John Walker Lindh walked out of prison last month and returned to American life, having served 17 years for providing support to the Taliban.
But another American who pleaded guilty in a high-profile terrorism case after the Sept. 11 attacks is facing a tougher path to freedom.
Like Lindh, Iyman Faris received a 20-year sentence at a time when the country was still on edge about further terror attacks. And the Ohio-based trucker admitted to involvement in a plot that sounded like al-Qaida’s most spectacular since 9/11 — an attempt to bring down the Brooklyn Bridge by using gas torches to cut the cables holding it up.
Faris, however, was not born in the United States, and the Trump administration has a controversial plan for him as he’s about to be released: strip him of his U.S. citizenship and kick him out of the country. Or perhaps keep him behind bars indefinitely.
Critics say the current move to revoke the al-Qaida sleeper agent’s American citizenship highlights the limited progress the U.S. has made in the past two decades in prison-based deradicalization efforts. They also say it could create a dangerous new front in how the legal system treats U.S. citizens convicted of terrorism offenses.
“It’s part and parcel of the rest of the immigration policy which is just to demonize people from other countries,” said Joshua Dratel, a Manhattan defense attorney. “It’s an aggressive move."
In the absence of a life sentence or capital punishment, native-born Americans like Lindh seem all but certain to walk the streets in the U.S. again after serving their sentences, even if they’re unrepentant. But naturalized citizens like the Pakistani-born Faris are at risk of being deported over their allegiance to al-Qaida.
“The Supreme Court has said there’s no excommunication when it comes to citizenship,” said Case Western Reserve University law professor Andra Robertson. “There’s only two ways to lose your citizenship: one is when a person voluntarily gives it up and two is when there’s some fraud or illegality in its procurement … If you’re a native-born citizen, obviously you didn’t commit fraud to get your citizenship, so only a naturalized citizen can lose their citizenship involuntarily.”
Just one day after Lindh was released from a federal prison in California last month, Justice Department lawyers filed a motion with a federal judge in Illinois, urging her to void Faris’ U.S. citizenship. The government’s key argument was that by linking up with al-Qaida between 2000 and 2003, Faris raised doubt that he was sincere when he pledged allegiance to the U.S. as part of his naturalization process in 1999.
“These facts establish Defendant affiliated with al Qaeda, a prohibited organization, within five years after naturalizing (indeed, within one year of naturalizing). That affiliation, in turn, is prima facie evidence Defendant was not attached to the principles of the Constitution or well disposed to the good order and happiness of the United States, which are required to naturalize,” Justice Department attorneys wrote.
In 2003, Faris came under suspicion by the FBI and was questioned for weeks, first at a hotel outside Columbus, Ohio, and then at a safe house at the FBI Academy in Quantico, Va. He eventually admitted that he met with Osama bin Laden and other al-Qaida leaders in Afghanistan, researched the use of ultralight aircraft for the group and explored the possibility of using gas-fired wire cutters in an effort to collapse the iconic bridge connecting Brooklyn and Manhattan.
In May of that year, Faris appeared in a sealed courtroom in Alexandria and pleaded guilty to two felony counts involving material support to a terrorist organization. He later tried to back out of the plea, saying that he made up stories in order to sell a book. But a judge rejected Faris’ move and sentenced him to the maximum under the plea deal: 20 years. With standard “good time” credit for federal prisoners, Faris is currently set for release in December 2020.
In recent court filings, Faris — who turned 50 on Tuesday — has argued that he never would have pleaded guilty if he knew he could lose his U.S. citizenship as a result of his admissions. Neither his lawyer nor the judge who took the guilty plea advised him of that possibility, Faris says.
Faris also contends that the move to strip him of his citizenship is directly tied to his refusal to agree to assist prosecutors once his sentence is up.
“The United States brought [this] immigration action in response to Faris’s refusal to cooperate with federal authorities upon his release,” he wrote in a court filing last year.
Faris’ admitted refusal to cooperate appears to have extended through a recent deposition in his denaturalization case. Government lawyers say he took the Fifth Amendment in response to 176 of 390 questions he was asked.
Faris’ attorney in the denaturalization case, Thomas Durkin, said the government is trying to get a second chance to punish his client.
"We think it's a mean-spirited attempt at further punishment and violates his original plea agreement with the government,” Durkin said.
The Chicago-based lawyer also sees the denaturalization effort signaling a panic across the government about convicts with Taliban, al-Qaida or terrorist ties emerging from prison after serving their time.
“There’s of course concern like with John Walker Lindh. Everyone is like, ‘Oh my God, now what are we going to do?’” Durkin said. “It’s 20 years later. These guys are starting to get out.”
A Justice Department spokesman declined to comment on Faris’ case, but when officials first moved in 2017 to denaturalize him they defended the move. “The U.S. government is dedicated to strengthening the security of our nation and preventing the exploitation of our nation’s immigration system by those who would do harm to our country,” said Justice official Chad Readler, now a 6th Circuit Court of Appeals judge.
As POLITICO first reported, U.S. District Court Judge Staci Yandle last year turned down the government’s bid for a quick victory in the denaturalization case against Faris.
“American citizenship is precious, and the government carries a heavy burden of proof when attempting to divest a naturalized citizen of his or her citizenship," Yandle wrote. “The Government's arguments fall short of meeting its burden of clear, unequivocal, and convincing evidence.”
Now, however, Faris faces a more formidable challenge focused on his al-Qaida affiliation.
The government also accuses Faris of fraud for entering the U.S. in 1994 on another man’s passport and for claiming in an asylum application that he entered the U.S. in Buffalo, when he actually flew into JFK Airport in New York, and by claiming he traveled through Canada.
However, several months after the denaturalization case was filed against Faris, the Supreme Court seemed to raise the bar in terms of the kinds of lies that could lead someone to lose his or her citizenship.
“Suppose, for reasons of embarrassment or what-have-you, a person concealed her membership in an online support group or failed to disclose a prior speeding violation," Justice Elena Kagan wrote for the high court majority in what was effectively a 6-3 decision. Allowing a revocation on that "meager" ground "would give prosecutors nearly limitless leverage — and afford newly naturalized Americans precious little security," she added.
Curiously, that ruling is not mentioned in Justice’s recent 26-page brief in the Faris case.
“The government has been arguing around it,” Robertson said.
The move to nullify Faris’ citizenship comes amid a concerted push by the Trump administration to ramp up denaturalization cases nationwide, especially in cases where the government believes fraud took place.
A drive known as Operation Janus was actually launched under the Obama administration, but Trump appointees doubled down on the effort, criticizing previous officials for failing to follow through on the 315,000 immigration files missing fingerprint data in digital form. When that data was scanned in, some fingerprints of new citizens matched immigration files under different names.
Trump officials at the Department of Homeland Security and the Justice Department pledged to not only “exponentially” increase denaturalization cases under the program, they also mounted a new effort called Operation Second Look, aimed at scouring 700,000 immigration files of individuals ordered deported from the U.S., looking for evidence they might be here under other identities.
DHS officials have said the number of cases suitable for court action could be several thousand.
Since President Donald Trump took office, about 70 denaturalization cases were filed, a Justice Department official said this week. That’s about twice the pace for such cases at the end of the Obama administration, although many investigations straddled the two periods.
There is a long history of denaturalization cases in the U.S., although in recent years the numbers have been modest.
An early wave of denaturalizations came after World War I, but the best-known citizenship-stripping campaign in recent years was the one Justice Department Nazi-hunters mounted against SS guards and others alleged to have hidden their wartime records when becoming U.S. citizens. More than 100 people lost their American citizenship due to involvement with Nazi-era war crimes; most were deported.
The first victory for the government in the current drive came early last year as a judge stripped India-born New Jersey resident Baljinder Singh of his citizenship for fraud. (Singh never responded to the suit.)
However, last month, the Justice Department citizenship-stripping efforts suffered a defeat after a federal judge in Kansas rejected an attempt to denaturalize a Pakistani-born man who failed to report his prior marriage and children in Pakistan. In the case, filed back in 2015, U.S. government lawyers also asserted that Afaq Malik was never divorced from his prior spouse. He insisted he was.
The judge, citing the 2017 Supreme Court ruling, insisted the evidence was too weak to take Malik’s citizenship.
There is a long-standing federal law on the books that appears to allow even native-born Americans to lose their citizenship for acts akin to treason. However, it’s unclear how the statute would apply in light of the Supreme Court’s ruling half a century ago that Americans can only lose their citizenship through a voluntary, intentional decision on their part.
Nonetheless, Sen. Ted Cruz (R-Texas) has made repeated efforts to expand that citizenship-stripping provision in the law to cover a broader category of people who provide material support to terrorist groups. Cruz’s Expatriate Terrorist Act would clear the way to cancel the citizenship of any American who aids al-Qaida, ISIS or similar groups. The bill, first offered in 2014, hasn’t made it out of committee.
Faris’ current lawyer and others say measures such as citizenship-stripping wouldn’t be necessary if the U.S. had a better system for trying to rehabilitate terror convicts. Such efforts have been scattershot, with the most significant endeavor aimed at Somali and Somali Americans in Minnesota, accused of seeking to fight for al-Shabab or ISIS.
“Nothing’s come of it,” Durkin said. “It’s never happened.”
The man who spearheaded the Minnesota program, former chief probation officer Kevin Lowry, agrees that the federal efforts at so-called Counter Violent Extremism, or CVE, have been modest.
“There’s just a small number of places that are working on programming in this area,” Lowry told POLITICO. “We’re at the infancy of an evolutionary process that is going to take years for us to develop….We have not developed that full continuum of services to deal with these kinds of cases.”
Prosecutors and probation officers have had success persuading many terrorism recruits to renounce their past allegiances, but Lindh’s case and Faris’ may signal a more formidable challenge: someone whose extreme views have not changed much during their stay in prison.
“The cases that came out early, they were the low-hanging fruit, so to speak. They were cooperative, amenable to supervision, amenable to programs,” Lowry said. “Now, we’re seeing a number of people coming out that did not denounce their root cause or ideology. ...That’s a red flag for us. That means we’re going to have to do a great deal of monitoring and surveillance … and really find other creative ways to work with this person to produce a cognitive shift.”
Indeed, one of Trump’s major complaints about Lindh’s release was that he doesn’t seem to have reformed. “I don’t like it at all,” Trump told reporters. “What bothers me more than anything else is that here is a man who has not given up his proclamation of terror and we have to let him out.” (Lindh’s lawyer declined to comment on his client’s current views.)
Trump said he checked with top lawyers in government who told him that there was no way to head off Lindh’s release. “If there was, I would have done it instantly,” the president said.
Despite his tough stance on terrorism and immigration issues, Trump doesn’t appear to have directly endorsed his administration’s citizenship-stripping campaign. He has made a series of controversial claims of broad government power related to citizenship. Notwithstanding a broad legal consensus to the contrary, he’s claimed he can end birthright citizenship by executive order. And he’s publicly suggested that Americans who burn the U.S. flag should lose their nationality.
Trump also ordered Secretary of State Mike Pompeo to bar from the U.S. Hoda Muthana, an American-born woman who joined ISIS and married one of the group’s fighters in Syria. Muthana wanted to return to the U.S., but the administration alleged she was never an American citizen because her father was still registered as a Yemeni diplomat when she was born in New Jersey in 1994.
More than a decade after Faris was sent to prison, the events surrounding his arrest and guilty plea have continued to be a focus of debate. Backers of the Bush administration’s “enhanced interrogation” program that included some tactics widely viewed as torture have long attributed the prosecution of Faris to information al-Qaida leader Khalid Sheikh Mohammed provided after being waterboarded.
But the so-called “torture report” released by the Senate Intelligence Committee in 2014 found that claims by the CIA and others that KSM’s statements led to Faris’ “identification” and “capture” were exaggerated. Faris came under scrutiny by the FBI back in 2001 and the U.S. government had incriminating information about him separate from KSM’s statements, although they significantly bolstered the case against Faris.
Citizenship also seems to have wound up as a bargaining chip of sorts in other terrorism-related cases after 9/11, like that of Yaser Hamdi, a dual U.S.-Saudi national captured in Afghanistan in 2001 after allegedly fighting alongside the Taliban. Hamdi’s parents were Saudis and he grew up there, but after he was transferred to Guantanamo Bay, officials realized he was born in Louisiana.
The Bush administration later put Hamdi in Navy brigs in the U.S., but after the Supreme Court ruled in 2004 that Hamdi was entitled to challenge his detention, officials cut a deal with Hamdi in which he was deported to Saudi Arabia and agreed to renounce his U.S. citizenship.
To critics like Faris’ attorney, the unusual denaturalization case against him is an indication of how the justice system has come to seek a degree of certainty when it comes to the terrorist threat that it never insists on for other kinds of crimes.
“It was a bad idea to promise the American public there would never be another terrorist attack,” Durkin said. “We don’t make that promise to people on the south or west side of Chicago, that no one will be shot on Memorial Day weekend. We kind of accept a certain amount of carnage will happen. ... We just hope it’s nothing too much, but when it comes to terrorism we’ve promised it will never happen—‘not on my watch.’”