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It Could Happen To You: Why Americans Should Care About John Walker
by Gary Endelman

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.


In an age of instant celebrity, John Walker, the American Taliban, is the consummate anti-hero. His story is so abhorrent to all segments of our society that no action taken to punish him will be found to be too extreme. Yet, in our zeal to punish Walker may be found an unwitting acceptance of government action whose future use against a less infuriating target makes our own personal liberty and individual security more vulnerable than we ever could have suspected.

Right now, we are told that Walker's status as an American citizen protects him against being tried by a secret military tribunal created by President's Bush Executive Order issued on November 13th. The White House has sought to calm national unease by reassuring the nation that the order would apply solely against non-citizens abroad; interestingly, the terms of the order itself do not contain this express limitation. The lack of such specific language opens up at least the theoretical possibility of its future use against those whose right to remain in the US is not in question.

There is, of course, a way to allow John Walker to be tried by the military in a star chamber proceeding. If he is rendered immune by virtue of his status as a US citizen, the government can move to strip him of such status under Section 349 of the Immigration and Nationality Act which sets forth various acts that can result in expatriation. Walker would, if press accounts are to be believed, be in danger for two reasons: (1) he took up arms against American soldiers and (2) enlisted voluntarily in the armed forces of a foreign state engaged in hostilities with the United States. If Mr. Walker committed such actions voluntarily, and there is a presumption in the law itself that he did, with the intent to relinquish his American citizenship, then the State Department could, and likely would, issue a Certificate of Loss of Nationality whose administrative effect would be to make Mr. Walker an alien and thus fair game for the military tribunal eager to get at him. While it is extremely rare for a native-born American to lose his citizenship, especially since the burden of proof for the Bush Administration before a skeptical federal judge would be quite high, it could happen.

Most Americans would be astonished to learn that US immigration law could make them non-citizens. Maybe it would be very hard, doubtless it could take much effort, but the central fact is that the possibility of such legal exile cannot be quickly or easily dismissed. The sweeping new government practices that Congress and the President are now deploying in the fight against terrorism do not only weaken the constitutional rights of those whom we fear and hate, but potentially limit everyone's freedom. When it is no longer John Walker who is being targeted, but our neighbor, relative, friend, family or co-worker, if not by the Bush Administration in this crisis than by a less well-intentioned regime in a future one, how will we react then?

The Constitution protects everyone in this country, citizens and non-citizens alike. When we consent in silence to widespread interrogation of aliens on the basis of ethnic profiling, allow secret court hearings, accept indeterminate detention justified by suspicion rather than hard facts, and sanction the wiretapping of privileged conversations between lawyers and their clients, what makes American democracy so precious and unique is changed, perhaps forever, most certainly in ways and with consequences that the vast majority of Americans neither understand nor would accept if they did. Believe it friends while there is still time: It COULD happen to you. That is why we should listen to what A. Lincoln called the "better angels of our nature" and care about John Walker.

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.