The legality of stripping terrorists of citizenship
Now that Ted Cruz has suggested that Americans who fight with ISIS be stripped of citizenship, there’s been a spate of articles questioning whether this is legal, such as this one at Hot Air. And at American Thinker, Rick Moran has written:
Currently, natural born citizens of the US cannot have their citizenship revoked against their will. It is unclear whether Cruiz’s bill would supercede the denaturalization law. It is also against international law to strip an individual’s citizenship if they are not also a citizen of another country. In other words, the US cannot create a “stateless” person that no other country would accept.
I’m not a legal expert, but it seems to me there is plenty of basis for Cruz’s bill. I’ve written on related subjects twice before (albeit somewhat cursorily), here (when Joe Lieberman made a similar proposal to the one Cruz is suggesting now) and here.
The relevant law is this statute originally from the 1940s, as well as several subsequent SCOTUS cases.
Back in 2010, when Lieberman was talking about something similar to Cruz’s current proposal, pundits seemed pretty clear on its legality. For example, John McCormack of the Weekly Standard had this to say, after citing the controlling statute:
Here’s where it gets more complicated. You would still have the right to contest this in court. And if you did, the burden of proof would be on State — not on you — to persuade the court that your involvement with a terror organization is sufficient to justify taking away your citizen status.
Bottom line: Lieberman’s law can’t keep you out of court against your will if you want to contest efforts to strip your citizenship. And chances are that if you were already facing other charges — plotting or executing a terrorist act — you would be simultaneously tried for that in civilian court, too, even as State continued to try to revoke your citizen status.
The portion of the statute that revoked citizenship for voting in a foreign election was declared unconstitutional in 1967 in Afroyim v. Rusk, but it’s not the least bit clear that this would apply to the part of the act that involves fighting for a group that is engaged in hostilities with the US government. This is how the relevant portion of the statute reads:
a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality”” …
(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States, or”¦
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
It seems to me that there is a strong argument that such provisions get around the requirement that an act of relinquishing citizenship should be voluntary by creating a rebuttable presumption that such enlistment (in a group such as ISIS) constitutes evidence of an intent to relinquish citizenship.
Cruz is a lawyer, and he addressed the issue of voluntariness (which was the issue in the 1967 case Afroyim v. Rusk, where voting in an Israeli election was judged not to automatically constitute such a voluntary renunciation) this way:
Americans who choose to go to Syria or Iraq to fight with vicious ISIS terrorists are party to a terrorist organization committing horrific acts of violence, including beheading innocent American journalists who they have captured,” Cruz said in a statement.
“There can be no clearer renunciation of their citizenship in the United States, and we need to do everything we can to preempt any attempt on their part to re-enter our country and carry out further attacks on American civilians.”
Afroyim, which appeared to state that Congress could not revoke citizenship without an individual’s consent, was added to in 1971 by Rogers v. Bellei, which limited it to natural born citizens. What’s more:
Although Afroyim appeared to rule out any involuntary revocation of a person’s citizenship, the government continued for the most part to pursue loss-of-citizenship cases when an American had acted in a way believed to imply an intent to give up citizenship””especially when an American had become a naturalized citizen of another country. In a 1980 case, however””Vance v. Terrazas””the Supreme Court ruled that intent to relinquish citizenship needed to be proved by itself, and not simply inferred from an individual’s having voluntarily performed an action designated by Congress as being incompatible with an intent to keep one’s citizenship.
In Vance, the issue of proving voluntariness was addressed as follows:
The Supreme Court overturned portions of an act of Congress which had listed various actions and had said that the performance of any of these actions could be taken as conclusive, irrebuttable proof of intent to give up U.S. citizenship. However, the Court ruled that a person’s intent to give up citizenship could be established through a standard of preponderance of evidence (i.e., more likely than not) ”” rejecting an argument that intent to relinquish citizenship could only be found on the basis of clear, convincing and unequivocal evidence.
So the idea that it is not within Congress’s right to revoke citizenship for acts that are so extreme they could arguably be seen as meeting that requirement seems incorrect to me. I would even go further and say that fighting for ISIS meets the more rigorous requirement of “convincing and unequivocal evidence,” although that’s not necessary under Vance.
Law is nothing if not complicated, and I’ve done only a little over an hour of research to write this post. So I could easily be missing something. But I’d be surprised if Cruz has missed much; I have a lot of respect for his legal acumen. I haven’t been able to find the text of his proposed bill, and I suppose if it tries to automatically revoke citizenship for fighting for ISIS it could run into some trouble, and SCOTUS might rule that unacceptable, based on past precedent. But those cases didn’t involve acts that were even remotely similar to fighting for a terrorist group such as ISIS.
[ADDENDUM: A little more Googling has uncovered Cruz’s bill. It updates the wording of the statute I quoted in my post, to include phrases such as “or a designated foreign terrorist organization” and “or intentionally targeting nationals of the United States for acts of terror.” In other words, it basically seems to be making sure the person doesn’t have to be fighting in the army of a conventional state for the statute to apply.
Seems pretty noncontroversial to me, and it certainly doesn’t alter the right to rebut the voluntariness of any revocation of citizenship involved.]
Since Hussein O already executes Americans without due process and Reid chases them off their land in his fiefdom of Nevada, a lot of the negatives with stripping citizenship don’t even matter now. It’s not like it provides any particular benefit, if you lack pull and influence in DC.
So let’s grant Nidal Hassan and OJ Simpson their wish of becoming citizens of IS.
Could just shoot them. That, actually, is probably much more legitimate, legally. It is currently being done, usually using drones but not always. Just… a thought.
My only problem is, as a vet, a conservative, a party to the 2nd, I’m considered a terrorist. No matter, I was speaking solely of the legal recourse solution set. Technically, they can simply kill them, legally, as things stand. Cheaper too. What does a .45, 9mm, or .223 round cost? How much does detention, revocation of citizenship, a trial, lawyers, and such, cost? Pound for pound, and legally available, shooting them is the more suitable legal practice.
Won’t be done, but…
Let’s recount the angels dancing on the point of the pin, too.
We have a zillion illegals parasitically living off of us and we are supposed to be concerned about the legalities, pro and con, of taking citizenship away from a few hundred jihadis whom the State Dept imported to the Twin Cities from Somalia to start with?
I just can’t get my knickers in a knot over this.
Cruz’s suggestion of stripping citizenship of American who are terrorists is actually milder or more conservative (in the degree sense of the word) than the current policy that it’s okay to kill Americans who are terrorists. Both are controversial options, but both take as premise that these are people that need to be killed, and the question is what other ramifications will we attach to the action.
Don Carlos:
First of all, it’s not either/or. The border is of huge concern (and I’ve written about it time and again).
But that doesn’t mean this issue about taking away citizenship of ISIS fighters isn’t also an issue of interest. You certainly don’t have to care about it, if you wish. But it’s especially interesting if you consider the potential for ISIS members to use their US citizenship towards all sorts of nefarious purposes, as well as the potential for abuse of such a bill by the government wanting to extend it in various other ways to people who are not fighting with ISIS.
It’s not a bad idea to think about what power and limits the government should have in stripping citizens of their citizenship.
If they return and are apprehended they need to be put on trial for treason, convicted, and executed immediately by firing squad
There are maybe a million “issues of interest”, Neo, and this one ranks pretty near the bottom, along with whether or not Medicare should pay for sex-change operations….which I would rank higher!
Given the lefts penchant for treating everyone the same, including those who are not citizens, what difference does stripping them of such mean? after all, if a foreign soldier of a religious jihad gets their rights read to them and due process in a court rather than a summary execution in the field, what does saying, you have not citizenship mean to them?
then the other side of it.
remove their citizenship, and they HAVE to fight harder to win to have a place… ie. as with so many of the lefts ideas, their soltuions make the issue worse not fix it. as the people they are up against are not half as weak willed as they are.
take the NFL issue with hitting your wife.
think a wife in a 10 million mansion and all that will confess her husbands actions and so,lose that all, and have to move to some slum? (not to mention the reverse where the wife blackmails him or else)
Here’s the question I would ask… if this statute were to be put into play, who would the liberals be able to target and strip the citizenship of for “intentionally targeting nationals of the United States for acts of terror.”
Recall how loosely and liberally these people bandy around the word “terrorism”. In their eyes, wearing a T-shirt emblazoned with the Bill of Rights could be considered terrorism. Wearing an American flag to a public school, posting a pro-Second Amendment message on Facebook, participating in a Tea Party rally, using a free and open operating system like Linux, consuming or selling raw milk, really the list of things that could and would be considered “terrorism” by the Left is endless.
The real test of a law is not its intent, which is this case is valid and good, but how it will be twisted by people who have no respect for the Rule of Law except as a weapon with which to persecute their foes. In that regard, I could see this law, as described, being incredibly dangerous.
Reminds me of Rome ca. 50BC. Immediate, permanent exile with forfeiture of all property was the punishment for crimes against the Roman State. The only more severe punishment was death by garroting or crucifixion.
Darn good point you make, ConceptJunkie.
Right now the Left doesn’t need laws to break you. That was for when they were still playing around with a bunch of children interested solely in what flavor lolipop they got from the gov sugar daddy.
Bad idea. Hitler did it to the Jews with the Nuremburg Laws of 1935. Makes me question Cruz. Does he not know the history?
http://en.wikipedia.org/wiki/Nuremberg_Laws
mf:
Let’s see: the Nuremburg Laws were based on a person’s ethnic and/or religious background.
This Cruz proposal is based on a citizen’s voluntarily joining and fighting on behalf of a group dedicated to murdering people of a different religion (or even apostates of their own religion), and vowing to use terrorism against the US. In other words, crimes against humanity and destructive acts against innocent citizens of his/her own country. Plus, the Cruz law is based on a statute that has already been in force in this country for 75 years, and which Cruz is only asking to be extended to include murderous Islamic terrorists like ISIS.
The Nuremberg Laws and this law are exactly the same! Why didn’t I think of it before!? [slaps forehead]
ConceptJunkie:
The statute has already been “in play” since around 1940. In fact, it seems it used to be even easier to strip someone of citizenship before some of the later SCOTUS rulings. So there is nothing new here except the terrorism angle.
The only thing Cruz is proposing is to include in the statute the act of fighting for terrorists such as ISIS, rather than just a bona fide “foreign state.” And yes, I know ISIS calls itself a state, but it has none of the actual trappings of a state and is not recognized as such by either the US or the international community. Cruz’s proposal would close that loophole in the statute.
You are correct that if the government decides to apply this to local terrorists or people it defines very loosely as terrorists, it could be dangerous. But the language could be drafted very carefully to avoid that. In fact, don’t you think the language already covers it when Cruz includes, “a political subdivision thereof, or a designated foreign terrorist organization” as well as “becoming a member of, or providing training or material assistance to, any designated foreign terrorist organization…”? That language is added to the already-existing “taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof…” and would merely add “or a designated foreign terrorist organization.” Seems pretty clear to me that it could not apply to, say, a US militia group or the Tea Party. If the government were so twisted as to call those groups “designated foreign terrorist organizations,” then the country would be way too far gone for this law to matter.
neo-neocon:
It’s the penalty that’s the problem. Without a state, a person has no rights which means they are fair game for anyone to do anything to. Not a precedent I want to see set in any country. Set a penalty and enforce that without taking away their statehood.
mf:
The precedent was already set in this country 75 years ago, which is how long this law has been in force in terms of depriving people of citizenship.
You know what? I have no concern about people who fight for ISIS being stateless. I think they have forfeited their rights to be a member of any state on earth except ISIS, which is the enemy of humanity.
neo-neocon:
Then we disagree.
mf:
If you cast your lot with ISIS, then you can be a citizen of ISIS. Works for me, because ISIS calls itself a state and has pretty been declared war on the rest of the world. Why would any state any earth owe them citizenship? As for the US, ever hear the expression “the constitution is not a suicide pact”?
neo-neocon:
The way I look at it the Nuremberg acts laid the groundwork for all the things that later happened to the Jews which I will not list as they are well known. The same can happen here. Our current bad guys can be changed into some others, perhaps even obvious innocents like the Jews just because the political winds might change. If I still trusted the rule of law here, I would be less careful but even that would be a mistake. I do hope this nation never finds out what it is like when the rule of law turns into the rule of a man but we are headed in that direction and it is what the left’s goal is.
Not sure of the status of the laws we currently have but if they apply and effect the outcome you desire, that would be fine.
You see, if we’re going to have a war, let’s have a war. There is no doubt that after a period of revitalizing ourselves, there is not an entity on the planet who can stand up to us.
If we’re not gong to have a war, let’s come home and build ourselves a fortress.
What we do not need is anymore half-way measures because if you haven’t figured it out by now, that will kill us.
Sorry this is a little late. Left my computer for a while. 🙂
mf,
Where you wish to stand tall, there is no there there.
parker:
Totally cryptic to me. I cannot guess your meaning.
There is no avant guard mf, there is only those who already not about those who have been left behind If this is beyond your imagination, It is beyond your imagination. Whimper and slowly die. RIP.,
parker:
Appaently I hit a sore spot with you. But if you don’t tell me what the problem is, you ensure the problem will remain.
“neo-neocon:
Then we disagree.”
Actually, mf, that’s not exactly the case here. The case is that, frankly, you are wrong. It’s hard to admit but, to paraphrase, if someone doesn’t tell you what your problem is , they ensure your problem will remain.
vanderleun:
How so?
cant tax me if i am not a citizen..
and if i am not a citizen of another state, they cant either.
ie. i can claim it all to myself, as i am a country unto myself, and my country does not require taxes as i have no schools, bridges, politicans etc.
welcome to artfldgerstan
Neo:
Of course your reasoning is fine, and on the surface I think Cruz’ proposal is imminently good. At this point however, I remain acutely aware of something I’ve been saying for years, “If it weren’t for unintentional consequences, Congress would be of no consequence at all.” which betrays, I suppose, a fundamental mistrust of our system of government to act in the way it was designed, or that reasonable people would expect. In other words, I don’t trust the consequences of a law in the post-rule-of-law period. I don’t trust that anyone in charge is actually doing what they are claiming to do, even when what they are claiming to do isn’t itself patently insane and stupid, which isn’t so often these days.
Am I being too cynical? Perhaps. Am I merely jumping the gun on a trajectory that we are clearly on, but which has not yet been fully completed? More likely.
I guess I should be more trusting of simple, plainly-worded language, which is what we are talking about here, and not the incomprehensible and incomprehensibly huge bills that have become the standard MO for Congress these days. It’s hard to trust in the government when a majority of the electorate either don’t understand, or more likely, flatly reject the principles upon which our Republic and its government were founded. I worry that even the proposals of one of the few people I tend to trust (such as Cruz) won’t be distorted and twisted into a political weapon, as opposed to a tool for combating the sworn, mortal enemies of the United States and indeed all of civilization, which is the intent.
So as far as the spirit of this law goes, I’m all for it.
I think it’s long past the time we started taking people at their word (and that includes countries, and not just individuals). I think merely giving vocal support to someone like ISIS should be enough to declare someone an enemy of the state. Declaring your intent to harm someone is a threat, and we put up way too much of that nonsense. Claim your goal is to destroy Israel and drive the Jews into the sea? That’s a declaration of war. Claim your goal is the violent overthrow of the U.S., which is certainly the intent of folks like ISIS, had they the capacity to do so, then you’ve declared war. Off with their passports… if not heads.
ConceptJunkie:
My point is that the language is plain, and it protects us against what you fear. And if that language is going to be abused, and the power usurped, by a government, it could be done without the bill and without the language.
You can’t protect against power seizures by not passing reasonable legislation, drafted as well as possible.
Without a state, a person has no rights which means they are fair game for anyone to do anything to.
Tell that to the mercenaries some of the Left’s allies got killed at Fallujah.
“mfer: if someone doesn’t tell you what your problem is , they ensure your problem will remain.
mf Says:
September 9th, 2014 at 10:38 am
vanderleun:
How so?”
I rest my case.
My discomfort is that a terrorist group is not like a state. A state is as concrete and fixed an identity value as a notion can be. A state-based formula is straightforward. However, a terrorist designation, while concrete in the near view with the enemy in front us, is less clear with more long-term potential for confusion and abuse.
I’m open to it, but at this point, I’m comfortable enough with an American terrorist being assigned an outlaw value or an enemy value when engaged in hostilities.
I see you want to drag the conversation down with your slyness. It is unimpressive.
An opinion cannot be factually wrong. You can disagree with it and you can make points to that affect and you can try to change it.
I suggest we drop this as I feel that it is dragging down the tone of this site. I would also suggest that you recognize that disunity amongst us is what the left savors and that is another reason for dropping this.
Fair enough?
vanderleun:
my 2:05pm is meant for you. I neglected to add the salutation.