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Can We Revoke Faisal Shahzad's Citizenship?—A Commentary by Peter H. Schuck

The following commentary was published in The Wall Street Journal on May 14, 2010.

Can We Revoke Faisal Shahzad's Citizenship?
By Peter H. Schuck

Remarkably, 9/11, the ongoing war on terror, and growing tensions over immigration, have brought no change to American citizenship law. Citizenship has probably never been easier to obtain and harder to lose. Plural citizenships are evermore common, and for many on the left globalization makes national citizenship an antiquated idea.

But recent terrorist attacks in the U.S. may change all of this. The poisonous preachings of Anwar al-Awlaki, an American citizen operating from Yemen, likely inspired the aborted Times Square car bombing and the Fort Hood rampage in November that left 13 dead. Both of these atrocities were perpetrated by U.S. citizens. Awlaki likely also inspired the Christmas Day jetliner bomb plot (by a Nigerian), and he surely is goading other vulnerable souls to commit violence against innocents here.

American citizenship greases the wheels of terror. As Times Square bomber Faisal Shahzad shows, plotters can travel easily to and from terrorist training camps on American passports. Citizens cannot be monitored as easily as immigrants can, they cannot be deported, and they have certain legal rights that foreigners don't (citizens can't be tried by military commissions, for example).

Can we do anything, consistent with the Constitution, to reduce (not eliminate, which is impossible) their ability to wage war on their fellow citizens? The answer, emphatically, is yes.

The least promising avenue is prosecution for treason. These malefactors certainly meet the constitutional definition—"levying war" against America and "adhering to its enemies, giving them aid and comfort"—but criminal prosecution would be after the fact, and conviction requires "the testimony of two witnesses to the same overt act" or a "confession in open court."

Can the government take away their citizenship, as Sen. Joe Lieberman has proposed? The Constitution is silent on the subject. It stipulates how citizenship is to be acquired— through birth or naturalization here—but says nothing about whether and how citizenship can be revoked.

The law, however, has said a lot on this subject. Congress has empowered the government to revoke the citizenship of a naturalized citizen who procured it through misrepresentation or fraud, such as concealing that he had committed serious crimes.

Applying this standard in specific cases can be difficult. But everyone agrees that those whose naturalization petitions would not have been approved had the facts been known shouldn't be citizens. When Faisal Shahzad was naturalized last April, he may have concealed his murderous Times Square plan.

Revoking the citizenship of Awlaki and the Fort Hood killer, both U.S.-born, presents a more complicated constitutional question. Under a 1940 statute that is still in force, the government can de-nationalize citizens who serve in a foreign military; vote in a foreign election; swear allegiance to, hold office, or naturalize in a foreign state; expressly renounce their citizenship before certain U.S. officials; or conspire to make war against the nation.

But a 1967 Supreme Court decision, Afroyim v. Rusk, held that Congress cannot revoke citizenship without the citizen's consent. Thus, in the case of the Times Square bomber, the government would have to prove that when he committed any of the actions listed in the statute, he intended to relinquish his citizenship.

In a 1980 case, Vance v. Terrazas, the Court reaffirmed this "intent to relinquish" requirement, but allowed the government to prove it by a mere "preponderance of the evidence." Afroyim and Terrazas, which were both 5-4 decisions, accepted that a jury might infer intent to relinquish citizenship based on conduct—that is, even if the individual didn't utter the magic words "I intend to renounce my citizenship"—so long as he had fair opportunity to show otherwise.

The question, then, is which acts might prove the specific intent demanded by these two rulings. In Shahzad's case, if the government can show that he placed a bomb in Times Square at the behest of a terrorist group seeking to kill people simply because they are Americans, I believe that it should easily suffice. Unlike the citizen's act in Afroyim—voting in an Israeli election—the Times Square plot precludes any notion of allegiance.

Loss of citizenship is an extreme sanction. But as the Court has emphasized, it is a civil, not a criminal one. In civil cases, the government' burden of proof is lower, and the citizen's rights fewer compared with a treason prosecution. Still, robust due process protection is essential to de-nationalization.

Revoking citizenship merely for being a member of al Qaeda or giving it material support (both criminal acts) would present a harder question, as would rendering a person stateless. The Constitution rightly protects the citizenship of law-abiding and criminal citizens alike against a government that seeks to exile them. Although loyalty is basic to citizenship, we don't make native-born citizens affirm it. We do require affirmation of loyalty in the naturalization oath, but that is a different context. Requiring loyalty oaths otherwise may infringe First Amendment rights to dissent or to remain silent.

Drawing these lines will be difficult. Yet public fears of citizen-launched terrorism make this task inescapable and will test our conception of both citizenship and the Constitution.

Mr. Schuck is a professor at Yale Law School and the co-editor with James Q. Wilson of "Understanding America: The Anatomy of an Exceptional Nation" (PublicAffairs, 2008).