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Mr. SHOEMAKER. I just want to make one remark with regard to the statement of Mr. Noel that he is anxious to have the Departments relieved of as much difficulty as possible. That is exactly our idea. Our clause will do exactly that. And if it is not an active clause, we will be deciding the question of citizenship for 40 or 50 years to come.
Mr. REES. That is the view of your Department?
Mr. FLOURNOY. While I have withdrawn my question, Mr. Chairman, there is one brief statement I should like to add.
Mr. REES. We would be glad to have it.
Mr. FLOURNOY. The first point is that the proposal by the Department of Labor would have the effect of multiplying cases of dual nationality.
In all discussions on the subject of dual nationality for years by scholars and persons who have paid attention to the subject of nationality, there is a great desirability of some method of terminating dual nationality, and
that has been the theme. This proposal has the opposite effect. A person after being naturalized in a foreign state through his parent, nevertheless, remains an American. That means all those thousands, hundreds of thousands, who have been naturalized here in this country through the naturalization of their parents, to be consistent, we must recognize them as having dual nationality. The principle, we think, is bad.
The second point I want to mention is that where there are decisions of any officers of the Government to the effect that an individual, whether in these cases or in other cases, has lost his citizenship, that individual has, as I see it, an opportunity to obtain a judicial decision by making a petition for a declaratory judgment.
If I am wrong about that, I would be glad to hear the other side; but that is my understanding.
Mr. REES. Is there anything further on that point? Now, a further amendment has been offered to section 401 (a). By whom is this section?
Mr. HAZARD. The War Department, Mr. Chairman.
Mr. Rees. All right. Is there any objection on the part of the Department of State to the amendment that has been offered by the War Department to section 401 (a)?
Mr. FLOURNOY. You mean the War Department's proposal of the other day?
Mr. REES. Yes, sir.
Mr. RILEY. Is that the one with reference to incorporated territory? My understanding is all the Departments concurred on that draft as it now stands.
Mr. REES. We will put it this way then: Is there any objection on the part of any Departments represented here to the amendment submitted by the War Department?
Mr. REES. Is there any objection on the part of the organization you represent, Mr. Noel?
Mr. NOEL. We have not considered it at all. It has not been brought to our attention. But I would assume to say that there is not any,
if the three Departments and the War Department are agreed on it. I do not think there is any harm done by not referring it to us.
Mr. Rees. There is a new subsection (c) to section 402, following section (b) on page 83, that reads: residing continuously for 5 years in any other foreign state except as provided in section 404 hereof.
Is there any objection to that subsection from the Departments represented here!
Mr. SHOEMAKER. I thought we all approved that, Mr. Chairman.
Mr. REES. I believe we have. I want to make sure there was no objection at this time.
Mr. SHOEMAKER. I think we did. Mr. REES. I call attention to an amendment on page 84 at the end of section 405, a proviso as follows: Provided, That, in such case, American nationality shall not be lost as the result of loss of American nationality by the parent, unless and until the child attains the age of 23 years, without having acquired permanent residence in the United States.
As I recall it, we agreed on that amendment.
Mr. BUTLER. Didn't we agree to strike out that comma after the “23 years"?
Mr. HAZARD. Where, Mr. Butler!
Mr. REES. I see. Is there any further discussion by any of the departments represented as to chapter 4 on the subject of loss of nationality? This may seem to be going backward, but it is the chapter that has created the greater part of the discussion.
Mr. FLOURNOY. Mr. Chairman, I thought we had agreed to insert a provision that I do not see here so far, and that related to a person born with dual nationality who was living in the foreign country of which he is a national, and put in the army of that country, to the effect that such entry into the foreign army would be presumed to be voluntary. I thought that had been agreed to. I do not see it here.
Mr. HAZARD. Mr. Chairman, as having been responsible for the preparation of this copy, I would say that that was not included because certainly there was no agreement on the part of the Department of Labor to any such provision.
Mr. Rees. The matter was discussed.
Mr. FLOURNOY. I had the impression that was discussed and agreed to, but I may be mistaken.
Mr. SHOEMAKER. Discussed, but there was no agreement on it.
Mr. REES. As I remember, the proposition was discussed rather fully.
Mr. SHOEMAKER. Very fully.
Mr. Rees. Fully and earnestly. Personally, I think it is a question that should not have been passed over. If it is agreeable to this group, when we are able to do it for the sake of the record, I would like to have a brief statement, if I may have it, from the State Department as to its view, and then the view from the other Departments, so that if no one wants to submit an amendment on the question, the committee will take the proposition under consideration. I think perhaps it is fair.
Mr. SHOEMAKER. Do you have a clause somewhere, Mr. Flournoy, to cover that?
Mr. REES. So I will turn to section 401 (c). Subsection (c) reads: Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States.
What suggested amendment do you have, Mr. Flournoy?
Mr. FLOURNOY. I was just looking to see whether I have the draft, Mr. Chairman, of the proposal. I can state briefly what it is.
Mr. Rees. I will be glad if you will state it as briefly as you can. Tell us the point in question, and let us get the answer.
Mr. FLOURNOY. The point is simply this: We have a provision in the code to the effect that nationality is lost by voluntary entry into a foreign army or service in a foreign army. We have another provision to the effect that an individual cannot expatriate himself until he has reached the age of 18 years. I call the attention of the committee to the fact that we have had a great many cases in the past in the State Department concerning the effect of persons entering foreign armies and taking the foreign oath of allegiance. Frequently they are persons of dual nationality.
The excuse given in those cases is that the entry into the foreign army was under duress, and the individual usually produced some proof that he made a protest of some kind. He was a citizen of that country, and he was living there, and obviously it was his duty to serve if the law of that country required it. Nevertheless, he puts up some pretense of a protest, says it was duress. That will happen again. So that unless we have a provision of the kind suggested that the pleas of duress would not be valid in those cases, the provision we have in here concerning loss of citizenship through entry into a foreign army will be practically a nullity insofar as it relates to those persons of dual nationality who are taken into the armies of countries of which they are nationals.
And the provision was to the effect that the plea would not be valid.
I thought that finally there had been some agreement on that, but I seem to have been mistaken about that.
I handed you a copy of it, I think, Mr. Chairman, a copy of the drafted proposal.
I am not going to argue it any further. I merely submit it for what it is worth.
Mr. REES. Is this a correct statement, that it is your view that an American citizen who joins the armed forces of a foreign state-
Mr. FLOURNOY (interposing). Of which he is also a national.
Mr. REES (continuing). Of which he is also a national, thereby loses his right of citizenship?
Mr. FLOURNOY. If he does it after reaching the age of 18 years.
Mr. REES. If he joins such armed forces after reaching the age of 18 years?
Mr. FLOURNOY. Yes. He is residing in that country and he has his residence in that country. If he is there on a temporary visit, this would not apply. If he is living in that country, he is a citizen of that country, and it is his duty to perform whatever acts the laws of that country require. A plea of duress should have no validity.
That is my view, and I think that is clearly the view of our Department.
Mr. REES. Now we will hear from the Department of Labor.
Mr. SHOEMAKER. It is our position, Mr. Chairman, that these individuals who are generally, as Mr. Flournoy has said, requesting dual nationality should not be denied the opportunity of asserting their American citizenship solely because they went into a foreign army.
These boys in many cases come from generations of Americans. They are not free agents. They are subject to the residence generally of their parents. They may have come to the United States in order to perfect citizenship by living here between the ages of 13 and 18 years, as now provided by law, and it is our position solely that these persons should have the opportunity to say whether or not they went into the army under duress, and whether they made any objection to their going in, instead of being denied their American citizenship, which they have attempted to effect solely by reason of the fact that they were required to go into that foreign army.
Nr. Rees. You might broaden that a little, and say whether they were required to or did join.
Mr. SHOEMAKER. I did not want to go too far.
I am not unmindful, and I have come in contact with these cases many times, that individuals abroad, sons of American parents possessing dual nationality, have been required to go into foreign armies without any choice on their part. They have frequently protested the fact that they have had to go into such armies, and we feel that they should be given the opportunity to remain here and try to assert their American citizenship and state the facts, and then on that statement of facts to be judged as to whether or not they have lost their American citizenship.
That is all. That is the same condition which obtains today.
Mr. BUTLER. Mr. Chairman, I do not believe I thoroughly understand now what the proviso is going to be.
Now, 401 (c) provides as it is in the code at the present time, loss of nationality by a person who enters or serves in the armed forces of a foreign statė, unless expressly authorized by the laws of the United States. Of course, if I am caught in a country that is at war I may be shoved into the armed forces of that country and might have to serve. Would I have the right when I come back here to show it was involuntary? This applies to more than dual citizenship, and it applies to anybody else.
Mr. REES. It is a clause in the present code.
Mr. BUTLER. Yes. So would I be estopped from claiming I was shoved into that army? If I am caught in a foreign country I guess I will have to get in unless the consul gives me protection.
Mr. FLOURNOY. Mr. Chairman, I would like to point out again that we are only discussing the case of a person who is a citizen of that country who resides in that country. We are not talking about Mr. Butler. I do not think he has dual nationality, so far as I know.
Mr. BUTLER. Yes. But there is nothing in (c) which relates to the dual-nationality phase of it.
Mr. FLOURNOY. We are not discussing that now.
Mr. Rees. I was just raising the question. As I understand it, the State Department takes the view that a person with dual nationality residing in the country of nationality who joins the armed forces of that country thereby loses his right of American citizenship.
The Department of Labor says that he does not necessarily lose his right of citizenship, and he is entitled to the right to be heard. Mr. SHOEMAKER. That is correct.
Mr. REES, And have the facts as he presents them considered by the proper authority.
Mr. BUTLER. There is a question in my mind, Mr. Chairman, whether there might not be circumstances even in a case of a person who has dual nationality acted in good faith. He is residing in the country. It is partly the domicile of his father, and he is shoved in the army when 18 years of age. He might have every intention, just like the little Tobiassen girl, to come back and take citizenship here.
Mr. REES. Yes.
and Sweden, which were taken so suddenly? Assuming we had a person of dual nationality in either one of those countries, they would have no opportunity to get out and make any election. They may just be taken in.
Mr. SHOEMAKER. We do not hold any brief for those persons who voluntarily do that.
We want to do the same thing as far as that is concerned as Mr. Flournoy does, but we do want to give the individual an opportunity to be heard where he may have protested going in the army and had no choice because the foreign country took him and put him in that army without regard to what he wanted to do.
Mr. REES. Any further views on this question?
Is there any other question that you gentlemen would like to discuss, especially questions where you may be in disagreement ?
Mr. FLOURNOY. I think we have disagreed enough, Mr. Chairman.
Mr. REES. All right. Is there any particular section which anyone who is represented here wants to discuss and draw the committee's particular attention to, or any clause of any section?
Any further amendments to be submitted ?
Now, then, to clarify the situation a little, I have a revised bill that has just been handed me, dated April 16, 1940. That, as I understand it, contains all of the amendments that have been submitted. I have before me H. R. 6127 with the amendments thereto inserted therein. I believe it contains all of the amendments that are to be submitted by the Department of Labor and the Department of Justice, or I can put it another way: Does the Department of Justice or