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Is it legal to revoke citizenship of American ISIS fighters?

Is it legal to revoke citizenship of American ISIS fighters?

Can Ted Cruz accomplish his mission?

Now that Ted Cruz has proposed that Americans who fight with ISIS be stripped of citizenship, there’s been a rash of articles questioning whether this would be legal, such as this one at Hot Air.

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.

The relevant law is this statute originally from the 1940s, as well as several subsequent SCOTUS cases. This is how that 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.

Cruz’s bill appears to update the wording of the statute 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.

Back in 2010, when Senator 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’s original wording 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.

It seems 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. I would even go further and say that fighting for ISIS meets the more rigorous requirement of “convincing and unequivocal evidence,” although that’s unnecessary under Vance.

Cruz’s proposed addition to the previous statute appears to change nothing about the way it would operate in the courts, nor would it seem to eliminate the person’s right to challenge the assumption of voluntariness of the “act of expatriation” under (b) of the statute, as quoted above.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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Thanks for posting the analysis.

I am not sure what the point would be of this, other than election year posturing. If the government is pursuing a case of denaturalization against them for the reasons stated, they are already going to pursuing other charges against them. I would feel that the only good that could come of this, is that if they could not prove anything other than membership in the organization and admitting them back into the country would be dangerous.

    You do not understand the ummah.

    The act of travelling to either Iraq or Syria to join ISIS or ISIL is an action that accepts the Ummah as the “supreme authority” and a rejection of the citizenship of the country of origin. The act of joining IS means that the person accepts the Ummah above all else.

    Therefore this action means that the person has in effect rejected their U.S. or U.K or Australian citizenship (examples only).

      Milhouse in reply to Aussie. | September 9, 2014 at 5:50 pm

      You can’t compare US citizenship to UK or Australian citizenship, because those aren’t constitutionally protected, and US citizenship is. Parliament could pass a law to strip someone’s citizenship; Congress can’t.

    sdharms in reply to imfine. | September 9, 2014 at 5:24 am

    Maybe you would understand the point of this the first time one of them is turned back at a foreign airport trying to get on a plane for the U.S. You seem to subscribe to the see no evil BHO border rules.


If you revoke their citizenship – they will be ‘entitled’ to free room and board at immigration detention centers along with free public education for their children, free representation by an attorney, and a host of other goodies provided by the Democrat Party and the Government Industrial Complex!

So could that be summarized as “In the event a US Citizen commits violent action against the US abroad, their citizenship can be stripped from them. In the event they wish to contest this, they may appeal it in a US Court, at which time they would be arrested for their actions, convicted and still lose their citizenship.” (?)

The question is: If anybody is dumb enough to contest their loss of citizenship, get arrested/convicted/serve time, and then be released, where would we put them after their sentence was up? (I have some suggestions, but…)

    Milhouse in reply to georgfelis. | September 9, 2014 at 5:48 pm

    1. They don’t have to show up to contest it in court.
    2. Nobody can ever be stripped of citizenship; the contention here is that they intentionally gave it up. The mere fact that they contest it now casts doubt on that contention, but the government can claim that they renounced it at the time, and then changed their minds, and it’s too late for that.
    3. If they did show up to contest this, and were arrested and convicted, that would have no effect on the citizenship case. Either they intentionally gave it up or they didn’t, and what crimes they committed isn’t relevant.

So on the one hand we have the Second Amendment that gives citizens the right to arm themselves against a tyrannical government, however, in exercising this right they could then lose the right to be a citizen?

Too many laws in this country.

    HarrietHT in reply to Twanger. | September 8, 2014 at 1:23 pm

    The point at which there is an armed mass rebellion — in this scenario a rebellion against a treasonous, Constitution-usurping power — all bets are off as to who would win the conflagration and what the outcome would be for the losers.

    Only in Obama’s Amerika are such questions considered.

      platypus in reply to HarrietHT. | September 8, 2014 at 1:49 pm

      Exactly right. Anything of that importance should carry appropriate risk. For the colonists, they believed the risk of losing their lives was worth risking in order to obtain the prize.

    You have not comprehended this attempted legislation. You have not comprehended the whole issue.

    From an outsider’s perspective, this is not about Second Amendment rights. It has nothing at all to do with the right to bear arms.

    This is about persons who were either born in the USA or Australia or the UK as examples, but who have decided to go to a foreign country to be involved in fighting against the citizens of their own country (in a certain set of circumstances). This is also about the risks posed if those individuals return to the country where they have citizenship, especially when they are willing to wage a bloodthirsty jihad…. meaning that they are willing to commit suicide by bombing others, or they are willing to chop off more than a few heads in the name of a foreign entity aka the Caliphate of the Islamic State.

Uh, complication: if a terrorist aspires to using his U.S. citizenship to return to his on-paper home soil and commit acts of terror, he clearly does not intend to relinquish his citizenship: it is a weapon and he’s going to use it to maximum effect. The very criminality of the effort argues against a voluntary switch in citizenship. A spy is in the same situation: renouncing citizenship ruins his value to the foreign country he’s betraying his “own” nation to.

I imagine in a courtroom these would be compelling arguments, if rather sad.

    Ragspierre in reply to JBourque. | September 8, 2014 at 2:17 pm

    That is why it is very useful to look at the totality of his/her conduct. He/she can SAY the did not want to be supporters of the caliphate. What they can be shown by evidence they DID needs to be presented to the finder of fact.

      Supporting the (recognized by no civilized nation) caliphate doesn’t amount to intent to renounce citizenship though, since 1) there is no such country 2) a real terrorist wants to keep that citizenship as a useful tool. It’s like how illegal immigrants who have babies in the US get citizenship for their babies because the fact they’re illegal immigrants shows intent to reside, whereas tourists, diplomatic workers etc. show no such intent.. that’s what I gathered from looking into these issues in the past. Am I wrong?

        Ragspierre in reply to JBourque. | September 8, 2014 at 3:40 pm

        I’d say yes, you are wrong. The caliphate does exist. It is not a formal state, but a terrorist state which makes it worse. IF someone could be shown to pledge themselves to it, that would be enough. See Hassan, Major.

          Rags, as a foreigner, I agree with your comments.

          These same issues are raised in Australia. We have the notorious Sharouf who is part of IS and there are dozens of others who have joined him.

          I believe that the argument should be along the lines that if they put the Ummah (not just the IS) first, then they have reounced their right to citizenship of that country.

          The place of birth should not automatically be reason to grant citizenship. If a child is born to say Japanese parents in Australia, and that couple are alien residents who will return to Japan, then that child should not automatically have citzenship. There needs to be something more.

          However, with these followers of the IS, there is substantially more involved, because they have declared their allegiance to a foreign state, meaning that they have no such allegiance to the ‘State’ where they were born, and as such they have in fact renounced their citizenship.

          There is a good case to argue that such people should have their passports revoked and their right to reentry into that country where they hold citizenship should be fully assessed and if necessary that should be revoked as well.

          Citizenship laws all over the world need to be reviewed so that these jihadists are refused the right to return.

          Milhouse in reply to Ragspierre. | September 9, 2014 at 6:10 pm

          Aussie, the key issue that I think you’re missing is that in the USA any change such as you propose would require a constitutional amendment, which is incredibly difficult to do (at least as difficult as it is in Australia, though in a different way).

        Milhouse in reply to JBourque. | September 9, 2014 at 6:05 pm

        JBourqe, re your (1), it doesn’t matter whether the Caliphate is a country or not. All that matters is whether they intended to give up their citizenship, and as you point out they didn’t.

        Re your (2) you are mistaken about tourists, etc. The parents’ intention makes no difference; any child born in the USA is automatically a citizen, unless it is not under US jurisdiction, i.e. the parents are foreign diplomats.

        A child born to tourists is a citizen. If a Canadian or Mexican ambulance brings a woman across the border because that’s where the closest hospital is, and the woman isn’t even aware that she’s in the US, the child is still a citizen. If a woman accidentally wanders over the border and gives birth, the child is a citizen. If it is discovered that the border was drawn incorrectly, and an area that was thought to be in Canada was really in the USA, anyone who was born there is a US citizen.

      Milhouse in reply to Ragspierre. | September 9, 2014 at 5:55 pm

      Rags, you keep intentionally ignoring the fact that it doesn’t matter whether they wanted to be supporters of the Caliphate. All that matters is whether they wanted to relinquish their citizenship. If they wanted to keep it because it would be useful to the Caliphate, they get to keep it.

I think this is asking the wrong question. The question shouldn’t be, “Can we legally revoke their citizenship?” The question should be, “Is revocation of their citizenship an appropriate response to their behavior?”

My answer is NO. The appropriate response is to capture them alive, charge them with treason, then try them, find them guilty (if they actually are guilty – no mistakes here, please, it’s important) and then execute them by hanging.

You punish traitors by punishing them, not by cancelling their papers.

Sorry, you’ve got it entirely bass-ackward. The core ruling in Afroyim and its progeny is that citizenship, once obtained either by birth or valid naturalization, cannot be lost involuntarily. There is no such thing, and cannot be such a thing, as an “act of expatriation”. The only way a person can lose his US citizenship is by voluntarily and intentionally renouncing it. No act, no matter how heinous, can substitute for this.

What seems to be confusing you is the idea that some acts, such as taking up arms against the USA, may be used as rebuttable evidence from which we can infer that the person intended to renounce his citizenship. That is very different from saying that the act itself constitutes a renunciation. That is what Cruz seems to be saying, and he is 100% wrong. Fighting for ISIS isn’t a renunciation of citizenship, but a reasonable person might take it to imply that the person doesn’t want to be a citizen any more. After all, if he wanted to stay a citizen why would he do such a thing?

But the most this can create is a rebuttable presumption, and it would be easy to rebut by showing a contemporaneous expression of an intention to keep the citizenship, or a contemporanous act implying such an intention. For instance, if the person continued to use a US passport to travel, that shows that he thought of himself as a citizen, so he can’t have intentionally given it up. Or if he can prove that he told someone at the time that he was a US citizen, that would prove that he still thought of himself that way. Certainly an email to a US consulate declaring his intention to keep his citizenship would be more than enough. And there’s nothing Congress can do about this; it’s in the constitution.

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