By David Cole
Saturday, May 8, 2010; A13
Finding bipartisan support for anything in Congress can seem a minor miracle these days, but Sen. Joseph I. Lieberman (I-Conn.) may have hit on something -- empty symbols of patriotic fervor. Together with Republican Sen. Scott Brown of Massachusetts and one Democratic and one Republican representative from Pennsylvania, Lieberman has proposed a law that would strip Americans of their citizenship if they provide "material support" to terrorist organizations. Secretary of State Hillary Clinton and House Speaker Nancy Pelosi have expressed their support in principle. Yet the bill is so flawed it can be explained only as pure political grandstanding.
Lieberman argued while introducing the bill that "those who join such groups [as al-Qaeda and the Taliban] join our enemy and should be deprived of the rights and privileges of U.S. citizenship." But this legislation is not limited to those who "join" the enemy. It would apply to any provision of "material support" to any group we have designated as "terrorist." In a pending Supreme Court case, Holder v. Humanitarian Law Project, the government has taken the position that the "material support" ban -- already a part of our criminal law but not a basis for expatriation -- is so broad that it makes it a crime to file an amicus brief in the Supreme Court, to lobby Congress, to teach human rights or to write an op-ed piece, so long as it is done with or for a designated group. Should we be expatriating people for engaging in political speech simply because we don't approve of those with or for whom they are speaking?
In fact, the bill does not expatriate those who join al-Qaeda or provide it with "material support" -- because it cannot. U.S. law once made the commission of certain acts -- such as taking citizenship in another country or joining another nation's military -- automatic grounds for losing one's citizenship. But the Supreme Court ruled in Afroyim v. Rusk in 1967 and Vance v. Terrazas in 1980 that citizenship cannot be taken from individuals against their will -- no matter how heinously or treasonously they act.
The court reasoned that citizenship is a constitutional right and, like other constitutional rights, cannot be taken away. Individuals may "waive" citizenship, just as they may waive their right to a jury trial, but only if they do so knowingly, voluntarily and intentionally.
Since those decisions, no Americans have lost their citizenship except where they have chosen freely and purposefully to give it up. Indeed, courts have ruled that even going into a U.S. Embassy and signing papers renouncing citizenship is insufficient to lead to expatriation if the citizen acted out of economic pressure or was insufficiently informed of the consequences of these actions.
In 1986, Congress amended the "expatriation" statute to conform to those decisions; it now provides that acts are expatriating only when undertaken "voluntarily" and "with the intention of relinquishing United States nationality." Today, one does not lose citizenship by joining a foreign country's army -- unless one does so with the express purpose of renouncing citizenship. Adding "material support" to "terrorist organizations" to this law, as Lieberman proposes, will therefore have no effect, because only those who voluntarily, knowingly and intentionally renounce their citizenship will lose it.
Lieberman's claim that anyone accused of providing "material support" should be denied "the rights and privileges of U.S. citizenship" is just as misguided. In the United States, the rights associated with the criminal process -- including the rights to privacy, to Miranda warnings, to a jury trial, to counsel and to due process -- apply equally to citizens and noncitizens. So even if the bill could expatriate citizens against their will, it would have no effect on their other constitutional rights.
It is true that under a 2009 law, only noncitizens may be tried in military tribunals. But that distinction, many experts argue, renders the untested military tribunal law itself unconstitutional. There is no legitimate justification for selectively subjecting noncitizens to substandard criminal process -- citizen terrorists pose as much a threat as do noncitizen terrorists, and both are guaranteed the same constitutional rights in the criminal process, military or otherwise.
The recent close calls with attempted terrorist attacks underscore the need for thoughtful reform of our security practices. But Lieberman's bill is precisely the opposite -- a meaningless form of symbolism that plays on patriotic fervor and xenophobic anxiety but would have no legal effect. It turns out that political grandstanding is easier than doing something that might make a difference -- and that's what passes for bipartisan consensus these days.
David Cole is a professor at Georgetown University Law Center and the author of "The Torture Memos: Rationalizing the Unthinkable."