Buried in the otherwise mundane budget and expenditure bill is a provision under Section 1021 permitting the indefinite military detention, without a formal charge or public trial, of anyone suspected of participating in or aiding a terrorist organization engaged in hostilities against the United States. President Barack Obama, after initially vowing to veto an original version of the legislation that applied the provision to U.S. citizens, signed a revised version on Dec. 31.
The president included a signing statement where he discussed some of his objections to the bill, emphasizing that his administration would not authorize the indefinite military detention of American citizens without trial. However, critics have pointed out that the signing statement cannot control how future administrations interpret the provision.
As the controversy played out, legislation that could completely bypass the amended law was already in the works. In October, Rep. Charles Dent, R-Pa., and Sens. Joseph Lieberman, I-Conn., and Scott Brown, R-Mass., introduced a slight but powerful amendment to the Immigration and Nationality Act that gives the government the authority to strip a person of their American citizenship if that person is accused or suspected of supporting hostilities against the U.S.
The amendment, known as the Enemy Expatriation Act, would allow the government to revoke Americans of their U.S. citizenship if they are accused or suspected of engaging in, or purposefully or materially supporting, hostilities. The sparse amendment, which defines hostilities as any conflict subject to the laws of war, does not say which government body -- say a military tribunal or a congressional panel -- has the power to brand suspected persons as hostiles.
Enemy Expatriation Act Could Circumvent NDAA Provision
Devon Chaffee, a legislative counsel for the American Civil Liberties Union, said the proposed amendment could theoretically be used to circumvent current laws, including the NDAA. If the amendment became law, the government could potentially revoke the citizenship of anyone deemed to be supporting hostilities against the U.S., thereby subjecting him or her to the indefinite military detention provision of the NDAA.
Fortunately, it's unlikely that Congress would pass something like this. If it did, the law would probably be found unconstitutional since the Supreme Court has ruled that Congress cannot revoke U.S. citizenship without a citizen's consent, Chaffee said.
The U.S. Supreme Court's 1967 decision in Afroyim v. Rusk set that landmark precedent, ruling that the right of citizenship is protected by the Fourteenth Amendment. In doing so, the nation's high court actually overruled one of its own precedents set in Perez v. Brownell (1958), where it decided Congress is within its right to revoke U.S. citizenship in certain circumstances.
The theory behind this is citizenship is a core civil liberty. That's why the right to nationality is recognized by the global community as a fundamental human right, Chaffee said, referring to the United Nations' Universal Declaration of Human Rights.
Legally, Americans Must Renounce U.S. Citizenship to be Stripped of Those Privileges
Under the regulations set by section 349 of the Immigration and Nationality Act, Americans can only lose their U.S. citizenship if they renounce it in some way -- such as by submitting a formal written renunciation to the attorney general or announcing the intention before a diplomat or consular office of the U.S. The law also states that joining the military of a foreign state or engaging in a conspiracy to overthrow, put down, or to destroy by force the U.S. government are actions that can be interpreted as voluntarily renunciations of citizenship.
The sponsors of the Enemy Expatriation Act argue the legislation is constitutional because citizens who engage in hostilities against the U.S. perform those acts with the intention of relinquishing their nationality. In a statement announcing the proposal, both Lieberman and Dent cited Anwar al-Awlaki, the American-born Muslim cleric who led al-Qaida operations in Yemen.
The repeated attempts by the now-deceased al-Qaida leader Anwar al-Awlaki to recruit other American citizens to strike our homeland demonstrates the necessity of updating our laws to account for an enemy who would subvert our freedoms to attack us, said Lieberman.
Obama authorized the assassination of Awlaki, and the cleric was killed by a U.S. drone strike in Yemen in September 2011, raising a barrage criticism from civil liberties organizations that argued the targeted killing of an American citizen without trial obstructs his or her constitutional right to due process.
The vague language of the Enemy Expatriation Act -- a version of which Lieberman and Brown also co-sponsored in 2010 as the Terrorist Expatriation Act -- is what poses the greatest civil liberties threat to American citizens.
In 2010 the Supreme Court ruled that material support to a foreign terrorist organization includes everything from money and weapons, to expert advice or assistance, even when that advice has nothing to do with aiding attack efforts against the U.S. As a result, that material support is not a form of First Amendment-protected political speech, a decision that critics such as Noam Chomsky said constituted an attack of freedom of speech tantamount to the notorious Smith Act of 1940, which set criminal penalties for advocating the overthrow of the U.S. government.