Lieberman “Terrorist Expatriation Act”- Constitutional But Meaningless

by Peter Spiro

Joe Lieberman has just rolled out a bill (text here) which would strip individuals associated with foreign terrorist groups of their US citizenship.

He’s been playing this as if it were a minor statutory fix.  It’s true, as he’s been stressing, that current law terminates citizenship for “entering, or serving in, the armed forces of a foreign state if (a) such armed forces are engaged in hostilities against the United States, or (b) such persons serves as a commissioned or non-commissioned officer.”  8 U.S.C. 1481.  But that applies only where such service is undertaken “with the intention of relinquishing United States nationality.”

That’s not just some statutory nicety.  The Supreme Court has found it a constitutional necessity.  Afroyim v. Rusk (1967) is the lead case, in which the Court found unconstitutional expatriation for the act of voting in a foreign political election.  In Vance v. Terrazas (1968), the Court found that

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.

Now, these rulings do allow the government to terminate citizenship on the basis of conduct alone, without a formal renunciation before a consular officer, so long as that conduct reflects a specific intent to relinquish citizenship.  It was (consistent with Terrazas) long presumed that naturalization in another state reflected a desire on the part of individual to shed his US citizenship.  That’s no longer the case.  As a matter of administrative practice, the State Department since the 1990 has presumed individuals intend to retain their citizenship except where they expressly renounce before a US consular official.  This is true even if the oath of naturalization in another country includes an express renunciation of US citizenship.  Service in a foreign military?  Not a problem, Lieberman’s implication to the contrary.

So Lieberman’s proposal could reverse that practice, and the State Department would once again have to contend with with Terrazas.  Intent to relinquish would be pretty hard to establish, Shahzad’s case included.  (About the only case that would be a slam-dunk for the State Department would be this one: a guy who shreds his passport on YouTube.)  That’s the first way in which it would be ineffective: you just end up with another layer of litigation, about the last thing that anti-terror policies need after almost a decade of up-the-courts, down-the-courts delay.

And all for what, exactly?  Citizenship makes a difference only with respect to a small slice of one anti-terror policies.  By statute, the use of military commissions can only be used in the prosecution of noncitizens.  Under Verdugo, nonresident noncitizens don’t enjoy Fourth Amendment protections.  But remember what citizenship doesn’t protect you against: even Obama has authorized the targeted killing of citizens abroad, and Hamdi doesn’t mandate full due process for citizen detainees.

Lieberman and cosponsors try to frame this as a matter of prevention, depriving terrorists of the valuable tool of a US passport.  This is nonsense.  Anyone visibly affiliated with a terror group is already going to be on all sorts of no-fly and surveillance lists before that affiliation would warrant proceeding with expatriation.  A passport isn’t much of a weapon then.

Not even the Bush Administration went in this direction.  John Walker Lindh fought with the Taliban, a foreign military engaged in hostilities against the U.S.; DOJ considered the expatriation option, but didn’t pursue it.  Ditto for Hamdi himself (he ended up voluntarily relinquishing citizenship as part of an agreement leading to his release).  At least one draft of a draft Patriot Act sequel included provision similar to Lieberman’s that went nowhere.

I don’t expect this to become law, and if it does, it won’t be put to much work. This is more anti-terror showboating than anything else.

http://opiniojuris.org/2010/05/06/lieberman-terrorist-expatriation-act-constitutional-but-meaningless/

10 Responses

  1. Peter,

    I completely agree with your analysis but but doesn’t Verdugo only stand for the proposition that nonresident aliens do not have rights under the 4th amendment? (And I’m not sure it even goes that far because Justice Kennedy, who was the fifth vote in that case, suggested that 4th amendment protections might extend to nonresident aliens if the alleged illegal search or seizure occurred on US soil).  As a long-time resident of the US, I think Shahzad would enjoy the protections of the 4th amendment even if he were stripped of citizenship. 

  2. “This is more anti-terror showboating than anything else.”
    I agree. but what is it that seems to make citizenship so interesting in this context? mere symbolic action or real effect on terrorists and their aides? is citizenship a weapon against terrorism? and, finally, do we want it to become one?

  3. There are two kinds of “intent”. The Terrazas and prior cases dealt with benign clerical functions (voting in a foreign election or signing a foreign government document) where unintended loss of citizenship is clearly inappropriate. Here the question is civil intent and reflect the reality that most expatriation occurs when Americans living overseas surrender their citizenship voluntarily to avoid the unique income taxes that only the US imposes on foreign earnings of foreign residents. In these cases the test is whether the act was executed “for the purpose of relinquishing citizenship”.

    However, when a US citizen knowingly enlists in the armed forces of a foreign state at war with the US, or in this proposal joins the armed forces of a non-state terrorist organization engaged in an armed conflict with the US, then it makes sense to consider the alternate model of criminal “intent”. Here the question would not be if the individual enlisted in the enemy army for the purpose of  surrendering his citizenship (certainly there are easier ways to give up your citizenship than by murdering thousands of innocent civilians). It would be sufficient that he intended to wage war against the US and was willing to lose his citizenship as a consequence of his criminal or treasonous acts.

    Congress amended 8 USC 1481 to add the words “with the intent of relinquishing United States nationality” after the Terrazas decision, and they applied it to every listed expatriating act instead of just those involving benign actions. It makes sense for the Congress to correct this overreaction and restore the pre-Terrazas wording to 1481 (a) (3) and possibly add a section extending the new/old wording to enemy combatants who are not part of just national armies. That leaves room for the Court to “clarify” whether they really wanted to extend a civil interpretation of paperwork “intent” to acts of Treason, terrorism, and mass murder.

    Of course the Court could stick to the wording of its previous decisions, in which case the actions of Congress would have no effect. Then it would be the Court that is responsible and nothing could be done. However, the additional wording added by Congress adds a second statutory component that blocks the Court from reconsidering its previous constitutional ruling. You have to get rid of that statutory language before you can go back to the Court and ask for Terrazas to be “clarified”.

    I am not supporting the Lieberman bill or any particular wording, nor do I endorse applying this to any particular individual defendant or detainee. It just appears that the Court used overly broad language and Congress compounded the mistake by writing that overly broad language into law. We should try and unravel that mistake in the abstract, not in any particular case.

  4. The Constitution is crystal clear on how acts of treason are to be punished. Art 3 Sec 3:
    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Government can’t strip a person of citizenship for committing treason without a trial on the evidence of two witnesses.  This isn’t hard to understand.  The Framers didn’t want the Government punishing treason without due process of law.

  5. In order to be accused of Treason, you have to be a US citizen. However, when you commit an expatriating act, you lose your citizenship and then whatever you do isn’t Treason any more. Expatriation has always been the “get out of jail free” card for traitors. If the government somehow gets the constitutionally required evidence of the treasonous act, then they declare that they surrendered their citizenship and it is no longer Treason any more. That is why although thousands of German-Americans and Italian-Americans fought on the Axis side in WWII, only civilians were ever accused and convicted of Treason. Of course expatriation is a better choice if you have another country that will take you in.

    So expatriation is not punishment for Treason because, in fact, they are mutually exclusive. You can have one, or the other, but not both. However, if you are a terrorist as well as a traitor, then you can get expatriation and a long prison sentence for the terrorist act. Or you can get expatriation and execution, but then losing your citizenship is the least of your problems.

  6. I can’t say I’m a fan of expatriation in any manner other than an official renouncement of citizenship.

    In particular, it raises the awkward problem of removing a person’s only valid citizenship, as there’s no guarantee that being a member of another countries’ armed forces actually grants you citizenship with that country.

  7. M. Gross,
    at least two important courts of have no problem with leaving individuals without citizenship, be it national or supra-national.

    the German Bundesverfassungsgericht ruled in 2006 that a person can be stripped of his/her citizenship even if he/she is left stateless (only in German: http://www.bundesverfassungsgericht.de/entscheidungen/rs20060524_2bvr066904.html?Suchbegriff=verlust+staatsangeh%F6rigkeit+t%E4uschung).

    and recently the ECJ held that a Member State of the European Union may withdraw its nationality, granted by way of naturalisation, from a citizen of the Union, when that person has obtained it by deception, even if as a consequence the person concerned loses his citizenship of the Union because he no longer possesses the nationality of any Member State (http://eudo-citizenship.eu/docs/Rottmann_Judgment.pdf).

    anybody knows of other high court decisions regarding this point? I would be interested.

  8. As an American who lived abroad for over 17 years and who with other Americans abroad spent an enormous amount of effort to make sure that the presumption against renunciation was put in place (you could get a certificate of non-renunciation from the American Embassy), the citizenship stripping gambit of Lieberman is awful and fraught with lots of unintended consequences that I am certain will cause difficulties for many Americans who live overseas.

    In a world of globalization, the concept of Americans who live overseas who are patriots is still sometimes very hard for the stateside representatives to comprehend.  Maybe it is because the power of these Americans in voting is diluted in American elections being a small percentage in each district rather than a block with common problems and a need for common representation.

    Also, there is the problem of double criminality.  First, the alleged crime committed has its own punishment.  Second, along with that punishment is a second punishment of being stripped of one’s citizenship.

    Also, the idea that no person can be without a nationality in international law as a fundamental human right would appear to be in jeopardy.  An American citizen born in Peoria, Illinois (i.e. not naturalized) who ran afoul of this would lose US citizenship without having some other citizenship.  Stateless persons space.

    I really get tired of this authoritarian streak in the body politic that really masks the more deeper problem for Americans to reconcile with the idea that to be American is to be of many backgrounds, religions, etc.  The best emblem of that streak I ever saw was in the literacy tests for blacks in the South which mirrored the naturalization tests for foreigners.  Very deep statement about what the word American was supposed to mask in the heads of the elites.

    Best,
    Ben 

  9. If the primary purpose of this legislation really is to expose US citizens to prosecution by military commission then it would seem to be wholly unnecessary.  There is, after all, a long history of US citizens being prosecuted by domestic military commissions.  Indeed, the Supreme Court in Quirin specifically found that citizenship is no bar to such prosecution.  It is only the current, statutory version of military commissions that is limited to non-citizens; other military commissions need not be.  So what is the point, legally speaking?

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