The momentous and tragic events of September 11, 2001 altered the course of our nation. Terrorism, and particularly terrorist violence perpetrated by Islamist groups, became the motivating force for a series of enormously consequential legislative, policy, and procedural changes reflecting the perception that a new and persistent threat to Americans at home, and to the homeland itself, had arrived. The balance of liberty and security in America seemed in need of adjustment, and the importance of protection and safety were prioritized. Congress undertook a variety of measures aimed at improving our homeland security and responding to the threat of global terrorism, the success and necessity of which remain debated issues.
One of the legislative efforts that began shortly after 9/11, and that has been persistently championed by a collection of Senators and Representatives through to the current Congress without evident success, has been the effort to amend U.S. law to allow for the possibility that a U.S. citizen could lose citizenship as a result of joining a foreign terrorist organization, or supporting or furthering the cause of terrorism. This thesis explores the modern pursuit of a new terrorism-related loss of citizenship law, and in doing so examines fundamental questions about the nature of United States citizenship. Is U.S. citizenship a privilege that entails a collection of duties and obligations, and that is subject to revocation? Or is it a protected legal status that guarantees the holder a collection of critically important rights and protections, and that cannot be forcibly withdrawn?
This thesis begins by tracing the history of acquisition and loss of citizenship in America back to the birth of the Republic. As a fledgling nation, America in the 19 th century struggled to assert and defend the rights of naturalized citizens against the claims of perpetual loyalty and obligation asserted by their birth nations, even as we struggled to accept the notion that African slaves and their American-born children might have a claim to citizenship. Shortly after the end of the Civil War, the federal government took a collection of important steps that helped determine the fate of citizenship and loss of citizenship in the U.S.
In 1868, within weeks of each other, the 14th Amendment was adopted, and the Expatriation Act of 1868 was passed into law. The 14th Amendment guaranteed the birthright citizenship of people born in the United States, and put naturalized and natural born citizens of the U.S. on equal constitutional footing. Two weeks later, the Expatriation Act of 1868 declared publically to the world America’s position on loss and acquisition of citizenship. Congress declared that people have a fundamental right to throw off the cloak of citizenship, with all attendant obligations, and naturalize as citizens of another nation. To that end, it further declared the expectation that foreign nations respect the citizenship of all U.S. citizens, including naturalized U.S. citizens who may have previously been citizens of foreign nations. Although this statutory declaration was intended to protect U.S. citizens, it had the notable effect of acknowledging the existence, in principle if not in law, of a right to lose citizenship that would become a longstanding component of our nation’s general understanding of expatriation and renunciation.
But, even as these sweeping changes were taking hold in America regarding the very nature of citizenship, the government was taking action to restrict who could naturalize as a U.S. citizen. The need for more labor to help build our nation, and the promise of possible citizenship and a better life in America, drew more and more immigrants and potential immigrants to our shores. This in turn conflicted with persistent racial bias and protectionist concerns regarding the availability of work for Americans. Eventually, sweeping prohibitions on naturalization were enacted, denying citizenship to most individuals born in Asia. Those restrictions continued into the middle of the 20 th century.
The 20 th century saw further growth and development in U.S. law relating to the rights of U.S. citizens with regard to their citizenship, and the circumstances under which U.S. citizenship might be lost. Consistent with the law and practice in Europe and elsewhere, at the opening of the 20 th century U.S. legislators and the judiciary didn’t question the ability of the federal government to revoke U.S. citizenship for cause, or to pass laws under which some U.S. citizens might find themselves to have lost citizenship by operation of law for simply having lived outside of the U.S. too long. As a century defined principally by two world wars and their consequences progressed forward, by the middle of the 20 th century the fundamental questions regarding acquisition and loss of citizenship had been reframed. The problem of refugees and others displaced by war and the redrawing of the world map focused attention away from the ability of nations to reject their own citizens, and brought into focus the rights of individuals to obtain and retain citizenship, and the basic humanitarian obligations of nations. The nations of the world reacted to this change differently. In the U.S., the period between the late 1950s and 1980, when the Supreme Court decided the last major case regarding loss of citizenship, a sea change in the law took place. Relying heavily on the 14th Amendment, the Supreme Court recognized new constitutional protections relating to citizenship which prevented the federal government from engaging in punitive or involuntary withdrawal of citizenship in virtually all instances. In the two decades that followed, interest in loss of citizenship in the U.S., as measured by legislative and legal challenges, diminished. The 20 th century ended with this area of law significantly changed as compared to a century earlier. A U.S. citizen could only lose citizenship by voluntarily undertaking a statutory expatriating act with the intention of losing citizenship.
At the dawn of the 21 st century international terrorism sparked renewed interest in loss of citizenship. Our allies in Europe and elsewhere considered changes to their loss of citizenship law in an effort to combat the threat of terror at home and abroad. This thesis reviews the legislative efforts of the U.K., Australia, and France relevant to terrorism-related loss of citizenship. Those efforts are enlightening if not entirely instructive. Both the U.K. and Australia changed their loss of citizenship law in response to this new perceived threat. Fundamental difference between the government of the U.K. and America, and the structure of our respective legal codes, meant the U.K.’s changes provided little in the way of useful guidance for U.S. legislators. Australia, on the other hand, with its federal system of government, made legislative changes more in keeping with U.S. legal traditions, providing some possible guidance for U.S. legislators. In particular, Australia’s incorporation of a statutory presumption regarding the intent necessary for loss of citizenship to occur, as well as limitations regarding the creation of stateless people and the inability for loss of Australian citizenship to take place while a citizen is physically in Australia, are provisions that U.S. legislators might consider. France, which attempted to expand extant terrorism-related loss of citizenship law by constitutional amendment so that it would permit application of the law to individuals born French – a change from existing constraints limiting that outcome to naturalized citizens – ultimately retreated from that effort. French civil law is quite different from U.S. law, as is the French Constitution. The lesson from the French effort is perhaps limited to a cautionary warning that significant legal changes intended to address transitory problems in a manner that that affects the very character of the nation are likely best abandoned.
This thesis then reviews bills submitted to Congress in the U.S. since 9/11 proposing new terrorism-related loss of citizenship laws. Those bills are, as a group, difficult to characterize as serious efforts at legislation. While individually they may offer potential loss of citizenship solutions ranging from interesting, to misguided, to at times fatally flawed, none of these bills sufficiently answers the question, “Why is loss of citizenship a necessary or appropriate solution to the problem of terrorism?” Rather, as a group they seem intended to answer a different question: “Do you deserve to remain a citizen?” In many instances these bills could have been passed into law, in whole or part, and administered consistent with the Constitution; however, that fact alone does not make them serious legislative efforts. As a practical matter, key constitutional protections limiting loss of citizenship to voluntary acts committed with the intention of losing citizenship inform the analysis. For loss of citizenship to occur based, hypothetically, on joining a foreign terrorist organization, the agency administering that law would need to determine (a) that the individual joined the foreign terrorist organization voluntarily, and (b) that by joining the organization, the citizen intended to lose his U.S. citizenship. Absent express evidence of intent, agency administrators would need to rely on facts and circumstances from which it would be reasonable to infer intent. Both the voluntariness and intent determinations would be subject to rebuttal. Considering the forgoing, effective implementation of terrorism-related loss of citizenship in the U.S. would be challenging. A bill might be capable of being implemented within the basic structure and limitations imposed under U.S. law, and yet still the beneficial purpose of such a bill may remain elusive. No legislator to date has identified a serious deficit in existing U.S. law that would be remedied through new loss of citizenship law, or demonstrated that loss of citizenship, as opposed to some other consequence or mechanism, is the best way to address a particular terrorism-related threat to the nation or its people.
In the final chapter, this thesis provides further analysis and conclusions. It is not an unreasonable notion that casting one’s lot with a notorious foreign terrorist organization publicly bent on harming our nation and its people might reasonably be interpreted to reflect a comprehensive rejection of the United States sufficient to imperil one’s citizenship. But legislators to date have failed to connect their legislative offerings to the necessary correction of anything other than a defect in loyalty and allegiance. Viewed in this manner, the post-9/11 terrorism-related loss of citizenship bills can be seen, in part, as revisiting a critical question. Is U.S. citizenship a privilege that entails a collection of duties and obligations, and that is subject to revocation? Or is it a protected legal status that guarantees the holder a collection critically important rights and protections, and that cannot be forcibly withdrawn?
The answer seems clear. By the end of the 20 th century, control over loss of citizenship had been wrested from the federal government and invested in the citizen. Citizenship in the U.S. is more akin to a protected legal status. It cannot be forcibly withdrawn. Viewed in this light, new loss of citizenship legislation directed, either expressly or implicitly, at correcting little more than deficits of loyalty and allegiance will likely itself be deemed deficient. This is not to say that defects of loyalty and allegiance as expatriating acts are unknown in the history of our nation. But given current protections applicable to citizenship, absent identification of a genuine need for loss of citizenship to remedy a genuine weakness or deficiency in our homeland security apparatus, new terrorism-related loss of citizenship bills are likely to be little more than symbolic gestures.
To the extent that legislators remain interested in offering new terrorism-related loss of citizenship legislation, this thesis offers a variety of drafting suggestions for consideration. They include the recommendation that legislators do a better job defining key terms, such as what constitutes a terrorist organization. Legislators are also advised to consider new appropriate limitations, including avoiding the creation of stateless ex-citizens at home or abroad, and avoiding the possibility of that loss of citizenship will occur while an individual is still in the U.S. It is also recommends that legislators consider incorporating a statutory presumption regarding intent, which may facilitate adjudication and review. Finally, legislators are reminded that the key constitutional decisions recognizing modern citizenship protections applicable under law were close decisions, and that the opportunity to revisit those decisions may arise as a result of changes in the membership of the Supreme Court.