A legal case for action.
Syria has become a magnet for many radical Islamist sympathizers from outside Syria, who have gone over to join the jihad against Bashar Assad’s regime. While the vast bulk of the foreigners are from other Middle Eastern countries or from North Africa and Asia, Westerners, including some Americans, have also shown up to fight.
Former FBI Director Robert Mueller expressed concern last month that Americans fighting with jihadists abroad, including in Syria, will bring back the training and radical ideas they picked up and decide to “undertake an attack upon the homeland."
Syria, Mueller said, is a harbor for "radical extremists who want to do harm" to the United States.
Estimates vary as to how many Americans may be involved in actual fighting with the jihadists against the Assad regime, but it could be as many as several dozen. That number may rise further if the Syrian conflict intensifies and the United States becomes more deeply involved. Europeans have joined the jihadists from countries such as Germany, France, Great Britain and Belgium. They would be able to enter the United States rather easily, because European nationals often do not require an advance visa to do so.
Tracking the movements of would-be jihadist Americans and Europeans in places like Syria is hard enough. But even with good tracking methods and border controls, a serious question confronts us: What do we do about the American citizens – native born or naturalized - seeking to return to their own country after their Syria jihad days are over? Can the U.S. government strip them of their citizenship on grounds related to their active participation on the side of terrorists sworn to America’s destruction?
Consider this question in the context of the government’s indefinite detention and target lists of U.S. citizens abroad who are suspected of engaging in hostilities against the United States under the auspices of a foreign terrorist organization. Such extreme actions against U.S. citizens have not yet been adjudicated flatly illegal by the courts. On the face of it, wouldn’t stripping such an individual of his or her U.S. citizenship be less onerous than depriving the individual of his or her life or liberty? It would seem so, but things are not always as simple as they may appear to be.
Before looking at the limited legal bases for removal of citizenship that currently exist, including proof that a citizen has taken up arms against the United States, what happens when an American citizen is fighting abroad alongside terrorists against a foreign regime that the United States government itself views as an adversary? This would be the case in Syria today.
As former FBI Director Mueller fears, the individual currently operating with the jihadists against the Assad regime, which the U.S. government also opposes, may pick up training and become more motivated to use that training to carry out an attack on the homeland upon his or her return to the United States. However, possibilities of such future action, without some sort of concrete overt conduct by the U.S. citizen in that direction, is most likely insufficient in itself to legally justify removal of citizenship.
More generally, the Supreme Court ruled over 45 years ago that citizens of the United States may not be deprived of their citizenship involuntarily (Afroyim v. Rusk). "Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof," the 1967 majority opinion stated in a case involving a Polish-born man who had voted in an Israeli election after having become a naturalized U.S. citizen. Citing the citizenship privileges and immunities clause of the Constitution’s 14th Amendment, the Supreme Court concluded in its 5 to 4 decision that “Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.”
In a 1980 case (Vance v. Terrazas), the Supreme Court ruled that intent to relinquish citizenship needed to be proved directly by itself, and not automatically inferred from an individual's having voluntarily performed any action designated by Congress as being incompatible with an intent to keep one's citizenship.
Thus, there is some well-established court precedents limiting the government’s ability to remove an individual’s citizenship. However, the tide may be turning in favor of the government when it comes to combating the scourge of terrorism.
While not a case involving citizenship revocation, a 6-3 Supreme Court decision in 2010, authored by Chief Justice Roberts (Holder v. Humanitarian Law Project), upheld a federal statute which makes it a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization,” as designated by the Secretary of State. The Roberts court concluded that the criminal ban did not violate the First Amendment freedom of speech or freedom of association protections.
Justice Roberts wrote that the “government’s interest in combating terrorism is an urgent objective of the highest order” and cited the “common defense” clause of the preamble to the Constitution to support his conclusion:
“The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to ‘provide for the common defence.’ As Madison explained, ‘[s]ecurity against foreign danger is . . . an avowed and essential object of the American Union.’ We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments.”
Such reasoning in an analogous case indicates that the current Supreme Court may well be inclined to revisit the limits on citizenship revocation established by decades-old decisions from the days of more liberal Supreme Court majorities, especially when support of terrorists is involved.
Of course, an individual’s conviction for an act of treason against the United States would be enough to trigger the government’s right to remove that person’s citizenship, but proof of treason is a very high hurdle for the government to overcome.
Short of proof of actual treason, the government may be able to argue that an individual’s intent to relinquish citizenship can be presumed by the very specific action of actively supporting armed forces engaged in hostilities against the United States. A federal statute (8 USC § 1481) provides that a citizen’s taking up arms against the U.S. provides sufficient grounds to establish that such an individual has in effect made the decision to voluntarily relinquish his or her U.S. citizenship. However, the statute containing such grounds for revocation of citizenship refers specifically to “the armed forces of a foreign state,” not to non-state militia or terrorist groups. Moreover, if application of this federal statute were to be challenged in a citizenship revocation hearing, the Roberts court would in fact have to move beyond the constraints imposed by the earlier Supreme Court cases in order for the government to prevail.
Naturalized citizens may run afoul of another federal statute (8 USC § 1451) and have their naturalization revoked on additional grounds such as refusal to testify before Congress within ten years of being naturalized regarding their involvement in any subversive activities. Subversive activities include belonging to a terrorist organization aimed at overthrowing or undermining the U.S. government. A naturalized citizen may also lose his or her citizenship if the U.S. government can prove that such person joined a subversive organization within five years of becoming a naturalized citizen. Subversive organizations would presumably include al Qaeda and its affiliates.
A bill introduced in the United States Senate last year, entitled the Enemy Expatriation Act, would authorize the federal government to revoke the citizenship of anyone voluntarily “engaging in, or purposefully and materially supporting, hostilities against the United States.” This standard is too broad, providing the Obama administration and future presidents with another weapon to punish or intimidate political enemies. It should focus instead specifically on the threat posed by citizens providing material support to foreign terrorist organizations and affiliates engaged in hostilities against the United States.
Congress would do well to consider adding language such as the following to the existing federal statute dealing with revocation of citizenship (8 USC § 1481):
“Any person who is a national of the United States whether by birth or naturalization shall lose his or her nationality by knowingly providing material resources or support to a foreign terrorist organization designated as such by the State Department, including by engaging in hostilities, operational or propaganda activities on behalf of, in coordination or under common cause with such foreign terrorist organization or its affiliates.”
Citizenship is not an absolute right. It carries responsibilities and obligations. A U.S. citizen who betrays his or her own country by teaming with foreign state or non-state entities bent on our destruction should forfeit the rights, protections and privileges of U.S. citizenship and be expelled from the country.
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