National Security & Defense

How Not to Fight Terrorism

The Expatriate Terrorist Act before Congress is unconstitutional and unnecessary.

Representative Steve King and Senators Ted Cruz and Chuck Grassley have reintroduced the Expatriate Terrorist Act, a bill to strip U.S. citizenship from terrorists. The proposal sounds nice in theory, but it is also unconstitutional and unnecessary, the latest in a sad line of civil-liberties infringements justified by politicians trying to look tough in the war on terrorism. Even if the bill did not have these fatal infirmities, it would put the determination of who will retain their citizenship in the hands of unelected bureaucrats at the Departments of Justice, State, and Homeland Security. On that ground alone, all Americans should unite in opposition. 

The idea to strip citizenship from terrorists is not a new one. In 2010, Senators Joe Lieberman and Scott Brown introduced similar legislation, dubbed the Terrorist Expatriation Act. Their bill would have amended the list of expatriating acts in the Immigration and Nationality Act to include material assistance to foreign terrorist organizations. Legal scholars and civil libertarians pointed out that the bill was neither necessary nor constitutional, and ultimately it died.

The new bill put forward by King, Cruz, and Grassley goes further, adding membership, training, and oaths of allegiance to the list of expatriating acts. They claim that this legislation is necessary to protect the homeland from radicalized citizen-terrorists returning from abroad.  

But citizenship is not a mere privilege. It is a right specifically protected by the Constitution. Congress cannot simply decide that individuals lose their citizenship when they commit certain acts. Rather, to strip a person’s citizenship requires that the government prove not only that he committed an act deemed expatriating by Congress but that he did so knowingly and voluntarily and with the intent to relinquish his citizenship. In the words of Justice White, writing for the Supreme Court when this issue was settled decades ago, “in the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.”

Senator Cruz’s claim that his bill would make the act of becoming a terrorist an “affirmative renunciation” of citizenship is deeply misleading. To be constitutional, expatriation can be accomplished only by intent to relinquish, something that Cruz, a lawyer and litigator of great skill, should already know. And if he doesn’t mean what he is saying, he owes it to the American public to tell us how he believes the law would operate or if it would even be practicable at all.

On the issue of deception, King, Cruz, and Grassley say the statutory change targets dangerous terrorist fighters who try to return to the United States from abroad. The plain language of the proposed legislation, however, is not limited to those who actually take up arms. It applies to anyone who merely claims membership in a terrorist organization or gives an oath, training, or material assistance to terrorists, regardless of whether he actually fights. And it is not limited just to terrorists abroad; any of those actions taken inside the United States would also trigger the citizenship-stripping provision under the express terms of the legislation, leading to the deplorable circumstance of creating stateless terrorists within the jurisdictional boundaries of the United States.  

This is assuming the courts actually credit King, Cruz, and Grassley’s stated security purpose for proposing the law. If the courts were to decide that the expatriation of terrorists was intended to be a punitive act rather than a security measure, a different and more stringent series of constitutional prohibitions come into play, including the Fifth and Sixth Amendment protections for criminal defendants. 

King, Cruz, and Grassley are selling fear to justify an unconstitutional deprivation of rights, and they are doing it for no good reason. If the U.S. government has enough information to identify citizen-terrorists abroad and intercept them on their attempted return, it has enough information to bring criminal prosecutions against those individuals for terrorism when they try to reenter the United States. The authority to intercept and detain such individuals has already been granted by Congress to the Department of Homeland Security. The Department of Justice, of course, also has the authority to prosecute such individuals. And so the stated purpose for the proposed legislation is dubious, since the government’s responsibility for intercepting returning terrorists is settled law, which has a side benefit of being constitutional. 

Even if this legislation were passed into law, because of its constitutional infirmity it would never work as billed by its proponents. Instead, it would mobilize an army of bureaucrats at Justice, State, and Homeland Security to start sniping away at Americans’ rights of citizenship and travel. For example, the Justice Department gets to designate or decline to designate foreign terrorist organizations and so controls the determination of who is subjected to losing his citizenship. State Department officials have the authority to determine who gets sent expatriation certificates. And Homeland Security customs and border officers are responsible for detaining and paroling or removing non-citizens, including expatriated former citizens, who attempt entry to the United States.

All of these bureaucratic acts are subject to abuse. For that reason they are also subject to various types of administrative and judicial challenge, which typically drag on for years at great cost. Such litigation and the bureaucratic infrastructure to support it would be for questionable benefit in light of the alternate means already in place to intercept terrorists. 

In short, the Expatriate Terrorist Act is a constitutionally suspect law. Well-established programs for intercepting terrorists attempting to enter the United States already exist. At best, the proposed bill would greatly increase the power of government to use and abuse its discretion to meddle with American lives. It does not represent a genuine attempt to better our national security. On the contrary, it is merely the latest in a series of questionable infringements of civil liberties proposed by politicians eager to exploit the public’s fear of terrorism.

— Gabriel Malor is an attorney and writer in Washington, D.C. Follow him on Twitter at @gabrielmalor.

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