Senator Ted Cruz (R-Tex.) has introduced legislation to strip the citizenship of Americans who knowingly fight for or support terrorist groups. Cruz argues that his Expatriate Terrorist Act, which is cosponsored in the House by Rep. Steve King (R-Iowa), is a vital step in the war against Islamic terror. Senate Judiciary Chairman Chuck Grassley (R-Iowa) and Sen. Mike Lee (R-Utah) are also cosponsoring the bill.
“The Expatriate Terrorist Act will ensure that any American who forfeits their country to intentionally join ISIS will have their citizenship stripped and won’t be able to use a U.S. passport to come back and murder American citizens,” Cruz said in a statement.
The bill would amend the existing law that details the conditions under which a US citizen can renounce his citizenship. Current law forfeiting citizenship would be amended “to include becoming a member of, fighting for, or providing material support to a designated foreign terrorist organization.” It would also allow the government “to deny or revoke passports to anyone who is a member, or attempting to become a member of a designated foreign terrorist organization.”
“Provided the requirements of due process are observed, if a United States citizen undertakes these acts with the intent of supplanting his United States citizenship with loyalty to a terrorist organization, that person can be deemed to have forfeited his or her right to be a United States citizen and return to the United States,” Cruz’s statement said.
There have been a number of American citizens who have joined terrorist groups. John Walker Lindh was an American member of the Taliban who was captured in Afghanistan shortly after 9/11. About a dozen Americans are known to have joined ISIS. A number of terrorist attacks, including the Boston Marathon bombing, the Orlando nightclub shooting and the San Bernardino rampage, were carried out by US citizens.
This is not the first time that the Expatriate Terrorist Act has been proposed. In fact, the bill has been introduced to Congress at least twice. In 2014 and 2015, Cruz and King introduced versions of the legislation that died in committee. A similar bill proposed by Sen. Joe Lieberman (D-Ct.) and Sen. Scott Brown (R-Mass.) died in 2010.
Critics of the bill argue that it is not necessary or constitutional. Writing in National Review in 2015, Gabriel Malor said, “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.”
Malor continues, arguing that the Supreme Court has ruled on the question, “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’” (Vance v. Terrazas, 1980).
In Reason, Shikha Dalmia wrote, “If the government has evidence that these folks are indeed terrorists, then why should it merely strip them of their citizenship and stop them from returning home (or leaving if they are already here)? Why shouldn’t it also prosecute them? And if it doesn’t have evidence, then why should they face any consequences at all?”
The danger, Dalmia wrote, was that the language of the bill gives “government the power to take away the citizenship not of Americans against whom it actually has hard evidence—but against whom it doesn’t. In other words, the point is to revoke the citizenship not of known but merely suspected terrorists.”
If revocation of citizenship is to only be applied punitively to convicted terrorists, there are different issues. “If the courts were to decide that the expatriation of terrorists was intended to be a punitive act rather than a security measure,” Malor wrote, “a different and more stringent series of constitutional prohibitions come into play, including the Fifth and Sixth Amendment protections for criminal defendants.”
On the surface, stripping the citizenship of terrorists seems to be a common sense idea. Upon closer examination, however, there are many questions of practicality and constitutionality that must be addressed. Those lingering questions mean that the bill probably has little chance of becoming law in the near future.