THE BLOG
10/14/2014 12:27 pm ET Updated Dec 14, 2014

Can the US Seize Would-Be Jihadis' Passports?

Can the U.S. government seize the passports of American citizens who it believes may travel abroad to join ISIS or other terror groups? Yep. The process is almost no-cost to the government, it's extra-judicial, it can be made secret, and it requires a lengthy court process to even try to contest. No passport, no international travel: the ultimate no-fly tool against would-be jihadis. So why hasn't this process been used more often?

Scary Stories

Leaving aside the not-insubstantial questions about their validity, the warnings are ominous.

With some Americans seeking to join ISIS, there are fears that on their return they may commit terror in the U.S. Unlike foreign citizens, these radicalized Americans would sail through immigration checks and be able to easily disappear into a familiar society. The U.S. is seeking to tackle the problem at the supply end, preventing Americans from departing to join ISIS in the first place, as well as from the other side, blocking citizens from returning freely to the United States.

The arrest at O'Hare Airport of Mohamed Khan, a 19-year-old U.S. citizen, is one example. Authorities claim the young man headed to the Middle East to join ISIS, and, citing a left-behind note explaining his choice, waited at the airport to arrest Khan on charges of attempting to provide material support for a terrorist organization. The operation involved significant law enforcement resources to stop one teenager based largely on suspicion.

Another Tool in the Box

The United States can simply seize passports from American citizens if "The Secretary of State determines that the applicant's activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States."

The law allows this prospectively, the "or are likely to cause" part of the law, meaning the person needn't have done anything. The government just needs to think they might.

A Judicial Watch Freedom of Information Act request revealed that prior to Obama ordering him and his 16-year-old son to be killed by a drone in 2011, then-Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, alleged al Qaeda propagandist and U.S. citizen. The two would not have been able to travel to the United States without handing themselves over to law enforcement. Indeed, a letter to that effect was allegedly sent to some address in Yemen inviting al-Awlaki to visit the American Embassy to discuss the details.

Al-Awlaki isn't the only person in Yemen to have his U.S. passport seized.

According to information obtained through a U.S. government whistleblower involved directly with U.S.-Yemeni affairs, the American embassy in Sanaa, Yemen seized over one hundred U.S. passports from Yemeni-Americans (some place the number at 500 passports) between 2011 and 2013. Only after several legal battles did the State Department curtail its actions. Though State publicly claims the seizures were an anti-fraud measure, many in the Yemeni community saw them as a pilot program.

A similar case involved the seizure of a Moroccan-American's passport in Kuwait.

The actions at the American embassy in Yemen may fit into a larger pattern. For example, at the same time in 2011 the U.S. was ramping up its actions against Yemeni-Americans, Australia appeared to be doing much the same thing. "Withholding passports is an important means of preventing Australians from traveling overseas to train, support or participate in terrorism," an Australian government spokesperson said. "It may also be used to help prevent an Australian already overseas from participating in activities that are prejudicial to the security of Australia or another country."

How are Passport Seizures Legal?

Restrictions on travel suffered under the British were part of the list of "injuries and usurpations" in the Declaration of Independence. So don't Americans have a right to travel?

Nope. The precedent was set by infamous ex-CIA officer Philip Agee, who in the 1970s exposed CIA officers identities. It was in Agee's case that the Supreme Court coldly affirmed that "The right to hold a passport is subordinate to national security and foreign policy considerations." A lower court put it even more bluntly: "The Secretary [of State] may preclude potential matches from the international tinderbox."

The basic premise is that travel abroad (travel within the U.S. is specifically provided for in the Constitution, though the No-Fly list certainly can limit one's options) is that it is an "aspect" of liberty subject to restraint under due process. In the 1950's, American Communists were often denied passports if their travel abroad was believed to be in support of their political beliefs, a policy later overturned by the Supreme Court. The Court struggled to balance national security and personal liberty regarding travel through multiple cases, but has never concluded that travel -- or having a passport -- is a fundamental right.

Some History

The whole concept of Americans requiring passports to travel has its roots in national security restrictions. With the exception of roughly the years of the Civil War and World War I, Americans did not need a passport to enter the United States. Americans were first required as a group to hold passports at the start of the Second World War. The travel requirements instituted in the past only during times of national crisis stuck around after WWII through the present day, formalized in the Immigration and Nationality Act of 1952. With echoes of current government actions, what was created as a wartime contingency morphed into a permanent peacetime restriction. The history of passport restrictions is not long, but does resonate into the post-9/11, Post-Constitutional era.

While no right to travel per se exists for Americans, there is a basic assumption, rooted in the Citizenship Clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment to the Constitution that Americans have something between an expectation, an entitlement and an implied right to return to the United States from abroad, rooted in the concept of citizenship. The ease with which passports can be seized (or boarding an aircraft denied via the No-Fly list) is not seen in conflict; in al-Awlaki's case, he would have been welcome to come home, albeit in leg irons en route to federal SuperMax. Time is also an issue. How long the government may make a citizen wait before allowing a return to the U.S. under some specific circumstances is not codified and thus can be used as a de facto seizure or punishment without raising a case publicly.

Why Doesn't the Government Seize More Passports?

In short, for an American citizen to travel abroad, whether for vacation or jihad, the government's permission, in the form of a passport, is required. So why then does the government not use such a long-tested authority to deny or seize the passports of those suspected for traveling to join terror groups?

While the real answer is obviously unknowable, several ideas may help explain this. First is that in fact such measures might be taking place. Persons who have not yet applied for a passport may find themselves denied issuance, and applications may have been denied or "in processing" without the applicant knowing the reason. The government is under no obligation to tell the person involved nor the media that national security has been invoked.

More likely however, it is a matter of legal timidity and public relations. Arresting and trying someone for material support for terrorism is something of a set-piece case for post-9/11 law enforcement. There is little legal controversy generated, and almost no danger under present circumstances of any nasty precedent being set. Wide-spread passport seizures could easily create a new chance to bring the issue before the Supreme Court, risky business for a government that much prefers to act as it wishes vis-a-vis Americans' rights.

The other reason for restraint may simply be public relations. The public is familiar and appears supportive of arrests. Law enforcement in these circumstances are the good guys. Passport seizures sound a bit harsh, totalitarian-like, and are technically done under the authority of the Department of State, who does not enjoy the good guy reputation many attribute to the law enforcement people who "keep us safe." It could be as simple as law enforcement not being willing to work with the State Department for bureaucratic reasons.

Regardless, these are dark seas. In a democracy, the right of citizens to depart and return should not on its face be restricted in the interest of the government. The idea of limiting an American citizen's travel proactively, on the assumption that she or he will end up fighting with ISIS based on documents or web postings, scrapes at liberty, even if the tools are there and it is legal to use them.