Member Submission: Passport Branding Provision Expands
A Saudi citizen enters his country’s consulate to make a notice of marriage and is instead held against his will, murdered, and dismembered. He was said to be an enemy of the state, no matter where he lived.
An American citizen enters her country’s consulate to make a similar notice. She survives. But her passport is revoked and then reissued with a special mark stating that she poses a danger to the public, no matter where she lives.
The Saudi did nothing other than speak out against the regime in his country. The American did nothing other than send a naked selfie of herself to her boyfriend many years ago when both were teenagers.
Are these comparable cases? Perhaps not. But they both involve the same principle: consular protection. This principle holds that countries do not place their own citizens at risk in another country. Instead they are obligated to protect them.
In recent years some countries have violated this principle. The Saudi case of Jamal Khashoggi is an extreme example, but other countries have used their consulates and consular activities to track, persecute, punish, and monitor their own citizens who have made themselves unpopular at home. The USA now joins this club.
How did that happen? Back in 2016 Congress passed a law called the International Megan’s Law (IML). It singled out US citizens with certain criminal convictions for a new regime regarding their international travel. Not only do they have to notify authorities in advance of their journey but the US Department of Homeland Security also notifies the countries where they plan to go. In order to accomplish this the DHS established a special bureaucracy called “Angel Watch”.
The IML also included a provision at the behest of Senator Richard Shelby to place a “unique identifier” in the passports of such Americans. Was Senator Shelby aware that the only other country to do something like this to passports was Nazi Germany? Who knows; but the provision was included in the law.
At first the State Department placed a sentence on the endorsements page at the back of the passport book. The “unique identifier” has since been moved to the front of the passport book. Whenever the bearer of a passport goes to rent a car, check in a hotel, or do any number of other daily tasks abroad that require a passport check, whoever opens the passport will see a sentence identifying this person as someone who sexually abused a child.
Until now the main effect of the IML has been to ban such people from entering most countries outside Western Europe. This interference with normal travel has brought about a great deal of harm in lost businesses, families, and property. With the new provision, that damage is likely to grow. Americans already living in other countries will also be singled out as dangerous individuals, with no policy to protect them, no matter how long they have been legal residents of these countries and no matter what those countries’ laws and culture dictate should happen to people who are declared to be a threat to public safety.
That’s because a new bill just signed into law, S. 3946, extends the passport rule to these people as well. Unlike the IML, which claimed a need to prevent sex tourism, this new law states no rationale or basis for the provision, leaving open the possibility of adding other unpopular groups of people in the future. It simply amends existing anti-terror and anti-human trafficking legislation to require a mark on the passports of more Americans no matter where they are in the world.
The bill, now law, also enhances international “information sharing” whereby the US Department of Homeland Security may provide information about American registrants to the governments of other countries, presumably going beyond what is stated in the passport. What information? Police reports? DNA? Addresses of relatives? What will happen with this information? The law leaves all this up to the discretion of the Secretary of the Department of Homeland Security.
S. 3946 passed both the Senate and the House at the very end of the Congressional session without having been debated in any committee or receiving a roll call vote in either chamber. It’s hard to believe that many members of Congress know that they just drove a spike through the heart of one of the oldest and most sacred norms of international relations (consular protection), not to mention the “rules-based international order” the Biden administration is always talking about.
Whether anyone will mount a legal challenge to this law before a great deal more damage is done isn’t known. But now that the policy has been expanded, it’s likely to continue doing so as passports function less as documents of state protection than as articles of moral denunciation for a significant number of citizens.
The historian Timothy Snyder put it well in a recent PBS documentary about the culpability of the US State Department in the Holocaust: “what holds the body and soul together is a passport”. And as a recent BBC documentary on passports (“The Price of Citizenship”) noted, “citizenship is something existential”.
Still, to many people this may not seem like that big of a deal. Aren’t registrants already treated like second class citizens in a thousand different ways? Yes. But the passport has a special significance. It is the single most important document of citizenship a human being can have. And now the US government has made it an official policy to use that document to deny equal state protection to an entire class of its citizens anywhere in the world.
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My passport expired a few years ago and don’t plan to get a new one. I gave up traveling anywhere outside of the United States even as an American citizen. -Why put yourself and your family through that aggravation ?
I’ve lived in another country for close to two decades. A passport is used many times throughout the year. A marked passport will open me and my family up to kidnapping, extortion, and possibly death. Just because the United States supposedly can keep people from using the registry against you for illegal means does not make the country where you live offer the same protections. In fact, they can not even protect their own citizens here from vigilantism and organized crime. I can imagine how it would be for me and my family if I become branded.
I was told recently that if a person does not turn in their passport for the Mark, that is a felony punishable with prison. Does anyone know if that is true?
The responsibility to issue and revoke passports is the State Dept’s, not the registrant’s.
@debi
State Dept will revoke it by letter once the system is triggered on the person whose passport needs the mark. The letter will share what the requirements are for the passport holder with the unmarked passport.
This branding or scarlet letter or mark is a bit much. You talked about Rosa Parks well I’m not to familiar with that but I am familiar with the George Floyd choke hold. Is this registry a choke hold on many. Are we all looking for a passport or a change.
If we as a Nation don’t stand up than one is only hurting themselves.
So… Anyone and everyone who currently has a Passport without this Compelled Speech printed in the front will have to pay the $100+ just to have an updated passport printed…?
I’m curious as to what the long game is as there have been quite a few new laws and such from the Federal Government recently specifically targeted at anyone who has a certain criminal history. Passport documentation, Federal registry, the boost in ICAC funding to provide States with more financial motivation to create more numbers for the Registry, etc., all of these are puzzle pieces that I’ve yet to find how they fit together…
The long game is to have registrants denied entry into another country.
Having a hard time finding the case identified in the Member Submission— the American expat marked for a selfie.
The individual described in the Member Submission strikes me as a sympathetic (or ‘Rosa Parks’) plaintiff.*. If she is being harmed by the new law then I would consider contributing a new legal fund to challenge it. In the meantime, I would encourage her to start documenting the harms it is causing her.
*h/t: Janice Bellucci for introducing me to this terminology.
Maybe NARSOL they just received a settlement from the Butts Country sign case. They could see this as a worthy case.
This Member Submission seems to describe a fictional registrant suffering unspecified harms from an unidentified new statutory provision.
So naturally this causes some of my fellow Members to predict a new Holocaust.
I THINK this is saying that US expats living overseas, must now get the passport inscription if they are covered by IML, same as if they were a U.S. resident on travel. How this will affect their lives overseas I don’t know, but they should start documenting the new hardships to prepare for eventual court challenge (since we can’t count on the courts to view the inscription by itself as punishment or compelled speech).
Jacob, instead of complaining, why not be helpful? It would have been great for the author to includes quotes and citations. I agree. But you’re posting multiple comments questioning a wonderfully written piece without doing any due diligence of your own.
A search for S. 3946 on Google, the first result is the Bill which the author speaks of, with a clearly relevant title: “To reauthorize the Trafficking Victims Protection Act of 2017, and for other purposes.”
https://www.congress.gov/bill/117th-congress/senate-bill/3946/text
A quick search for “information sharing” in the text reveals the following, confirming the author’s assertions.
“SEC. 895. RECIPROCAL INFORMATION SHARING.
“Acting in accordance with a bilateral or multilateral arrangement, the Secretary, in the Secretary’s discretion and on the basis of reciprocity, may provide information from the National Sex Offender Registry relating to a conviction for a sex offense against a minor (as such terms are defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (34 U.S.C. 20911)) to a foreign government upon the request of the foreign government, and may receive comparable information from the foreign government.”.
A quick search for ‘passport’ in the text leads one right to what the author spoke of.
“(3) CLARIFICATION WITH RESPECT TO CONTINUING REGISTRATION.—An individual may not be issued or reissued a passport without a unique identifier solely because the individual has moved or otherwise resides outside the United States.”.
So the one thing that’s new here is branding of expats passports, as I indicated yesterday in a more constructive comment that FAC did not publish yet. My complaint about the piece concerns not its writing style but the fact that we’re not being told whether this is a real case or a hypothetical one— the implications are quite different depending on which it is.