Archives for May 8, 2010

In addition to the fear they create, terrorist incidents also give politicians the opportunity to try to score political points. Or, to be even more cynical, to take steps to further erode individual rights and expand the power of the state.

Lieberman and Brown have recently proposed that an American who is suspected of being allied with terrorists can have his citizenship removed. Interestingly, some Democrats seem to be trying to cash in by supporting this proposal while some Republicans are opposed to it.

From a legal standpoint, this seems to be on shaky grounds, at best. As it now stands, the Supreme Court’s last ruling is fairly clear that a citizen cannot be involuntarily stripped of citizenship. This does not mean that citizens can do anything and retain their citizenship. This is because some actions would count as voluntarily relinquishing citizenship.

In the case of this particular proposal, the fatal flaw is that it allows American citizens to be stripped of their citizenship merely by being suspects. Presumably part of the intent of this law is to remove the protections that citizens enjoy, thus allowing suspects to subject to treatment that would normally violate American law. While this prospect is appealing to some, this is unacceptable on two grounds.  First, it violates the presumption of innocence and  due process. Stripping a person of his citizenship on the basis of his being a suspect presumes the person is guilty and inflicts a punishment prior to any trial. This is on par with determining and applying a sentence before the trial has even begun. Second, it would set a precedent that could be used to erode rights in other areas. For example, if citizens can be stripped of their citizenship for being suspects in such cases, it would make it easier to argue that people suspected of terrible crimes should also be stripped of certain rights. While it would be a slippery slope to assume that the passing of such a law would send us instantly into such circumstances, it does seem reasonable to be concerned that this would be a major step down such a path.

In reply, it might be argued that people who are allied with terrorists should be regarded as traitors and be stripped of their citizenship. Even if this is assumed to be true, it does not follow that suspects should be treated this way. To use an analogy, it is true that rapists should be severely punished. However, it does not follow that people who are suspected of rape should be punished. After all, a suspect could be innocent. That is why we are supposed to determine guilt before actually inflicting punishments.

It might then be argued that such suspects are different from all other suspects in a way that justifies this treatment. However, the burden of proof rests on those who make this claim. After all, child molesters, serial killers, domestic terrorists (like Timothy McVeigh), rapists, and mass murderers do not lose their rights when they become suspects. As such, it is not the horribleness of the alleged crime that would justify a difference in treatment.

The most obvious difference is that while serial killers, crime lords, and serial rapists are hurting Americans, they are not rejecting America. While these people might be public enemies, they are not enemies of the state in that they are not allying themselves with foreign enemies. However, it is not clear why this difference would justify stripping a suspect in a terror case of his citizenship. After all, as noted above, the suspect is still just a suspect. In addition, domestic terrorists (like McVeigh) have not been stripped of their citizenship even when they explicitly reject and attack the United States government.  Perhaps a case can be made as to why a citizen who has been proven to have allied himself with an enemy of the state should be stripped of citizenship, but this is quite a different matter than justifying stripping a mere suspect of his citizenship.

It might also be argued that citizens who are suspected of being allied with terrorists must be stripped of their citizenship so they can be “questioned” in ways that American citizens cannot. Presumably this would be justified on the grounds that the good consequences (presumably getting data about terrorists) outweigh the bad (grossly violating the Constitution). Of course, this same logic can be used in any case involving serious consequences. This would, of course, entail the destruction of some of the basic foundations of our legal system. This would, it seems, be worse that allowing suspects to retain their citizenship.

My considered view is that this proposal is unacceptable and should not become law.