This week, the U.S. Department of Homeland Security released a report of terrorism activity that reveals little about terrorism and much about the Trump administration’s view that United States citizenship comes in multiple forms, some of which are more authentic than others. The report, a response to Trump’s travel ban executive order, purports to list terrorist activity conducted by “foreign nationals” since September 11, 2001. It claims that approximately seventy-three percent of people convicted of international terrorism-related charges since then were foreign-born.
President Trump quickly linked the report’s release to his hardline immigration proposals. He claimed via Twitter that these statistics support his call for “moving away from a random chain migration and lottery system, to one that is merit-based.” Secretary of Homeland Security Kirstjen Nielsen said these findings are “likely just the tip of the iceberg.”
….we need to keep America safe, including moving away from a random chain migration and lottery system, to one that is merit-based. https://t.co/7PtoSFK1n2
— Donald J. Trump (@realDonaldTrump) January 16, 2018
Though the report contains few details, it does acknowledge that some of the people counted had little to no contact with the immigration law system. An unspecified number, for example, “committed offenses while located abroad, including defendants who were transported to the United States for prosecution.” In other words, these are people who were arrested abroad and extradited to the United States solely to face criminal charges. They were brought here under lock and key in the custody of law enforcement officers. To claim that they represent a failing of immigration laws is like claiming that a victim of kidnapping elected to take a trip with the kidnapper. Both are ridiculous assertions. Law enforcement agencies like DHS shouldn’t voice either.
More cynically, the report’s compilation of foreign-born perpetrators displays the lack of nuance and disrespect for basic legal distinctions that has become characteristic of the Trump administration. Of the 402 foreign-born terrorist offenders referenced, 295 are United States citizens. In other words, over half of the people described as “foreign nationals” are actually United States citizens. No claim is made that these people are also citizens of other countries. Instead, DHS is conflating birth outside the United States with foreignness.
That is wrong as a matter of law and reflects a troubling ideology regarding United States citizenship. The laws governing United States citizenship do not distinguish between citizens based on their place of birth. Whether obtained a birth or through naturalization, the law only recognizes a distinction between citizens and everyone else. A person who becomes a citizen after navigating the laborious naturalization process is entitled to all the privileges and responsibilities as a person who obtains citizenship through the accident of birth.
Moreover, birthright citizenship is itself a multistranded phenomenon. Most people who obtain United States citizenship at birth do so thanks to the Fourteenth Amendment’s citizenship clause. Added to the Constitution after the Civil War, it provides in section 1 that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Called jus soli citizenship, it marks a rupture from pre-Civil War racial discrimination in citizenship law and recognizes the importance of treating all people born in the United States as equal members of the political community.
Every year, a small number of people obtain their citizenship despite being born outside the United States—and therefore outside the reach of the Fourteenth Amendment’s “born…in the United States” requirement. Known through the Latin phrase jus sanguinis, children can sometimes obtain United States citizenship at the moment of birth if they meet stringent requirements set in various statutes adopted by Congress. These statutes have changed over the years. In general, they grant United States citizenship to children born abroad who have a close family relationship with United States citizens, usually the child’s parents. Interestingly, the jus sanguinis statutes have relaxed over the last several decades. For most of the nation’s history, for example, children had to set up residence in the United States or lose their birthright citizenship. That requirement—called a condition subsequent—was dropped in 1978.
Despite being the lesser known cousin to Fourteenth Amendment citizenship, jus sanguinis birthright citizenship inheres, as I tell my students, at moment zero: the moment of birth. In this way, it’s no different from birthright citizenship obtained under the Fourteenth Amendment. John McCain, born in the Panama Canal zone, and his Canadian-born colleague Ted Cruz are among the most prominent examples of foreign-born children who obtained citizenship at birth. I would hope that DHS doesn’t consider either a “foreign national” United States Senator. It’s not clear how many children obtain birthright citizenship through jus sanguinis principles of citizenship law, but one scholarly account posits that no more than 50,000 do so annually.
By listing people who are United States citizens in their report of terrorism activity by foreign nationals, the Trump administration muddies what it means to be a U.S. citizen. If compliance with the formal requirements of United States citizenship law and official recognition of citizenship by the United States government are not enough to escape being classified as a “foreign national,” is anything? Among its many duties, DHS is charged with administering and enforcing citizenship law. One of its principal responsibilities is to decide who meets the qualifications for naturalization. Another is to identify who is not a United States citizen. Its report describing “foreign national” United States citizens suggests a cynical cheapening of the Fourteenth Amendment and many congressionally enacted statutes that define citizenship.
Worse, DHS’s report suggests that citizenship comes in multiple tiers. Used by an administration that has repeatedly attacked people of color in the vilest of terms, it’s hard not to read the department’s vision of multiple tiers of citizenship as indicative of a broader claim to represent authentic Americanness. As a candidate and now as president, Trump has curried favor with white people by positioning himself as the defender of a traditional America. That version of United States history imagines an innocent past when happiness reigned, complaints were few, and prosperity reached all who worked hard. Absent is the bloody history of racial violence, rampant misogyny, capitalist attacks on militant workers (sometimes with airplanes and machine guns), and structural barriers to opportunity that characterize the country’s imperfect march toward a more perfect union. It makes no allowance for citizenship laws that barred people of color just as it doesn’t acknowledge laws that stripped women, mostly of Asian descent, of their United States citizenship simply for marrying someone who couldn’t naturalize.
The vision of multi-tiered citizenship embedded within the DHS report isn’t new. But in its promotion of a claim to authenticity in the context of repeated use of racially charged language by the administration’s highest officials and in its amnesiac posture toward history, it does promote the worst white supremacist tendencies of the Trump administration’s first year.