I take it personally when people try to kill New Yorkers because I grew up in the Big Apple metro area. It’s my city. So, it’s a very emotional matter for me when someone tries to light off a car bomb in Times Square. After 9/11, I was really fearful that the follow-up would be a series of very hard to stop suicide attacks on New York’s transit system. The Bush administration did nothing to alleviate those fears and everything to stoke them (remember the Duct Tape Fatwa?). The Bush administration did their best to turn me into a bedwetter, but they didn’t succeed. It is so refreshing to have a president who is encouraging.
“Finally, New Yorkers have reminded us once again of how to live with their heads held high. We know that the aim of those who try to carry out these attacks is to force us to live in fear, and thereby amplifying the effects of their attacks — even those that fail. But as Americans, and as a nation, we will not be terrorized. We will not cower in fear. We will not be intimidated. We will be vigilant. We will work together. And we will protect and defend the country we love to ensure a safe and prosperous future for our people. That’s what I intend to do as President and that’s what we will do as a nation.”
It matters a great deal how a president publicly reacts to terrorist acts. John McCain’s public reaction was to advocate against informing the suspect, who is a U.S. citizen, of his rights. That would jeopardize our ability to successfully prosecute him. Perhaps recognizing the weakness of McCain’s argument, Joe Lieberman announced that he will introduce a bill to strip American citizens of their citizenship if they are found to be affiliated with a foreign terrorist organization.
Sen. Joe Lieberman (I-Conn.) thinks he’s found a work-around on the whole Miranda rights debate for U.S. citizens accused of terrorism: Strip their citizenship and ship them to Guantanamo.
Lieberman plans to introduce a bill that would amend a decades-old law aimed at yanking citizenship from U.S. citizens who fight for a foreign military.
“I’m now putting together legislation to amend that to [specify that] any individual American citizen who is found to be involved in a foreign terrorist organization, as defined by the Department of State, would be deprived of their citizenship rights,” Lieberman said Tuesday.
I wouldn’t dismiss Lieberman’s idea out of hand. I don’t like the purpose for which he is introducing this, but the basic principle is sound. It would be a logistical nightmare, but let me focus on the rationale for a moment.
When U.S. citizens decided to join the German, Italian, or Japanese armies during World War Two, we didn’t have any problem with the law stripping them of their citizenship. So, in principle, there should nothing wrong with stripping a known terrorist of their citizenship if he is targeting Americans. Such a provision would go a long way to resolving conflicts in the law arising from the situation we have with Anwar al Awlaki, who has been green-lighted for assassination despite having been born in New Mexico. The Intelligence Community has linked him to both the Ft. Hood shooter and the Christmas Day bomber, but he lives now in Yemen. Should he be shielded from retribution just because he is a U.S. citizen who lives beyond the reach of our law enforcement agencies?
That is at least a compelling case for stripping a terrorist of his citizenship rights. But there are two major problems I have with this discussion. First, Lieberman isn’t introducing this bill to deal with the problem we have with al Awlaki and people like him. He’s doing it to make it possible to throw the Times Square bomber into the Guantanamo Bay prison and try him in a military court. But we already have the Times Square bomber in custody. We have no compelling reason to treat him any differently than we treated Timothy McVeigh. After all, McVeigh had co-conspirators and was less than cooperative. We didn’t strip him of his citizenship or torture him or put him in a military court. I believe it’s wrong to pass ex post facto laws:
An ex post facto law (from the Latin for “from after the action”) or retroactive law, is a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted.
Changing someone’s citizen status after they’ve committed a crime in order to make a conviction more likely or in order to gather intelligence in a formerly illegal way, is definitely an insult to the rule of law.
My second concern is logistical. I don’t think it’s an adequate or sufficient standard to rely on the State Department to designate which groups are or are not terrorist organizations. Those designations are politicized by the very nature of the State Department, which is the diplomatic arm of the executive branch. Who we designate as terrorists is colored by more than a cold analysis of the facts; it also involves our state-to-state interests and relationships. For the same reason we don’t want Congress to declare that the Turks committed genocide against the Armenians, we may not want to designate some terrorist group as a terrorist group if it will adversely impact our interests. By the same token, we may list a group as a terrorist organization that may not warrant that designation (or, that has no history of anti-American activity) in order to apply pressure on a foreign country in other areas. If we want to set up a system to allow us to strip someone of their citizenship, we have to have a court that can look at the facts dispassionately. The State Department won’t do.
But even that wouldn’t solve the logistical headache. What standard of evidence would you need to meet to prove that an individual is affiliated with a designated terrorist group? It’s not like they have membership cards or paycheck stubs. That would have to be ironed out very carefully, and the result would probably be a standard so high that the law would become impracticable.
There’s no question that international stateless terror groups create real challenges to our legal system, and when you throw in the matter of U.S. citizens engaging in terrorism from abroad, it becomes hopelessly difficult. I doubt we can come up with a perfect solution.
But I will say this. The minimum standard for stripping someone of their citizenship should be that evidence of intent to commit terrorism has been introduced and accepted by a special court. That the loss of citizenship will not be applied ex post facto. And that the suspect is currently outside the reach of the law. Under those circumstances, it would make sense to strip someone of their citizenship and even to target them for assassination. While I would have grave concerns about such a change in the law, I think it would actually be preferable to the situation we face now where we are targeting a U.S. citizen in Yemen for death on nothing more than the say-so of the executive branch. That same standard would allow the government to target peaceful political opponents on vacation abroad. It’s not an acceptable standard.
So, even though Lieberman is bringing up this bill for all the wrong reasons, and even though he is engaging in shameless bedwetting-promotion, there is a real issue that needs to be looked at. The status quo is an insult to the rule of law and offers the opportunity for unaccountable abuses of power.
