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Question About Immigration Law:

The NY Times today profiles a 21 year old "American" jihadist blogger, Samir Khan, born in Saudi Arabia, raised in Queens, living in North Carorlina. I put "American" in quotes because it's not clear whether Khan is an American citizen.

Khan serves as an intermediary to the jihadists of the world, posting their videos and statements on his blog. Here is a example of Khan's perspective:

He described his favorite video from Iraq: a fiery suicide-bomber attack on an American outpost.

"It was something that brought great happiness to me," he said. "Because this is something America would never want to admit, that they are being crushed."

Asked how he felt living among people who had sent soldiers to Iraq, Mr. Khan said: "Whatever happens to their sons and daughters is none of my concern. They are people of hellfire and I have no concern for them."

I'm curious: assuming that (1) Khan is not a citizen; and (2) he has not violated any criminal laws, does American immigration law, tempered by constitutional considerations, provide grounds for deporting him? I'm less interested in knowing whether readers think Khan should be deported, which will lead to an utterly predictable set of comments, and more curious about whether there is any law addressing the subject, and what it says.

Lloyd George:
A. Mitchell Palmer and the Red Scare around 1919 immediately springs to mind once I read about this and think about the effects.
10.15.2007 10:31am
The Drill SGT:
Perhaps his citizenship is derivative from his parent's naturalization?

It would seem that he violates the oath taken at naturalization and least in spirit, though I suspect that the ACLU would argue that he is exercising the bill of rights, not attacking the constitution:


I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic
10.15.2007 10:36am
PLR:
If he has no legal status as a citizen or permanent resident, and hasn't successfully petitioned for asylum, cancellation of removal or other relief, I don't see any barrier to deportation if he gets his hearing.

Is this a trick question?
10.15.2007 10:42am
Dave Griffith (mail):
Is it actually possible that someone hosting a jihadist propaganda site isn't violating some criminal laws. Regardless of the political content, soliciting and profiting from beheading videos has got to be some statute, doesn't it?
10.15.2007 10:44am
DavidBernstein (mail):
I'm assuming he's in the country legally, under some status or other. Let's say he's a "permanent resident," for example.

If he did take the naturalization oath at 18, it strikes me that he's in the clear because the article suggests that he didn't come to his jihadist ideology until age 19, so he could have taken the oath in good faith.
10.15.2007 10:45am
From DHS (mail):
To be sure, if he is here legally (on a visa) he almost certainly would be deportable, but only after a hearing to ascertain the facts and revoke the visa. It will be much more of a challenge if he has status as a legal permanent resident.
10.15.2007 10:46am
Tareeq (www):
INA 313 provides that membership or "affiliation" (defined in pertinent part as "giving ... support") in or with the Communist Party or an organization that advocates totalitarianism or the violent overthrow of the United States government is grounds for expulsion or removal.

Posting propaganda videos is probably support unless the Times' subject can claim a journalistic or other legitimate purpose.

So the answer may well be that the subject may have done himself a disservice. I look forward to further reporting on this young man's story from the Times.
10.15.2007 10:46am
Kevin P. (mail):
The article contains this curious line:

While there is nothing to suggest that Mr. Khan is ... breaking any laws,


Hello? How about treason, anyone? Article III Section 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.


Khan can be deported if he is anything but a citizen. Even if he is a permanent resident, that status can be revoked after due process. As an immigrant who is now a naturalized citizen, I say that this should be an open and shut case.
10.15.2007 10:48am
Marklar (mail):
Yes, if not a citizen, he can be deported, even pre-PATRIOT Act. The legal analysis entailed would be too long, but essentially, Congress has (1) Plenary power to regulate immigration (2) Under this plenary power, has made any "endorsement" of a crime of terrorism, or being a threat to national security cause for deportation. Indeed, the Supreme Court has explicitly stated that selective application of these laws is no grounds for relief. (Reno v. AADC).

If he IS a citizen, then it gets dicier. The govt would have to prove that either that (1) he lied about some material during the naturalization process or (2) that he was patently insecure when he took the naturalization oath.

If he derived naturalization, then its much dicier.

The govt. could hold him indefinitely without charge as an "enemy combatant" (see Padilla), and then offer to let him go scot free if he renounces his U.S. citizenship. (See Hamdi).

He's in the Fourth Circuit, which has already held that the Govt. can hold anyone on its mere say so, so if the government is serious about getting him out, they certainly can.
10.15.2007 10:48am
Kevin P. (mail):
Is it just me, or is there something strange going on with the comment Javascript? Clicking on Block Quote takes me to the top of the page. I am using Firefox on Windows.
10.15.2007 10:49am
Tareeq (www):
Firefox hates this site. I sometimes have to wait three or four seconds between words for the spacebar to register spaces between words.

I endure the inconvenience because the alternative is internet explorer.
10.15.2007 10:51am
MI (mail) (www):
The Alien Enemies Act (50 USC 21 et seq) comes to mind, but that might be a stretch. Strictly speaking, the act on its face doesn't seem to apply to alien members of a non-state organization - even if said organization really is waging war on the US - and I'm not sure if it's ever been applied in that manner.

Incidentally, the AEA's companion legislation - i.e., the "Alien Friends Act", would've been perfect for this sort of thing. But we all know what happened to that law....
10.15.2007 10:52am
The Drill SGT:
David, back to your questions:

I'm curious: assuming that (1) Khan is not a citizen; and (2) he has not violated any criminal laws, does American immigration law, tempered by constitutional considerations, provide grounds for deporting him?

with the caveat that he certainly hasn't been convicted of any criminal law, though he may have violated some certainly, I think that he could trigger these deportation items, though I'm sure the immigration lawyers would disagree.

- Aliens who engage in activities jeopardizing the national security
- Aliens who engage in terrorist activity

It seems to me that these quotes from the article support my position:

where he serves as a kind of Western relay station for the multimedia productions of violent Islamic groups.

Mr. Khan said that he had dreams about meeting Mr. bin Laden and that he would not rule out picking up a weapon himself one day. In a recent essay, he argued that jihad was mandatory for all Muslims, and he cited three ways to fulfill this obligation: join fighters in Iraq, Afghanistan or Algeria; send them money; or promote militant videos as part of the jihad media.

perhaps this behavior isn't treasonous for a citizen, but it ought to be deportable for an alien
10.15.2007 10:57am
MW:
8 U.S.C. ss. 1227(a)(4)(B) and 1182(a)(3)(B)(i)(VII) authorize deportation of an alien who "endorses or espouses terrorist activity." "Terrorist activity" is defined in s. 1182(a)(3)(B)(iii) in a way that seems applicable. (There might be other applicable sections. The INA is a bit of a muddle.)
10.15.2007 11:10am
Mr. X (www):
I note the scare quotes on "American," but can we also get some on "jihadist"? This guy is a blogger that posts videos on the Internet, not a suicide bomber.
10.15.2007 11:26am
TruePath (mail) (www):
So what I want to know is how the first ammendment applies to the issues of immigration law. In particular can the government deport you for presenting a really unpopular viewpoint? Is there any reason to think Kahn wouldn't qualify for any such protection if it existed? After all the claim about him serving as a intermediary is kinda dicey from a first amendment perspective if all he is doing is helping them pat themselves on the back and get their viewpoint out to the rest of the world. I mean we don't have reason to believe he is passing on operational information or actually aiding these people in attacking targets do we?
10.15.2007 11:27am
Hans Bader (mail):
If he's not a citizen, then the First Amendment wouldn't stop him from being deported for his seditious sentiments. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 1471 (1999).

And statutes such as 8 U.S.C. 1227(a)(4)(B) and 1182(a)(3)(B)(i)(VII) authorize deportation of an alien who "endorses or espouses terrorist activity."

Frankly, his statements go beyond seditious, towards treasonous, anyway.
10.15.2007 11:34am
spider:
This guy Khan was certainly an idiot for agreeing to the NYT interview. Probably there would have been no article without the interview.
10.15.2007 11:37am
abb3w:
Marklar: If he IS a citizen, then it gets dicier. The govt would have to prove that either that (1) he lied about some material during the naturalization process or (2) that he was patently insecure when he took the naturalization oath.

I(AmNotALawyer) think his political remarks sounds like they could be argued as "adhering to [the United States'] enemies"; his redistribution of their videos with favorable commentary might be "giving them aid and comfort". If nothing else can be found, a treason charge does not sound impossible. Granted, a conviction doesn't get him out of the country, but it ought to be able to keep him from blogging.

For a non-citizen, it should be easier; barring a diplomatic visa, actions that would constitute treason by a citizen ought at least be grounds for deportation.
10.15.2007 11:44am
JB:
I'd have to look at his blog to have a real opinion. If he's just going "Rah rah, suicide bombers and terrorists!" then the fact that we don't send his ass back to wherever he came from, or clap him in jail here, is a mark of our freedom, civilized nature, and superiority to his cause.

If, on the other hand, he knows some terrorists, accepts donations to them, and can hook you up if you want to volunteer, then he's fair game in my eyes.

It's not clear to me exactly which is the case.
10.15.2007 11:45am
Hans Bader (mail):
The First Amendment wouldn't shield him; but there was a typo in my citation above to the Reno v. AADC case.

I should have written:

If he's not a citizen, then the First Amendment wouldn't stop him from being deported for his seditious sentiments. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999).

And statutes such as 8 U.S.C. 1227(a)(4)(B) and 1182(a)(3)(B)(i)(VII) authorize deportation of an alien who "endorses or espouses terrorist activity."

Frankly, his statements go beyond seditious, towards treasonous, anyway.
10.15.2007 11:46am
NaG (mail):
I predict this guy is arrested before Wednesday. What an idiot.

Mr. X: Khan believes himself to be a jihadist because he actively works to promote jihad. Scare quotes are thereby not necessary.
10.15.2007 11:51am
J. F. Thomas (mail):
My God, you people throw around treason and are willing to forget the first amendment at the drop of a hat. But god forbid this guy would be prohibited from buying as many guns as he wanted.

Where is the overt act of providing aid and comfort to enemies of the United States?

If we are going to hold this particular guy to this standard, then I can point you to literally hundreds of neo-Nazi and Christian Identity sites that are just as vile and actively directly support the overthrow of the U.S. government (or ZOG if you prefer). Where is all the concern about these terrorists?
10.15.2007 11:57am
Marty B:
Well, I don't really see much difference between what he's doing and what the Israel-Firsters are doing. Actually, the Israel-Firsters are much worse since thousands of Americans have been killed and maimed because of their actions.
10.15.2007 11:57am
Tareeq (www):
I predict this guy is arrested before Wednesday. What an idiot.


The Times is legacy media.

There could be many reasons Khan (whose identity evidently even bloggers can figure out) hasn't been detained. He may be a citizen. There may be ongoing investigative value in keeping him in circulation. Perhaps the authorities deem that he's done nothing wrong. Or perhaps we just have a legacy government.
10.15.2007 12:01pm
Marklar (mail):

TruePath (mail) (www):
So what I want to know is how the first ammendment applies to the issues of immigration law.


Basically, it doesnt. The government can remove a noncitizen (including a permanent resident alien) from the country for espousing views that it dislikes. Theoretically, could the Administration deport any liberal noncitizen bloggers if it wanted to? Absolutely.

See Mathews v. Diaz, 426 U.S. 67 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.")
10.15.2007 12:11pm
Salixquercus (mail):
What part of "born in Saudi Arabia" do you not understand?


This man is a valuable ally in the War on Terror.
10.15.2007 12:24pm
arthur (mail):
Forget about treason. Only a citizen can be charged with treason.

I'ts not obvious to me why the United States would want to deport this guy. His web site seems pretty harmless, being after all just words. It's as helpful to al Qaeda as the many warbloggers on the opposing side are to United States military operations, i.e. not at all. On the off chance that real potential terrorists are following his site, it's probably to the U.S.' advantage that the site is hosted inside subpoena range.
10.15.2007 12:28pm
DCraig:
Is deportation an actual possible penalty of being found guilty of treason? I was under the assumption that the government just shot or imprisoned people it found guilty of treason.

Also, recently in my area, a permanent resident alien was found guilty of employing illegal aliens and a number of other unsavory illegal activities. IIRC, he was deported on procedural grounds because he vowed to uphold and obey the laws of the Unied States during the naturalization process, he subsequently broke this vow by violating federal labor laws, and they therefore revoked his alien status. I'll see if I can look into this further.
10.15.2007 12:28pm
MW:
While it's true that noncitizens do not have the same constitutional protections as citizens, I don't think either Reno v. AADC or Mathews v. Diaz is quite on point. Try Harisiades v. Shaughnessy, 342 U.S. 580 (1952) (deportation because of membership in the Communist Party).
10.15.2007 12:33pm
Smiley (mail):
I think folks are mixing up two different issues here.

In the *immigration* context, he can almost certainly be "removed", the current term of art for being deported.

In the *criminal* context, he can probably be charged for various offenses related to endorsing or supporting terror, but thats less of a slam dunk.

If I was a DHS official who wanted him gone, I'd go the first route.
10.15.2007 12:34pm
Elliot Reed:
Haven't looked at the cites people have posted, but I am astounded to hear that immigrants can be deported for engaging in what would normally be protected speech under the First Amendment. What could possibly be the basis of the principle that the First Amendment doesn't apply to deportation proceedings?
10.15.2007 12:36pm
J. F. Thomas (mail):
The government can remove a noncitizen (including a permanent resident alien) from the country for espousing views that it dislikes. Theoretically, could the Administration deport any liberal noncitizen bloggers if it wanted to? Absolutely

Actually you are wrong. Resident aliens are entitled to the practically the same constitutional protections as U.S. citizens, especially first amendment rights to criticize the government. Advocating the violent overthrow of the U.S. is what will get you in trouble and subject you to deportation.
10.15.2007 12:37pm
J. F. Thomas (mail):
deportation because of membership in the Communist Party

Because the Communist Party advocated the violent overthrow of the U.S.
10.15.2007 12:38pm
Teaeopy (mail):
I don't know the answer to the question. If Khan is deportable, it may be that those in government who monitor him prefer that he be in the USA.

The statement below, from a paragraph in the article, is curious.

Mr. Khan produces his blog anonymously, but was identified by The Times through the e-mail account he used in previous online discussions.


I haven't re-read the privacy policy of The Times, but it appears that Khan was outed. (Outing need not be original to be an issue.) I'm not sympathetic to Khan's efforts, but outing based on email addresses used for online discussions could have implications for the rest of us. What if one of us were to criticize the New York Times too bitingly, in their view, or to express an opinion unaccepable to them? Perhaps they could be more revelatory about what they do. Judith Miller's agenda should have been outed in detail.
10.15.2007 12:39pm
Duncan Frissell (mail):
Well I heard about this great legal blog that has information on this very question.
10.15.2007 12:42pm
Smiley (mail):

I am astounded to hear that immigrants can be deported for engaging in what would normally be protected speech under the First Amendment...

Actually you are wrong


Nope, he's not.

You're right if you mean that a noncitizen can't be criminally punished for First Amendment activity.

But the same noncitizen can be kicked out of the country for the same protected activity.

The distinction is that the Supreme Court has held that deportation, now removal, is a civil, not a criminal proceeding.

For example, in the 1970s, the government tried to deport the feminist poet Margaret Randall. An Immigration Judge agreed with them, and ordered her deported. The Board of Immigration Appeals however, determined that she was a U.S. citizen, and therefore could not be deported. A textbook case of the all important distinction between citizens and noncitizens.
10.15.2007 12:44pm
Elliot Reed:
Advocating the violent overthrow of the U.S. is what will get you in trouble and subject you to deportation.

Does this guy actually advocate the violent overthrow of the U.S.? From the article all we have is that he advocates attacking our troops abroad.

Also: why can't the Times get with Web 1.0 and give us a link to this guy's website? Google isn't helping me: all I'm getting is links commentary on the Times article.
10.15.2007 12:46pm
DCraig:
Upon further review, the scenario I discussed further is much different than I described. The employer I spoke of was actually a foreign citizen granted asylum in the U.S. He is charged with the criminal offense of recruiting, hiring, and harboring illegal aliens and faces prison time and fines. The ICE deported the workers. I think where I got confused is that someone had explained to me that it was possible he could have his asylum status revoked, making him "removable," and that this is a status he may not want considering his motivations for leaving his home country in the first place where a concern for his physical well being. This fits in with the civil v. criminal differences in deportation Smiley was discussing. Sorry for the confusion.
10.15.2007 12:54pm
Dave N (mail):
Elliott Reed,

While I normally agree that links to original sources are best in the Internet age, I also think that doing so for Bozos like this only promotes the trash they are peddling--whether it be Jihad, Christian Identity, or any other kind of true hate speech.
10.15.2007 12:58pm
Pliny, the Elder (mail):
Without parsing anything too closely, he might be removable under INA 237(a)(4)(A)(iii) or 237(a)(4)(C)(i)
10.15.2007 1:02pm
Tareeq (www):
Elliott Reed and Dave N:

The website in question was http://inshallahshaheed.muslimpad.com/ It went offline yesterday. Mr. Khan probably forgot to pay his bill.
10.15.2007 1:07pm
Elmer (mail):
The citations concern the law as written, rather than actual practice. Does anyone know of a reasonably parallel case where someone was actually deported for similar activity?
10.15.2007 1:08pm
Tareeq (www):
Here's google's cache of the site.

Here's a bit of flavor from the cache:

So let these Apostates know that their freedom is not acceptable in the eyes of Allah, and on the Day of Judgment, there will be a painful punishment. May Allah kill all these Apostates through the hands of the warriors of Allah Ta'aala!


IA! Shub Niggurath!
10.15.2007 1:12pm
Eli Rabett (www):
Immigration law is complicated enough that you cannot find a non-citizen who is not removable given the will of DHS to go after him or her, but Eli has another question:

Does Khan really exist? Khan, for example, is not a Saudi name, being common in the stans. He might have been born in Saudi to Pakistani parents, etc. tho
10.15.2007 1:16pm
vaduz (mail):
Leave the Department of Homeland Security alone. They are too busy hunting for 80 year old former Nazi guards who are a much higher priority and much more dangerous to our way of life than some jihadist.
10.15.2007 1:23pm
Clayton E. Cramer (mail) (www):

Haven't looked at the cites people have posted, but I am astounded to hear that immigrants can be deported for engaging in what would normally be protected speech under the First Amendment. What could possibly be the basis of the principle that the First Amendment doesn't apply to deportation proceedings?
The First Amendment doesn't protect all forms of speech, contrary to what the ACLU wants to believe. At least from the description above, he is arguably engaged in criminal activity, no different than if the German-American Bund had been still promoting Naziism after the German declaration of war on December 11, 1941.

One of the real signs of how tremendously committed the Bush Administration is to civil liberties is that they have not treated the War on Terror in the same way that previous presidents have done so during wartime.

Lincoln had members of the Maryland legislature arrested to prevent them from voting. The Schenk case involved people prosecuted during World War I for doing what leftists and professors all over the country do almost daily: trying to discourage people from entering the armed forces. In World War II, FDR had 110,000 people locked up because of their ethnicity.

Leftists who think that "Bush=Hitler" have not a clue what even traditional American actions during wartime with respect to dissent are like. But of course, that's because most of them know as much as history as J.F. Thomas.
10.15.2007 1:25pm
PLR:

One of the real signs of how tremendously committed the Bush Administration is to civil liberties is that they have not treated the War on Terror [quotation marks omitted in original] in the same way that previous presidents have done so during wartime.

Stop it, you're killing me.
10.15.2007 1:31pm
GV_:
One of the real signs of how tremendously committed the Bush Administration is to civil liberties is that they have not treated the War on Terror in the same way that previous presidents have done so during wartime.

Much like the governments of the Southern states were "tremendously committed" to protecting civil rights in the 60s because they no longer hung African-Americans from trees.
10.15.2007 1:50pm
TerrencePhilip:
Forget about treason. Only a citizen can be charged with treason.

actually I think if you claim the protection of the US you can be charged with treason against it. Britain executed a group of foreigners for "treason" during WWII on this theory, despite their lack of British citizenship.
10.15.2007 1:59pm
Rich Rostrom (mail):
An alien residing in a country and accepting the protection of its government has the reciprocal obligation of not trying to overthrow that government, and not "adhering to its enemies".

This principle was applied to William Joyce ("Lord Haw-haw"), the British radio traitor of WW II. Joyce was born in the U.S. to Irish immigrant parents, and his father was actually naturalized in the U.S. But his family returned to Ireland a few years later. Joyce grew up in Ireland. The Joyces were Protestants, and Joyce may have served with the "Black-and-Tans" as a teenager. They moved to England, where Joyce applied to the British equivalent of ROTC. Later Joyce was very active in the British Fascist movement, acting as if he was British.

But when he was captured and tried for treason, it was suggested that he was legally an American and therefore not a traitor. The court dismissed this defense, on the reasoning given above.

This is of course a foreign precedent, but I believe similar holdings have been made in the U.S., and the doctrine is held generally.
10.15.2007 2:39pm
TyrantLimaBean:
>Leave the Department of Homeland Security alone. They are too busy hunting for 80 year old former Nazi guards who are a much higher priority and much more dangerous to our way of life than some jihadist.

The Nazi-hunters are DOJ, not DHS.

As I recall, we had to abandon plans to charge John Walker Lindh with treason because, as his lawyers told the US gov, his unauthorized service in a non-American army was a legal renunciation of US citizenship.

I've always thought the distinction between allowable treatment of American vs foreign Al Qaeda members was more complicated than the debate implies - simply because membership in Al Qaeda is grounds for waiver of US citizenship. I believe the law on the issue says something to the effect that the US can't revoke your citizenship, but certain actions you take will legally amount to voluntarily renouncing it - such as unauthorized service in foreign armed services.
10.15.2007 2:56pm
Smokey:
So, just to be clear: I, as a citizen, can be imprisoned for shouting "Fire!" in a crowded theater - but this guy's 'rights' are being trampled if he's deported or jailed for repeatedly demanding the killing of American soldiers??

There's a reasonable way to determine what should be done with this guy: let a jury decide. An American jury.
10.15.2007 3:03pm
Tareeq (www):
Smokey, the content of the man's blog (at least from what I saw on the cached site) doesn't violate any law, so there's nothing for a jury to decide. It merely, potentially, makes Khan an undersirable alien.

If we made it a crime to be a deluded loser who voices strong opinions, it would dwarf the effect that the war on drugs has had on our prison population.
10.15.2007 3:20pm
Waldensian (mail):

I, as a citizen, can be imprisoned for shouting "Fire!" in a crowded theater

Yes, but only if there is no fire, of course.
10.15.2007 3:24pm
J. F. Thomas (mail):
Leftists who think that "Bush=Hitler" have not a clue what even traditional American actions during wartime with respect to dissent are like. But of course, that's because most of them know as much as history as J.F. Thomas.

Oh yeah Clayton, I know my U.S. history, do you. You all like to throw around the idea of charging people with treason and sedition.

Quick U.S. history trivia question. In the entire history of the U.S.A. how many people have been convicted of treason? Remember the elements of the crime are laid out in the constitution is the founders didn't like the way the King threw treason charges around to stifle dissent.
10.15.2007 3:25pm
glangston (mail):
As I recall, we had to abandon plans to charge John Walker Lindh with treason because, as his lawyers told the US gov, his unauthorized service in a non-American army was a legal renunciation of US citizenship.




This guy currently faces treason charges and seems to be as deeply involved.
Adam Gadahn
10.15.2007 3:51pm
Per Son:
Regarding capturing Nazis. So basically, if you are old, you get a free pass on committing attrocities?
10.15.2007 4:02pm
ejo:
not to be too picky, but could you imagine, in the early 1940's, open and active nazis working in this country while we are at war. now, it appears to be just an academic debate.
10.15.2007 4:12pm
BGates (www):
JF Thomas, wiki says 8 people have been convicted of treason in the US, 3 of whom were convicted for conduct very similar to what 'Khan' is doing.
10.15.2007 4:17pm
TyrantLimaBean:
>This guy currently faces treason charges and seems to be as deeply involved.

Notice, though, that he hasn't "lawyered up" yet. If he did, I imagine his lawyer would make the same argument re renunciation of citizenship. Whether it would be successful, I can only speculate.
10.15.2007 4:23pm
J. F. Thomas (mail):
3 of whom were convicted for conduct very similar to what 'Khan' is doing.

If you are referring Axis Sally and Tokyo Rose (and the latter received a pardon from President Ford) they were actually employed by the German and Japanese Governments, not just spreading enemy propoganda.

not to be too picky, but could you imagine, in the early 1940's, open and active nazis working in this country while we are at war

You seem to forget that while it make for nice rhetoric, we are not at war with anyone. Terror is not a state, it's not even a political movement or ideology. Radical Islam may be, but it is hardly even as organized or easily defineable as communism or libertarianism.
10.15.2007 4:52pm
Jone (mail):

The First Amendment doesn't protect all forms of speech, contrary to what the ACLU wants to believe. At least from the description above, he is arguably
engaged in criminal activity, no different than if the German-American Bund had been still promoting Naziism after the German declaration of war on December
11, 1941.

The then prevailing judicial construction of the First Amendment was, as I am sure you know, less speech protective than that of today, see Brandenburg v. Ohio.
Brandenburg is blackletter law. So whether you agree with the ACLU is irrelevant.
10.15.2007 4:53pm
ejo:
I guess our military would quarrel with you, as would most sane people. we are very much at war with people, no matter what limitation you would like to place on our current state. by the way, why is radical islam, a presence in many countries in the world which actually controls some countries, so hard to define. they seem to know who they are and, more importantly, who they hate. why is it so tough for you?
10.15.2007 4:56pm
J. F. Thomas (mail):
I guess our military would quarrel with you, as would most sane people

I guess when I say that the Attorney General has repeatedly stated, even under oath, that we are not at war with anyone, that doesn't real offer proof to contradict your point that most sane people would say we are at war.
10.15.2007 5:03pm
pjohnson (mail):

You seem to forget that while it make for nice rhetoric, we are not at war with anyone.

Okay, then, the laws of war don't apply, and there's no problem with Gitmo or Abu Ghraib or keeping unlawful combatants locked up indefinitely. And there are no enhanced penalties under the UCMJ for our troops committing offenses in time of war. And nobody can be charged with treason no matter what they do or say, because we have no "enemies" -- since we're not at war.

Got it.
10.15.2007 5:09pm
Jone (mail):

I guess our military would quarrel with you, as would most sane people. we are very much at war with people, no matter what limitation you would like to
place on our current state. by the way, why is radical islam, a presence in many countries in the world which actually controls some countries, so hard
to define. they seem to know who they are and, more importantly, who they hate. why is it so tough for you?

Even granting that there is a state of undeclared war, there is no wartime exception to The Bill of Rights.
And yes, whether there is a state of war is probably a political question the court wouldn't decide. But even a declaration of war by Congress can't abrogate the First Amendment, only the court has the power to modify the constitutionally
protected zone of free speech.
And since the court itself decided in Brandenburg (notably during the cold war) that you have the right to advocate the propriety of violent
revolution, implying that subversive speech is punishable because there is an enemy desiring our destruction is a nonstarter.
10.15.2007 5:14pm
Clayton E. Cramer (mail) (www):


Leftists who think that "Bush=Hitler" have not a clue what even traditional American actions during wartime with respect to dissent are like. But of course, that's because most of them know as much as history as J.F. Thomas.


Oh yeah Clayton, I know my U.S. history, do you. You all like to throw around the idea of charging people with treason and sedition.
Where did I say that? I am not sure that it would do much good to make martyrs of the pro-terror left. I'm pointing out that relative to what the law allows, Bush has tolerated far more enemy propaganda from American citizens than previous wartime presidents have done.

Quick U.S. history trivia question. In the entire history of the U.S.A. how many people have been convicted of treason? Remember the elements of the crime are laid out in the constitution is the founders didn't like the way the King threw treason charges around to stifle dissent.
Not just to stifle dissent. Sleeping with the King's mistress was treason. (If you want some laughs, California law used to have a "petit treason" crime for injuries committed by a servant against his master.) Treason has a pretty high standard of proof, written into the Constitution; sedition less so.

While the number ever convicted under the treason statute is tiny, that's more a sign of our willingness to forgive and forget than the number of traitors. Pretty much the entire Confederate Army that were taken POW could have been tried and executed for treason. (The rest could have been except for the witness problem.)
10.15.2007 5:16pm
Clayton E. Cramer (mail) (www):
J.F. Thomas writes:

You seem to forget that while it make for nice rhetoric, we are not at war with anyone.
Not even Osama bin Laden and his followers? You mean that we aren't at war with a recognized nation. I guess we weren't at war with the Barbary pirates, either.
10.15.2007 5:19pm
Mary Katherine Day-Petrano (mail):
"Is this a trick question?" Yes.

The trick in the Q:

"assuming that (1) Khan is not a citizen; and (2) he has not violated any criminal laws"

juxtaposed with

"more curious about whether there is any law addressing the subject, and what it says"

The answer to "whether there is any law addressing the subject, and what it says:" Hon. James Moody's decision in U.S. v. Sami Al-Arian -- Al Arian was convicted of violating criminal anti-terrorism laws AND he entered into plea agreement to deportation (eventually, whenever the Fourth Circuit gets done with him for refusing to help the USAO in the Charity-terrorism case).

Another Trick in the Q: How are these scenarios this different than the "Freedom Fighter" poster on the Muslim hate porter thread on this blog?

Why is Freedom Fighter ... well ... still FREE?
10.15.2007 5:22pm
Teaeopy (mail):
I don't know the answer to the question. If Khan is deportable, it may be that those in government who monitor him prefer that he be in the USA.

I disapprove of Khan's efforts, but there are reporting issues that apply no matter who a subject is. The statements below are from my email message to the New York Times.

A statement in today's NYT article "An Internet Jihad Aims at U.S. Viewers" makes it appear that the NYT's privacy Policy was violated. The statement is, "Mr. Khan produces his blog anonymously, but was identified by The Times through the e-mail account he used in previous online discussions." The most likely inference is that the email address was used for participation in discussion at a NYT site, and would fall under the NYT Privacy Policy.

If the online discussions spoken of were not at a NYT web site, that fact should be made clear. If they did occur elsewhere, there could still be issues as to whether an administrator of any source blog or forum violated its privacy policy, and whether The Times was a beneficiary of a breach of privacy policy. If a source's web site had a posted privacy policy at the time the story went to press, the NYT correspondents and editors can be construed to have known the privacy position.

Some bloggers are claiming that the NYTimes article ruined an ongoing investigation. Apparently the investigation was by persons who tasked themselves to conduct it. Hasn't it occurred to those bloggers that Khan is likely to be under as much government surveillance as anyone in the country, and that citizen actions against Khan, perhaps at least as much as irresponsible news reports, could have the effect of hindering or terminating legitimate targeted surveillance?
10.15.2007 5:23pm
Mary Katherine Day-Petrano (mail):
Sorry, typo: "Muslim hate porter thread" = Muslim hate poster thread (its at the bottom or went off the bottom last nite and is in most recent archives)
10.15.2007 5:24pm
ejo:
the AG said we are not at war with anyone? is there a context to that statement other than the FISA argument my 30 second google turned up-or is it simply an accepted bit of wisdom on the left. obviously, to the rational, the statement that we are not at war with anyone is a bit, how shall I put it, nutty. I also disagree that the authorization for the use of military force is not a declaration of war, given that there is no standard for what is necessary for a declaration. finally, getting back to where I started, would the backwards and less enlightened country of the 40's have tolerated the conduct? more importantly, would the left have been there for the nazi proponents, letting everyone know that Roosevelt was the real bad guy? I'm sorry to use the "N" word in my post but our opponents are morally on the same level but seem to still draw their sympathizers from the left-I can't figure out why.
10.15.2007 5:26pm
A. Zarkov (mail):
J.F. Thomas

"You seem to forget that while it make for nice rhetoric, we are not at war with anyone. Terror is not a state, …"


Why do we have to be at war with a state? What in law strictly limits war to state actors? For example The Northwest Indian War (1785-1795) was fought between the US and a confederation of Indians. Why can't the US be at war with Al-Qaeda? Or even an organization like SPECTRE.
10.15.2007 5:42pm
Seamus (mail):
Why do we have to be at war with a state? What in law strictly limits war to state actors? For example The Northwest Indian War (1785-1795) was fought between the US and a confederation of Indians.

Maybe not a state, but they were legally a sovereign power (or maybe a collection of sovereign powers).

Abe Lincoln initially tried to argue that his actions toward the Confederacy weren't really a "war" but rather the enforcement of the law against "combinations too powerful to be resisted by the ordinary course of judicial proceedings," but soon enough had to concede that the Confederacy was de facto a sovereign power and that the conflict with it was a war.
10.15.2007 5:57pm
ejo:
but, if we close our eyes and ignore common sense, it is much easier to blame bush for all our problems and ignore the very real enemies we have in the world. were the Barbary Pirates a sovereign state?
10.15.2007 6:18pm
PLR:

Okay, then, the laws of war don't apply, and there's no problem with Gitmo or Abu Ghraib or keeping unlawful combatants locked up indefinitely.

This topic is like an episode of Last Comic Standing.
10.15.2007 6:45pm
New Pseudonym (mail):

You seem to forget that while it make for nice rhetoric, we are not at war with anyone

Right, the king hasn't even attempted to send out his heralds, yet.
10.15.2007 7:16pm
TruePath (mail) (www):
Smiley said:


You're right if you mean that a noncitizen can't be criminally punished for First Amendment activity.

But the same noncitizen can be kicked out of the country for the same protected activity.

The distinction is that the Supreme Court has held that deportation, now removal, is a civil, not a criminal proceeding.


SO? Don't first ammendment protections restrict the ability of the government to create civil causes of action? For instance the government couldn't extend a privacy or invasion of privacy law to allow politicians to sue journalists who expose scandals.

---

To everyone who is throwing around charges of sedition and treason it is really a lot more complicated than this. He may be guilty of these things but one needs a lot more context than this. Presumablly the primary argument here is that he is guilty of advocating the violent overthrow of the UC government. But where has he advocated the overthrow?

I mean let's take some other examples and while you may dislike the speech in question I think it is clearly protected.

1) We get involved in a war with deeply unjust ends (say it turns out the countries we are fighting for are committing genocide) and a prominent anti-war activists repeatedly states that, "It is a good thing when the enemy kills more of our soldiers. I hope they kill more of them. That's the only way we will decide to pull out of the war and stop helping this genocide. The other side deserves to win this war."

Now clearly he has expressed his belief that it is good for the US to lose a real war and even for US troops to die but so long as he does nothing but express this belief he has clearly not stepped beyond first amendment protections. There is nothing in the constitution that makes the moral belief that US soldiers should die treason.

2) Just in case you think that wanting US soldiers to die is ipso facto treason what about the zealous christian patriot who says we shouldn't give our soldiers fancy body armor because it denies them the chance to become martyrs for our cause. It's dumb but clearly not treason.

3) Even as far as violent overthrow goes there is a distinction betweeen saying it is a good thing and advocating it.

For instance consider an communist philosophy professor who gives a lecture to his class about the moral virtue of violent opposition to governments supporting capitalism. If a student asks him whether this would mean it is morally good to violently oppose the US government his answer of "yes" isn't treasonous.

Now if he actually went on to genuienly urge them to go out and engage in that resistance that would be another matter.


The point is that it is both unclear from the quotes whether this guy actually advocated the overthrow of the US government or merely the death of our soldiers in the middle east so we withdraw as well as whether he crossed the line from statements about moral/religious truth to outright advocacy.
10.15.2007 9:45pm
Gildas (mail):
My God, you people throw around treason and are willing to forget the first amendment at the drop of a hat. But god forbid this guy would be prohibited from buying as many guns as he wanted.

Interesting piece of projection there, since thus far that was the sole use of the word 'gun' in this thread.

And as it happens, unless he's a Lawful Permanent Resident, he's already prohibited from buying any guns at all. And if he is a Lawful Permanent Resident then the paperwork making him one provides the legal means to remove him, should the Federal Government wish to. Which was after all the question this thread was posing:


I'm less interested in knowing whether readers think Khan should be deported, which will lead to an utterly predictable set of comments, and more curious about whether there is any law addressing the subject, and what it says.
10.15.2007 10:11pm
spider:
In the video accompanying the article, the NYT reporter states in the first minute that Samir Khan is a US citizen.

Does that help?
10.15.2007 11:12pm
ReaderY:
THe first amendment protects the right of the people to petition their government, the second amendment protects the right of the people to keep and bear arms, and the fourth amendment protects the right of the people to be secure in their homes. If this individual is not a member of the people, he doesn't have any of these rights. He has no right to remain in this country; he can be deported for any reason or no reason unless Congress chooses to provide for reasons. No-one can take away our freedom of choice.
10.16.2007 12:52am
endorendil (mail):
It seems clear to me that anyone that can be apprehended by the US army or police, while actually aiding or abetting terrorism, would be. Whether it is legal or not. The US has even kidnapped foreigners in other countries, and rendered them to our real allies in the war on terror (such as Syria and Egypt) for torture based on hearsay evidence. If this guy was a real threat, he'ld be lucky to be in Guantanamo, if he wasn't an American. But since he is a citizen, he'ld just follow Padilla's steps into oblivion. He's still walking around, so he must be considered pretty darn harmless, perhaps even helpful.

But suppose for a minute that the government would consider Samir's blog really helpful to the Jihadi movement. You don't really think that they would just deport him, at least not without arranging for a welcoming committee? After all, the only thing he does is translate Jihadi messages into English (which isn't exactly useful for a movement where learning Arabic is a prerequisite) and post snuff videos (some of which I'm sure he just copies from US army blogs - check 'em out if you got the stomach). These things he can do anywhere in the world. Keeping him in the US would be much more useful. Easier to track his every move, for instance, and track the people he hangs with.

So he won't be deported. Even if he hadn't been a citizen. Would make zero sense.
10.16.2007 9:04am
markm (mail):

J. F. Thomas (mail):
My God, you people throw around treason and are willing to forget the first amendment at the drop of a hat. But god forbid this guy would be prohibited from buying as many guns as he wanted.


J.F, why don't you learn something about the existing gun laws before posting about them? If he was convicted of treason, he certainly wouldn't be buying as many guns as he wanted. He cannot mail order guns from prison, and if he were ever released, as a convicted felon he would be legally barred from possessing a gun.


Where is the overt act of providing aid and comfort to enemies of the United States?


Posting videos of attacks upon American soldiers, and making it clear that he approves of killing our troops might qualify. It's close to the line, but if the facts are as David presented them, IMO it's over it. He has avowed that he is an enemy of this nation, and is verbally supportive of foreign enemies. he was a volunteer rather than a paid agent?

OTOH, using treason law for a case such as this seems like swatting flies with a sledgehammer. If he's a non-citizen, just deport him. If he is a citizen, then it's a tougher call - under the Constitution, I think we either have to legally ignore it or else prosecute for treason. Is there any way that a penalty of permanent exile could be imposed by a court?
10.16.2007 10:14am
markm (mail):
Someone said that, as compared to the Tokyo Rose case, he wasn't paid by a foreign government. How is it in his favor that he was a volunteer rather than a paid (or coerced) agent?
10.16.2007 10:17am
Marklar (mail):

Don't first ammendment protections restrict the ability of the government to create civil causes of action? For instance the government couldn't extend a privacy or invasion of privacy law to allow politicians to sue journalists who expose scandals.


They do. But the Supreme Court has been very clear that selective enforcement of immigration laws is no defense, even in a clear First Amendment situation (Reno v. AADC).

The bottom line is this: for any NONcitizen, you're here at the pleasure of Uncle Sam. If you stick a thumb in his eye, well, he has tools to deal with you that he couldnt if you were a citizen. (As Khan apparently is).
10.16.2007 12:29pm
c.l. ball:

In the video accompanying the article, the NYT reporter states in the first minute that Samir Khan is a US citizen.

Does that help?


No. The question Bernstein posed is what if a legal non-citizen blogged what Khan blogged but was not violating any criminal statute: could he be deported for what he has posted under US immigration law?
10.16.2007 3:16pm
hugh:
Well, I for one hope that something very terrible happens to this young man. He certainly is wishing for something very terrible to happen to us.
10.16.2007 6:54pm
Rod (mail):
The site is back up. It has the following at the top;

Disclaimer
The information on this blog is for educational, research and media monitoring purposes only and the blog maintainers are hereby not responsible for any outcome by its reading or content- the views expressed are just to enhance debate and provoke thought.

http://inshallahshaheed.muslimpad.com/
10.16.2007 8:08pm
DrX (mail) (www):
I realize it was not the question posed in this thread, but regarding Kahn's citizenship, Michael Moss said in an e-mail to me that Kahn is a naturalized American citizen.
10.17.2007 12:27pm
Mary Katherine Day-Petrano (mail):
Right, but this is the trick to the question, "if a legal non-citizen blogged what Khan blogged but was not violating any criminal statute"

How could it not violate any criminal statute?
10.19.2007 5:14pm