Recent news reports indicate that the second issue of Inspire, a web-based English-language al Qaeda magazine, was just published. The publication -- which features articles containing suggestions on how to commit violent acts of jihad most effectively, from truck bombs to nerve gas -- also contains an article written by Samir Khan, an American citizen currently residing in Yemen, who is also believed to be the magazine's creator. Khan writes that he now "could no longer reside in America as a compliant citizen. & I am proud to be a traitor to America."
Khan has released this latest issue of Inspire against the backdrop of an interesting debate taking place on whether it is permitted or advisable for the United States to assassinate an American citizen overseas who has joined a foreign terrorist organization like al Qaeda. The latest round of discussion on this point has been sparked by legal developments in the case of al Qaeda cleric/operative Anwar al-Awlaki, an American citizen believed to be living in Yemen, who has been tied to the Fort Hood shootings and the Christmas Day bomber. Although the Obama administration has authorized the assassination of al-Awlaki, the ACLU and Center for Constitutional Rights have filed a lawsuit on behalf of al-Awlaki's father, alleging the illegality of so-called "targeted killings" of American citizens.
This latest round of debate, however, has been consumed by the question of what can and cannot legally be done to a U.S. citizen who joins the ranks of a terrorist organization -- built in is the assumption that such an individual retains American citizenship. We are past due for a reassessment of whether that should be the case.
Title 8 of the United States Code already establishes that a U.S. citizen, whether born here or naturalized, can lose his citizenship by voluntarily undertaking certain actions with the intent of relinquishing citizenship, including (among others) entering the armed forces of a foreign state engaged in hostilities against the U.S., or committing treason against the U.S. The law specifies that the State Department must prove that the individual committed one or more of these proscribed actions with the intent to relinquish U.S. citizenship. The Department can presume that they were done voluntarily -- a presumption the person in question is free to try to rebut. If the Department determines that citizenship was renounced, that person can request Departmental review, or appeal the decision in court.
In May of this year, Senators Joe Lieberman and Scott Brown introduced the "Terrorist Expatriation Act," which would add providing "material support" to a foreign terrorist organization, engaging in (or materially supporting) hostilities against the United States, or engaging in (or materially supporting) hostilities against U.S. allies to the list of offenses that could cost someone their American citizenship under the laws that already exist.
To be sure, jihadist terrorists generally could care less whether they are citizens of any specific country -- after all, their unifying goal is global Islamic rule under a Caliphate implementing shariah law, an arrangement rendering the nation-state system irrelevant. But revoking American citizenship from terrorist operatives is tactically smart in that it deprives American terrorists of the use of their American passport for international travel, and under the Military Commissions Act of 2009 also removes ambiguity about trying such individuals before military commissions rather than civilian courts, where they would otherwise receive the constitutional protections given to common criminals in our criminal justice system.
Skeptics might note that to the extent that the "intent" standard still applies under legislation like the Terrorist Expatriation Act, the State Department would still have to show that an individual intended to give up his American citizenship when he acted in support of a terrorist organization. For cases in the category of terrorist training manual publisher and "proud traitor" Samir Khan, this is arguably not an insurmountable obstacle. As for situations where the individual does not spell it out in words, but lets a car-bomb or nerve-gas attack do the talking, there is a case to be made that such actions are tantamount to intentionally relinquishing citizenship. While specific intent to give up citizenship may be harder to prove in some circumstances than others, that is no reason to deny the government the opportunity to make that case.
Reasonable people can disagree on some of the particulars of the Terrorist Expatriation Act -- for example, some might argue that criminal prosecution of those providing "material support" to terrorist organizations (a framework upheld by the Supreme Court just this past summer) is sufficient penalty for such activity, without adding loss of American citizenship. Importantly, Cato's Ilya Shapiro has previously noted that courts would likely insist on a very high bar for revocation of citizenship being triggered by the provision of "material support."
Nonetheless, in an age where American citizens are answering the call to jihad in increasing numbers, the Senators and their House counterparts -- whatever the merits or drawbacks of their specific legislation -- deserve credit for at least putting the question of revoking U.S. citizenship on the table when it comes to fighting terrorists. Citizenship is a shield, meant to protect society from abuses by the state. But when those dedicated to the destruction of that society use citizenship as one of their most potent weapons, it is time for a serious discussion of whether the rest of us are required to accept that proposition.