In a new twist on the control of movement through control of issuance of ID credentials, the Associated Press reports that a U.S. citizen has been trapped in Kuwait after the local U.S. Embassy summarily confiscated his passport:
Aziz Nouhaili, a naturalized U.S. citizen from Morocco, has been trying for nearly four months to get home from Kuwait, where he worked for several years as a military contractor…. Kuwaiti officials have made clear they will allow Nouhaili to leave only if he has a valid U.S. passport.
Kuwait is a party to the International Covenant on Civil and Political Rights (ICCPR), which provides in its Article 12 that, “Everyone shall be free to leave any country, including his own,” and “No one shall be arbitrarily deprived of the right to enter his own country.”
Regardless of his citizenship or whether he has any passport, Mr. Nouhali is entitled by black-letter international treaty law, expressly acceded to by the Kuwaiti monarchy, to leave Kuwait.
As long as Mr. Nouhali is a U.S. citizen (which appears to be undisputed, at least as of now), the proper course of action for the U.S. State Department, if Kuwait refuses to allow Mr. Nouhali to leave, is a formal diplomatic protest by the U.S. to the Kuwaiti government, followed by a formal complaint to the U.N. Human Right Committee if Kuwait persists in denying Mr. Nouhali’s right to leave.
Mr. Nouhali’s treatment also highlights the significance of State Department or DHS passport issuance procedures and decisions to deny, withhold, or confiscate a passport as tantamount to decisions on whether to permit individual citizens to exercise their right to travel.
Instead of helping Mr. Nouhali to exercise his rights as a U.S. citizen, however, the U.S. government is helping to deny him his rights. A press release from the Council on American-Islamic Relations (CAIR) says that:
According to Aziz Nouhaili, [U.S.] embassy officials told him they were considering making a request that he be denaturalized and that he would not receive his passport until the Department of Homeland Security (DHS) made a determination on that matter.
The problem is that such summary, extrajudicial denaturalization violates both U.S. law — which specifies procedures, due process, and judicial review for denaturalization decisions — and the prohibition in Article 12 of the ICCPR, to which the U.S. is also a party, on being “arbitrarily deprived of the right to enter his own country.”
(We’re currently trying to find out who the State Department has designated as the required “single contact officer” responsible for ensuring that complaints like ours of human rights treaty violations by the State Department are responded to, responses to our our complaints to that office at the DHS, and an accounting of what has happened to other such complaints.)
Mr. Nouhaili’s account raises concerns that the United States is unlawfully attempting to effect an extrajudicial denaturalization of an American citizen. Because Mr. Nouhaili is an American citizen and has the documentation to prove it, these actions amount to a gross deprivation of Mr. Nouhaili’s Fifth Amendment right to due process as well as a violation of his absolute right as an American citizen to return to the United States. Simply stated, there is no lawful basis upon which the United States can deny Mr. Nouhaili the ability to return to his country of citizenship.
American citizenship is too important to be subject to the whims of low level bureaucrats. If there are any concerns about my client’s citizenship, he has the right to have those concerns addressed through the judicial process once he returns to the United States. Indeed, the Supreme Court made clear in Fedorenko v. United States that in order to denaturalize a citizen the United States must provide in federal court ‘evidence justifying revocation of citizenship [that is] ‘clear, unequivocal, and convincing.’ Until that happens, Mr. Nouhaili retains all the rights of a citizen, which include the right to return to his country of citizenship.”
We’re disturbed about many aspects of this incident, of course, but especially by the way that established legal procedures and rights of due process and judicial review are being disregarded.
Once again the State Department and DHS are insisting on secret, summary, extra-judicial, administrative procedures to make decisions about whether to issue ID credentials or whether to allow citizens to exercise their right to travel. No attempt has been made to explain or justify the choice not to pursue existing legal sanctions (in this case, denaturalization) through exisitng legal procedures. Instead, the State department and DHS have simply taken for granted their authority to take such matters into their own hands, and deny U.S. citizens’ rights by secret administrative fiat.
Perhaps that doesn’t offend the sentiments of the Kuwaiti monarchy, which rules by decree of the Emir. But it ought to offend the sentiments of U.S. citizens and advocates of human rights around the world, and further highlight the U.S. as a rogue state when it comes to respect for the right to travel.
[Update: After Mr. Nouhaili's attorney wrote to Secretary of State Clinton and threatened to sue the State Department if it failed to return his passport, his passport was returned -- without explanation. "Gadeir Abbas, Nouhaili's lawyer, said he is happy the government did the right thing in returning Nouhaili's passport, but said Nouhaili's case is one among many where government officials erected bureaucratic obstacles for American Muslims that are removed only when exposed to publicity. 'These are not isolated cases,' Abbas said. 'Aziz reached out to us, but we know there are other people in his situation who are not reaching out.'" AP: US citizen stuck in Kuwait can now leave country.]