interesting passage. The prodigal son stands before his father and confesses, “Father, I have sinned against G-d and against you; I no longer deserve to be called your son.” This may be the crux of the matter for millions of Americans. Despite the considerable sympathy for his parents, there is an almost personal feeling of betrayal of our common identity as citizens; a type of constitutional mortal sin for which only denationalization is appropriate.

It was not until 1986 that Congress codified the current standard for the “loss of nationality.” The United States code says that an individual can sever his national identity through seven distinct voluntary acts, including entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S., accepting employment with a foreign state that requires an oath of allegiance, committing any act of treason or bearing arms against the U.S.

Ironically, Lindh may be able to defend against some of these claims because of the government’s refusal to recognize the Taliban as a “foreign state.” While the government must prove each of the four criminal counts against Lindh “beyond a reasonable doubt,” however, the standard for expatriation is the lower civil standard of “by preponderance of the evidence.”

Former Chief Justice Earl Warren once described proceedings for denationalization as the destruction of an individual’s political identity; the loss of the “right to have rights.” Denationalization is a chilling act in which 250 million people would turn their backs on a native son who has abused their trust and traditions. Of course, even if stripped of his citizenship, Lindh would still have constitutional rights if tried and convicted, as do foreign nationals in our justice system, such as Zacarias Moussaoui. Moreover, if given a life sentence, denationalization would be purely symbolic, but it would be an important and necessary symbol. Lindh would be disenfranchised, a man without a nation.

Ultimately, the greatest argument for denationalization can be found not in Lindh’s courtroom in Virginia but in other courtrooms all across the nation. While Lindh stands before a judge to face criminal charges, Lily Carrasco and thousands more like her will be standing before judges to become citizens. Carrasco came from Peru to the U.S. and ultimately became a nanny for my three boys. While Lindh was assisting those who called for the killing of any and all Americans, Carrasco was petitioning to join our ranks.

Lindh and Carrasco are the modern parable of faith lost and faith found. Lindh did not simply lose the legal right to claim citizenship. He lost the moral right to stand with our newest citizens who struggled so hard and so long to enter into our unique covenant of faith.