Tag: terrorist expatriation act

The Lieberman-Brown Bill and Your Right to Stay out of Gitmo

The attempted Times Square bombing prompted Senators Joseph Lieberman (I-CT) and Scott Brown (R-MA) to propose that anyone suspected of providing material support, as defined by 18 U.S.C. § 2339A, to State Department-listed terrorist groups be stripped of their citizenship. As Julian Sanchez points out, existing law provides for expatriation for a number of reasons, but in two distinct categories. The first is for actions that demonstrate intent to relinquish citizenship: swearing loyalty to another nation, serving in a foreign military as an officer or non-commissioned officer (or in any capacity if that country is at war with the United States), formal renunciation before a diplomatic official, and similar actions. The second is for serious crimes against national security: treason, rebellion, insurrection, advocating the overthrow of the government, seditious conspiracy, and levying war against the United States.

As Julian and I point out in this piece at Politico, there is a key difference between the existing expatriation provision and the Lieberman-Brown proposal.

The existing expatriation capacity triggers, if at all, after conviction for listed crimes against national security. The Lieberman-Brown proposal would strip citizenship where there is an allegation of material support to a Foreign Terrorist Organization.

With this very important distinction, it is clear that the Lieberman-Brown bill does not merely update expatriation law for the 21st century.  I discuss some of the low points of this legislation in this podcast:

This bill is an end-run around the jurisdictional limitation of the military commissions. After expatriation, a former citizen could be shipped off to Guantanamo for trial by a panel of military officers for a domestic crime. This is a step that the Bush administration never took. The military commissions, from the original executive order through the Military Commissions Acts of 2006 and 2009, are limited in jurisdiction to non-citizens. This is an attempt to take terrorism prosecutions out of civilian federal courts, which already effectively deal with domestic terrorism, and put defendants in a forum where they will have fewer rights.

What if the defendant is expatriated by a preponderance of the evidence (51% sure that they provided material support to an FTO) but are acquitted at the commission? Now we have the possibility of a natural-born non-citizen, who, unlike the traditional expatriation subject, has no other nationality to fall back on.

This procedure won’t pass constitutional muster anyway, as David Cole points out. Citizenship cannot be stripped so lightly against a person’s will.

In short, this is an ineffectual political stunt that aspires to be a radical threat to civil liberties. This proposal shouldn’t become law.

The Lieberman-Brown Bill Merely Updates Expatriation Law for the 21st Century

Stripping the citizenship of those who take up arms against the United States is not a controversial proposition. Indeed, under existing law, American citizenship can be taken away from any adult who, among other actions, makes a formal declaration of allegiance to a foreign state, serves in the armed forces of a foreign state if such armed forces are engaged in hostilities against the United States, or commits any act of treason against the United States. The Lieberman-Brown bill, which adds to that list the provision of material support to State Department-recognized terrorist organizations (most notably Al Qaeda) or actively engaging in hostilities against the United States, is thus not problematic on its face. It merely clarifies, in an age where America’s enemies aren’t necessarily other countries, that a person need not ally himself with a hostile “foreign state” to risk expatriation.

Still, the Terrorist Expatriation Act does raise concerns about how the new citizenship-stripping provisions would be applied. Expatriation is a serious remedy that is warranted only in the most serious cases — such as, indeed, treason or taking up arms against your own country. If and when the act becomes law, courts will maintain a high bar for what constitutes “material support” of terrorist organizations (such that it constitutes relinquishing U.S. nationality), and the subject of the expatriation action will — under existing law that will remain unchanged — have notice and opportunity to challenge the decision.

In short, this is neither a radical threat to civil liberties nor an ineffectual political stunt. Assuming the above constitutional protections remain in place, the expansion of federal expatriation law should be seen as a prudent, necessary, and uncontroversial measure that deals with the realities of the modern world.

The ‘What Reasonable Doubt?’ Act of 2010

Sens. Joe Lieberman (I-CT) and Scott Brown (R-MA), joined on the House side by Reps. Jason Altmire (D-PA) and Charlie Dent (R-PA), today introduced a little publicity stunt in legislative form called the Terrorist Expatriation Act, making good on Lieberman’s pledge to find a way to strip the citizenship of Americans—whether naturalized or native born—who are suspected of aiding terrorist groups. It does so by amending the Immigration and Nationality Act, which lays out the various conditions under which a person may renounce or be deprived of citizenship. 

A couple things to note about this:

First, the act as it stands now contains a provision that could probably be used to revoke the citizenship of terrorists. One of the ways to trigger the loss of citizenship is by:

committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them…

So why isn’t this enough to satisfy them?  Well, I left off the very end of the clause:

if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

Needless to say, actually “bearing arms against the United States” is a rather more serious offense than providing “material support” for terrorist groups.  Indeed, someone who knowingly provides funding or “expert assistance” (including legal or humanitarian aid) to a designated group may, under current law, be guilty of providing “material support.”  Yet these more serious acts of betrayal still require that someone be convicted in court before the penalty of expatriation can be imposed. If they want to revoke Faisal Shahzad’s citizenship, they can do it already: just convict him of one of those offenses.

Another clause of the existing law provides that someone who joins a foreign military may, indeed, lose their citizenship without being convicted of anything. But as a subsequent section of the statute makes clear, citizenship can’t be revoked on these grounds while the person remains in the United States.  They have to actually, physically “go over to the other side” and take up residence abroad. So again, the assumption is that someone residing in the U.S., and therefore subject to apprehension and trial, ought in fact to be tried before such a drastic step is taken, even if we’re prepared to skip the trial when someone is actually overseas and marching about in an enemy uniform.

Finally, note that the bill’s definition of “material support” for terrorist groups explicitly invokes the criminal statute covering such actions.  Which is to say, revocation of citizenship under the new bill is triggered by committing a particular federal crime. Except that the Immigration and Nationality Act only requires that one of the predicates for revocation be established by a “preponderance of the evidence.” So in effect, the bill takes what is already a crime and says: Proof of guilt “beyond a reasonable doubt” is no longer a prerequisite for the imposition of punishment for this crime. 

What a convenient end-run around that pesky due process!  Just think how we could reduce the burden on our courts by doing this for all sorts of crimes!