Lieberman Unveils Citizenship Stripping Bill

Senator Joseph Lieberman has unveiled his new legislation to allow Americans to be stripped of their citizenship if the State Department concludes that they are associated with a terrorist organization. As chairman of the Senate Homeland Security Committee, Lieberman has authority to push the bill which will be introduced also in a house version by Republican Charlie Dent and Democrat Jason Altmire. The legislation, in my view, is facially unconstitutional in its current form. I discussed this story on the segment below on MSNBC Countdown.

The impetus of this ill-conceived bill is the arrest of Faisal Shahzad, a Pakistan-born naturalized U.S. citizen. Shahzad put together a homemade bomb in New York’s Times Square. The bomb was crude and inoperative. Shahzad was arrested while trying to flee the country and, after being given Miranda, has proceeded to make incriminating statements.

What is particularly odd is that members of Congress like Lieberman and Sen. Lindsey Graham are outraged by the fact that Shahzad was given Miranda. Yet, this would seem a case that shows that we can get confessions without using torture, as in the Bush Administration. Those statements would now be fully admissible in a real court of law as opposed to the controversial military tribunals.

Lieberman insisted today that “[t]hose who join such groups join our enemy and should be deprived of the rights and privileges of U.S. citizenship.” The Supreme Court, however, has held that it is not that easy.

In Afroyim v. Rusk, the Supreme Court ruled that the government could not involuntarily terminate a person’s citizenship unless it could show an intent by the individual to abandon citizenship. The case involved Beys Afroyim who immigrated to the United States and became a citizen in 1926. In 1950, he moved to Israel and was given Israeli citizenship. The State Department refused to let him return to the United States because he had lost his citizenship by voting in a foreign election.

The Court emphasized the language and intent of the Fourteenth Amendment to the United States Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The amendment’s language was specifically drafted to protect citizens — particularly free slaves — from facing future members of Congress who tried to pass citizenship stripping laws.

In Vance v. Terrazas (1968), the Court stated:

we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481(a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.

8 U.S.C. § 1481 was passed to allow the government to move to strip the citizenship of individuals based on conduct that clearly reveals an intent to relinquish citizenship, including service in the armed forces of a “foreign state” if such armed forces are engaged in hostilities against the United States; formally renouncing nationality whenever the United States is in a state of war; or committing treason against the United States. These are express statements or manifest actions such as taking up arms or attacking the United States. Lieberman wants to add a more fluid concept of “association” or “affiliation” with terrorist groups. Such a provision would stand Afroyim on its head: barring the government from involuntarily stripping someone of citizenship but allowing the Senate to broadly define acts that would be simply deemed as voluntarily relinquishing citizenship.

The law would allow the State Department to treat citizenship like an administrative matter — deciding whether you have associated with terrorist organizations. Agency procedures are widely condemned for their lack of due process protections and the heavy deference given to agency decision-making. We have seen abuses of this system in the designation of organizations under a similar process. This would magnify those problems. An agency would first declare an organization to be a terroristic organization (with limited protections for such organizations). An agency would then strip citizens who have associated with that organization. It is precisely the type of associational evidence that characterized the McCarthy period in our history.

Notably, Lieberman ties the law to such concepts as “material support” which have also been roundly criticized. Lieberman supported the language of the “material support” provision that is so broad and ambiguous that it is virtually impossible to contest in many cases. Judges have criticized this provision as allowing virtually any act to constitute material support. When prosecutors have lacked any serious claim against people like Jose Padilla, they have turned to material support for that reason. Lieberman wants to add a new category to section 1481 for “providing material support or resources to a
Foreign Terrorist Organization, as designated by the Secretary of State, or actively engaging in hostilities against the United States or its allies.” That would be a frightening development to tie a person’s citizenship to this nebulous standard.

While the burden would be on the State Department and you would have access to court review, the agency process could make it difficult to contest such findings — particularly with the use of secret evidence (and barring the use of evidence by the defendant on national security grounds).

Stripping citizens of their citizenship could also create stateless persons — a problem in international law. Moreover, this process could occur at the same time that a person is fighting criminal charges — adding to the practical and financial burden.

This is not to question Secretary Hillary Clinton’s judgment on such matters or to suggest that Ken Starr should start to look for rentals in Canada. The Framers were careful not to rely on the good intentions of officials. That is why we have a constitution and specifically the Fourteenth Amendment.

54 thoughts on “Lieberman Unveils Citizenship Stripping Bill”

  1. I’m late for the party, but Professor I hope you see many more birthdays and may we all be around to wish you many more.

  2. What does Professor Turley make of Secretary Clinton’s comments about the bill, essentially seeming to imply a) she likes the idea of it but that b) the State Dept. essentially already has that power. I think she then walked back a bit the next day and said the State Dept. lawyers were looking closely at the bill.

    Professor Juan Cole has a good post up about it too and how Sen. Lieberman should perhaps be careful what he wishes for if Afroyim v. Rusk were to be overruled.

    Senator Lieberman in my view is just a pandering show horse when it comes to terrorism. His knee-jerk response is totally predictable but he is hoping, just like so many do, that he can make an emotional “but it’s to protect innocent Americans!” argument in order to deflect from the fact that he’s subverting the Constitution.

  3. JT:

    I missed wishing you “Happy Birthday,” but despite the belatedness it is no less sincere. Many more and much more blogging. By the way, you are entitled to the full respect of family, friends, and colleagues on your special day, but your mother even more so!

  4. Happy birthday, same day.

    Bob Seger, born May 6, 1945.

    Seems like yesterday
    But it was long ago
    Janey was lovely she was the queen of my nights
    There in darkness with the radio playin low
    And the secrets that we shared, mountains that we moved
    Caught like a wildfire out of control
    Til there was nothin left to burn and nothin left to prove

    And I remember what she said to me
    How she swore that it never would end
    I remember how she held me oh so tight
    Wish I didn’t know now what I didn’t know then

    Against the wind
    We were runnin against the wind
    We were young and strong we were runnin against the wind

    And the years rolled slowly past
    And I found myself alone
    Surrounded by strangers I thought were my friends
    Found myself further and further from my home and I
    Guess I lost my way
    There were oh so many roads
    I was livin to run and runnin to live
    Never worried about payin or even how much I owe

    Movin’ eight miles a minute and for months at a time
    Breakin all of the rules that would bend
    I began to find myself searchin
    Searchin for shelter again and again

    Against the wind
    Little somethin against the wind
    I found myself seekin shelter against the wind

    Well those drifters days are past me now
    I’ve got so much more to think about
    Deadlines and commitments
    What to leave in, what to leave out

    Against the wind
    I’m still runnin against the wind
    I’m older now but still runnin against the wind

    Well I’m older now but still runnin against the wind

  5. Vince Treacy,

    ” … It appears to be unconstitutional as introduced, among other reasons, because it is void for vagueness and suffers from over breadth.

    It would put the kibosh on any possible legal representation for anyone who comes under its gun. What could more materially support an organization than providing legal representation to an accused member? A lawyer would risk her citizenship for doing what John Adams did for the British soldiers in Boston. I hope the bar takes note.

    The technical, precise term for what these folks who introduced the bill are doing is ‘pandering.'”


    Succinct + Simple Style + Accuracy = Clarity

    Thank you

    Also thanks for the thomas link … very helpful now and in the future

  6. Happy Birthday, Professor Turley! Here’s a special canine rendition of the birthday song. Please ignore the text at the bottom of the screen at the end of the video.

  7. Vince,

    I don’t know what they deal was with that link, but anybody can use the link you provide to THOMAS (thanks!) to look up and read about HR 4892, the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.

    “Go to THOMAS at the Library of Congress to track its progress.”

  8. Ok, here is a link to the draft text of the bill that Lieberman is introducing.

    He bill number is S. 3327.

    It has been referred to Senate Judiciary, which has jurisdiction.

    Go to THOMAS at the Library of Congress to track its progress.

    The text of the actual introduced bill had not yet been received from GPO at 9:30 AM.

    It appears to be unconstitutional as introduced, among other reasons, because it is void for vagueness and suffers from over breadth.

    It would put the kibosh on any possible legal representation for anyone who comes under its gun. What could more materially support an organization than providing legal representation to an accused member? A lawyer would risk her citizenship for doing what John Adams did for the British soldiers in Boston. I hope the bar takes note.

    The technical, precise term for what these folks who introduced the bill are doing is “pandering.”

  9. Who is Behind Sen. Joe Lieberman’s Proposed Fascist Legislation?

    Sen. Joe Lieberman has already endorsed McCain’s March 4th bill S.3081 that would strip Americans of Habeas corpus: Under the McCain bill, U.S. Government would need only designate an American Citizen was an “Unprivileged Enemy Belligerent” suspected of; having engaged in hostilities against the United States or its coalition partners; or purposefully and materially supported hostilities against the United States or U.S. civilians to cause their indefinite detention in military custody, without right to an attorney or trial.

    Joe Lieberman’s proposed bill would make it easy to strip Americans of their Citizenship and hold them as “Unprivileged Enemy Belligerents” as U.S. Government would only have to show a U.S. Citizen or group had slight-interaction with a foreign group that touched a terrorist organization, for example Irish Americans living on the east coast of the United States contacting their alleged IRA relatives in Northern Ireland. Since many political groups intersect, even unknowingly with alleged terrorists, Lieberman’s bill would make it possible for a U.S. Government administration to do large sweeps of U.S. Citizens denying Americans Habeas corpus, to try them in military tribunals. One might want to ask who put Lieberman up to introducing this fascist bill that favors Israel. It should be noted Joe Lieberman’s June 4th endorsement of McCain’s bill S.3081, The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010” strips Americans of Habeas corpus; there appears to be a pattern here between McCain and Lieberman legislation. McCain’s bill S.3081 would eliminate several Constitutional protections allowing Government to arbitrarily pick up Americans on mere suspicion—with no probable cause. Your political opinions and statements made against U.S. Government could be used by Authorities to deem you a “hostile” “Enemy Belligerent” to cause your arrest and indefinite detention. S.3081 is so broadly written innocent anti-war protesters and Tea Party Groups might be arrested and detained just for attending demonstrations; Government could charge that attending demonstrations “materially supported hostilities.”
    McCain’s legislation S.3081 could like Lieberman’s proposed bill be used by a corrupt U.S. government administration to crush anyone that dared question government. Under McCain’s S.3081, an “individual” need only be Suspected by Government of “suspicious activity” or “supporting hostilities” to be dragged off and held indefinitely in Military Custody. Government would have the power to detain and interrogate any individual including Americans without probable cause. Government need only allege an individual kept in detention, is an Unprivileged Enemy Belligerent suspected of; having engaged in hostilities against the United States or its coalition partners; or has purposefully and materially supported hostilities against the United States; its coalition partners; or against U.S. civilians. How could one prove to Government they did not purposely do something? “Materially Supporting Hostilities” against the United States could include any person or group that spoke out or demonstrated disapproval against an agency of U.S. Government. It is foreseeable many Americans might go underground to Resist Government Tyranny. Definition for Unprivileged Enemy Belligerent: (Anyone Subject to a Military Commission)

    At least under the Patriot Act, law enforcement generally needed probable cause to detain a person indefinitely. Passage of S.3081 will permit government to use “mere suspicion” to curtail an individual’s Constitutional Protections against unlawful arrest, detention and interrogation without benefit of legal counsel and trial. According to S.3081 Government is not required to provide detained individuals U.S. Miranda Warnings or even an attorney. It is problematic under McCain’s S.3081 that detained individuals in the U.S. not involved in terrorism or hostile activities, not given Miranda Warnings or allowed legal counsel will be prosecuted for ordinary crimes because of their alleged admissions while in military custody.

    S.3081 if passed will frighten Americans from speaking out. S.3081 is so broadly written, it appears any “individual” who writes on the Internet or verbally express an opinion against or an entity of U.S. Government or its coalition partners might be detained on the basis he or she is an “unprivileged enemy belligerent”, “supporting hostilities against U.S. Government.” The “supporting hostilities” provisions in S.3081 are so broad Government could use “suspicion” to detain U.S. corporate executives on the premise their corporations “supported hostilities” by providing goods or services to a nation engaged in hostilities against the United States.

    (Make Your Own Determination If The Analysis Herein Is Correct) See McCain’s 12-page Senate bill S.3081 at:

  10. Thanks George for the link to the ‘indefinite detention’ act. It’s amazing how few words it takes to completely abandon the moral and legal high ground. This bill and Lieberman’s bill will work perfectly together.

    (Including George’s link seems to send the response to moderation he**)

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