US citizens generally assume that, whatever mistreatment is meted out to foreigners by US border guards and the DHS, we are entitled to enter and leave our own country without asking for, or receiving, permission from”our” government.
That should be a safe assumption, under both the First Amendment to the US Constitution (which guarantees our right “peaceably … to assemble”) and Article 12 of the International Covenant on Civil and Political Rights, which guarantees that, “Everyone shall be free to leave any country, including his own…. No one shall be arbitrarily deprived of the right to enter his own country,” and pursuant to which strict standards have been adopted for what is “arbitrary.” All federal agencies have been directed by Executive Order 13107 to “maintain a current awareness of United States international human rights obligations that are relevant to their functions and … perform such functions so as to respect and implement those obligations fully.”
As the brave (some would say crazy) few people like Paul Karl Lukacs who actually try to exercise their rights have shown, it remains possible for US citizens to exercise their right to remain silent at the borders of our own country, although many US citizens have been subjected to interrogation, search, harassment, and sometimes detention when they try to return to the USA.
But can we be entirely prevented from coming or going? More and more, the frightening answer seems to be yes, in practice if not in law.
We first heard about a native-born US citizen being denied the ability to return to the country from overseas because the government wouldn’t allow any airline to transport them as what seemed to be an isolated incident in 2006. They chose not to sue, and after four months the ACLU negotiated “permission” for them to come home to California.
Now the ACLU reportedly has at least seven clients among US citizens abroad who have been unable to come home because the US government won’t let them board common carriers bound for the USA. One billionaire friend of Bill Clinton managed to get an apology for having been put on the no-fly list, but the others have no idea when or if they’ll be allowed to come home, whether it’s time to apply for refugee status or political asylum somewhere abroad — or whether, if they do make it home, they’ll ever again be given permission to leave the country.
[UPDATE: More on these and and even more outrageous similar incidents reported by the Council on American Islamic Relations.]
On the ground, the DHS is erecting steel barriers and gates down the middle of streets in the border town of Derby Line, Vermont, and arresting US citizens for walking across the street to and from Canada at intersections without checkpoints — even if they report themselves at the checkpoint a block further along their walking route.
All of these incidents involve people who have, and are wiling to show, US passports. Things get truly surreal for US citizens without papers.
We’ve heard from several US citizens who left the country without passports, can’t get new passports issued abroad for various reasons, but aren’t being allowed to come back to the USA without a passport. Under State Department regulations of questionable validity, a citizen can be denied issuance of a passport for various reasons, such as debts for court judgments, that don’t constitute grounds for deprivation of the right to enter or leave the country. And some of them may be difficult or impossible to resolve from outside the country. Catch 22.
Finally, there are those who would probably qualify for passports, but who are unwilling to apply for them for religious or other reasons. We’ve been working with a group of missionaries who describe themselves as Amish Mennonites (there are many varieties of Amish and Mennonite belief). Although they were born in the USA, they can’t, consistent with what seem to be their sincere religious beliefs, apply for or accept passports that identify them as citizens of the USA rather than as citizens of the Kingdom of God.
For several years, this group has been carrying out mission work in a rural area along the border of the Dominican Republic and Haiti. Despite seeming to have a clear-cut case under the Religious Freedom Restoration Act, they’ve had increasing difficulty each time they’ve gone back and forth between the island and USA. (Some of their stories of these and other incidents of life without papers are included here.)
One might think that “plain folk” and farmers might have particularly appropriate intermediate technology skills to offer to people in a poor and predominantly agricultural country like Haiti, and that governments would be doing what they could to facilitate the arrival of foreigners trying to bring aid to Haiti in the aftermath of the earthquake.
No such luck. For more than three months, the members of the Amish-Mennonite mission team have been trying to get permission to board a flight from the USA to the Dominican Republic.
After extensive negotiation, the TSA, CBP, and Department of State have agreed not to prevent their departure from the USA. American Airlines has sold them a ticket, and agreed to board them if they can show that the D.R. will admit them. The D.R. is willing to admit them, but only if they can provide sufficient evidence that they will be re-admitted to the USA when they return. There’s the rub: Despite clear treaty law and executive orders that require them to allow all US citizens to return to the country, neither the DHS nor the Department of State will provide any written confirmation that they will admit citizens without passports. So the missionaries are unable to leave the USA for want of proof that they’ll be allowed back in!