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.