Peter Schuck on Revoking Citizenship in Terrorism Cases

As I’ve noted before, I am not an expert in the case law on revocation or renunciation of US citizenship, but I wanted to flag Professor Peter Schuck in the Wall Street Journal today arguing that it is indeed possible to revoke Faisal Shahzad’s citizenship.  Behind the subscriber wall, here.  A bit from the middle of the piece:

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 andTerrazas, 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.

I don’t pretend to a view on the Supreme Court precedents, let alone how they have been applied in practical situations.  For reasons unrelated to this debate, I do not see that there is any problem targeting Al-Awlaki, going to Julian’s post below, but that is a different issue from revocation of citizenship.