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.