This is a follow-up to a follow-up. In a previous post made very late last night/early this morning, I noted that voluntary service in a foreign armed force by an American may be grounds for revocation of his or her citizenship. I went back and researched this point, and here is the State Department's clarification.

Basically, service in a foreign army implicates Section 349 of the Immigration and Nationality Act, which states that a citizen may voluntarily and intentionally relinquish citizenship by, among other things, taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions (Sec. 349 (a) (2) INA) or entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA). Significantly, however, the fact of service alone is insufficient to establish the loss of citizenship; rather, the State Department must determine that the person serving in the foreign army intends or intended to renounce his or her American citizenship. In Vance v. Terrazas (1980), the Supreme Court stated that "expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct." Nevertheless, the Court also indicated that a person's intention to relinquish U.S. citizenship may be shown by statements or actions.

For the moment, the State Department operates under the presumption that an American citizen in all circumstances wishes to retain his or her citizenship. That presumption may be vindicated merely by the affirmation of the citizen that, despite service in a foreign army, he or she does not wish to relinquish citizenship. Of course, there are situations in which the presumption would not apply, including situations in which a citizen (i) commits a potentially expatriating act (as enumerated in Section 349) and (ii) the act is "accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship", but the department helpfully notes that "such cases are very rare".

The upshot of all of this is that under existing precedents, both Hamdi and Lindh could have been determined to have forfeited their status as citizens, thus clearing the way to treat them as "enemy combatants". I would note, by the way, that the burden of proof doesn't seem either very daunting or likely to lead to the disclosure of classified materials. It seems to me that the analysis is fairly straightforward -- did either of them serve in a foreign army? Did either of them commit acts that demonstrated their intent to relinquish their citizenship? If the answer to those two questions is yes, case closed. The appeal (such as it is) of this approach is that first of all, it's an administrative procedure overseen by the State Department, and second, it addresses many of the fundamental civil liberties complaints raised by critics of the administration. [The benefit of this being administered by the State Department is that the avenue of appeal, I presume, is through the Administrative Procedures Act. There, the standard is whether the action was arbitrary or capricious in nature; assuming that there are minimal due process protections, this is a difficult standard to beat.]