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Thursday, May 06, 2010

More on the Terrorist Expatriation Act: The Vagaries of Material Support

As I noted earlier, much attention inside the beltway today has been on the proposed Terrorist Expatriation Act, introduced this afternoon by Senators Lieberman and Brown (along with a host of House members). In my first post, I outlined the most striking problem with the bill -- the fact that it doesn't require a conviction, but rather a mere administrative determination by the Secretary of State that one has provided material support to a designated foreign terrorist organization.

To be clear, though, I believe that the bill would be pretty terrifying even if it made denaturalization or expatriation contingent upon a conviction for violating the material support statutes, 18 U.S.C. 2339A and 2339B, for three reasons I'd like to briefly lay out below:

First, I have trouble, in general, with the proposition that breaking a criminal law provides the requisite "voluntariness" that the Supreme Court has always held to be the touchstone for denaturalization or expatriation. It's one thing to take an oath to support a foreign sovereign, or to enlist in the armed forces of a foreign state (that's not even enough, by the way, under Section 1481, unless we're at war with said state). But committing a crime under U.S. federal law could have any number of motivations, none of which have anything to do with a specific intent to renounce one's citizenship. So, part of my problem is with all of Section 1481(a)(7), and the notion that a criminal conviction is ever sufficient to justify denaturalization or expatriation.

But even if some crimes could be taken as manifesting that intent (treason being the most obvious example), presumably there must be some element of the crime that presupposes a desire actively to wage war against the United States. And that brings me to...

Second, even if some crimes embrace the kind of affirmative renunciation of adherence to the United States sufficient to constitute "voluntary" denaturalization or expatriation, it seems to me that those crimes must include as elements (1) an intent to engage in hostilities against the U.S. government; and (2) affirmative conduct in furtherance of that intent.  Providing material support to terrorist organizations under 2339B includes no such requirements. Rather, it requires only that the defendant knowingly provide "any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, . . . and transportation, except medicine or religious materials." It's a bit more technical than that, but you get the gist. The support need not be violent, and, as importantly, it need not be with the intent of harming the United States, let alone supporting hostilities against the United States. Thus, if "material support" can be a crime that subjects a defendant to denaturalization or expatriation, it's hard to imagine a violation of federal law that couldn't be.

Third, and more specifically with regard to the material support statute, there are substantial (pending) issues with regard to its scope, given that the Ninth Circuit invalidated the "service," "training," and "expert advice or assistance" provisions on vagueness grounds.  That ruling is the subject of the Humanitarian Law Project case currently before the Supreme Court that I referenced earlier, one particular snippet of which bears mention here:

At one point, Justice Kennedy asked Solicitor General Kagan if filing an amicus brief on behalf of a designated foreign terrorist organization would constitute "service" under 2339B, and thereby subject the brief's author to criminal prosecution [see pg. 47 of the transcript]. General Kagan's answer, to perhaps everyone's surprise, was "yes." Specifically, as she put it, "to the extent that a lawyer drafts an amicus brief for the [designated groups], . . . then that indeed that would be prohibited."

So, putting this all together, under the prevailing view of the material support statute, a lawyer who files an amicus brief on behalf of a designated foreign terrorist organization could not just be prosecuted for violating 2339B, but could be expatriated (under the Lieberman bill), and without even having to go through the hassle of a criminal trial.  I guess that's one way to get rid of the lawyers...

Lots of people far more eloquent and erudite than I am have written passionately about the signal importance of the Citizenship Clause of the Fourteenth Amendment.  And there are any number of epigraphs one could select from the Supreme Court's jurisprudence interpreting that provision (and extolling its significance).  All I'll say here is that we start to enter exceedingly dangerous territory when we discuss relaxing time-honored standards for depriving our fellow citizens of their birthright. If they are guilty of the crimes with which they are charged, then they should spend a very long time in prison. As American citizens.

Posted by Steve Vladeck on May 6, 2010 at 09:38 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink


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8 U.S.C. 1481(a) has a specific intent requirement ("with the intention of relinquishing United States nationality") that applies to every subsection of 1481(a), and the Lieberman bill does not change that, so your first worry is not really a worry -- yet. Or at least it needs a different formulation (e.g., the specific intent requirement will be read out of the statute for acts outlined in the Lieberman bill -- and whether this will in fact turn out to be the case is a pretty complicated question).

Posted by: Jae Lee | May 6, 2010 10:38:44 PM

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