The Independent View: Trump Would Detain American ISIS Supporters in Guantanamo Bay

According to a leaked memo, Donald Trump says he would detain American ISIS supporters in Guantanamo Bay.

So the question is, can a U.S. citizen be stripped of the citizenship for any association with ISIS?

Although rare, it is possible for a naturalized U.S. citizen to have his or her citizenship stripped through a process called "denaturalization." Former citizens who are denaturalized are subject to deportation from the United States.

Citizenship may be revoked if the U.S. government can prove that a naturalized U.S. citizen joined a subversive organization within five years of becoming a naturalized citizen. Membership in such organizations is considered a violation of the oath of U.S. allegiance.

Natural-born U.S. citizens may not have their citizenship revoked against their will, but recently, the Supreme Court has modified their thoughts on this issue.

The current laws are set forth in Section 958-960 of Title 18 of the United States Code. In Wiborg v. U.S. , 163 U.S. 632 (1896), the Supreme Court endorsed a lower court ruling that it was not a crime under U.S. law for an individual to go abroad for the purpose of enlisting in a foreign army; however, when someone has been recruited or hired in the United States, a violation may have occurred. The prosecution of persons who have violated 18 U.S.C. 958-960 is the responsibility of the Department of Justice.

Although a person's enlistment in the armed forces of a foreign country may not constitute a violation of U.S. law, it could subject him or her to the provisions of Section 349(a)(3) of the INA [8 U.S.C. 1481(a)(3)] which provides for loss of U.S. nationality if a U.S national voluntarily and with the intention of relinquishing U.S. nationality enters or serves in the armed forces of a foreign state engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer. But ISIS and foreign militias are not considered states.

In a 1980 case (Vance v. Terrazas), the Supreme Court ruled that intent to relinquish citizenship needed to be proved directly by itself, and not automatically inferred from an individual's having voluntarily performed any action designated by Congress as being incompatible with an intent to keep one's citizenship.

Thus, there is some well-established court precedents limiting the government’s ability to remove an individual’s citizenship. However, the tide may be turning in favor of the government when it comes to combating the scourge of terrorism.

While not a case involving citizenship revocation, a 6-3 Supreme Court decision in 2010, authored by Chief Justice Roberts (Holder v. Humanitarian Law Project), upheld a federal statute which makes it a federal crime to “knowingly provide material support or resources to a foreign terrorist organization,” as designated by the Secretary of State. The Roberts court concluded that the criminal ban did not violate the First Amendment freedom of speech or freedom of association protections.

Such reasoning in an analogous case indicates that the current Supreme Court may well be inclined to revisit the limits on citizenship revocation established by decades-old decisions from the days of more liberal Supreme Court majorities, especially when support of terrorists is involved.

A bill introduced in the United States Senate last year, entitled the Enemy Expatriation Act, would authorize the federal government to revoke the citizenship of anyone voluntarily “engaging in, or purposefully and materially supporting, hostilities against the United States.” This standard is too broad, providing the Obama administration and future presidents with another weapon to punish or intimidate political enemies. It should focus instead specifically on the threat posed by citizens providing material support to foreign terrorist organizations and affiliates engaged in hostilities against the United States.

Congress would do well to consider adding language such as the following to the existing federal statute dealing with revocation of citizenship (8 USC § 1481):

“Any person who is a national of the United States whether by birth or naturalization shall lose his or her nationality by knowingly providing material resources or support to a foreign terrorist organization designated as such by the State Department, including by engaging in hostilities, operational or propaganda activities on behalf of, in coordination or under common cause with such foreign terrorist organization or its affiliates.”

Citizenship is not an absolute right. It carries responsibilities and obligations. A U.S. citizen who betrays his or her own country by teaming with foreign state or non-state entities bent on our destruction should forfeit the rights, protections and privileges of U.S. citizenship and be expelled from the country.