Friday, May 7, 2010

The Terrorist Expatriation Act: Revoking Citizenship and the Constitution

Sen. Joe Lieberman, Sen. Scott Brown, and two equally spineless Representatives have introduced the Terrorist Expatriation Act (TEA), a piece of legislation so disturbing that it makes Arizona's outrageous immigration law seem trite. Under the TEA, the Secretary of State would have the power to involuntarily revoke the citizenship of U.S. citizens suspected of having ties to designated terrorist organizations.

From a practical perspective, the measure's supporters naively assume that there is an obvious distinction between terrorist groups and other organizations. Today, mainstream society celebrates Nelson Mandela as one of the greatest leaders ever, but before the fall of apartheid in South Africa, right-wing politicians often sought to cast Mandela as a terrorist largely because of his perceived sympathy for communism. That the term "terrorist" has no clear and objective meaning shows that the potential for arbitrary, capricious, and patently unjust enforcement of the TEA is alarmingly vast.

From a legal standpoint, this law would be unequivocally unconstitutional. Article I, section 9 of the Constitution forbids Congress from passing bills of attainder. A bill of attainder, as defined in Merriam-Webster's Dictionary of Law, is "a legislative act that imposes any punishment on a named or implied individual or group without a trial" (see note 1).The constitutional ban on bills of attainder simply reinforces the unremarkable principle that a person cannot be punished for a crime without the benefit of a fair and adversarial trial. It doesn't take a legal scholar to see that the TEA, which seeks to severely punish citizens who are suspected of having supporting terrorist groups, qualifies as a bill of attainder and is facially unconstitutional. Finally, the TEA -- perhaps implicitly -- criminalizes support of terrorist groups, but the Constitution requires that any person accused of any federal crime be tried by a jury (Article III, section 2, as well as the Sixth Amendment).


The Tea Partiers and their cohorts in Congress hysterically accused supporters of health care reform of never having read the Constitution. It will be interesting to see if these self-styled "strict constructionists" will object to such a blatant and incontrovertible assault on civil liberties.


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