Law Opinion
Thoughts on the proposed US Terrorist Expatriation Act
Sadia H. Khan
AS a response to the failed car bomb attack by a Pakistani American citizen Faisal Shahzad in Times Square New York on April 28, Connecticut Senator Joe Lieberman is planning to introduce a new Bill in the Congress along with Scott Brown, Jason Altmire and Charlie Dent. Joe Lieberman is the chairman of the Senate Homeland Security Committee and a powerful member of the Senate. His proposed Terrorist Expatriation Act contains provisions which are designed to take away citizenship on the ground of reasonable belief of a persons' affiliation with foreign terrorist group. This Act, if passed may replace the current expatriation laws in the US Besides it may be in violation with the Due Process clause of the US constitution.
The expatriation laws in the US
The current law of expropriation in the US is heavily based on the 1967 Supreme Court decision in Afroyim v Rusk. This case established the principle that US citizens may not lose their citizenship without their consent. Subsequently in Terrazas v. Vance (1980) the US Supreme Court unanimously decided that the intention to renounce citizenship can not be presumed and must be proved by the government by a preponderance of the evidence. These decisions were codified by the Immigration and Nationality Act (INA), 8 USC Section 1481 (1986).
Nationality is lost only if certain acts are done voluntarily and with the intention of relinquishing US citizenship. Those acts as provided by the INA are-
1. Naturalizing in a foreign state after the age of 18.
2. Taking a oath of allegiance to foreign state after the age of 18.
3. Serving in the armed forces of foreign state as commissioned or non-commissioned officer or when those forces are engaged in hostilities against the US.
4. Under certain circumstances, working for a foreign government.
5. Formally renouncing US nationality before a US diplomatic or consular officer abroad.
6. Formally renouncing US nationality in the US with approval of the Attorney General while the US is at war, or
7. Committing and act of treason against the US.
In all these cases the party who is claiming the expatriation has the burden of proof and the burden is pretty high.
Current denaturalization laws in the US
From the reading of section 1481 it seems like Faisal Shahzad, a naturalized US citizen can be denaturalized on the ground of committing treason against the US. Article III, section [3] of the US constitution provides-
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in the Open Court”.
Faisal Shahzad has been reported to be co-operative to the authority and has been answering questions candidly in custody. Based on this, it may not be any problem to establish his guilt in an open court and subsequently take away his citizenship on the ground of being convicted for committing treason. All these can be done in accordance with the current expatriation law and within the sphere of the constitution.
The Terrorist Expatriation Act
The Terrorist Expatriation Act is not based on expediency. It is an unwise attempt to empower a government agency to determine whether any US citizen is affiliated with a terrorist organization and thereby take away their citizenship. According to Senator Lieberman, citizenship stripping would apply to any "American citizen who is found to be involved with a foreign terrorist organization as designated by the State Department." 
Under the current US law, an agency is not entitled to take away citizenship. In Gorbatch v. Reno (2000), United States Court of Appeals for the Ninth Circuit decided that administrative denaturalization in an unlawful usurpation of authority granted solely to the federal court by Immigration and Nationalization Act, Section 340(a). Denaturalization is purely a judicial process, entertained by courts which have the jurisdiction (most of the cases a federal district court) regardless of the fact that the naturalization court was a state or federal court or an administrative agency.
Besides, the proposed law may violate the Due Process clause of the Fifth Amendment. According to the Terrorist Expatriation Act, if an American citizen is accused of terrorist association the person will lose his citizenship before conviction. It does not seem to conform to the due process clause which provides that no person shall be deprived of his life, liberty or property without due process of law. The clause provides the right of a fair hearing. The US constitution requires evidential hearing even before cancellation any entitlement by the government such as welfare benefits, Social security benefits.
Conclusion
American justice system is based on the concept of due process and equal protection. Guilt by association is not the most credible way of convicting a person. The proposed Terrorist Expatriation Act is manifestly unconstitutional. The Act purports to violate the very basic rights of an accused who has the right to remain innocent unless convicted of a crime. A law which pronounces judgment of before proving the guilt has to be set aside by the free people.
The writer is doing her LL.M on Comparative law at the University of Missouri Kansas City, USA.
