Pick a Side: Prohibit dual citizens from access to classified information

Nick Pietrowicz is an attorney and works at the U.S. Department of State. The views expressed are those of the author and not necessarily those of the U.S. government.

Throughout most of American history, dual citizenship was viewed as a danger to our country. Accordingly, the federal government in the past worked to restrict the practice. But today, while not expressly encouraged, Americans are not in any manner prevented from acquiring or maintaining dual citizenship. Because of increasing global connectivity, this creates significant social cohesion and national security risks. The federal government lacks the authority to compel the general public to select a preferred country. But a ban on dual citizenship for employees who have access to classified information is permissible — and overdue. Action is needed now.

A Dangerous Confusion

Dual citizenship perplexed America’s early leaders because of the legal ambiguity it created. In the early 19th century, the Royal Navy frequently searched American vessels for British deserters. Often, American sailors would be grabbed by mistake. This was inevitable given the difficulty of establishing citizenship among English-speaking sailors, but also because of the common law theory of “perpetual allegiance”. That doctrine held that unless released by the Crown, British subjects are forever bound to their monarch.

However, the founding generation believed that citizenship was a personal choice. During President Washington’s second term, Congress rejected perpetual allegiance with passage of the Naturalization Act of 1795. That statute established a pathway for British subjects and others to become Americans provided they gave an “absolute renunciation and abjuration of all allegiance and fidelity to every foreign prince or state, and particularly to the prince or state of which they were before the citizens or subjects”.

One could choose a new country, but this required abandoning previous nationality.

Chief Justice Marshall later explained that this idea extended even to Americans who desired to surrender United States citizenship, holding:

Every citizen of the United States has a right to expatriate himself and become a citizen of any other country which he may prefer, if it be done with a bona fide and honest intention, at a proper time, and in a public manner. While we are inviting all the people of the earth to become citizens of the United States it surely does not become us to hold a contrary doctrine, and deny a similar choice to our own citizens. [Murray v. Schooner Charming Betsey, 1804; emphasis added.]

The War of 1812 ended the threat of British impressment of American sailors, but during the antebellum period a new problem emerged. As the country prospered and sea routes improved, Americans journeyed abroad more often. Many of these travelers were naturalized U.S. citizens returning to visit the places they had left for America. In some instances, these purported dual citizens were detained by local authorities, usually for draft evasion. This created headaches for American consular officers forced to unwind competing legal theories surrounding citizenship and naturalization.

The ratification of the 14th Amendment in 1868 complicated the situation further. The Constitution now granted birthright citizenship to nearly all persons born in the United States, including the children of most aliens. But when some of those children visited the home countries of their parents, they were arrested for failing to comply with conscription laws or other national duties.

This caused more than just consular headaches. As America sought to open markets and expand influence abroad, cases of dual citizenship complicated relations with foreign states. The practice was no longer just a concern for Americans who went abroad and encountered personal legal problems. Dual citizenship had become a danger to the national interest of the United States.

Days before the ratification of the 14th Amendment, Congress passed the Expatriation Act of 1868, delineating the ways an American could renounce citizenship. The Act also made it a matter of U.S. law that naturalized Americans had abandoned their prior citizenship. The same year, the United States started entering into a series of bilateral treaties with foreign states to clarify exactly when an individual might gain, maintain, or lose citizenship in a signatory country. These so-called “Bancroft treaties” (named after their chief author, diplomat George Bancroft) were signed with more than two dozen states over a six-decade period.

The 1932 Treaty of Naturalization between the United States and Albania is illustrative:

Nationals of the United States who have been or shall be naturalized in Albanian territory shall be held by the United States to have lost their former nationality and to be nationals of Albania.

Reciprocally, nationals of Albania who have been or shall be naturalized in territory of the United States shall be held by Albania to have lost their original nationality and to be nationals of the United States.

It was up to the State Department to enforce these provisions. An updated Expatriation Act in 1907 codified the various ways Americans might lose citizenship through not voluntary renunciation but personal conduct. Examples included naturalized citizens spending excessive time in their native country, service in a foreign military, and, for American women, marrying a foreigner. (That last element of the law was eliminated 15 years later.) This statute and the Bancroft treaties temporarily resolved the issue of dual citizenship, propitiously so considering an increasing attention upon the question of what exactly it meant to be American.

Americanizing Immigrants

As industrialization hastened at the turn of the century and a surge of immigrants arrived in the U.S. to work in the country’s mines, factories, and fields, the importance of assimilating these newcomers grew. The aptly named Americanization Movement emerged, spurring nationwide initiatives to instruct immigrants in American traditions and customs.

During this period of mass inculcation of foreigners into the ways of America, dual citizenship was publicly rejected not because it was confusing or inconvenient for diplomats, but because it was a barrier to assimilation. Theodore Roosevelt, who famously rallied against “hyphenated Americans”, referred to dual citizenship as a “self-evident absurdity”.

During both world wars dual citizenship invoked questions of loyalty. Former American Ambassador to Berlin James Gerard declared to a New York audience in 1917 that:

if there are any German Americans here that are so ungrateful for the benefits that they have received, we should give them back the wooden shoes and rags they landed in and ship them back to the Fatherland!

In 1942, Sen. Rufus Holman (R-Ore.) proposed a constitutional amendment that would grant Congress the authority to ban dual citizenship. One of Holman’s primary aims was to remove citizenship for the Nisei (U.S.-born children of Japanese immigrants), who could then be deported or interned because of alleged national security concerns. It is also likely that Holman, a former KKK member, simply wanted to eject those of Japanese ancestry from the United States. His amendment gained no support in Congress and never advanced. But for opponents of dual citizenship, this was no great loss. The existing Bancroft treaty framework already discouraged, if it did not outright ban, dual citizenship. The Supreme Court affirmed this authority in Perez v. Brownell (1958), where a 1940 immigration law revoking the citizenship of Americans who voted in foreign elections was upheld.

Subsequent decisions by the Court, however, would alter this course.

Dual Citizenship Ascends

Just a few years after Perez, the Court ruled most provisions of the Bancroft treaties were unconstitutional. In Schneider v. Rusk (1964), Justice Douglas held that the Fifth Amendment’s Due Process Clause protected the citizenship of a naturalized American who returned to and remained in their birth country. Previously, such conduct would have triggered a loss of citizenship under applicable Bancroft treaties and supporting statutory law. This holding was expanded in Afroyim v. Rusk (1967), where the Court decided the federal government had no authority to terminate the citizenship of an American who voted in a foreign election. The only action that could amount to expatriation of a U.S. citizen, wrote Justice Black, was “voluntary relinquishment”, expressly overruling Perez.

This effective legalization of dual citizenship emerged during a wider shift away from assimilation. Proponents of multiculturalism demanded the opposite of the Americanization Movement. They got it in the landmark Immigration and Nationality Act of 1965. Four decades of immigration law were jettisoned for a new approach that delivered more immigrants from more places. Such has been the trend since, including a 1990 revision to the law that introduced the Diversity Immigrant Visa to bring lucky, random aliens to America.

The United States is not alone in having abandoned prohibitions on dual citizenship. Two of the largest contributors of migrants to the United States have moved in the same direction. Seeking to capture the earnings of their countrymen who are working in America, as well as to sway political decisions made in Washington, Mexico eliminated a constitutional barrier to dual citizenship in 1998. Mexican President Ernesto Zedillo during discussions about lifting the ban in 1995, admitted such changes would “increase the political clout of Mexican Americans”.

India also has weighed ending a constitutional ban on dual citizenship in order to increase remittances and influence America. Under its current scheme, India already grants “Overseas Citizenship of India” status to citizens abroad, a form of legal residency that confers nearly all of the benefits of citizenship, absent the right to vote or run for office.

More Dangerous Now than Ever

And so stands dual citizenship law in the United States today. Congress has no authority to broadly prohibit dual citizenship or to compel the surrender of American citizenship. Any law that attempts to do so is unconstitutional and any treaty that claims such authority is void. Meanwhile, places that send millions of their citizens to the United States encourage those migrants to become dual citizens, either for the largesse they send back or the votes they yield in their new country.

Apologists for dual citizenship exist across the political spectrum. Among libertarians, there is a contention that every individual should be able to decide to which and to how many countries they owe a loyalty. For multiculturalists who reject the “melting pot” theory of America in favor of a “salad bowl” vision, dual citizenship is a useful tool that helps immigrants maintain connections to their birth countries. Certain foreign policy advocates claim that dual citizens in America are at least partially responsible for democratization trends abroad. That argument goes that because of remittances and cultural transmission from dual citizens in America, countries like Honduras have improved.

For those who view citizenship as sacred, Americans as a unique people, and who reject any moral obligation for the United States to uplift foreign countries, these claims are debatable at best.

What is incontestable though is that different countries have different interests, and that countries use their citizens. During an age when it is possible to speak daily with anyone in the world via a watch, to view one’s former homeland on a phone, to digest exclusively overseas media in real time, and to transfer and receive funds from any corner of the globe in seconds, it is reasonable to question if a holder of dual citizenship has full loyalty to the United States.

In addition to growing global connectivity and the attendant security risks, American policymakers need to accept that we will soon see a surge in counterintelligence cases. Many entering service today in our law enforcement, defense, foreign policy, and intelligence agencies spent their formative years learning about the unassailable benefits of civil disobedience and hearing applause for so-called “good trouble”. Meanwhile, our national security system, which is blessed with an appropriate number of avenues of relief for whistleblowers, will be dismissed by some as inherently flawed merely because it is part of the so-called “establishment”. This betrayal will test our strengths and attract our adversaries. Enemies will pounce upon anyone willing to sell out their country, but especially so if an individual is a dual citizen.

Instead of increasing our vigilance against dual citizenship and its dangers though, we have dropped our guard. Key national security agencies require aspiring employees to surrender dual citizenship from certain — but not all — countries in some instances. Those decisions are made on a case-by-case basis by adjudicators in the executive offices that administer the security clearance process. But the political pressure upon those and other bureaucrats to be more lenient toward dual citizens is tremendous.

An example was the push to lessen “assignment restrictions” in the State Department. Assignment restrictions prohibit diplomats with substantial ties to foreign countries from serving in those locations. An American whose parents were born in Minsk, for example, might be prohibited from working in Belarus. Dual citizenship almost always invoked such an action. Diplomats of Asian ancestry in particular complained that assignment restrictions curbed their ability to serve in the Indo-Pacific region and demanded changes.

Secretary of State Antony Blinken complied. Citing “efforts to recruit and retain a diverse, dynamic, and entrepreneurial workforce”, Blinken announced in March 2023 that assignment restrictions would no longer be issued when hiring new employees. Further, advocacy groups succeeded in adding language to a 2023 authorization bill that compelled the State Department to establish, for the first time, an appeals board to examine existing assignment restrictions. The board included the expected security and intelligence professionals, but also a representative of the Department’s Office of Civil Rights. The result is that, absent a pivot back to normalcy, assignment restrictions in the State Department will soon be extinct.

This erosion of protections against the risks from dual citizenship is a threat to national security.

Pick a Side

A bright-line rule, formalized in federal law prohibiting security clearance to any holder of dual citizenship, is needed immediately. Such a law could be drafted narrowly enough to allow dual citizens to renounce foreign citizenship if they aspire to work in the national security sector. This approach is achievable both legally and practically.

Legally, Congress has the authority to codify federal employment standards related to classified information. A 2023 bill authored by Rep. Tim Burchett (R-Tenn.) that would require newly elected members of Congress to disclose dual citizenship or face a fine offers a political path. That bill could be amended to compel federal employees with access to classified information to hold solely American citizenship. Congress could then vote on a measure that would apply not just to federal employees, but to the House and Senate as well. This would force apologists for dual citizenship to support the proposition that federal employees with loyalty to another country should have access to America’s secrets — a politically indefensible position.

The American public deserves a national security system that protects our secrets. Certain members of the military, law enforcement, and all our spies and diplomats must have loyalty to one country and one country only: our own. In the realm of classified information, America should be first. Not third. Not second. Not equal. First. Congress must act now to codify this protection by limiting access to classified information to those who are American citizens, and American citizens only.