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.
Thanks George, your not George Lamonica are you.
You said:
If he was taken off of the list before his life started falling apart
What is your definition of life falling apart?
Dr. Slarti as we’ve seen there are alot of these terrorist that come from well to do families. Not only are they well financed but are educated. There are reports that he was upset about the drone attacks. Not that the drone attacks are killing innocent civilians but becasue they are effectively killing top Al Queda and Taliban leaders.
Here is an equally disturbing piece of legislation creeping it’s way through the House of Representatives:
Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 – HR 4892
Here’s the link:
http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.4892
Bdaman,
I agree that we should find out why his name was taken off the list, but the initial information makes me believe that it was a reasonable thing to do. If he was taken off of the list before his life started falling apart, then there doesn’t seem to have been any reason to keep him on and even if it was after, I doubt that any information the government had (or should have had) would have given them further cause to investigate.
In may 2004, a one George Lamonica a 35-year-old computer consultant, said he bought his two-bedroom condominium in Norwalk, Conn., from Mr. Shahzad for $261,000 in May 2004.
between 1999 and 2008 Shahzad brought approximately $80,000 cash or cash instruments into the United States.
So you could be right.
Dr. Slarti he was on the list and then he was taken off the list. A decision to drop him off the list after initially raising suspicion. All we need to know now is why and how the decision was made.
My small cotribution at this late hour:
Gibbs: No One In White House Supports Lieberman’s Citizenship Bill
First Posted: 05- 6-10 03:24 PM | Updated: 05- 6-10 04:18 PM
White House spokesman Robert Gibbs told reporters that, as far as he knows, there isn’t a single official inside the White House who backs Sen. Joseph Lieberman’s (I-Conn.) proposal to strip the citizenship of Americans linked to terrorist groups.
http://www.huffingtonpost.com/2010/05/06/gibbs-no-one-in-white-hou_n_566523.html
Bdaman,
What did he bring $80K to the US for? I’ll bet that it was for a down payment on his house or something similar. All of the evidence in this case points to Mr. Shahzad being radicalized recently and things like a member of a well-to-do Pakistani family bringing money to the US or returning to Pakistan for a visit would raise red flags. Or do you want any US citizen returning to visit their family in a foreign country surveilled? It was beyond the capabilities of any constitutional law enforcement to have stopped this attack before it happened and the system worked after he left (aided by his incompetence). Realistically he was many hours from escape when he was caught (not having any way to leave the plane until it landed). I don’t think that you have any legitimate argument that the Obama administration has done anything but a good job here…
Confessed terrorist Faisal Shahzad was removed from the Department of Homeland Security travel lookout list sometime after Barack Obama came into office.
CBS reported:
Sources tell CBS News that would-be Times Square bomber Faisal Shahzad appeared on a Department of Homeland Security travel lookout list – Traveler Enforcement Compliance System (TECS) – between 1999 and 2008 because he brought approximately $80,000 cash or cash instruments into the United States.
http://www.cbsnews.com/8301-31727_162-20004263-10391695.html
Anonymously Yours
I don’t think that this is just Spin. As stated by the Prof, this bill is facially unconstitutional.
==============================================================
I’d agree … it’s much more than Just spin.
Larry,
I don’t subscribe to the notion that either President Bush (I or II) or Dick the war criminal were accomplices before the fact or intentional accomplices after the fact – I just think that out of stupidity, fear and a political desire to go to war in Iraq they acted in a way that greatly advanced the terrorist’s aims.
“the terrorists couldn’t ask for better allies than President Bush, Dick the war criminal and Senator Droopy”—–
especially when the war has created MORE terrorists and more and more anger toward America every day that we are over there. Not to mention the ties the Bush family has with the Bin Laden family. Does anyone here know that Daddy Bush was in Washington on 9-11 in a meeting with the Carlisle group with Bin laden’s BROTHER?
I don’t think that this is just Spin. As stated by the Prof, this bill is facially unconstitutional.
vlf2112—–add to that institutions like the Federal Reserve—-who are not Federal, nor have reserves—-who are they but financial terrorists?
Blouise,
You’re absolutely correct – the terrorists couldn’t ask for better allies than President Bush, Dick the war criminal and Senator Droopy.
More distractions to spin our attention away from the oil companies, off-shore drilling, and the mess in the Gulf.
Alright … for a minute … let’s address Lieberman’s ploy:
I thought the terrorists weren’t supposed to win. Ha! With people like Lieberman, Cheney, and all those other frightened little boys thus far; for the first time in our nation’s history we ordered government sanctioned torture, and now wish to emulate the Nazis of 1933 (they stripped Jewish Polish immigrants of their German citizenship)with new, knee-jerk laws to deprive Americans of their citizenship. Recall all those names on the no-fly list that are on said list in error. Now envision that inefficiency impacting citizenship. Yeah … the terrorists aren’t winning are they? Let Lieberman continue to wring his hands in abject fear and let’s hope the people of Connecticut wise up and get rid of him.
Now, let’s get back to the real world … the oil companies and Obama’s drive to give them off-shore drilling rights without the proper safeguards.
better yet let’s strip the citizenship of politicians who work for foreign governments
This bill goes hand in hand with that other abomination Lieberman — as well as McCain and others — is working on:
A Proposed Bill You Should Read More Closely
http://leathernlacekitten.newsvine.com/_news/2010/03/08/3993103-a-proposed-bill-you-should-read-more-closely
McCain and Lieberman’s “Enemy Belligerent” Act Could Set U.S. on Path to Military Dictatorship | Civil Liberties | AlterNet
http://midgebaker.newsvine.com/_news/2010/03/19/4039865-mccain-and-liebermans-enemy-belligerent-act-could-set-us-on-path-to-military-dictatorship-civil-liberties-alternet
The Most Important Sentence In McCain/Lieberman’s Nightmare Detention Bill: “An individual, including a citizen of the United States … may be detained without criminal charges and without trial”
http://killfile.newsvine.com/_news/2010/03/16/4026410-the-most-important-sentence-in-mccainliebermans-nightmare-detention-bill-an-individual-including-a-citizen-of-the-united-states-may-be-detained-without-criminal-charges-and-without-trial-
Full text (pdf)
http://assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf
Here are the actual House and Senate bills from The Library of Congress:
H.R.4892 : http://www.govtrack.us/congress/bill.xpd?bill=h111-4892
Full text http://www.govtrack.us/congress/billtext.xpd?bill=h111-4892
To provide for the interrogation and detention of enemy belligerents who commit hostile acts against the United States, to establish certain limitations on the prosecution of such belligerents for such acts, and for other purposes.
Sponsor: Rep McKeon, Howard P. “Buck” [CA-25] (introduced 3/19/2010) Cosponsors (None)
Committees: House Intelligence (Permanent Select); House Armed Services; House Judiciary
Latest Major Action: 3/19/2010 Referred to House committee. Status: Referred to the Committee on Intelligence (Permanent Select), and in addition to the Committees on Armed Services, and the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
S.3081 : http://www.govtrack.us/congress/bill.xpd?bill=s111-3081
Full text http://www.govtrack.us/congress/billtext.xpd?bill=s111-3081
A bill to provide for the interrogation and detention of enemy belligerents who commit hostile acts against the United States, to establish certain limitations on the prosecution of such belligerents for such acts, and for other purposes.
Sponsor: Sen McCain, John [AZ] (introduced 3/4/2010) Cosponsors (9)
Committees: Senate Judiciary
Latest Major Action: 3/4/2010 Referred to Senate committee. Status: Read twice and referred to the Committee on the Judiciary.
The ones who scream loudest about “protecting our national security” are the ones who are trying to take away our rights.
It occurs to me to wonder why NO ONE in the mainstream media, left or right, has mentioned this second bill by name. Could it be that our Big Corporate masters want American to become a totalitarian state — with We The People as slaves totally owned by the Corporate oligarchy — and that the Republicans are shilling for them as usual?
Lieberman is doing this to draw attention away for the administration’s culpability in the oil spill incident. Or maybe I’m being too cynical.
I wonder why Droopy is stopping with foreign terrorist organizations. If he truly is soooooooooo concerned about terrorism, and the safety of “real” Americans, he should include domestic terrorist organizations as well – KKK, Aryan Nations, Operation Rescue, and the list can go on and on.
Calling Droopy a tool insults true tools. This man makes me ill.
I wish we the people could introduce a bill to strip Joe Lieberman of his senate seat…