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.