Correcting a Misunderstanding on the Law Concerning Loss of Citizenship for Acts of Treason

By Dan Cadman, November 30, 2016

Jim Geraghty posted an item yesterday at National Review, "Are Anti-Trump Protesters Dumb Enough to Take the Bait?", that touches on president-elect Donald Trump's recent tweets suggesting that flag burners should go to jail or have their citizenship revoked.

I have nothing whatsoever to offer about the issue of flag burning and will leave it to others to weigh in as they think appropriate. But in the course of his remarks, Geraghty had some additional interesting things to say:

Let's get a key point out of the way: Stripping an American of his citizenship is thankfully difficult and rare. If you're a naturalized citizen — born in a foreign country and legally becoming a citizen through the application and approval process — your citizenship can be revoked if the government learns you were ineligible, or you lied or hid important information about yourself. The Supreme Court has upheld an "unusually high burden of proof in denaturalization cases."

Natural-born U.S. citizens cannot have their citizenship revoked, but can choose to renounce their citizenship. Notice the Constitution explicitly mentions death as a potential punishment for treason, but not loss of citizenship!

Several times in recent years, GOP lawmakers introduced legislation to allow revocation of citizenship for anyone providing material assistance to foreign terrorist organizations, or membership, training, and oaths of allegiance to terrorist groups. Some conservatives have questioned whether that change to the law is really necessary if U.S. policy is to arrest, detain, and/or drone-strike these people. (Emphasis added.)

Geraghty has more to say in his column, but the cited part is what I wish to concern myself with. The problem is that Geraghty's mistaken. I don't know where he got his information. Native-born citizens can, indeed, lose their citizenship for acts of treason.

Section 349 of the Immigration and Nationality Act, codified at 8 U.S.C. Section 1481, says this:


(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-

(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, United States Code, or willfully performing any act in violation of section 2385 of title 18, United States Code, or violating section 2384 of said title by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction. (Emphasis added.)

Note that the first clause (which I have highlighted in bold text) appears to stand separately from the remainder of the paragraph in which specific federal criminal statutes are invoked, thus suggesting that acts of treason need not always be established by criminal conviction. The means for proving an act of treason without reference to a conviction is provided for in subsection (b) of this provision of the INA.

I have written about this section of law previously, suggesting that it is an appropriate remedy for individuals, naturalized or native-born who, for instance, pledge their allegiance to ISIS and commit acts of terror or provide material support in their behalf.

The key, it seems to me, is this: Material support of some terrorist groups, while heinous and criminal, is probably not treasonous because the terrorist group doesn't have as an avowed goal war upon the United States, murder of its citizens, and destruction of its property. The Irish Republican Army would have been such a group before its demilitarization and demobilization (although there are some observers who doubt that it has fully and completely done so). By contrast, any number of Islamist groups, including ISIS and al Qaeda, have certainly done so and pose an existential threat to our nation. To support of these groups is clearly to aid and abet, and give comfort to, the enemy — the classic definition of treason.

That is why when Geraghty says "Some conservatives have questioned whether that change to the law is really necessary" I agree with them — but not for the reasons laid out in his article. I think the law already provides an avenue for stripping both native-born and naturalized traitors of their citizenship. The problem is one of will, not law.