Revoking passports isn’t the way to stop American jihadists from returning home

October 7, 2014

Undated handout picture of a passport of a man identified as Ramy Zamzam

As the Western world confronts the threat posed by the Islamic State, many officials are pushing for stricter measures to be put in place to protect the United States from home-bound jihadists carrying U.S. passports.

“For terrorists, travel documents are as important as weapons,” said Michigan Republican Candice Miller, chair of the U.S. House Subcommittee on Border and Maritime. “We need to reduce their ability to travel to the United States, and I think we need to consider what it will take to strip passports from those who provide support to or fight with terrorists.”

But does the demand for stripping the passports of supposed jihadists make sense in today’s world?

Biometric passport technology, which uses a chip that contains information, including fingerprints or voice data, regarding the holder, allows member states of the International Civil Aviation Organization to exchange data throughout the world. Through this system, states can suspend an individual’s ability to travel abroad without confiscating his or her passport.

Given that this technology exists, there is no need for the U.S. government to add powers that could end up stripping passports from citizens unnecessarily. To do otherwise would be to ignore serious constitutional problems.

The new British biometric passport is shown under ultra-voilet light at the British Embassy in Washington

Consider that passports serve a twofold function. The first is that they permit you to travel across international borders. That’s the bit that worries governments: dangerous nationals can crisscross the world unhindered.

The second function of a passport is that it attests to your legal identity when you are abroad, providing internationally recognized proof of your first and last name, place of birth and citizenship.

If an American citizen is in U.S. territory, he or she can use other forms of identification, like a driving license or birth certificate. In this circumstance, refusal to deliver a passport or confiscating one is perfectly legitimate for security reasons. But abroad, the situation is different because the passport is the only valid means of identification.

The U.S. Supreme Court has consistently recognized these two functions of the American passport since 1835. And while the court has reluctantly acknowledged the power of the executive to suspend the freedom to travel for national security reasons, it has never allowed for suspension of the passport’s function as a document confirming one’s status as an American citizen.

Being able to prove your identity abroad is no frivolous matter. Unique among the world’s nations, the U.S. Constitution guarantees its citizens certain privileges and immunities. In the 1873 Slaughterhouse Cases, the Supreme Court identified these as including the care and protection of citizens by the federal government while abroad. The ability to carry proof of one’s legal identity is among the privileges and immunities the court wanted to protect because they belong to the rights of citizens “of all free governments.”

A passenger jet flies in front of the moon in BogotaUnder the Fourteenth Amendment, if a citizen convicted of a crime can be deprived of his liberty or even of his life under due process, he cannot since the 1967 court decision Afroyim be deprived of his citizenship and of the immunities that stem from it — even under due process.

It is not just the Supreme Court that binds the United States to this principle. Under the 1967 Protocol Relating to the Status of Refugees, to which the United States is a signatory, the government has an absolute obligation to issue identity papers to any foreign refugee who happens to be within its territory. This is so fundamental a human right that there is no exception to this obligation, even if the refugee is a threat to national security.

Is there any good reason why this obligation should not be considered applicable, a fortiori, to the United States vis-a-vis its own citizens abroad?

In the “age of terror,” the government has consistently tried to expand its powers to keep citizens safe with new technologies of surveillance. But it has the responsibility to balance protection of its citizens with protection of their fundamental rights under the Constitution. In the case of Islamic State fighters, there is no need to compromise either.

Available technology allows the government to deny or forbid the possibility of dangerous persons crossing borders while easily enforcing the basic right — for us all — to bear a form of internationally recognized identification when abroad.

There is no excuse for the government not to use it.

PHOTO TOP: An undated handout picture released December 11, 2009 by the police chief’s office in Sargodha shows the passport of a man identified as Ramy Zamzam, who police say was one of five Americans arrested in Pakistan. U.S.REUTERS/Police Handout

PHOTO 2: A new British biometric passport is shown atop a special reader can take the holder’s information off an embedded security chip, during a showing for the press at the British Embassy in Washington, October 24, 2005. REUTERS/Jason Reed

PHOTO 3: A passenger jet flies in front of the moon in Bogota November 1,2012. REUTERS/Felipe Caicedo

248 comments

We welcome comments that advance the story through relevant opinion, anecdotes, links and data. If you see a comment that you believe is irrelevant or inappropriate, you can flag it to our editors by using the report abuse links. Views expressed in the comments do not represent those of Reuters. For more information on our comment policy, see http://blogs.reuters.com/fulldisclosure/2010/09/27/toward-a-more-thoughtful-conversation-on-stories/

First off, if a US citizen goes abroad, fights WITh enemies of our great nation, the constitution clearly makes the case that that person’s citizenship can be, should be, and WILL be revoked. No more US citizenship. Period. At that point, i could care less whether that person is hassled or burdened by not being able to prove their citizenship or identity. They chose to leave their homeland to fight against their homeland. They aided and abetted the enemy, they are now our enemy and their passport AND citizenship is to be revoked. There isn’t a whole of gray area here folks. I am sure some will try to find a way to protect these low life scums, but the truths of our founding documents do not treat treason with leniency. They are to be denounced as citizens and if our government doesn’t do it, then we all need to start demanding why!

Posted by BGoldberg | Report as abusive

The Constitution is dying a real time death but….we can pretend as:

US Drones take out US citizens who choose to join (Reuters doesn’t allow the T word).
The Domestic US Spy Program remains alive and well.
Multinationals play hide and seek with their US tax obligations via the amendment favors purchased from those we elected. 
Our Supreme Court consists of politicians in robes posing as Judges who have destroyed the integrity of the intended fair election process. Conflict of Interest – not even a thought.
Politicians with insider information are now filthy wealthy.
POWs are held indefinitely in prisons outside of US borders.   

But it may be Unconstitutional to Freeze these passports? Right.

Posted by SaveRMiddle | Report as abusive

Thank you for that info, most interesting!

Posted by JoKidd | Report as abusive

What’s up with not posting comments?

Posted by SaveRMiddle | Report as abusive

[…] “Revoking passports isn’t the way to stop American jihadists from returning home.” Reuters’ contributor Patrick Well argues, “Available technology allows the government to […]

Posted by Kobani Will Fall, Fighting Ebola in Africa, and Acquisition Training Troubles – Daily Intelligence – Defense News | Report as abusive

The problem with this commentary is that US passports presently in use do NOT have biometric technology and we have a 10 yr passport cycle. So the author presents a false solution.

Posted by neshobeguy | Report as abusive

no need to do anything about the passport. Arrest the jihadist when the attempt re entry on charges of aiding and abetting a terror organization. easy.

Posted by zotdoc | Report as abusive

In my view canceling the passport is unsafe from the POV of national security. Simply because its gonna push terrorists further underground and it’ll be even harder tracking them. If 7-year old kids can breach American borders and partly literate mothers working low-level jobs can arrange for their kids to be brought into the USA its not impossible for far better financed, determined and sophisticated terrorists to do the same.
At least a working passport would lull them into a false sense of security whereby they could be tracked and arrested when and where convenient.

Posted by Aritra | Report as abusive

[…] lawmakers warmly applauded Cameron’s proposals, whilst calls for the U.S. to adopt similar measures are growing louder. Yet reactions back in Britain are mixed. Three overlapping concerns dominate […]

Posted by Terrorism Suspects to be Excluded From U.K Even If It's Their Home | Report as abusive

[…] lawmakers warmly applauded Cameron’s proposals, whilst calls for the U.S. to adopt similar measures are growing louder. Yet reactions back in Britain are mixed. Three overlapping concerns dominate […]

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