Can Congress Strip Your Citizenship?

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Joe Lieberman wants Congress to pass a law that would allow the State Department to revoke American citizenship from people suspected of allying themselves with terrorists. Now, the prospects for abuse here are pretty obvious. But set that aside for a moment. Even if it were a good idea, would it actually accomplish anything? Or is it mostly just anti-terror showboating?

According to citizenship law expert Peter Spiro, it’s pretty much the latter. No matter what Congress says, the Supreme Court long ago ruled that citizenship can only be stripped from a person who performs an act with the specific intent of relinquishing citizenship:

Intent to relinquish would be pretty hard to establish, Shahzad’s case included….That’s the first way in which [the proposed law] would be ineffective: you just end up with another layer of litigation, about the last thing that anti-terror policies need after almost a decade of up-the-courts, down-the-courts delay.

And all for what, exactly? Citizenship makes a difference only with respect to a small slice of one anti-terror policies. By statute, the use of military commissions can only be used in the prosecution of noncitizens. Under Verdugo, nonresident noncitizens don’t enjoy Fourth Amendment protections. But remember what citizenship doesn’t protect you against: even Obama has authorized the targeted killing of citizens abroad, and Hamdi doesn’t mandate full due process for citizen detainees.

Lieberman and cosponsors try to frame this as a matter of prevention, depriving terrorists of the valuable tool of a US passport. This is nonsense. Anyone visibly affiliated with a terror group is already going to be on all sorts of no-fly and surveillance lists before that affiliation would warrant proceeding with expatriation. A passport isn’t much of a weapon then.

It’s true that if Congress changes the law, this might open the door for the Supreme Court to reverse its earlier rulings on this subject. But even in the unlikely event that it did, the effect of the law would be minimal. And the potential for political abuse would obviously remain. So yeah: it’s mostly just anti-terror showboating. Not exactly a big surprise coming from Joe Lieberman. (Via Kenneth Anderson.)

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