Sen. Joseph Lieberman (I-Conn.) has yet to formally introduce legislation that would strip Americans involved in terrorism of their citizenship and already legal experts, including a former Bush administration official, are calling it "draconian."
The Connecticut Independent is planning to unveil on Thursday a proposal that will supposedly free up law enforcement in their efforts to try terrorist suspects, by giving the State Department the right to revoke the citizenship of those suspects who are American.
The substance of the proposal has yet to be unveiled, though it does have supporters in the House and Senate. But already a host of legal officials are raising red flags. For starters, the legislation would not, on its surface, solve the most immediate crisis for which it is seemingly designed. Lieberman is lamenting the fact that the Obama administration read the Miranda rights to Faisal Shahzad, the suspect in the attempted Times Square bombing. But even if Shahzad were deprived of his citizenship, his Miranda rights would still be read to him, so long as he was held in a criminal setting.
"Miranda applies if somebody's going to be charged with a crime, and that applies to somebody whether they're a citizen or not," said Anil Kalhan, a law professor at Drexel University.
Indeed, what Lieberman is attempting to do is to pave the way for terrorists with American citizenship to be thrown into military tribunals once they are captured. And it would give the State Department the power to make that determination.
"It sounds like a draconian solution," said John Bellinger a legal adviser to the United States Secretary of State during the Bush administration. "I assume the Senate has thought through the constitutional issues but I would want to see what the standards are for stripping someone of their citizenship and what opportunities they would have for notice and to challenge the decision... It certainly seems like a far-reaching step."
As Bellinger notes, the issue of revoking citizenship has been litigated to the highest levels of the justice system already. And as it stands now, the standard is set fairly high.
In Afroyim v. Rusk (1967) the Supreme Court ruled that a United States citizen could not be deprived of his or her citizenship involuntarily. The burden of proof falls on the government to determine that the person intends to revoke his or her own citizenship. There are additional elements to the law. As Emily Berman of the Brennan Center notes, a naturalized citizen can have his or her citizenship revoked if it is proved that he or she obtained their citizenship through fraudulent means. There are also complexities with regards to Americans who have joined "the armed forces of a state engaged in hostilities against the United States," says Kalhan. And this, indeed, may be the subset of the law that Lieberman is hoping to expand (to include non-state terrorist organizations).
But these remain fairly well established elements of immigration law. And an expansion of power to the State Department, as Lieberman seems to be envisioning, will almost assuredly be challenged on constitutional grounds, these experts say.
"With respect to people who are born American citizens I believe this would be an unconstitutional statute," said Berman. "I don't think the Congress has the power to give the State Department that right."
There are non-legal questions surrounding Lieberman's proposal as well. For starters, what would distinguish a member of al Qaeda from a domestic terrorist? Could a homegrown terrorist like Timothy McVeigh be denied citizenship rights? How would the State Department define what constitutes ties to terrorism? And what happens if the person is wrongfully accused?
"The slippery slope is there but also there's great potential to apply that kind of rule in a very arbitrary and discriminatory way," said Kalhan.
Perhaps the issue proving most bothersome to the legal community, however, is the slight Lieberman's bill sends to America's criminal justice system, which has, statistically, proven far more effective at trying citizen and non-citizen terrorists than its military counterpart.
"There is an ongoing and often irrational debate about what do we do with people who are suspected terrorists who are captured in the United States," said Berman. "The thought that we should be doing anything different than what we always have done is remarkable. I don't think anyone has ever been able to contradict all the evidence that the criminal courts are perfectly capable of locking these people away quite effectively."