Legislation aimed at stripping U.S. citizenship from any American that fights with or supports a foreign terrorist organization working to attack the United States would serve no good purpose, and would raise serious constitutional concerns, say the co-chairs of the Liberty and Security Committee in a letter delivered to members of the Senate Judiciary Committee on November 18.
The Expatriate Terrorist Act, introduced by Senator Ted Cruz (R-Texas), would add joining a terrorist organization’s armed forces while they are fighting the U.S., or providing support and training to a foreign terrorist organization, to the very short list of acts that can result in the loss of citizenship. The bill would also require the Secretary of State to deny a passport to, or revoke one from, anyone who is a member of a foreign terrorist group, or is attempting to become one.
Citizenship is a constitutional right under the 14th Amendment that can be knowingly and voluntarily waived but cannot be taken away by the government under any circumstances absent such a waiver, David Cole and David Keene wrote in their letter, citing a 1980 Supreme Court decision. Hence, unless a person subject to expatriation proceedings admits he joined or supported a terrorist group specifically intending to give up his U.S. citizenship, the legislation would “almost certainly result in no additional expatriations,” they said.
“Not only is the bill practically useless, it also raises serious constitutional concerns,” Cole and Keene wrote. They pointed out that the legislation does not require proof of a conviction prior to stripping citizenship, undermining due process, and that federal courts ruled that another law – on prohibiting material assistance to terrorist organizations – with similar language to Cruz’s bill was unconstitutionally vague.
Cole is a law professor at the Georgetown University Law Center, and Keene is opinion editor at the Washington Times and former chairman of the American Conservative Union.