Friday, May 9, 2014
Abstract: There have been few episodes in which Congress has resisted counter-terror initiatives. Notable among exceptions are proposals to strip terrorists of their U.S. citizenship. The bipartisan rejection of such proposals presents a puzzle. Insofar as citizenship has historically been associated with loyalty, it would seem a costless, expressive remedy to terminate the citizenship of those who lend support to hostile entities. And yet high-profile efforts to legislate the termination of citizenship in the context of terrorist activities have fallen flat in the United States.
This essay seeks to explain the rejection of a terrorism ground for terminating U.S. citizenship. The essay first establishes the constitutionality of proposals, focusing on Joe Lieberman’s 2010 Terrorist Expatriation Act, which would have used association with foreign terrorist groups to evidence an individual’s intent to relinquish citizenship. Conforming such measures to the Supreme Court’s citizenship jurisprudence limits their utility. The Lieberman proposal could have been put to work in a very small number of cases. Expatriation would be clear-cut only where terrorist activity were coupled with unambiguous expressions of individual intent. Expatriation would do little to advance the counter-terror agenda. Few counter-terror tactics account for citizenship. Citizenship no longer buys individuals much protection.
Where the expatriation proposal lacked instrumental advantage, it might have had expressive value. The essay concludes that rejection of the expatriation measure was overdetermined, and that various contingencies and legacy understandings of U.S. citizenship undermine the expressive value of terrorist expatriation. Even as other states (including the United Kingdom) broaden terrorist expatriation practices, it is unlikely to become a dimension of the U.S. counter-terror response.