Why the Terrorist Expatriation Act is Unconstitutional: Early Thoughts

D.C. is atwitter today with news of Congress's latest foray into counterterrorism policy: the Terrorist Expatriation Act of 2010, a measure introduced by Senator Lieberman (with bipartisan and bicameral support) that would provide for the denaturalization or expatriation of a U.S. citizen upon a finding by the Secretary of State that s/he has provided material support to terrorism, in violation of the federal material support statutes (18 U.S.C. 2339A and 2339B). (I'll try to link to authoritative text once it's available.)

Leaving aside the myriad issues with the material support statutes (several of which are currently before the Supreme Court in the Humanitarian Law Project case), it strikes me that there is an obvious flaw in the bill:

Under existing law (see 8 U.S.C. 1481), citizens can be denaturalized or expatriated if they commit one of seven sets of acts. The first six are all classical examples of voluntary indicia of a citizen's intent to adhere to a foreign nation, including "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years," or "entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer," among others. Voluntariness, as the Supreme Court has repeatedly held, is the constitutional predicate to denaturalization or expatriation.

The seventh category is the tricky one.  

Pursuant to it, citizens can be denaturalized or expatriated by

committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of Title 18, or willfully performing any act in violation of section 2385 of Title 18, or violating section 2384 of Title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

The emphasis is my own, and it highlights the key language--that one can be denaturalized or expatriated only _after_ a conviction, which requires proof beyond a reasonable doubt (and, in the case of treason, the testimony of two witnesses to the same overt act).

Whatever one may say about analogies (or the lack thereof) between providing material support to terrorism and the egregious offenses delineated in 1481(a)(7) (more on that later), it strikes me as a monumentally significant distinction to allow denaturalization or expatriation based not on conviction for a crime, but merely the Secretary of State's administrative finding that you have provided material support to designated foreign terrorist organizations.

Don't get me wrong--I'd have issues with the TPA even if it required a conviction under 18 U.S.C. 2339A or 2339B before expatriation or denaturalization. But those issues simply pale in comparison to the problems with the bill as currently drafted.

Update: Here is a link to the bill.

Update II: Because I couldn't resist, here is the Supreme Court from Kennedy v. Mendoza-Martinez (1963), a remarkably comparable case: "[T]he Fifth and Sixth Amendments mandate that this punishment cannot be imposed without a prior criminal trial and all its incidents, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. If the sanction these sections impose is punishment, and it plainly is, the procedural safeguards required as incidents of a criminal prosecution are lacking."