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Brown wants citizenship revoked for terror ties

Critics question legality of bill

Senator Scott Brown (left) spoke yesterday with other congressional representatives in Washington on a bill aimed at limiting US citizens’ support of terrorist groups. Senator Scott Brown (left) spoke yesterday with other congressional representatives in Washington on a bill aimed at limiting US citizens’ support of terrorist groups. (Brendan Smialowski for The Boston Globe)
By Farah Stockman and Matt Viser
Globe Staff / May 7, 2010

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WASHINGTON — Senator Scott Brown responded to the attempted Times Square bombing yesterday by cosponsoring a bill that would allow the United States to strip Americans of citizenship if the government determines that an individual supported or joined a terrorist group.

But a host of scholars and fellow lawmakers, including the House Republican leader, Representative John Boehner of Ohio, immediately questioned the constitutionality of the proposal, saying it was at odds with a half-century of Supreme Court precedents that ruled that citizenship can be relinquished only voluntarily. The legislation would affect US citizens whether they are native-born or naturalized.

Some said the Terrorist Expatriation Act was worded so broadly that those who write checks to groups on the State Department’s list of terrorist organizations could be at risk of losing citizenship.

The bill, cosponsored with Senator Joseph Lieberman, the Connecticut independent, is the highest-profile legislation that Brown has backed. The measure, which quickly attracted considerable national controversy, amounts to a strong political statement; after spending months saying he was focused on nuts-and-bolts issues such as jobs, the Massachusetts Republican ventured yesterday into hot-button debates over immigration, counterterrorism tactics, and the extent of federal power.

“We have home-grown terrorists among us,’’ Brown said at a Capitol Hill press conference, mentioning attacks at Fort Dix and Fort Hood, as well as Sudbury resident Tarek Mehanna, who was arrested in October on federal terrorism charges for allegedly planning attacks that included targeting people at a mall. “They remain determined to try and infiltrate.’’

“Our enemies today are even more willing than the Nazis or fascists were to kill innocent civilian Americans here in our homeland,’’ Lieberman said.

The bill expands a 1940 law that allows the State Department to remove the citizenship of anyone who is determined to have pledged allegiance to foreign armies or states.

The proposed measure would give the State Department wide discretion to determine whether an American should be stripped of citizenship. The decision would be made in an administrative process and does not require a court hearing or a conviction of a crime, although the ruling can be appealed in a court.

The senators and their aides portrayed the bill as a common-sense response to Saturday’s attempted car bombing in Times Square, allegedly by a naturalized citizen from Pakistan, and as a new tool to prevent terrorists from traveling freely into the country. However, the proposed law would not apply to the man arrested, Faisal Shahzad, because it is not retroactive.

But critics said the measure is extreme and unnecessary.

“Citizenship is a cherished right and we can’t have Congress deciding at the spur of the moment to strip citizenship,’’ said Francis A. Boyle, a professor at the University of Illinois Law School. “Any United States citizen can be prosecuted to the limits of the law. They could be prosecuted for treason, up to the death penalty. . . . What more could you want than that?’’

Laws stripping citizenship date to 1907, said Stephen I. Vladeck, a professor of law at American University. In 1940, as the United States geared up for a war in Europe, Congress passed an act that allowed the State Department to take away the citizenship of anyone who had declared allegiance to another country or served in foreign armed forces.

In 1952, at the height of the McCarthy era, Congress revamped the statute and added new provisions aimed at communists, allowing the removal of citizenship for anyone guilty of treason or advocating the nation’s violent overthrow.

But the Supreme Court has continuously ruled to limit the power to strip citizenship, legal scholars say, ruling time and time again that the government must prove a person’s intent to give it up.

A Brown aide said the proposed law was constitutional because joining a foreign terrorist organization can be interpreted as a desire to cease to be an American citizen.

“Your actions can be construed as intent to give up your citizenship,’’ said Bill Wright, a Brown aide on homeland security matters. “Blowing up a car bomb in New York City and joining a foreign terrorist organization could imply intent to relinquish your citizenship.’’

Eugene Fidell, who teaches military law at Yale Law School, said the bill would not take away suspects’ rights to a criminal trial if they are arrested in the United States and charged with a crime. But for suspects captured abroad, the bill would prevent them from reentering the United States and could open up the possibility of their transfer to military detention overseas, putting them on a par with foreign “enemy combatants’’ at Guantanamo Bay.

Two House members from Pennsylvania — Jason Altmire, a Democrat, and Charles Dent, a Republican, said they plan to file identical legislation in the House. Senator John F. Kerry, Democrat of Massachusetts, said he didn’t know whether he could support the bill because he hasn’t studied it yet.

The Obama administration appeared to reject it.

“I have not heard anybody inside the administration who is supportive of that,’’ White House Press secretary Robert Gibbs said.

Legal specialists said the law also could apply to Americans who write checks to Hamas or Hezbollah — two groups on the State Department’s terrorism list — if the US officials determine they are displaying an intent to give up American citizenship.

“The bill is so broad that it would allow the government to strip citizenship from someone who never committed a hostile act against the United States,’’ said Vladeck. He said providing material support to terrorists could be interpreted as broadly as preparing Hamas or Hezbollah to advocate before the United Nations.

David B. Rivkin Jr. of Baker Hostetler, a Washington law firm, said the gravity of the terrorist threat makes it understandable that lawmakers would try to reserve the right to revoke the citizenship of suspects. But he said the Supreme Court is unlikely to uphold such a law.

“I understand the policy imperatives,’’ he said. “I just don’t think it’s going to work.’’

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