Americans are accustomed to thinking of terrorists as foreigners, typically from the Mideast or Afpak region. Probability, not xenophobia, underlies this belief, given the backgrounds of known terrorists and the hundreds of millions of people around the world who despise America’s liberal culture, support for Israel, religious diversity, and much else. Those who wish to destroy American power, institutions, and ways of life tend to fit the stereotype.
But not all terrorists come the Mideast or from abroad. Just since early May, three American citizens have been arrested in connection with bomb plots — Faisal Shahzad, for the Times Square attempt, and the other two for international jihadist activities. These three Americans, of course, are not the first to be prosecuted for such crimes. Jose Padilla’s dirty bomb plot and Timothy McVeigh’s mass murder in Oklahoma City are some earlier examples of acts of terrorism perpetrated by treacherous Americans on American soil. And to further complicate things, an American citizen, Anwar al-Awlaki — who is apparently orchestrating al Qaeda efforts from his haven in Yemen, including some of the citizen-conducted attacks inside the U.S. — is being openly targeted for assassination by the cia and the military.1 Needless to say, an executive branch decision to kill an American citizen without a trial raises extraordinary legal, political, institutional, and moral questions, particularly in the context of a war without determinate battlefields, opposing forces, duration, or clear goals.2
These examples of domestic citizen terrorism are surely dreadful harbingers of things to come.3 Federal officials predict that such terrorism is likely to increase. This prediction seems more than plausible considering the tactical advantages that citizenship confers on extremists seeking to inflict great damage on our society. After all, they can use their American passports to come and go as they please, and they enjoy the same extensive legal rights accorded to all criminal suspects under U.S. law. They can claim these advantages, moreover, even if their ties to American society are tenuous and fleeting, and even if their citizenship merely reflects the accident of birth followed by a life lived abroad.
Citizenship law, then, must be one tile of our intricate national security mosaic. By citizenship law, I mean the set of legal rules, enacted by Congress and interpreted by the federal courts, that prescribe how individuals may become citizens, how they may lose that status, and their access to additional citizenships.4 This article explains what these rules are and why they matter. If the risk of Americans terrorizing Americans in America is indeed growing, then citizenship law, like criminal and national security law, cannot afford to ignore this alarming fact.
Whether these rules should be changed is a different and genuinely difficult question. The issue of political loyalty — what it means, how it can be measured, and especially the risk that powerful officials might question and manipulate it at the cost of our precious individual liberties — is always fraught. This is a very old issue for Americans. From the beginning of the Republic, our history has been dotted with periods in which the risk of official abuse materialized in ugly, divisive, and frightening forms — the Alien and Sedition laws of the late 1790s, anti-Catholicism during the 19th and early 20th centuries, and McCarthyism in the 1950s, for example. In a liberal polity whose paramount values are individual freedom and limited government, citizenship law must not be too intrusive, demanding, or subject to government discretion. This is probably what the constitutional theorist Alexander Bickel meant in writing that American citizenship “is at best a simple idea for a simple government.”5 Using citizenship law to monitor loyalty cannot be done without triggering delicate, uncertain, and potentially dangerous tradeoffs. Extreme caution is warranted, yet in high-stakes politics is seldom exercised. As we confront the risk of domestic terrorism, we must always keep this countervailing risk to our liberty and communal trust very much in mind.
How does citizenship law affect the threat of domestic terrorism and what role should it play in our overall national security apparatus? These are difficult questions to answer, both empirically and politically, which may help to explain the surprising fact that Congress has neither reviewed nor significantly altered our citizenship law in the half-century since the McCarthy era. Given the important developments that have reshaped the domestic security context since then, this omission is remarkable.
Three of these developments deserve special attention. First, our immigration stream has grown very large and diverse. This has created difficult management challenges for the immigration and naturalization agencies, challenges that have weakened the frontline defenses that we rely on these agencies to provide. Second, citizenship’s significance — legal, political, ideological — has declined in ways that call into greater question whether the status of citizen, as such, denotes a genuine embrace of our traditional liberal values. Third, the post- 9/11 threat of terrorism, both foreign and domestic, makes the relationship of citizenship to national security more salient than ever before.
The new immigration
In 1965, congress enacted a fundamental reform of our immigration law which still provides the basic legal structure of our immigration policy. The new law inaugurated what has probably been the most far-reaching shift in a nation’s ethno-racial composition in the history of the world. Consider that in 1968, when this law went into effect, there were 200 million Americans, of whom fewer than ten million (4.7 percent) were foreign-born. In 2008, our population had grown to 303 million, an increase of over 50 percent. The foreign-born population was not only much larger (having almost quadrupled to 38 million), but it now constituted 12.5 percent, one out of every eight people in America.
This enormous increase in the proportion of the foreign-born has by no means been confined to the U.S. Indeed, some other countries have even larger proportions — for example, Switzerland (23 percent); Canada (18 percent); and Australia (23 percent). (The proportion in Israel and the United Arab Emirates, which rely heavily on “guest workers,” is far higher still, reaching well over 70 percent in the uae.)
This proliferation of foreign-born in the U.S., of course, is largely driven by the number of legal permanent residents being admitted each year, which more than doubled between 1968 and 2008, from 454,000 to 1.1 million, and by their higher-than-average fertility rates. When one adds undocumented immigrants, the growth is even more striking. The undocumented population in the U.S. in 2008 was estimated at approximately twelve million. (The total has recently declined by more than a million due to the recession and stepped-up border enforcement.) Illegal migration at the pre-recession level is probably unprecedented. In 1968, the influx of undocumented workers that is now so familiar was only just beginning; most migration experts date this flow from the mid-1960s when Congress ended the Bracero program, which since World War II had allowed a large number of Mexican workers to work in the U.S. legally. When that legal channel for Mexican labor was closed off, illegal migration began to rise. With some ebbs (particularly the current recession) and flows, and despite several large amnesty programs in the 1980s and 1990s, it has continued to grow.
Most striking, this vastly increased legal and illegal immigration has altered the ethno-racial and regional compositions of the population. In 1968, more than one-third of new legal immigrants came from Europe, a vestige of the four-decades-old national origins quotas repealed by the 1965 reform. By 2008, fewer than one in ten was from Europe. Most of the rest came from Asia and Latin America. Those regions (except for Mexico) previously had supplied relatively few immigrants; by 2008 they supplied 77 percent of the total. This shift has quite literally transformed the face of America in ways that few predicted during the contemporaneous civil rights revolution (of which the 1965 immigration reform was one manifestation). Indeed, Kennedy and Johnson administration officials advocating the new law told a wary Congress that it would have only a small effect on new migration from Asia and Latin America — surely one of the most fateful miscalculations in our history.
This enormous growth and diversification of the immigration stream affects the risk of citizen-initiated terrorism in at least two ways. First, bureaucratic gridlock has hobbled the agencies (now consolidated in the Department of Homeland Security) with first-line responsibility for immigrant screening, monitoring, and enforcement, assessing citizenship, and deciding whether to initiate citizenship revocation proceedings. The sheer paperwork and process burdens of adjudicating a vast number of applications for the approvals that immigrants need in order to maintain and change their status once in the U.S. have overwhelmed the chronically underfunded agencies for decades now. Whether they are adjudicating petitions for visas for family members or workers, refugee claims, adjustments of status, citizenship, exceptions to the myriad rules, or hundreds of other individualized services, huge backlogs have developed. The same is true on the enforcement side. Border Patrol staffing and budget have grown rapidly, but administrative support for enforcement operations in the interior, where homegrown terrorists are most likely to operate, have not kept pace with the size of the immigrant population. Even immigrants who are arrested for crimes or immigration violations often cannot be detained but are released because of the limited, though recently much increased, number of detention beds. Once released, the government is unlikely to see the vast majority of them again.
Second, and related, the border and interior enforcement agencies are under intense congressional and interest group pressure to reduce these backlogs and accelerate processing. This is also true of American consular officials who must screen all visa applicants abroad before they can migrate here. This consular screening is even more difficult because many of the countries of origin have primitive information systems and weak or nonexistent law enforcement. Hard-pressed and often inexperienced consular officials must therefore assess each applicant’s risk of criminality and immigration violations in the U.S. (among other criteria) very quickly — the interviews, when held, usually consume only a few minutes — and often without reliable information. This bureaucratic and politicized context helps to explain why the 9/11 conspirators’ visas were routinely approved by consular officials in Saudi Arabia, the uae, and other countries in the Mideast.
The new citizenship
In an article published in 1989, I described the “devaluation” of American citizenship. I emphasized a number of legal and other developments since the 1960s — particularly the expansion of egalitarian and due process norms — which conferred rights on noncitizens that reduced their rational incentives to seek citizenship. The main advantages of citizenship were the right to vote and a higher priority in getting one’s family members admitted to the U.S. The main disadvantage of remaining a non-citizen — the risk of deportation — was vanishingly small unless the noncitizen committed a serious crime. This relatively low marginal value of citizenship, then, reduced the noncitizen’s incentive to seek it, which helped to explain the low naturalization rates among many immigrants, especially those from Mexico and other neighboring countries.
Almost ten years later, I published another essay about the “reevaluation” of American citizenship. There, I noted that the 1996 welfare reform law had made noncitizens ineligible for a large number of federally-financed social program benefits, and that the 1996 immigration reform had increased the risks of deportation for noncitizens who were out of status or who had violated a long list of criminal laws. Both of these legal changes (particularly the first), I argued, increased the marginal value to noncitizens of acquiring American citizenship. Sure enough, the number who sought naturalization after 1996 increased dramatically.
The nature of citizenship, however, is shaped not only by incentives but also by social practices, legal rules, and ideology.
Social practices. Since the 1960s, the number of Americans who also hold citizenship in one or more other countries has grown rapidly. Immigrants’ motives for naturalizing in the U.S. are varied: identification with American society and ideals; improved odds for bringing relatives to join them in the U.S.; elimination of deportation risks; access to public benefits; the convenience of an additional passport; etc. What is clear, however, is that plural citizenship is far more accessible today than it was in the past. Two social practices that encourage it — international migration, and marriage between individuals bearing different nationalities — are now much more common. (I discuss this more below.)
Legal rules. Our law makes citizenship easy to acquire. The vast majority of Americans are automatically and immediately citizens by birth on U.S. territory even if the mother’s presence in the U.S. was illegal (she lacked a valid visa), adventitious (she was just passing through), tactical (she wanted the child to have American citizenship or to receive U.S.-level hospital care at birth), or self-serving (the citizen child could, at maturity, petition for the admission of the parents). The legal conditions for naturalizing in the U.S. (other than the requirement of five years of legal, quasi-continuous residence) are readily met by anyone who studies the examination booklet, keeps her nose clean, and speaks a smattering of English. Children who are born abroad of even one American parent who was in the U.S. for five years, at least two of which were after age fourteen, can claim U.S. citizenship even if the child has never set foot here.
Our law also makes this easily-acquired citizenship almost impossible to lose. Congress long ago empowered the government to revoke the citizenship of a naturalized citizen who procured it through misrepresentation or fraud — for example, by 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 should not be citizens. For example, Faisal Shahzad obviously concealed his murderous Times Square plan when he naturalized last April.
But revoking the citizenship of Awlaki and the Fort Hood killer, both U.S.-born rather than naturalized, presents a complicated constitutional question. Under a 1940 statute, still in force today, the government can denationalize citizens who serve in a foreign military, vote in a foreign election, swear allegiance to or 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 an important 1967 Supreme Court decision, Afroyim v. Rusk, held that Congress cannot constitutionally revoke citizenship without the citizen’s consent; thus the government must prove that when he committed one of the above-stated acts, he specifically intended to relinquish his citizenship. (The 1940 statute, amended in light of Afroyim, now also includes this provision.) Needless to say, this is almost impossible to prove. I shall return to this point later.
Finally, there is the question of how the law treats plural citizenship. The U.S. traditionally opposed plural citizenship, concerned not only about divided allegiance but also about military service obligations and diplomatic imbroglios involving dual citizens. Nevertheless, the government now countenances it, probably as a concession to the new social and legal realities. It neither investigates nor seems to care whether a new citizen’s renunciation of her original citizenship, required in her naturalization oath, has any legal effect in her country of origin. In most cases, it doesn’t. Indeed, many of the countries of origin exploit this U.S. indifference by allowing their nationals who naturalize here to retain their original nationality, or to reacquire it after having renounced it in their oath. Moreover, many of these countries — for example, Mexico, India, the Philippines, and the Dominican Republic — now automatically confer citizenship on their nationals’ U.S.-born children, who thereby acquire dual citizenship at birth.
Ideology. How important should citizenship be to our individual and national identities, social status, and legal rights? Traditionally, Americans have been fiercely nationalistic. The evolution of our citizenship law is complex, having evolved from a unique mixture of liberal openness and ethno-racial and gender exclusion to a system of equally remarkable inclusiveness compared with other nations’ rules.6 Even today, however, our conception of citizenship embraces the idea that the United States is a spatially bounded political community and a sovereign state exercising plenary power over its territory, with the power and duty — constrained only by the federal Constitution and laws — to defend its physical borders; to define for itself who are insiders, outsiders, and in-betweens; to determine the rights of these individuals and their obligations to the state; and to decide which, if any, international law limits (other than peremptory jus cogens norms) on America’s sovereignty it will accept.
This nationalistic conception invokes America’s distinctive values, governing institutions, culture, and public policies — not abstract theories — to shape the law, practice, and meanings of citizenship. It is often skeptical about whether supranational legal orderings are consistent with American values and institutions. A similar concern animates the current debate within the U.S. Supreme Court and among academics about the validity of using foreign law to inform interpretations of the U.S. Constitution.7 The U.S. refusal so far to join the International Criminal Court reflects a similar nationalistic guardedness.
In contrast, many Americans, particularly in academia and on the political left, insist that globalization makes national citizenship an increasingly antiquated idea. They contend that it will and should yield to a more cosmopolitan notion of membership — what I have elsewhere called a “human rights model” — that is based on mere personhood and that supports more universal, egalitarian rights-claims to status and national resources. In this model, birth in a particular state and to particular parents is an accident too arbitrary to determine access to rights that, as a matter of distributive justice, should be enjoyed universally, or at least by long-term residents.8 The model’s hostility to territoriality as the basis for essential rights is tied to an historical claim (or hope) according to which a progressive dynamic, driven by a combination of increased globalism (especially migration), enlightened national self-interest, and a rising universalist-egalitarian zeitgeist, will drive the locus of citizenship (or at least its most essential rights elements) beyond the status quo of national territories to regional supranational bodies like the European Union, and then on to more universal governance regimes like the United Nations and other international treaty-based administrations. Only at this deterritorialized, universal level can equal access to certain rights and other goods be possible.
The struggle between the traditional nationalistic conception of citizenship and this human rights model will perhaps never be fully resolved, for it mirrors two deep ideological commitments in American life. What is clear, at least to me, is that the dynamic of globalism, powerful as it is in many ways, in no way ordains the triumph of the human rights model. Instead, the struggle is ideological and political, and there is much evidence that globalism is actually reinforcing nationalism even as it pushes against it.
In the wake of 9/11
It has often been said that 9/11, and the heightened fear of terrorism both foreign and domestic, changed everything. As noted, however, it has not changed citizenship law at all. The fact that Jose Padilla, Faisal Shahzad, and Anwar al-Awlaki are American citizens is often mentioned in the press but with one exception — the Lieberman amendment, discussed below — has had little apparent resonance in the Congress. Nor has the marginal phenomenon of “anchor babies”9 born in the U.S. because of tactical decisions by undocumented mothers crossing the border to give birth here caused Congress to seriously consider changing the traditional birthright citizenship rule.10
Recent terrorist attacks in the U.S. may change all this. The poisonous preaching of the Yemen-based cleric al-Awlaki likely inspired both the unsuccessful Times Square attack and the Fort Hood rampage in November that left thirteen dead — both perpetrated by U.S. citizens. Awlaki probably also inspired the Christmas Day jetliner bomb plot (by a Nigerian) and the recent aborted plot in which two arrests have been made. To all appearances, he continues to goad other vulnerable souls to commit violence against innocents here.
American citizenship clearly facilitates such murderous assaults. Like the Times Square bomber, plotters can travel easily to and from terrorist training camps on American passports, intelligence agents cannot monitor them as easily as they can immigrants, they cannot be deported, and they have certain legal rights that foreigners lack, such as the right to be tried in a civil court. In these senses, American citizenship greases the wheels of domestic terror.
Can Congress do anything, consistent with the Constitution, to reduce these citizens’ ability to wage war on their fellow countrymen? (Eliminating that risk altogether is not possible). The answer is yes. Once they are apprehended, of course, they can be prosecuted for their specific criminal acts. They may also be prosecuted for treason, as they certainly meet the definition of treason in the Constitution: levying war against America and adhering to its enemies. Under the Constitution, though, conviction for treason requires what may prove impossible to obtain: “the testimony of two witnesses to the same overt act” or a “confession in open court.”11 Even if successful, however, criminal prosecution is likely to be protracted and likely would occur only well after the damage has already been done.
An ostensibly easier route for the government is to seek to strip the terrorist of his American citizenship. This denationalization (sometimes called expatriation) would be easier because it is a civil and not a criminal remedy. Hence, the government’s procedural and evidentiary obstacles would be lower, and once denationalized, he could be deported (as a citizen cannot be). Indeed, in May, only days after Shahzad’s arrest, a bipartisan group in Congress led by Senator Joseph Lieberman introduced the Terrorist Expatriation Act, which would allow the government to denationalize a citizen upon a finding by the secretary of state that he provided material aid or support to a foreign terrorist organization as designated by the secretary, or that he engaged in hostilities against the U.S. or an ally.
But it is not easy to denationalize a citizen. First and foremost, there are formidable legal constraints. When the United States was founded, the common law courts in England had long held that allegiance to the Crown was perpetual; a subject could not renounce it without the sovereign’s leave. (Britain used this principle to justify impressing into military service American sailors who were British-born but naturalized in the U.S. — a casus belli of the War of 1812.) Subsequent laws and international treaties established the right of all citizens to expatriate themselves and to seek naturalization in another country, but the question of whether and under what conditions the government can denationalize one of its citizens is a different and much harder question. The Constitution, including the Treason Clause, is silent about this. The 14th Amendment does stipulate how citizenship is acquired — through birth or naturalization here — but it is silent about whether and how one can be stripped of one’s citizenship.
In 1907, Congress moved to fill this legal void, enacting a statute that provided not only for voluntary renunciation by an American citizen of his citizenship but also listed certain actions that would automatically result in loss of citizenship. In 1917, the Supreme Court held that Congress had the constitutional power to do this so long as the citizen acted voluntarily. In 1940 and again in 1952, Congress expanded the list, adding other actions that could trigger denationalization. Constitutional constraints entered the picture in 1958 when the Court decided three cases involving denationalizations for acts listed in the law. In the most important of these cases, Trop v. Dulles, four justices maintained that Congress lacked the power to denationalize any citizen without his consent; a fifth joined the decision but not its reasoning on this point, leaving that constitutional argument without majority support.
In 1967, however, this argument gained the decisive fifth vote. In the Afroyim case mentioned above, the Court, properly recognizing the extreme severity of denationalization, held that the Citizenship Clause of the 14th Amendment invalidated the provision denationalizing a citizen unless he had assented to losing his citizenship in the sense of voluntarily relinquishing it. How might the government prove this specific intent? In a 1980 case, Vance v. Terrazas, the Court upheld a provision that allows the government to prove it by a mere “preponderance of the evidence” rather than having to meet a higher standard that the citizen had argued was constitutionally required given the importance of citizenship status. There the matter rests legally today. Absent a change in the Court’s view of the Constitution — both Afroyim and Terrazas were 5–4 decisions, and the Court’s membership has completely turned over since then — the “intent to relinquish” principle constrains Lieberman’s proposal and any other denationalization scheme.
Even so, however, some crucial questions remain unsettled. Are there particular terrorist acts that would suffice — in and of themselves, without proof of his actual state of mind — to prove the terrorist’s specific consent to loss of citizenship? The Court has not answered this question but did note in Terrazas that the requisite intent may be “found as a fair inference from proved conduct.” I infer from this that no magic words are necessary, that actions can speak louder than words, and that certain acts — say, killing people simply because they are Americans, as Shahzad apparently did — may suffice if they are utterly inconsistent with even minimal allegiance and can only be understood (unlike Afroyim’s act of voting) as evidencing hatred of America. Assuming that the individual has a fair opportunity to rebut the government’s claims, I believe that the Roberts Court would agree.
This still leaves some other hard questions. Is “minimal allegiance” the proper standard, and if so what does it mean? Could the government denationalize one who lacks minimal allegiance and feels hatred for the U.S. but does not act upon those feelings? Where the denationalizing act is criminal (such as material support for terrorist organizations, as in the Lieberman bill), must the government first convict the perpetrator of the crime rather than simply make an administrative finding that he did it? Suppose the individual is not a dual citizen and that denationalization would thus leave him stateless, a condition that international law condemns and seeks to minimize? Is the risk of statelessness in such a case the terrorist’s problem, not ours?
Beyond these legal considerations, there is a practical one. Although denationalization is a civil sanction, it shares with criminal sanctions the limitation that it can only be imposed after the fact — and indeed, only at the conclusion of a legal proceeding surrounded by due process safeguards. Denationalization, then, can only add to the already heavy penalties that may be imposed once the damage is done and the government proves its case. Nor is the prospect of denationalization likely to deter terrorism at the margin, for a very simple reason: The threat to a potential terrorist of losing his American citizenship is likely to pale in significance compared with the other penalties for terrorist acts. If the threats of self-immolation, criminal prosecution, and capital punishment do not deter him, possible loss of citizenship will certainly not do so.
But if the prospect of denationalization is unlikely to affect a would-be terrorist’s personal calculus, voiding his citizenship might still help the government combat terror in other ways. Under current law, as Jack Goldsmith has noted, the citizenship status of a suspected terrorist significantly affects the government’s legal and practical ability to control his dangerousness. If he is not a citizen, he can more easily be monitored, wiretapped, identified, targeted, detained, prosecuted, and convicted. In the case of a known terrorist like al-Awlaki, his citizenship status may (depending on how the courts rule on the issue) affect whether the government can kill him without legal process. This raises a further question: Can a suspect be denationalized in absentia, assuming that he receives due notice of the proceedings and fails to appear in the U.S. to contest it, much as a duly notified deportable alien can be deported in absentia under certain conditions? If so, and if the U.S. citizenship of targets continues to limit the tactics available to the government, then denationalization accomplished in this way could be valuable — at least in those situations in which we are prepared to publicly identify the targets — even if it does not much affect their own incentives.
With this possible exception, however, it seems that stripping terrorists of citizenship, while morally just and emotionally satisfying to the American national community, is not an effective weapon against them. Nor would demanding professions of loyalty from our citizens be either practical or justified. The Constitution rightly protects the citizenship of law-abiding and criminal citizens alike against a government that may seek to exile them, possibly for political or other illegitimate reasons. Communal loyalty is basic to citizenship, of course, but that does not mean that we do or should make citizens affirm it. A loyalty oath is required for naturalization, to be sure, but this is because, by definition, the individual comes to the naturalization ceremony holding allegiance to another country. To demand an affirmation of loyalty in other situations may infringe First Amendment rights to hold dissenting views or to remain silent. In a society that cherishes freedom, a duty to demonstrate one’s loyalty on pain of being exiled would be odious, perverse, and probably meaningless.
This leaves us with the ensemble of conventional anti-terrorism tools that, with the tragic exception of 9/11 itself, have so far served us well in our government’s diligent searches for needles in haystacks. These tools include surveillance, screening, and other forms of intelligence-gathering, criminal law enforcement, international financial controls, skillful diplomacy, civic education (although most terrorist acts in the U.S. have been committed by reasonably well-educated men), and as a very last resort military intervention. Greater care in reviewing naturalization petitions for signs of violent propensities would also help, although slowing down the citizenship process and making it more onerous and less attractive to immigrants has its own costs.
We must also continue to cultivate a culture pervaded by patriotism and respect for differences, and maintain and improve a system of legal and political remedies for legitimate grievances. A more just America is a compelling end in its own right, but it would be both naïve and dangerous to believe that such a society would significantly reduce the risk of domestic terrorism. All that we know about the psychology of terrorism defies such a logic. Murderous jihadists and the Timothy McVeighs of the world are not likely to be mollified by the kinds of reforms that are practically possible and socially desirable. Such terrorists are either mad or (what may be the same thing) driven by transcendent visions and inner compulsions that this world can never satisfy. Alas, stripping away their citizenship is possible, but it is surely the least of their worries.
1 This targeting has been challenged in court by the aclu. See Charlie Savage, “U.S. Weighs How to Block Suit on Targeted Killing,” New York Times(September 16, 2010).
2 I agree with Jonah Goldberg, who has written that “This is no job for courts. Wars and how we fight them are political decisions, properly left to Congress and the president. So, let’s have Congress and the president come up with some clear, public rules. Better to start the debate over an easy case than a hard one.”
3 By domestic citizen terrorism, I mean terrorist activity launched by American citizens against other Americans, not such activity initiated by noncitizens.
4 A third element of citizenship law — the entitlements that citizens, but not noncitizens, may claim — has changed over time. I do not discuss it here because it bears no discernible relationship to the problem of citizen-initiated terrorism.
5 Alexander M. Bickel, The Morality of Consent (Yale Press, 1975.
6 The classic account is Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (Yale Press, 1997). His book takes the story up only to 1912.
7 See, e.g., Roper v. Simmons, 543 U.S. 551 (2005).
8 Ayelet Shachar criticizes birthright citizenship as the legal equivalent of an inherited property right that reinforces and magnifies existing morally unacceptable global inequalities. See Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard Press, 2009).
9 Many who support liberal immigration policies oppose the use of this term. They think that it is demeaning, suggests that the practice is more widespread than it actually is, and plays into the hands of restrictionists. Although I also favor liberal immigration, I use the term here because it is widely used in the public debate. I do not see it as demeaning; it simply describes a practice that seems perfectly rational from the perspective of an impoverished mother who loves her child and desperately wants to provide it with an invaluable advantage in life. Were I in her situation, I would probably do the same. No one knows how widespread this practice actually is, of course, but judging from a study conducted in 1980 when the estimated undocumented population in the U.S. was less than half the level it was a few years ago (before the recession reduced and reversed the flow), it is probably not trivial. See, Peter H. Schuck and Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity(Yale Press, 1985), 94.
10 As it has in the past, a House subcommittee will hold hearings on birthright citizenship. Although the mainstream view is that only a constitutional amendment could impose conditions on birthright citizenship, I and some scholars think that Congress has the power to do so. See Schuck & Smith, supra, and John C. Eastman, “Born in the U.S.A.?: Rethinking Birthright Citizenship in the Wake of 9/11,” University of Richmond Law Review 42:4 (March 2008). Personally, I would oppose amending the Constitution for this purpose. As for policy options on birthright citizenship, see Peter H. Schuck, “Birthright of a Nation,” New York Times (August 14, 2010).
11 Technology and updated treason laws may make treason easier to prove. See Kristen E. Eichensehr, “Treason in the Age of Terrorism: An Explanation and Evaluation of Treason’s Return in Democratic States,” Vanderbilt Journal of Transnational Law 42:5 (November 2009).