Human Rights

Lieberman Preys on Voter Fears, Proposes Law to Preemptively Strip Citizenship from Terror Suspects

Lieberman's latest assault on constitutional rights: a proposal to circumvent due process for U.S. citizens by conveniently stripping their citizenship.

Days after Faisal Shahzad, a Pakistani-born U.S. citizen and resident of Connecticut, tried to blow up a car bomb in Times Square, Sen. Joe Lieberman seized on renewed fears of a terrorist attack to announce his latest legislative gambit: the "Terrorism Expatriation Act" -- or "TEA" -- which would revoke the citizenship of any American "who is found to be involved with a foreign terrorist organization as designated by the State Department."

The measure came less than two months after Lieberman's introduction, with Sen. John McCain, of another radical bill: The "Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010," which would grant the president the power to order the arrest, interrogation, and imprisonment of anyone -- including a U.S. citizen -- indefinitely, on the sole suspicion that he or she is affiliated with terrorism, and on the president's sole authority as commander in chief. Lieberman's new bill is an offshoot of the same principle, circumventing the Constitutional guarantees of due process for U.S. citizens by conveniently stripping their citizenship, and reducing American terror suspects to "enemy belligerents" who have no rights.

"This [law] can't relate to Faisal Shahzad, because that's a case that's already occurring," Lieberman told MSNBC's Andrea Mitchell on Thursday, "… But it can apply to the next terrorist who is an American citizen and who is training overseas."

Legal experts have been quick to point out the myriad ways the bill is unconstitutional. Laura Murphy, director of the ACLU Washington Legislative Office, said it "turns the whole notion of due process on its head."

"Removing one’s citizenship is a terribly serious act with far-reaching implications," she said, "and it is especially egregious when based upon suspicion and a potentially erroneous determination made by individuals without any constitutional determination of guilt."

Nevertheless, on Capitol Hill, the opposition from Democrats has been tepid at best, and some have actually expressed support for the logic behind the measure, if for no other reason than wishing to appear tough on terror. "My bet is more Dems than you might think will be afraid to oppose this," the Washington Post's Greg Sargent predicted before the bill was officially introduced. Indeed, New York Sen. Chuck Schumer initially supported the measure before reversing course and House Speaker Nancy Pelosi said she sympathized with the "spirit" of the bill. Sen. Dianne Feinstein, Chair of the Senate Intelligence Committee, told Andrea Mitchell, "I have no problem with this if the constitutional guarantees are maintained." And Secretary of State Hillary Clinton, whose office would be in charge of determining whether an American terror suspect should be stripped of his or her citizenship, vowed to take a "hard look" at the bill, while echoing Lieberman's own rationale. “United States citizenship is a privilege. It is not a right," she said. "People who are serving foreign powers -- or in this case, foreign terrorists -- are clearly in violation, in my personal opinion, of that oath which they swore when they became citizens.”

Meanwhile, the most vocal opponents of the bill have been Republicans, ironically; House Minority leader John Boehner expressed concern over the notion that a person's citizenship could be revoked just for being a terror suspect. "If they're a U.S. citizen, until they're convicted of some crime, I don't know how you would attempt to take their citizenship away," he told reporters on Thursday. "That would be pretty difficult under the U.S. Constitution."

Lieberman's real purpose for stripping terror suspects of their citizenship is to ensure that they are rendered ineligible for such "privileges" as being read their Miranda rights -- and, crucially, eligible for military trials. His bill, he told Andrea Mitchell, "gives our government a choice: do they want to try them in a federal court or do they want to bring them before a military commission? You don't have that choice with American citizens -- they must be given all the rights that other Americans have."

Republican Senator Scott Brown of Massachusetts joined Lieberman in introducing the legislation, along with Rep. Jason Altimire, D-Pa. and Rep. Charlie Dent, R-Pa., who are introducing companion legislation in the House. "It's really great to have bipartisan and bicameral support for this bill," Lieberman said at a press conference to announce the bill.

Lieberman and his co-sponsors portray their bill as a natural extension of dated federal legislation that already names "seven categories of expatriating acts," as he explained to Andrea Mitchell, among them, treason and fighting in a foreign army against the United States. "All we're doing is taking a 70-year old statute and applying it to the war that we're in," he explained. Rep. Altmire told MSNBC's Tamron Hall, "We feel like what we're doing is common sense."

But such benign characterizations of what is in actuality a radical piece of legislation are not just disingenuous; if allowed to go unchallenged, they are dangerous.

Can the Government Take Away Your Citizenship?

The Immigration and Nationality Act states that "a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality." The list of acts ranges from straightforward things like "obtaining naturalization in a foreign state" to "taking an oath … or other formal declaration of allegiance to a foreign state" to "committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States."

Also on the list is "entering, or serving in, the armed forces of a foreign state if A) such armed forces are engaged in hostilities against the United States, or B) such persons serve as a commissioned or non-commissioned officer." Lieberman and his allies argue that terror suspects are akin to such foreign fighters, stressing repeatedly that the authors of the original law could not have anticipated a foreign enemy like al Qaeda.

Barely three pages long, the Terrorism Expatriation Act reads like a minor legislative tweak, whose purpose is "to add joining a foreign terrorist organization or engaging in or supporting hostilities against the United States or its allies to the list of acts for which United States nationals would lose their nationality."

But the language makes abundantly clear that a U.S. citizen would not necessarily have to physically take up arms to lose his or her citizenship. The bill would revoke a person's citizenship for: "providing material support or resources to a foreign terrorist organization;" "engaging in, or purposefully and materially supporting, hostilities against the United States;" or ''engaging in, or purposefully and materially supporting, hostilities against any country or armed force that is (i) directly engaged along with the United States in hostilities engaged in by the United States; or (ii) providing direct operational support to the United States in hostilities engaged in by the United States." This could mean donating money to a charity or non-profit that is found to be affiliated with a group labeled a terrorist organization -- a familiar scenario in the "war on terror."

Sen. Lieberman told Andrea Mitchell that there has been "a lot of misunderstanding about [the bill] leading up to today," but in fact he and his co-sponsors appear to be the ones spreading misinformation. "Unfortunately for Senator Joe, the Supreme Court has made it crystal clear over the last four decades that the federal government simply has no power to take away U.S. citizenship," Shayana Kadidal, a senior attorney with the Center for Constitutional Rights wrote hours after Lieberman introduced his bill.

In Afroyim v. Rusk (1967), the State Department tried to strip citizenship from an American who'd voted in an Israeli election. The Court held that in the wake of the Fourteenth Amendment, Congress lacks "any general power, express or implied, to take away an American citizen's citizenship without his assent." Because the people are sovereign under our constitution, that document "defin[es] a citizenship which a citizen keeps unless he voluntarily relinquishes it." This idea that citizenship can only be voluntarily relinquished with the citizens' "assent" was reaffirmed in Vance v. Terrazas (1980), where the Supreme Court held that merely doing an act (there, naturalizing to Mexican citizenship) that the government claims is per se evidence of your intent to relinquish your U.S. citizenship is not enough.

Ironically, Lieberman cites the Supreme Court's ruling in Vance as proof that his legislation will pass constitutional muster.

Of the Democrats who have voiced tempered support for Lieberman's bill, perhaps Hillary Clinton is the most alarming, given her position. With heightened rumors that Elena Kagan -- a defender of broad executive power and indefinite preventive detention -- will be President Obama's Supreme Court nominee, Democrats must move to condemn the Terrorism Expatriation Act before it receives any further legitimacy or, if passed, comes before the Supreme Court.

Liliana Segura is an AlterNet staff writer and editor of Rights & Liberties and World Special Coverage. Follow her on Twitter.