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Jewish World Review April 11, 2002 / 30 Nisan, 5762

Martin Gross

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Consumer Reports

He's no American | Last week, the so-called "Second American Taliban" was taken from his wire cell in Guantanamo Bay, Cuba, and flown to a brig at the Norfolk Naval Station in Virginia.

Twenty-two-year-old Yasser Esam Hamdi was captured by U.S. troops in the prison uprising at Mazar-e-Sharif, the same location where the first American Taliban, John Walker Lindh, was apprehended. Both were fighting with the enemy.

What makes this latest "American" so intriguing is that he spent almost all his life in the Middle East with his Saudi Arabian parents, and not in the United States. He was born in Baton Rouge, La., while his parents were living there, but he and his family returned to the Middle East when he was three. His supposed American citizenship means that he cannot be retained in Cuba without benefit of a trial by jury and an attorney, with all the trappings of a defense accorded to American citizens.

So what makes him an American?

He is an American only by a great stretch of imagination and a fluke in the American Constitution -- or, worse yet, a misinterpretation of that Constitution.

Common wisdom is that the Constitution states that anyone born here, even if their parents are foreigners merely passing through, is automatically an American citizen. This is supposedly based on the 14th Amendment to the Constitution, passed in 1868 in order to grant citizenship to slaves freed by Lincoln's Emancipation Proclamation. To accommodate the former slaves, the amendment grants citizenship to those "subject to the jurisdiction thereof of the United States."

When it comes to former slaves, that makes a good deal of sense. But since then, that one phrase has been expanded exponentially by the courts -- probably falsely -- to include anyone born here, even of foreign parents and even if the mother of the child was in the United States illegally when she gave birth!

It is a bizarre interpretation of citizenship, one that exists nowhere in the world except the United States and Canada. Now, an enemy of the United States is using this distorted view of citizenship to ensure himself the full protection of our laws.

But not every scholar or politician is convinced that the interpretation of the law is sound or constitutional. The debate began in another direction -- because of the enormous number of illegal immigrants into San Diego from Mexico who, after giving birth in a county hospital, were allowed to stay here legally because their infant was declared to be an American citizen by virtue of the 14th Amendment.

Professor Barry Schuck, a constitutional scholar formerly of the Yale University Law School, says that it is a legal mistake -- that children born to illegal immigrants should not be automaticly American citizens despite the decisions of the lower courts. This would, of course, also apply to children of parents who were not permanent residents of America and were here temporarily on a visa.

Schuck said he believes that legislation in Congress, not a constitutional amendment, is all that is necessary to clear up the situation. In fact, bills are regularly offered in Congress to correct the judicial error -- both of the illegals and cases such as that of our second "American" Taliban -- but none have passed. One bill, by a California representative, simply states,"to amend the Immigration and Nationality Act to deny citizenship at birth to children born in the United States who are not citizens or permanent resident aliens." That would do it.

Will it happen? Judging by the catastrophic inefficiency of the INS, one would doubt that they would recommend it. But this new crisis -- granting citizenship rights of trial by jury to a military prisoner who is obviously not, by any stretch of common sense, an American -- might prompt the Pentagon and the White House to wish that the Constitution had never been so misinterpreted.

And perhaps to even do something about it.

Comment on JWR contributor Martin Gross' column by clicking here.


03/31/02: Federal Aviation Administration is a threat to our security
03/14/02: Alaskan oil -- another Saudi Arabia?
03/07/02: Secretary Mineta must go
02/28/02: How to reform the IRS tax code
02/21/02: Those darn Europeans -- again
01/31/02: Director of Homeland Insecurity
01/24/02: Musharaff -- Gorbachev of the Muslim world?
01/17/02: Can we stop a nuclear plant attack?
01/09/02: More failed federal aid to education?
12/11/01: The 'American Giant' is still sleeping

© 2002, Creators Syndicate