Joe Lieberman introduced a controversial new bill today that would extend 8 U.S.C. § 1481 to “terrorists”. In more obvious terms, the bill serves to strip terrorists of their U.S. citizenship. There are many reasons why this bill is dumb, some of which are mentioned here (including the fact that it might be unconstitutional). Even conservatives don’t like the thing:
John Bellinger, a legal adviser to the Secretary of State during the Bush administration, told the Huffington Post’s Sam Stein that the Lieberman bill “sounds like a draconian solution. I assume the Senate has thought through the constitutional issues but I would want to see what the standards are for stripping someone of their citizenship and what opportunities they would have for notice and to challenge the decision… It certainly seems like a far-reaching step.”
I was originally going to write a post about how this bill is actually rather meaningless, but Opinio Juris beat me to it. Surprisingly, however, they overlooked the interesting consequence of the bill for international law scholars. The bill would strip citizenship from anyone doing any of the following:
(A) providing material support or resources to a foreign terrorist organization;
(B) engaging in, or purposefully and materially supporting, hostilities against the United States; or
(C) engaging in, or purposefully and materially supporting, hostilities against any country or armed force that is—
(i) directly engaged along with the United States in hostilities engaged in by the United States; or
(ii) providing direct operational support to the United States in hostilities engaged in by the United States;
“Hostilities” are defined as “any conflict subject to the laws of war.” Hmmm … what an interesting way to frame “hostilities.” So basically, anytime a ‘terrorist’ is accused of being engaged in ‘hostilities,’ courts will have to determine if humanitarian law is applicable. That means (I would imagine) looking to the Geneva Conventions, the Hague Conventions, and the many other treaties, etc. governing the laws of war. Sounds like a Jessup problem in the making.
No doubt there are many U.S. District Courts that are excited about the prospect of diving into IHL. Or maybe not.
Update: Professor Steve Vladeck suggests that a lawyer filing an amicus brief on behalf of a terrorist organization could face automatic expatriation under this bill.