In July 2004, James Jonathan Kaufman tried to renounce his U.S. citizenship. The relevant statute, 8 U.S.C. § 1481, provides,
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States, or
(B) such persons serve as a commissioned or non-commissioned officer; or(4)(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or
(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
Oddly, subsection 6 — and only that subsection — turns on whether the U.S. is in a state of war. A person may thus renounce U.S. citizenship in a foreign country whether or not the U.S. is at war (under subsection 5), but may renounce in the U.S. (subject to the Attorney General’s approval) only if the U.S. is in a state of war. Go figure.
On Jan. 27, 2009, Donald Neufeld, Acting Associate Director for Domestic Operations, USCIS, Department of Homeland Security, concluded that the U.S. is “not in a ‘state of war’ as that term is used in the [statute],” because that term in that statute “means a congressionally declared state of war,” and neither the 2001 Authorization for Use of Military Force against various terrorist groups, nor the 2002 Authorization for Use of Military Force Against Iraq were “the equivalent of a congressional declaration of a state of war for purposes of [the statute].”
In Kaufman v. Holder (D.D.C. Feb. 24, 2010), the court disagreed with the government:
[T]he precise question here is whether the United States was in a state of war in 2004 or 2008 when Kaufman made his renunciation requests. There can be no genuine debate about that. The term “state of war” in § 1481(a)(6) is sufficiently unambiguous and plain in its meaning to describe the circumstances attendant to the United States when Kaufman made his initial renunciation request in July 2004, and when he renewed it in September 2008. Indeed, several courts have recognized that the United States was in a state of war at those times. Most notably, in 2004 the Supreme Court, referring to the circumstances prevailing at the time, stated that “[w]e have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004). In 2005, a judge of this court rejected a litigant’s contention that the United States was not at war, concluding that “[t]he United States Congress, by its authorization statutes, has initiated war in the same way it has initiated war since World War II…. [T]he facts suggest that the United States is at war at the behest of Congress.” Qualls v. Rumsfeld, 357 F. Supp. 2d 274, 284 (D.D.C. 2005)….
[Footnote 3:] Even if the term were ambiguous and required interpretation, the Director’s construction suffers from serious infirmities. First, the construction does not enjoy the force of logic. The defendants’ conclusion — that the term “state of war” means “congressionally declared state of war” — is not compelled by the premise that the drafters were in the midst of a war that involved congressional declarations of war. The opposite conclusion — that the drafters intentionally and purposefully omitted the modifier “congressionally declared” — is equally, if not more, compelled by the premise. There is no basis for concluding that the drafters were unaware of wars that did not involve formal congressional declarations. See The Amy Warwick, 67 U.S. 635, 668 (1862) (“If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be ‘unilateral.’ … It is not the less a war on that account, for war may exist without a declaration on either side.”); Curtis A. Bradley & Jack J. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2059-60 (2005) (“Starting with early conflicts against Indian tribes and the Quasi-War with France at the end of the 1700s, the United States has been involved in hundreds of military conflicts that have not involved declarations of war.”); Grimmett, Instances of Use of United States Armed Forces Abroad, 1798-2006 (listing numerous undeclared armed conflicts prior to World War II).
Second, even if the defendants could make the case that the disputed term in § 1481(a)(6) really means “congressionally declared state of war,” it is far from clear that the United States was not in such a state of war in either 2004 or 2008. See Qualls v. Rumsfeld, 357 F. Supp.2d 274, 284 (D.D.C. 2005) (“The United States Congress, by its authorization statutes, has initiated war in the same way it has initiated war since World War II. [The] argument that Congress has not declared war is made without legal argument or factual basis; the facts suggest that the United States is at war at the behest of Congress.”). See also Bradley & Goldsmith, 118 Harv. L. Rev. at 2065-66 (“With respect to this issue, we believe that the pattern of congressional action in declared wars provides additional support for the modern consensus that force authorizations can confer full congressional authorization for the President to prosecute a war. This pattern shows that it is misleading, and probably wrong, to compare the authority conferred by war declarations in declared wars with the authority conferred by authorizations to use force in authorized but undeclared wars, much less to view a war declaration as a more extensive form of congressional approval than a force authorization.”).
I think that’s quite right, as I’ve argued before in other contexts. So keep on going, Mr. Kaufman; we won’t be sorry to see you leave.