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1 1 (March 28, 2022)

handle is hein.crs/govefmd0001 and id is 1 raw text is: Congressional Research Service lnform~ng the legislative debate since 1914 0 March 28, 2022 U.S. Nationals and Foreign Military Service Background International law grants rights to and imposes duties upon a neutral state during an armed conflict between belligerent nations. One of these duties is that neutral states shall not furnish troops to belligerent states, except this duty does not include independent actions by a neutral state's citizens. A state's neutrality is usually unaffected if its citizens willingly serve in a belligerent state's armed forces. International law permits such service, but a state's internal law may prohibit it. U.S. nationals (including both citizens and other persons owing allegiance to the United States (8 U.S.C. §1101)) have performed foreign military service at various times since 1788. This In Focus examines the laws governing U.S. national foreign military service during armed conflicts. Neutrality Act of 1794 The principle that a state may lose its claim to neutral status if it fails to prevent in its territory a belligerent state's troop recruitment or military expeditions is a contribution to international law originally posited by the United States in 1793 through George Washington and Thomas Jefferson. A year later, this principle became federal law as part of the Neutrality Act of 1794. Observers debate whether the principle of neutrality continues to be viable as customary international law. The Neutrality Act remains enforceable, however, and generally prohibits the fitting out of vessels of war or the launch of an expedition from a U.S. territory to engage in hostilities abroad. Among other things, the Neutrality Act prohibits persons within the jurisdiction of the United States from enlisting in foreign militaries (18 U.S.C. §959): Whoever, within the United States, enlists or enters himself, or hires or retains another to enlist or enter himself, or to go beyond the jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people as a soldier or as a marine or seaman on board any vessel of war, letter of marque, or privateer, shall be fined under this title or imprisoned not more than three years, or both. This law apparently applies to anyone in the United States who joins a foreign military but not those who enlist while in another country. Accepting a commission while in U.S. territory from a nation at war against a state with which the United States is at peace is also prohibited, but this law applies only to U.S. citizens (18 U.S.C. §958). The United States has historically prevented enlistment and appointment activity by other nations within U.S. territory, but it has rarely enforced these prohibitions against individuals. On the other hand, U.S. nationals serving in the military of a nation at war with the United States can be https://crsreport charged with treason (18 U.S.C. §2381). The enlistment in foreign service prohibition does not apply to citizens of countries at war with the United States, except to the extent they enlist others. The prohibition also does not apply to transient nationals of belligerent countries. Agreeing with non-state groups to travel overseas and engage in an insurgency is not covered by the foreign enlistment law. Expatriation Congress has the power to designate certain voluntary acts by U.S. nationals as expatriating, whereby committing those acts would result in the loss of U.S. nationality. Since 1941, one such expatriating act has been service in the armed forces of a foreign state under specific conditions. The exact conditions necessary for foreign military service to be expatriating have changed over time, notably with the enactment of the Immigration and Nationality Act of 1952 (INA) and the 1986 amendments to the INA. One consistent requirement, however, is that any such foreign military service must be voluntary-actions taken under duress will not result in expatriation. The Department of State, in its Foreign Affairs Manual (FAM), states that conscription into a foreign military, while not dispositive, will be considered as a factor highly relevant to possible duress. Historical Expatriation for Foreign Military Service Under Section 401(c) of the Nationality Act of 1940 (1940 Act), U.S. nationals would lose their nationality by serving in the armed forces of a foreign state (1) unless expressly authorized by U.S. law and (2) only if the U.S. national had or acquired the nationality of the foreign state. Individuals who were not-or did not become-nationals of the foreign state were not subject to expatriation. In 1952, Congress repealed the 1940 Act and replaced it with the INA. As originally enacted, Section 349 of the INA provided that U.S. nationals would lose their nationality by serving in the armed forces of a foreign state unless such service was specifically authorized in writing by the Secretaries of State and Defense. In contrast to the 1940 Act, the INA required case-by-case authorization, which, per the FAM, appears never to have been granted. The INA removed the exception for service performed by individuals who were not also nationals of the foreign state, instead applying the provision equally to all U.S. nationals. The INA created a new exception, however, for individuals who entered foreign military service before the age of 18, providing for expatriation only if such individuals voluntarily remained in the foreign military service after turning 18. Current Law Since Congress amended the INA in 1986, a U.S. national who enters or serves in the armed forces of a foreign state

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