Stripping US Citizenship from Terrorists?

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anwar al alaqi.jpgAt the highest levels of the US military, a quiet discussion is going on about putting in place a legal framework that would permit the US government to strip American citizenship from terrorists.
The case of Las Cruces, New Mexico born al Qaeda commander Anwar al-Aulaqi, who has been a key organizer and recruiter for the terrorist organization in Yemen is the primary driver of this exploration of possibly modifying US law to allow “de-citizening.”
As the Washington Post‘s Dana Priest recently revealed, al-Alaqi was added recently to a short list of other Americans for whom there are kill orders in place.
A senior Member of the Senate Select Committee on Intelligence has told me that to his knowledge, there has been no serious discussion in the Committee of stripping US citizenship from terrorists, but a senior Pentagon official has confirmed that some in the military are exploring the upsides and downsides of such a more routenized mechanism for stripping citizenship.
A national security attorney who serves in an advisory capacity to President Obama has reported to me that there is no legal way for the US military or the government to strip citizenship from Americans.
But Eugene Volokh, exploring in a Salon article the case of American gone al Qaeda adventurer John Walker, writes in 2001 that “8 U.S.C. § 1481 : US Code – Section 1481” may provide such a mechanism.
As Volokh then wrote pondering whether a terrorist could be stripped of his US citizenship:

Maybe. A federal statute says that a citizen loses his citizenship by “serving in the armed forces of a foreign state if such armed forces are engaged in hostilities against the United States” but only if he does so “with the intention of relinquishing United States [citizenship].”

This topic can be more ably discussed by sharp legal minds like Jeffrey Toobin, Jeffrey Rosen and Glenn Greenwald — but it seems to me that establishing a regularized legal framework specifying that alleged terrorists be stripped of US citizenship so that the military can deal with those de-nationed individuals differently reminds me of the kind of legal gray area that Cheney national security adviser David Addington loved to create.
By posting this question, I trust that others will review other cases and the legal background of this question of stripping citizenship in times of war — and weigh in.
The Pentagon’s top stars are mulling over this issue now and just beginning to probe receptevity in the administration and among some in Congress.
— Steve Clemons

Comments

21 comments on “Stripping US Citizenship from Terrorists?

  1. Ross Wolf says:

    Who is Behind Sen. Joe Lieberman’s Proposed Fascist Legislation?
    Sen. Joe Lieberman has already endorsed McCain’s March 4th bill S.3081 that would strip Americans of Habeas corpus: Under the McCain bill, U.S. Government would need only designate an American Citizen was an “Unprivileged Enemy Belligerent” suspected of; having engaged in hostilities against the United States or its coalition partners; or purposefully and materially supported hostilities against the United States or U.S. civilians to cause their indefinite detention in military custody, without right to an attorney or trial.
    Joe Lieberman’s proposed bill would make it easy to strip Americans of their Citizenship and hold them as “Unprivileged Enemy Belligerents” as U.S. Government would only have to show a U.S. Citizen or group had slight-interaction with a foreign group that touched a terrorist organization, for example Irish Americans living on the east coast of the United States contacting their alleged IRA relatives in Northern Ireland. Since many political groups intersect, even unknowingly with alleged terrorists, Lieberman’s bill would make it possible for a U.S. Government administration to do large sweeps of U.S. Citizens denying Americans Habeas corpus, to try them in military tribunals. One might want to ask who put Lieberman up to introducing this fascist bill that favors Israel. It should be noted Joe Lieberman’s June 4th endorsement of McCain’s bill S.3081, The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010” strips Americans of Habeas corpus; there appears to be a pattern here between McCain and Lieberman legislation. McCain’s bill S.3081 would eliminate several Constitutional protections allowing Government to arbitrarily pick up Americans on mere suspicion—with no probable cause. Your political opinions and statements made against U.S. Government could be used by Authorities to deem you a “hostile” “Enemy Belligerent” to cause your arrest and indefinite detention. S.3081 is so broadly written innocent anti-war protesters and Tea Party Groups might be arrested and detained just for attending demonstrations; Government could charge that attending demonstrations “materially supported hostilities.”
    McCain’s legislation S.3081 could like Lieberman’s proposed bill be used by a corrupt U.S. government administration to crush anyone that dared question government. Under McCain’s S.3081, an “individual” need only be Suspected by Government of “suspicious activity” or “supporting hostilities” to be dragged off and held indefinitely in Military Custody. Government would have the power to detain and interrogate any individual including Americans without probable cause. Government need only allege an individual kept in detention, is an Unprivileged Enemy Belligerent suspected of; having engaged in hostilities against the United States or its coalition partners; or has purposefully and materially supported hostilities against the United States; its coalition partners; or against U.S. civilians. How could one prove to Government they did not purposely do something? “Materially Supporting Hostilities” against the United States could include any person or group that spoke out or demonstrated disapproval against an agency of U.S. Government. It is foreseeable many Americans might go underground to Resist Government Tyranny. Definition for Unprivileged Enemy Belligerent: (Anyone Subject to a Military Commission)
    At least under the Patriot Act, law enforcement generally needed probable cause to detain a person indefinitely. Passage of S.3081 will permit government to use “mere suspicion” to curtail an individual’s Constitutional Protections against unlawful arrest, detention and interrogation without benefit of legal counsel and trial. According to S.3081 Government is not required to provide detained individuals U.S. Miranda Warnings or even an attorney. It is problematic under McCain’s S.3081 that detained individuals in the U.S. not involved in terrorism or hostile activities, not given Miranda Warnings or allowed legal counsel will be prosecuted for ordinary crimes because of their alleged admissions while in military custody.
    S.3081 if passed will frighten Americans from speaking out. S.3081 is so broadly written, it appears any “individual” who writes on the Internet or verbally express an opinion against or an entity of U.S. Government or its coalition partners might be detained on the basis he or she is an “unprivileged enemy belligerent”, “supporting hostilities against U.S. Government.” The “supporting hostilities” provisions in S.3081 are so broad Government could use “suspicion” to detain U.S. corporate executives on the premise their corporations “supported hostilities” by providing goods or services to a nation engaged in hostilities against the United States.
    (Make Your Own Determination If The Analysis Herein Is Correct) See McCain’s 12-page Senate bill S.3081 at:
    assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf

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  2. David says:

    And Dick Cheney (officially OVP via Cheney operatives) had no qualms about outing a CIA operative for narrow political reasons. Still beyond my comprehension how he could get away with it, continue on as VP, and continue to be a force in American politics. Getting harder and harder to take either the popular mindset or the media culture seriously. Do take the Teapartiers seriously for John Birch mentality that infuses them. Remember McCarthyism, although at the height of McCarthyism I had just become a teenager. Saw it in action in the school system in Central Florida and remember an uncle’s first-hand view of it as a graduate student at Michigan.
    UF pre-professional counseling office when I was there 60-64 routinely sent questionnaires to instructors which included a question about whether or not there were any indications the student showed any signs of a communist taint. Don’t know the exact question, but do know from a prof that the question was part of the questionnaire.
    Reactionary nativist paranoia, when given a political vehicle, is exceedingly dangerous. The Teaparty movement has the potential to be a powerful reactionary force in American electoral politics. I certainly hope this snake can be killed in the egg.

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  3. John Waring says:

    Whoa. The slippery slope just got more snow. Sounds like a Bill of Attainder to me.

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  4. David says:

    “What we really need from leadership in this country is putting things in a more calm, less fearful, and realistic perspective.” If only, but this is something the “loyal” opposition has absolutely no interest in, and the populist rage they are both exploiting and further ginning up is just too tempting an avenue to taking back power that they will continue with utterly hypocritical assaults like the one against the Obama administration for correctly reading the Christmas day bomber his Miranda rights, treating him as a criminal, providing him with the proper protections due to all who are accused of crimes, and letting the FBI follow what they know are productive interrogation techniques and strategies, one of which was to use the assurance of American justice, not torture, to get his parents to come over and convince him to provide information about who trained and sent him.
    You want candidates for enemies of the state, if the state is this common enterprise we call the United States of America, then Dick Cheney goes to the top of the list for undermining our national security.

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  5. Mr.Murder says:

    Actually terrorist have more rights than citizens, as part of a multinational that works across borders for private interests.
    The move is not to make trials a reality. It’s to deny rights whenever possible.

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  6. Carroll says:

    Posted by John Robert BEHRMAN, Feb 10 2010, 2:50PM – Link
    The in absentia argument is bogus.
    You do not get a trial in or out of the country, in our out of civilian, admiralty, or military jurisdiction unless and until you surrender to the civilian, admiralty, or military authorities.
    US law, tradition, custom, and usage apply to all persons. They should not be more “conservative” or “liberal” than international conventions we adhere to by 2/3 vote of the Senate unless, of course, we want to wage a perpetual war of puritanical domination against the whole rest of the world.
    Oh, but Wilsonians of the left and right want to do just that. So, what are they doing on this blog?
    I see no reason why a civilian court, admiralty court, or military court depending on this or that jurisdictional punctillio should not issue a warrant to capture or kill someone, in effect, indicted for treason, brigandage, genocide, piracy or just easonably suspected of such who does not surrender and contest the charge in court.
    >>>>>>>>>>>>>>>>>
    Yea, I could go for that.
    Just as soon as we update our treason definitions and laws to reflect current political intrigue and realities so we could get the real traitors and terrorist.
    Course that would take out 80% of congress, 98% of K Street, all of AIPAC and dozens of other American hyphen orgs that exist to subvert the US into illegal wars for power and profit.
    Let’s do it.

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  7. Scott says:

    Edward Furey,
    I think you missed the part of the law where it talks about citizens who are “committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States…” 18 U.S.C. 1481(a)(7). http://www.law.cornell.edu/uscode/html/uscode08/usc_sec_08_00001481—-000-.html
    Perhaps they are envisioning stripping citizenship from someone who bears arms against the U.S., or commits treason.

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  8. Mark Stout says:

    The U.S. Government did this during World War I in certain limited circumstances. The War Department was sometimes able to convince the courts to strip the citizenship from naturalized citizens who were suspected of committing espionage or otherwise sympathizing with the Germans. The argument was that these people had lied when during their naturalization proceedings that they swore under oath that they would be faithful only to the U.S.

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  9. mike/ says:

    is this about naturalized citizens only?
    how can a person born in the U.S. as a citizen loose citizenship?
    is this something that these people want to start?
    pretty scary. what will come next?

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  10. Paul Norheim says:

    My guess is that they primarily want to get rid of those young
    Americans who during the last 3-4 years have joined the jihadists
    in Somalia:
    http://www.nytimes.com/2009/07/12/us/12somalis.html

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  11. Dan Kervick says:

    Steve, what do you know about the motives behind these discussions? That is, *why* exactly would people in the Pentagon be spending any of their valuable time thinking about ways to be dishonorably discharged, as it were, from United States citizenship? How may people would these new laws apply to? Is there an urgent problem with large numbers of US citizens doing bad things? And what is it they want to do with these decommissioned citizens, exactly?
    Do they want to deport them?
    Do they want to assassinate them?
    Do they want to send them to Gitmo?
    As TS writes, it is very disturbing that there are people in the US military who are involving themselves in these issues of domestic US governance. Our civilian leaders need to send then message in no uncertain terms to these cats that they are prowling outside their territory.
    This is what happens when you declare a “permanent war”. It’s all war, at all places, all the time. Eventually the warlords will suck up everything into their war.

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  12. jdledell says:

    I simply cannot understand why this issue is turning out to be a big deal. In the war on terror we have spent trillions of dollars, thousands of soldiers lives, probably a 100,000 Iraqi and Afgani civilian lives and our generals and the Pentagon are spending time on how to effectively try the handful of Americans involved in terror? As far as I know our civilian courts have successfully prosecuted Americans and others? Why do we need to tempt fate with the slippery slope of starting to strip citizenship?
    Whenever I’m in Israel I hear constant talk about how come we can’t try(or just hold in Administrative detention) Palestinian Israelis like they do in the West Bank. Why can’t we just strip them of their Israeli citizenship when they start throwing rocks and bottles at demonstrations. Periodically, you see bills introduced in the Knesset to do just that but none have come close to passing-yet. It really is a VERY slipperry slope and could move quickly, even in America.

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  13. Mr.Murder says:

    The Posse Comitatus is turning into a lynch mob.

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  14. Edward Furey says:

    Assuming the law is quoted correctly, it applies to persons serving in the armed forces of a foreign state. A terrorist group is hardly the armed force of a foreign state. It’s more like a mafia gang or a drug cartel. Sometimes literally, as some terrorist are using drugs and committing crimes like extortion to finance their “ideological” operations.
    So the law, as quoted, simply does not apply. It sounds like it was intended to apply to American citizens who fought in the German or Italian armies in World War II, for example, of whom there were probably some.

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  15. John Robert BEHRMAN says:

    The in absentia argument is bogus.
    You do not get a trial in or out of the country, in our out of civilian, admiralty, or military jurisdiction unless and until you surrender to the civilian, admiralty, or military authorities.
    US law, tradition, custom, and usage apply to all persons. They should not be more “conservative” or “liberal” than international conventions we adhere to by 2/3 vote of the Senate unless, of course, we want to wage a perpetual war of puritanical domination against the whole rest of the world.
    Oh, but Wilsonians of the left and right want to do just that. So, what are they doing on this blog?
    I see no reason why a civilian court, admiralty court, or military court depending on this or that jurisdictional punctillio should not issue a warrant to capture or kill someone, in effect, indicted for treason, brigandage, genocide, piracy or just easonably suspected of such who does not surrender and contest the charge in court.
    There is no reason that bleeding-heart liberals who, nonetheless, support draconian drug laws and would never get in a fight with the police union should apply a different standard to prep-school terrorists from that applied to the ghetto crack-dealers who are shot and killed every by the precious heiress and property-value police.

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  16. DonS says:

    1) This report and the activities at the pentagon strike me as a response to the publicity surrounding the assassination ‘list’, including Americans. It is reminiscent of the Cheney-Bush penchant for circumventing the Constitution in the ‘GWOT’, and then papering over, in advance or after the fact, as needed.
    2) It also suggests to me that al-Alaqi is the designated villain for the US to avenge the Fort Hood shooting. Political assassinations in the best ‘dead or alive’ GW Bush tradition. It would be another example of misguided tactic in combating terror attacks, generating more ‘terrorists’ than it eliminates, and eliminating how many innocents (?) in the process.

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  17. TS says:

    Leaving aside the issue of whether citizenships should be stripped or not: I am disturbed about these discussions happening in the Pentagon. This is way outside their jurisdiction. Maybe time for the Commander in Chief to tell his generals to keep their noses out of civilian affairs? Don’t we have a Justice department for this sort of stuff? What’s next, the Pentagon discussing changes to our agricultural policies?

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  18. Linda says:

    These are indeed very difficult issues because they really are about finding someone guilty of treason and then imposing the death sentence in absentia without a trial to prove it.
    It has the potential for McCarthyism and the Cold War mass hysteria. I am pretty sure that the Rosenbergs were the first civilians in U.S. history to be executed for treason–and I think, but am not sure, that they still are the only ones. And Ethel probably should not have been executed as she knew about it but wasn’t spying.
    What we really need from leadership in this country is putting things in a more calm, less fearful, and realistic perspective.

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  19. John Robert BEHRMAN says:

    I think there are precedents for this going back to the War of 1812. That involved the definition of treason which, if I recall, is not fleshed out in statutory law.
    In any event, I do not see what a competent civilian authority cannot entertain a whole series of motions that would essentially indict a citizen and offer arraignment and full judicial protection or, on failure to take that, forfeit citizenship and authorize a military warrant to capture or kill abroad.
    The definition of treason includes overthrow of the US constitution, taking up arms, and levying war — all of which are explicit in Salafist jihad.

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  20. Steve Clemons says:

    Scott — it feels like a slippery slope to me too, but to be clear I dont think that there is any way that the military alone can make such a designation…it would need other parts of government to make this kind of thing work, which is why I find the quiet discussions and exploratory chats by some in the Pentagon interesting.

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  21. Scott says:

    The potential slippery slope argument here is very troubling — if the military can strip US citizenship from someone, depriving them of their rights and civil liberties, what is to stop them from doing it for other reasons? For political beliefs or statements we might find objectionable?

    Reply

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