is the topic of an important op ed in today’s Washington Post. David Cole is a professor at Georgetown Law, and today he offers Bill to expatriate those who support terrorists more symbol than substance. It is of course his response to the idiotic proposal by Joe Lieberman, Scott Brown and others to strip American citizenship from those who provide material support for terrorism.
Cole is on the left of legal thoughts. Disclosure: I have once been a guest in his home more almost two decades ago when he hosted a Tikkun magazine salon which featured Rabbi Michael Lerner. At that time Cole told me he was an adherent of Critical Legal Studies. Having said that, and also acknowledged that I am not a lawyer, I found his op ed both useful and troubling, which is why I both urge you to read and ponder his words, and invite you to explore my reaction to the issues he raises.
Cole notes that Nancy Pelosi and Hillary Clinton have at least in principle given support to the idea. He also writes
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.”
. And yet there are problems with the proposed legislation on this point, for as he also notes
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.
Cole offers us the legal reasoning of those earlier decisions, that citizenship is a constitutional right, which like other constitutional rights cannot be taken away – citizens must “knowingly, volountarily, and intentionally” waive such rights, including citizenship, and since those two decisions that has been the standard, with Cole further adding
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.
Cole also reminds us that the expatriation statute was amended by the Congress in 1986 to be in conformity with those decisions, with the effect that
one does not lose citizenship by joining a foreign country’s army — unless one does so with the express purpose of renouncing citizenship.
The language of Lieberman’s proposed statute would have little effect on this standard, absent the clear intent. And I might add that one who in joining a foreign army took up arms directly against the US is already subject to prosecution for treason, conviction of which can already lead to expatriation / loss of one’s citizenship.
I want to explore the bit on joining foreign militaries. My memory may be fading as I approach my 64th birthday, but I have clear memories of problems for some in the 1960s and even into the 1970s of problems for people of certain national origins, or in some cases, even descent (a parent born in that country even if the young man was born in the US). Those countries, France and Greece in particular, claimed the right to draft such men into their armies even if they had obtained (or in the case of one born in the US of non-citizen parents opted for) US Citizenship. There were risks for draft age men traveling to those nations, because they could find themselves involuntarily inducted into a foreign military. Clearly the import of the 1986 revision to the expatriation statute offers some protection of their American citizenship. And if it does, what if one were involuntarily or unknowingly involved with a terrorist organization, with no intent of surrendering one’s citizenship or directly taking up arms against the US? For me that is one problem with the broad reach of Lieberman’s proposal.
What troubles me more is another part of the column, on which I want to shine a bright light.
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?
Let me step back a bit. I want to go back to the previous administration, when the US Senate passed the Military Commissions Act. I wrote about it in September of 2006, in What I told my students yesterday, from which I want to quote the following – please bear with my on the length:
Of course I described the provisions of the Bill. I tried to give them an example which would bring it home. I noted for those of my students who are not citizens (we have many in our school) it would not matter were they taken into custody in the United States, that they could be referred to the military tribunals. I explained how the legal “protections” built in to the legislation could be suspended by the president at his discretion – I tried to illustrate this by the example of a policeman whom the law prohibits from beating a confession out of you having the power to decide it is important enough so is able to beat you with impunity.
I then used myself as an example. I described the diary I posted yesterday. I noted how widely read it was. I asked rhetorically if it was protected by the First Amendment. I noted that I had disclosed neither military secrets nor intelligence sources, methods or identifies of assets, because I knew none. I had not advocated violent overthrow of the US Government nor urged violence against the president. Normally one would say that what I had written was protected speech.
But the top two leaders of Al Qaeda both know English (bin Laden has talked with people in English in the past, and knew it as university in Saudi Arabia). Suppose hypothetically they were surfing the net and encountered my diary, and in the next tape they released they quoted something from me affirmatively. Would that qualify me as an illegal enemy combatant, even though I never met them, and had never left the US, and was a US citizen? My answer was that given this legislation I did not know, because this legislation gives the president authority with no oversight from anyone to make such a determination.
I was as blunt as I could be. I pointed out that there I could not understand how senators who believed that parts of the legislation were clearly unconstitutional could nevertheless vote for the bill and hope the courts would fix the problems. I raised the issue of having standing to get the issue before the courts. I noted that I had lived through McCarthyism, Watergate and Iran Contra, and considered this legislation potentially the greatest threat to our constitutional liberties in my lifetime.
I told the students that they might feel that I was only saying this because I had opposed Bush in both elections and also opposed our actions in Iraq. I acknowledged that such a reaction had some cogency. But then I asked that if they were willing to give Bush this authority whether they would be willing to give the same authority to a President Clinton, Bill or Hillary. If they were, then I would grant there was intellectual consistency to their position, and while I disagreed I would respect our differences. For my part, I would not give such authority to George Washington or Abraham Lincoln.
Let me now return to what I have just quoted from Cole. That this administration would support such an argument before the Supreme Court horrifies me. It in fact comes close to pushing me away from further support of this administration on any topic, because this is so basic. I remember a candidate informing us that he knew the Constitution, had taught the Constitution, and would follow the Constitution. At least in principle the line of argument the government is supporting in that case seems to abandon the principles of the Constitution. And that is simply not acceptable to me. I think I made that fairly clear in my diary a few days back (the title of which some objected to), I am a fundamentalist. To me the Constitution – especially the Bill of Rights and the 14th Amendment – make clear the intent of limiting the reach of governments (state and local as well as federal) to interfere with our basic rights, which include the ability to criticize the government. We banned bills of attainder – before we punish we are supposed to give due process of law. Holding someone indefinitely with no court-based determination of the basis for that detention seems a clear violation both of habeas corpus and the due process clauses, the latter making clear that one cannot be denied liberty without due process.
I noted in that recent diary the Constitutional emphasis not on citizens, but on persons, something of which I was reminded when reading this from Cole:
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.
Cole describes Lieberman’s and parallel proposals as political grandstanding, even as he acknowledges the need for “thoughtful reform of our security practices.” Here I might part company with the law professor. I am willing to grant the need for thoughtful and careful examination of our security practices, but absent that I am unwilling to commit to the proposition that they need to be changed, because that seems to cede the framing of the argument to the likes of Lieberman.
I have multiple times made clear my great unhappiness with the Obama administration on the issue that includes my profession, education. As unhappy as I am with Duncan and the President on educational issues, that would be insufficient for me to walk away from overall support of the administration.
On civil liberties, on the principles of the Constitution, that is another matter. These are not negotiable, not for me. Some criticized me for my describing the Constitution as “sacred words” arguing that the combination of the adjective sacred with the term fundamentalist somehow moved me into religious territory. I disagree. I used fundamentalist in the sense of being committed to something basic and fundamental, which is what the Constitution is for me. And the word sacred was used in the sense it was used by the signers of the Declaration of Independence, who pledged “our lives, our fortunes, our sacred honor.”
That is why on Wednesday I wrote this:
There can be no justification for violating these sacred words, these words which should be what bind us together, in common.
It should be to these words that we pledge our allegiance.
We are told The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution
And our chief executive, to take office, swears or affirms that he will to the best of my Ability, preserve, protect and defend the Constitution of the United States
He cannot violate the words and be faithful to that oath.
And we cannot justify or rationalize abrogating the reach of these words – and the many more I did not repeat – because we claim some higher goal. When we place individual judgment or loyalty against the only thing that defines us and binds us together, we are lost. We might think otherwise, but then we are lost.
This is not negotiable. You cannot do other than the requirements of these words and be loyal to the oaths of office. You do not have our permission, which would be required, because We the People of the United States. . . do ordain and establish this Constitution for the United States of America.
The Constitution should bind the government. It cannot be modified by a statute contrary to its principles. John Marshall made that clear in his opinion in Marbury v Madison when he wrote this:
To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
from which let me emphasize Marshall’s contention that if the Constitution can be altered by ordinary legislative act then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
But we do not give that power, either to legislatures or to executives, theories about the unitary executive and the power of the Commander in Chief during a time of war notwithstanding.
Marshall also concludes
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.
Perhaps I worry too much about slippery slopes? Perhaps some might argue that they are attempting to faithful to the Constitution while addressing the needs of the moment, and might even quote Justice Robert Jackson to the effect that after all the Constitution is not a suicide pact. But if they take that approach, they clearly can no longer claim that they are interpreting the Constitution strictly, that they are functioning with an “originalist” mindset.
I do not want to quibble about legal theories.
I want to do far more than quibble about the basic matters of Constitutional rights.
One purpose of terrorism is to terrorize, to get the target of the terrorist action to be afraid, to change how they live and act.
There is no change more basic the the limitations of governmental power imposed by the protection of rights clearly delineated in the Constitution as amended.
Citizenship is clearly defined in the 14th Amendment, in part in reaction to the refusal of former states of the Confederacy in recognizing the citizenship of those freed by the 13th Amendment.
Congress can define, as it has, the punishment for treason, which can and does include stripping of citizenship. But the Constitution also makes clear that there can be no conviction of treason absent a confession IN OPEN COURT or upon the testimony of two witnesses. It bans bills of attainder, and empowering a government official to strip citizenship of someone who has neither been convicted of treason nor voluntarily and knowingly and deliberately surrendering citizenship is in my mind a clear bill of attainder, a legislative action imposing a severe punishment.
Someone can be a mass murderer, convicted in court, sentenced to death and executed. No where in our criminal statutes does that person, if a natural born citizen, lose his citizenship. We might accept that a felony conviction could lead to removing the citizenship of a naturalized citizen, except I think a clear case can me made that except for dishonesty in the process of obtaining naturalization one runs into the same constitutional barrier, that the Constitution allows few distinctions between those who have citizenship and those who do not, and only one distinction between natural born and naturalized, that being eligibility for the office of President (and by the requirements of the 12th Amendment the office of Vice President).
Terrorism can be horrible. So can the kinds of financial actions done by the likes of Enron, whether or not they are found to be violations of law.
Terrorism is does not just originate overseas. We have our Eric Rudolphs and our Timothy McVeighs. As I would no more deny them their constitutional rights, nor would I deny those from other nations, because they are persons.
If we as a nation insist that the reach of our criminal law extends to acts against our nation, its interests, and its citizens that occur outside our borders, then concomitant with that must be the proposition that we can only extend the entirety of our criminal justice system, meaning that those being accused under US law must have the rights guaranteed under US law.
I am not a lawyer. I am well aware of a history of Constitutional interpretation that seeks to parse exceptions in order to achieve specific immediate goals. Justices are human, subject to human frailty.
And yet, the Constitution does not begin “We the Justices” or even “We the Lawyers.” Rather, it begins We the People of the United States. If the document is not one that the people can understand, how can it be their creation? Is not that why we require students in our public schools to teach that document, as I am required to do as a teacher of Government? To what end do I teach that document if people can, for political or other reasons, choose to ignore its most basic – or if you will, sacred – principles, starting with the idea that a Constitution exists to limit the power of government, that the government(s) are specifically prohibited from interfering with rights of the people, some of which are enumerated others of which are implied (in the 9th Amendment).
Obviously I have little respect for what Lieberman is attempting to do. I am horrified to see an administration whose election I supported taking legal positions that are even worse. By the rationale it is seemingly taking in Holder v. Humanitarian Law Project by writing and posting this diary I could be accused of giving material support to terrorists.
Beyond any personal legal jeopardy I might face, I find that position totally unacceptable. In advocating it the administration has given terrorists a victory they could not achieve with their attempts at mass murder, an abandonment of the principles on which this country was founded.
That one is accused of a crime, including those we might define as terrorism, does not allow the government to abrogate the rights to which any accused is entitled. That should not be negotiable. It can not be acceptable and let those who so argue still maintain that they are operating within the constitutional framework that they are abandoning and even undermining.
I teach government. At this point our focus is preparation for the mandated state test on May 20th. Yet that is less important than my students understanding what may be at risk. Which I why I know I will have to address this issue, with all my students, as I did in 2006.
It is also why, despite much else on my plate right now, I have taken the time to write and post this, even as I know it is too rambling, probably not titled attractively enough to draw much attention. I feel a moral obligation to speak out. I only wish I had sufficient power of words to make this a clarion call. I can hope that perhaps someone having that gift who encounters these words can find a more effective way of communicating the importance of this issue.