What Does the U.S. Government Owe Its Citizens and Lawful Permanent Residents Abroad During Emergencies?
During both the withdrawal from Afghanistan and the COVID-19 pandemic, the U.S. Government knowingly stranded Americans abroad. What obligations does the government owe to these people?
Troops and civilians evacuate from Afghanistan in August 2021. Photo: Wikimedia Commons
By: Zander Gosanko, Staffer
This September, it was hard to miss the towering lights shining up into the air from Manhattan’s Financial District—lights commemorating the twentieth anniversary of 9/11/2001, the deadliest terror attack in American history. Following the 9/11 attacks, the U.S. government grounded planes for three days, and crossings at the land borders slowed to a trickle. War quickly followed. Just short of two decades later, on August 30, 2021, the last U.S. troops left Afghanistan and ended the post-9/11 wars. However, at the end of the chaotic military withdrawal, at least 100 American citizens and an unknown number of lawful permanent residents (LPRs) were left behind; stranded even worse than those abroad during 9/11.
Two days after that memorial, we marked 18 months since the World Health Organization (WHO)’s announcement of COVID-19 as a pandemic. On January 31, 2020, President Trump restricted entry to the U.S. of travelers who had been in China in the past 14 days to U.S. citizens, LPRs, their immediate relations, and limited others. This was expanded to travelers from Iran on February 29, the Schengen area in Europe on March 11, the UK and Ireland on March 14, and finally to the rest of the world on May 24. As the travel bans rolled out and the case numbers started rising, Americans across the world felt fear, worry, and confusion, but could not get home.
During these emergencies, American citizens and LPRs wanted to return to their homes in the United States immediately, but their government reacted slowly, if at all. These reactions beg the questions: what responsibility for its citizens abroad does the U.S. government really have, and what about LPRs?
LPRs and Citizens
Lawful permanent residents, also known as green card holders, are people who have been admitted to the United States indefinitely and are eligible for jobs without needing a work visa. Though they remain citizens of another country, they have taken the all-important first step in becoming a U.S. citizen and are usually only a matter of years away from swearing an oath of allegiance.
Even if living abroad, both U.S. citizens and LPRs must file a U.S. tax return every year, regardless of where they earn that money. Further, eligible U.S. citizens must register for the selective service. In exchange, U.S. citizens may vote in all federal elections. Beyond that, though, U.S. citizens abroad are protected by nothing more than the reputation of the United States for tenaciously protecting its citizens. LPRs are not even afforded that much. Admittedly, once an LPR does become a U.S. citizen, 22 U.S.C. § 1731 mandates that “[a]ll naturalized citizens of the United States while in foreign countries are entitled to and shall receive from this Government the same protection of persons and property which is accorded to native-born citizens.”
Politics, Not Law
22 U.S.C. § 1732 effectively states that the executive owes only a political duty to U.S. citizens abroad, and, in fact, the President need only take such steps as he or she deems “necessary and proper.” To this effect, 53 FR 4791 § 1302(f) mandates that the Department of State “[p]repare to carry out Department of State responsibilities . . . including . . . [p]rotection or evacuation of United States citizens and nationals abroad and safeguarding their property abroad.” However, this only creates a requirement of preparing, nothing more. The only demand imposed on the President, or the executive branch, is a prohibition from supporting governments that do not respect the property of American citizens.
Similarly to 53 FR 4791 § 1302(f), 22 U.S.C. “§ 4802 requires the Secretary of State to ‘develop and implement’ certain evacuation-related 'policies and programs,’ while leaving the content of those policies and programs to the Secretary of State's discretion.” The lack of statutory law requiring action means that, since the 19th century, the decision of whether and how to protect an American abroad is political.
As it was put in Durand v. Hollins, in 1860, that decision “must necessarily rest in [the President’s] discretion,” even though “the citizen abroad is as much entitled to protection as the citizen at home” and “[t]he great object and duty of government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.” Therefore, claims demanding the Secretary of State evacuate citizens, LPRs, and others, even from active warzones - as the district court in Sadi v. Obama put it - “presen[t] nonjusticiable political questions.”
It is worth noting that State Department issued regulations mandating that individual “Officers of the Foreign Service shall extend every possible aid and assistance within their power to distressed American citizens within their districts, but they shall not expend the funds nor pledge the credit of the Government of the United States for this purpose, except in the case of American seamen, or except as authorized by the Department of State.” 22 C.F.R. 71.6. However, this has no binding effect on the State Department as a whole. It only concerns the actions of individual officers.
Warnings
Rather than affirmatively acting to protect Americans abroad, the U.S. government has taken on the role of warning and advising those individuals. Depending on the country of travel, the State Department offers a variety of warnings. Additionally, in some cases, the State Department will offer financial assistance to U.S. citizens should they have an immediate need, and it offers a range of assistance to U.S. citizens who are victims of crime or need emergency medical assistance. However, such assistance is only available under extremely limited circumstances.
According to the Centers for Disease Control and Prevention (CDC)’s website, it will provide information and alerts too, but the agency does not provide any emergency care. Even if an American becomes sick with an illness treatable in the U.S., individuals are responsible for transportation back to the U.S. or for having insurance that will evacuate them. Regardless of who is providing these benefits, they are only available to U.S. citizens, not LPRs. In part, this is because LPRs remain citizens of another country, despite their demonstrated interest in eventually becoming U.S. citizens.
This is not an unusual approach. Norway’s system is very like the United States’, with a system for registering international travel (link in Norwegian), and a reliance on “guestimates” when determining the number of citizens in any given country due to the inherent weaknesses of such a system. Both the Norwegian and U.S. governments refuse to take an official position promising to help citizens abroad beyond issuing warnings and other information; rather, the U.S. government explicitly warns that “you should not expect the U.S. military to assist you when we recommend that you leave a country.”
Thus, despite State Department promises to help LPRs and American citizens in Afghanistan, the promises are light on details, and no laws require that anything actually be done. Only through political pressure or the passage of new laws, can we ensure that Americans, whether citizens or LPRs, are brought home. Before the United States faces another global crisis, whether pandemic, natural disaster, or war, we should make this decision to ensure Americans know exactly what they can expect from our government while abroad.
Zander Gosanko is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from the University of Southern California in 2018.