The report that more than 250 Americans have joined ISIS in Syria is a chilling reminder that some of our fellow citizens are conspiring to commit atrocities and -- since they can return on their U.S. passports -- might try and do the same here. If we can intercept them here before they strike, we can certainly detain and prosecute them under due process rules. But experience teaches that our border, airport and FBI screening is porous. And once back in the U.S., the techniques -- monitoring, wiretapping, detaining, prosecuting and convicting suspects -- that we have used since 9/11 to find dangerous needles in anonymous haystacks are much harder to deploy and less effective when the targets are ISIS-trained U.S. citizens.
Far better to bar them from coming back in the first place. There are basically two ways to do this: revoke their citizenship or revoke their passports. In both cases, they could not return legally without first obtaining a visa. (A third tactic -- killing our terrorist citizens on the battlefield by remote control -- was done in Anwar al-Awlaki's case but it is still legally controversial.)
The first, revocation of citizenship (expatriation), is legally possible but practically unworkable. Why? A combination of birthright citizenship, relatively generous immigration admissions and liberal naturalization make it comparatively easy to acquire U.S. citizenship, but almost impossible to take it away (expatriation). A 1967 Supreme Court ruling held that expatriation is constitutional for certain acts only if the citizen acted with intent to relinquish citizenship, although the Court later said that the requisite intent might be fairly inferred from proved conduct. (Legislation sponsored by then-Senator Joe Lieberman in 2010 and 2012 to make material support for terrorism against us or our allies an expatriating act went nowhere. Also, the due process rightly needed to avoid arbitrary expatriation would make this approach cumbersome, especially if the citizen must be tried in absentia and could become stateless, which international law condemns. This is why expatriation, as citizenship scholar Peter Spiro has shown, is now largely a dead letter.
Our second tactic -- revoking their passports -- is far more promising. A 1926 law allows the Secretary of State to deny, limit or revoke citizens' passports if their activities abroad are likely to seriously damage our foreign policy or national security, as ISIS fighters clearly do. In 1981, the Court upheld this authority when the government denied a passport to Philip Agee, a rogue CIA agent prepared to divulge the names of other clandestine CIA agents. (Had the government revoked his passport instead of not issuing him one, the Court's decision would have been the same.) It also found that the Secretary's summary and somewhat conclusory statement of reasons, along with a post-revocation hearing, sufficed to satisfy due process -- and also that the Constitution might not require even those limited procedures. (Justices William Brennan and Thurgood Marshall dissented, arguing that the Secretary could not legally abridge his freedom to travel.) A House-enacted law to authorize revocation is languishing in the Senate, but Agee shows that ample authority already exists to cut off citizen fighters for ISIS or indeed for other groups that clearly threaten our security.
The ISIS fighters' situation differs from Agee's in some respects. They number in the hundreds; he was alone. Many are presumably quite young and perhaps confused; he was mature and methodical. They may be inarticulate about why they left; he called a press conference. They would be marooned abroad; he was still here. They probably have many family members and friends in the U.S. who will protest the bar to their return; Agee had few if any defenders. The facts about ISIS fighters may be harder to ascertain than those about Agee's actions.
Nevertheless, ISIS's mad, avowed determination to butcher every "infidel" -- including not just non-Muslims but Shiites and more moderate Muslims as well -- would make the government's case for passport revocation a strong one, so long as full due process safeguards are afforded. But because of the youth of so many of ISIS's Americans, the government would be wise, and perhaps constitutionally required, both to engage in an extensive effort to notify them or their families of the impending passport revocation, and to give them a window to surrender and return to challenge the revocation, and face possible prosecution here, in court. Finally, we should be clear that these revocations are a limited response to a unique problem. Specifically, we should be clear that they are not a precedent that the government can use to limit the travel or the return of citizens who oppose American policies through lawful means.
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Peter H. Schuck, an emeritus professor at Yale Law School, is the author of Why Government Fails So Often, and How It Can Do Better, now out in paperback.