Sens. Lieberman and Brown offer the wrong solution on dealing with citizen terrorists

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Monday, May 17, 2010

IN THE PAST year, the Justice Department has identified roughly a dozen terrorism plots on U.S. soil involving American citizens or permanent legal residents. At the center of the most recent is Faisal Shahzad, a naturalized U.S. citizen being held in the attempted bombing in Times Square this month. The threat of homegrown terrorism is real, and the government should avail itself of all existing tools and work with Congress to craft new ones to strengthen its ability to thwart such attacks. But a legislative effort to strip Mr. Shahzad and others like him of their citizenship should not be part of the mix.

In sponsoring the Terrorist Expatriation Act, Sens. Joseph I. Lieberman (I-Conn.) and Scott Brown (R-Mass.) propose to revoke the citizenship of any American who provides "material support or resources to a foreign terrorist organization" or who engages in or "purposefully and materially" supports "hostilities against the United States." They argue that the legislation is needed to prevent U.S. citizens enmeshed in terrorism activities from freely moving about using a U.S. passport, including to reenter this country. They also argue that the threat of expatriation could help reduce the number of Americans recruited by terrorist groups since ex-citizens would be less useful.

An existing law allows the State Department to seek revocation of someone's citizenship if he joins a foreign army or commits treason. The Lieberman-Brown bill would add terrorism to the list of "expatriating acts"; targets of such a move could lodge challenges with the State Department or in federal court.

The question of whether citizenship may be stripped without a person's explicit consent is a matter of intense debate. Supreme Court opinions and statutes address the matter but are not crystal clear. This ambiguity alone would guarantee lengthy litigation to resolve the question. Meanwhile, the government already has means to prevent Americans suspected of terrorism from reentering the country, including placing them on no-fly lists or arresting them if they set foot here. The law also allows the government to hold a U.S. citizen as an enemy combatant.

So the proposal wouldn't be very useful. At the same time, it seriously threatens civil liberties, particularly with regard to "material support." The Obama administration, for example, urged the Supreme Court this year to find that the material support law prohibits a lawyer from giving advice to a terrorist organization about how to peacefully advance its political agenda. The administration asserted that a lawyer filing an amicus brief on behalf of such a group could face prosecution. That case has yet to be decided, but it illustrates how definitions can be stretched to capture behavior that should be constitutionally protected. Revoking citizenship at times of political stress shouldn't be an added option.