US 'foreign fighters' could have passports revoked, but may still have right to re-enter
By Dibya Sarkar

U.S. citizens who go overseas to fight for foreign terrorist groups may have their passports revoked by the Secretary of State, but may not be necessarily denied entry back into the country even if they don't have papers, according to a pair of Congressional Research Service reports.

There's been considerable congressional interest, including proposed legislation, to revoke passports of U.S. citizens who are fighting for terrorist organizations such as the Islamic State -- also known as Islamic State of Iraq and the Levant. Federal law enforcement and national security officials have said that there are at least 100 Americans they know of traveling to Syria to join such groups.

Officials fear these U.S. foreign fighters might return to commit terrorist acts in this country.

"Advocates of revoking a passport for a U.S. citizen who is outside the U.S. believe that this would prevent the person's reentry into the U.S.," according to one CRS legal sidebar (pdf). "Contrary to a common misconception, however, the denial or revocation of a passport does not signify or cause a loss of citizenship."

A passport just documents an individual's status as a U.S. citizen.

However, the sidebar said that revoking or denying a passport could be effective in preventing potential fighters from leaving the United States since current law and regulations require U.S. citizens to show a U.S. passport when entering or leaving the country.

The sidebar cited several casesincluding one by the Supreme Court and several lower court onesrecognizing a U.S. citizen's absolute right to enter the country.

In the Supreme Court case, Nguyen v. I.N.S., the main issue was whether the person involved was a citizen who had the right to stay in the country. But the sidebar noted that "since the case involved a defense against deportation/removal predicated on U.S. citizenship, and the Court noted that being a citizen meant being entitled to the absolute right to enter U.S. borders, the Court has, arguably, recognized that there is such a right."

Another CRS legal sidebar (pdf) said that the Secretary of State does have the power to deny and revoke passports for various reasons, including for national security protection and foreign policy interests.

"The U.S. Supreme Court in Haig v Agee found that, although the Passport Act does not expressly authorize the Secretary of State to revoke or deny a passport, the Act also does not expressly limit such powers," according to the sidebar. "The Court further found that it is beyond dispute that the Secretary has the power to deny a passport for reasons not specified in the federal statutes and, if the Secretary may deny a passport application for a certain reason, he may also revoke a passport for the same reason."

However, the sidebar cited some lower court rulings in which the Secretary of State wasn't authorized to withhold passports due to a person's beliefs and associations or by law since it raises "significant constitutional issues."

The Passport Act was amended in 1991, the sidebar noted, to say a passport couldn't be denied, revoked or restricted due to a person's speech, activity, belief, affiliation or membership overseas or in the United States since that person is entitled to First Amendment protection if conducted in this country.

For more:
- read Oct. 16 CRS legal sidebar on right of U.S. citizens to enter the country (pdf)
- read Oct. 10 CRS legal sidebar on Secretary of State's power to revoke or deny U.S.