Mary Fan

Mary Fan is an assistant professor of law at American University Washington College of Law. Professor Fan specializes in criminal law and procedure (U.S. and international), modes of proof, information privacy and surveillance, property, and immigration and border law. She joined the faculty in 2008, after serving as an assistant U.S. attorney in the Southern District of California, and as an associate legal officer to Judge O-Gon Kwon at the International Criminal Tribunal for the Former Yugoslavia, where she worked on the trial of military and police officers alleged to be responsible for genocide and other serious violations of international humanitarian law. She is a member of the editorial committee for the Journal of International Criminal Justice (Oxford University Press).

Abstract:
Formal and Affective Citizenship and the Quantum of Rights in Crime and War

Citizenship matters in defining the quantum of rights and protections in cases of crime and times of war, though just how citizenship matters remains blurry. This blurriness stems in substantial part from slippage, contestation, and resulting murkiness over what conception of citizenship matters in defining the quantum of rights. Should the package of rights and protection turn on the formal shell of citizenship? Or should an affect-based functional conception of citizenship predicated on loyalty, community ties or alienation unmoored from formal legal status be the factor affecting the quantum of rights?

In earlier fractured cases like United States v. Verdugo-Urquidez, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla, the Supreme Court seemed to signal that the quantum of rights in crime and war might turn on a parsing of teleological belonging based on community ties and affective affiliation beyond the formal shell of citizenship. The fractures of the Court made the extent and reach of such cases unclear, however, leaving lower courts understandably also fractured and uncertain. This backdrop of fracture and uncertainty makes all the more remarkable the Supreme Court's recent unanimous decision in Munaf v. Geren, which in narrative structure and legal analysis eschewed the parsing of affective affiliation in past fractured cases and instead based its recognition of access to habeas in part on formal citizenship regardless of affective affiliation or alienation.

Drawing on U.S. and international jurisprudence, this article derives a protective principle that governs which conception of citizenship will be deployed in defining the quantum of rights and protections due. Parsing of affective ties cannot be a basis for derogation from the minimum floor of rights and protections otherwise applicable to someone based on formal citizenship status. But courts may use a broader teleological conception of citizenship -- or its international analogue of nationality -- to accord protections above the minimum that would otherwise be dictated because of formal legal status. The article's aim is to delineate a principled basis for regulating the slippage in the jurisprudence of crime and war between formal and affective functional citizenship in defining the quantum of rights and protections.