Senator Lieberman's Latest Constitutional Buffoonery

Senator Lieberman's Latest Constitutional Buffoonery
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In response to supposed legal restrictions on the interrogation of U.S. citizen and suspected Times Square SUV bomber Faisal Shahzad, Senator Lieberman today proposed a bill that would strip American citizenship from anyone who has "provid[ed] material support or resources to a foreign terrorist organization" or "engaged in, or purposefully and materially support[ed], hostilities against the United States" or any of its allies.

Unfortunately for Senator Joe, the Supreme Court has made it crystal clear over the last four decades that the federal government simply has no power to take away U.S. citizenship. In Afroyim v. Rusk (1967), the State Department tried to strip citizenship from an American who'd voted in an Israeli election. The Court held that in the wake of the Fourteenth Amendment, Congress lacks "any general power, express or implied, to take away an American citizen's citizenship without his assent." Because the people are sovereign under our constitution, that document "defin[es] a citizenship which a citizen keeps unless he voluntarily relinquishes it." This idea that citizenship can only be voluntarily relinquished with the citizens' "assent" was reaffirmed in Vance v. Terrazas (1980), where the Supreme Court held that merely doing an act (there, naturalizing to Mexican citizenship) that the government claims is per se evidence of your intent to relinquish your U.S. citizenship is not enough. Even if the citizen "voluntarily" did the act (in Terrazas, he knew he was filling out Mexican citizenship forms and did it willingly), the burden remains on the government to prove that that act was done with the intent to renounce U.S. citizenship (rather than, say, to gain dual nationality). That's the law regardless of whether you are a birth citizen or naturalized (though fraud in the process of a naturalization application may be invoked to invalidate the naturalization).

Thus, most of the things people think might cause you to automatically lose citizenship - and which are listed on the State Department website as such, and in the federal statute books (8 U.S.C. § 1481) - do no such thing. There are cases where someone signed Israeli citizenship papers without reading them, so he didn't know that they said he was renouncing any other citizenship -- and the courts held he hadn't voluntarily renounced his U.S. citizenship. The State Department warns that serving as a policymaking official in a foreign government can cost you your citizenship, but Meir Kahane won his case where DOS said he'd renounced his citizenship by serving in the Israeli Knesset. If Lieberman's staff had done a bit of research on this, they'd notice that many of the things listed in 8 U.S.C. § 1481 actually don't operate to automatically strip citizenship, absent the dispositive element of "assent" to voluntarily give up your citizenship (e.g. serving in a foreign military, taking a foreign nation's oath of allegiance, etc.). Good thing, too - other statutory provisions provide for stripping citizenship for refusal to testify to Congress about one's subversive activities. (See 8 U.S.C. § 1451(a).) Like many Jim Crow laws enforcing segregation, these things sit on the books, unenforceable, because Congress refuses to clean up its own mess.

A series of draft-dodging cases in the wake of Afroyim also establish that citizenship stripping can't be done administratively - a court needs to confirm intent to give up US citizenship if assent is disputed. So it's a bit of a mystery why Lieberman thinks this will somehow help interrogate suspects immediately after capture.

Lost in this constitutional debate is the fact that no one can identify any defects in the handling of the Times Square bombing suspect sufficient to motivate any change in law (though Lieberman seems to think some quick (and illegal, as I've noted above) administrative citizenship stripping process (maybe by a Guantanamo-style Combatant Status Review Tribunal?) would have made it easier to interrogate the suspect). The suspect, Shahzad, was interrogated immediately (there is an "immediate public safety" exemption to the Miranda warning rule); then Mirandized (that is, told of his right to remain silent and of his right to request a lawyer); supposedly he provided valuable information throughout. Terrorism suspects in detention rarely have any rational incentive to spill accurate information once detained, though most talk anyway, and as to the rest, the presence of defense lawyers usually helps mediate the process of acquiring accurate information from them through the plea bargain process. The ordinary, time-tested system seems to have been applied here, and seems to be working - so again, what's the problem?

All of this is putting to one side the problems with the notion of criminalizing something as broad and vague as "material support" itself. (Those interested in the details can click here.) Lower courts have six times held that the "material support" statute is unconstitutionally vague. Lieberman's bill would propose to strip citizenship for violating a law that federal courts have repeatedly held unconstitutionally vague. The Justices of the Supreme Court heard the government's appeal from those cases in Holder v. Humanitarian Law Project in February, and most commentators felt that at least seven justices were highly skeptical of the government claims as to the law's broad reach.

Moreover, the government argued to the Supreme Court that our HLP clients, members of domestic humanitarian groups who proposed to train rebel groups on the State Department's blacklists in non-violent conflict resolution -- pure speech seeking to turn groups away from violence and criminal activity -- would be guilty of providing "material support" if they did so, and thus could have their citizenship stripped under Lieberman's bill for doing so.

Of course, the vaguer-still language in the Lieberman bill about "engaging in" or "supporting" hostilities goes beyond even the overflowing bounds of "material support." The language derives from the government's current definitions of who may be detained by the military at Guantanamo, making Lieberman's bill reminiscent of the debate that took place early on in the Guantanamo cases, about whether a little old lady in Switzerland who wrote a check to an orphanage could be found to be an "enemy combatant" if the orphanage turned out to be a front for Al Qaeda. Senator Lieberman would, with today's bill, remove the last impediment - her U.S. citizenship -- to a similar little old lady in Iowa being hauled into Gtmo.

Finally, I would be remiss if I concluded without saying the following: as an occasionally-proud Yale Law School grad, I would like to apologize on behalf of my alma mater for producing Joe Lieberman. On the other hand, no one ever accused Yale of providing a black-letter legal education. And we were frequently encouraged to think outside the box. In other words: Maybe society did this to him.

--May 6, 2010

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