Today, Sens. Joe Lieberman and Scott Brown introduced a proposal to revoke the citizenship of Americans who provide "material support or resources to a Foreign Terrorist Organization" or "actively engag[e] in hostilities against the United States or its allies" based on a finding made by the secretary of state. The proposal would amend an existing statute that allows the State Department to revoke the citizenship of Americans who join a foreign military at war with the United States. Suspected terrorists would be able to challenge the process in court. Civil libertarians have been critical of the proposal, dubbed the Terrorist Expatriation Act, or "TEA," because as proposed, it wouldn't even require a conviction, merely a decision of the secretary of state.
“It’s a draconian measure that’s really about bluster and posturing and doesn’t advance the ball any way in terms of trying to confront and fight terrorism," says Jonathan Hafetz, an attorney with the ACLU. "It’s a knee-jerk political reaction.”
According to legal experts, the proposal likely wouldn't pass constitutional muster. While the statute would use the same evidentiary standard that judges in Gitmo habeas cases use to determine whether detainees at Gitmo can be held under the laws of war, the Supreme Court has previously held that citizenship is a constitutional right that can only be waived voluntarily. The precedent was set by a 1967 case, Afroyim v. Rusk. The case involved a Jewish artist, Beys Afroyim, who lost his American citizenship after voting in the Israeli election.
“The Supreme Court ruled that citizenship is a constitutional right that can’t be taken away against an individual's will, no matter how heinously he acts, no matter what he does,” says David Cole, a law professor at Georgetown University Law School. “You could bomb America without wanting to give up your American citizenship, unless they can prove that you did it with the intent of giving away your American citizenship." The existing statute, Cole explains, was written expressly with the Supreme Court's finding in mind. “If you read the law carefully, it says they can take your citizenship away only if you do so voluntarily, and with the intent of revoking your citizenship."
So ultimately, even if the law were passed, in order for it to pass constitutional muster, terrorists would still have to voluntarily waive citizenship. Not only that, but even if citizenship were revoked, a foreigner on American soil would still be entitled to a criminal trial.
"When you’re arrested in the United States, regardless of whether you’re a citizen or a foreign national, all of the rights of a criminal trial are extended to all persons; they’re not limited to U.S citizens,” Cole explains. “It’s the worst kind of political grandstanding, because they know it’s not going to actually lead to anyone losing their citizenship." In other words, it's culture-war counterterrorism.
Daphne Eviatar, a senior associate for the Law and Security Program at Human Rights First, also pointed out the difficulty of determining membership in an organization like al-Qaeda, where such things are often nebulous. “That makes it harder to say that someone officially joined al-Qaeda and declared war against the United States,” she said. Eviatar further noted that Article 15 of the Universal Declaration of Human Rights, adopted and
partially by the United States but not legally binding, states that
"everyone has the right to a nationality."
Karen Greenberg, a national security expert with New York University's Center on Law and Security, said that the law would run into very serious hurdles with individuals who were born American citizens, rather than simply being naturalized. “If you’re not born here, they can find one thing you didn’t get right [during your naturalization process] and push you out of here," Greenberg says. "But if you’re born here like [extremist cleric] Anwar al-Awlaki, you have to renounce [citizenship]; you can’t just be assumed to renounce it."
Greenberg suggested the effort was oddly selective in its treatment of those who take up arms against the United States. "During the Civil War, no one was considered to have renounced their citizenship."
-- A. Serwer