Tuesday, May 04, 2010

Glenn Beck as civil libertarian and Joe Lieberman as authoritarian

Sandy Levinson

I note, with some admitted astonishment, the following from a story just posted on the New York Times about the right-wing criticisms being directed at the Administration for deigning to respect any legal rights of the "Times Square bomber":

Among those who took another view, though, was Glenn Beck, the conservative Fox News commentator who said Mr. Shahzad was entitled to his constitutional rights.

"He’s a citizen of the United States, so I say we uphold the laws and the Constitution on citizens,” Mr. Beck said. “He has all the rights under the Constitution. We don’t shred the Constitution when it’s popular. We do the right thing.”

As someone who has certainly not refrained from harsh criticism of Mr. Beck--I think I used the word "fascist" to describe him--it seems incumbent to recognize his decidedly welcome support of constitutional rights for (at least) unpopular citizens. That's more than John McCain is now willing to do.

Then there's Joe Lieberman:

“It’s time for us to look at whether we want to amend that law [depriving citizenship of those who enlist in foreign militaries against the US] to apply it to American citizens who choose to become affiliated with foreign terrorist organizations,” he said, “whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.”

There may be something to be said for his first suggestions, at least so long as it remains constitutional to engage in involuntary denaturalization at all. The Supreme Court has tightened the circumstances, but I suspect there would be five votes on the current Court for such a proposal. But consider the implications of the suggestion by this Yale Law School graduate, former Attorney General of Connecticut who believes that it is enough simply to allege that status to lose all "rights that come with that citizenship." No trial or conviction necessary in Sen. Lieberman's world. I'll take Glenn Beck (or, for that matter, the Antonin Scalia who forcefully dissented in Hamdi and said in effect that any policy like Lieberman's would require the Congress overtly to suspend habeas corpus) over the egregious junior senator from Connecticut. Will the Nutmeg State actually return this continuing embarrassment to the Senate in 2012?


It had always been an expatriating act (leading to loss of citizenship) to serve in the armed forces of a foreign state engaged in an armed conflict with the US. It is not, therefore, so great a step to expand that to also include serving in the armed forces of a foreign non-state terrorist group engaged in an armed conflict with the US.

In a series of cases including Afroyim v. Rusk and Vance v. Terrazas the Court ruled that expatriation was too serious a consequence to be the result of an unintentional act. However, these cases dealt with innocent acts like voting in a foreign election or filling out some foreign government paperwork. So while civil intent to surrender citizenship may be a legitimate requirement for a paperwork violation, Congress could change the law and the Court could be pressed to revisit the question of whether criminal intent (to serve in the armed forces of an enemy of the US or to aid a terrorist organization in attacks on the US) provides sufficient "intent" to meet the Constitutional requirement discussed in those cases even when this Treason is not accompanied by any explicit plan to surrender citizenship.

Let us be clear that this envisions Congress passing legislation that, although in line with the pre-Afroyim practicesm, appears on its face to be a violation of the language of Terrazas. It would then present the Court with an opportunity to clarify whether Terrazas really applied not just to filling out a Mexican government form but also to serving in the armed forces of a foreign enemy that seeks the mass slaughter of American civilians. Perhaps, on reflection, the Court would find that it did not intend to include that type of action in its earlier decisions. Alternately, the Court could explain that these acts are so serious as to inherently incorporate the required intent which the previous cases indicated could be expressed "by actions" as well as "by word".

That said, expatriation is always a civil (not a criminal) procedure but it is an serious matter that requires judicial process and the protection of the rights of the accused. If this is done, then adding loss of citizenship to the other consequences of these acts is not historically unusual.

Kudos to Sandy for noticing the precise moment when Glenn Beck's clock was right. The argument that Lieberman puts forward is nothing new here--its the basic argument for keeping suspected enemies locked up in Gitmo--but it is frightening to consider extending that policy to apply to US citizens.

Note to Mr. Lieberman: when you find yourself right of Glenn Beck, you should stop drifting rightward. Also, try to spend less vacation time in the Arizona legislature.

"Affiliation" is a vague term that does not appear to mean to be the same as "enlistment" which is a more clear-cut matter.

National citizenship is lost there because you are pledging allegiance to another nation. Pledging alliance to a group is not the same thing.

I also don't know what the fact it is somehow "foreign" is determinative. The KKK did much more harm than some Mexican rebel group in 1870, right? Isn't the Catholic Church, for instance, a foreign institution? I hear priests don't want to follow immigration laws, influenced by foreign based propaganda.

But, it takes injustice to another level to argue that mere charges, not even civil judicial process, should even be a credible consideration to strip someone of citizenship. I hope JL here never did any defense work.

Beck might be a bit of a nut. But, even he, I guess, has limits.

Beck's position was unsurprising. We share the position that the Constitution protects the rights of the People and not foreign enemies who war against the People.

Shahzad is a citizen. He gets a trial. I would only hope that Justice tries to assemble a case for treason instead some weak assisting terror charge and seeks the death penalty. Traitors are the lowest form of human life and should be treated as such.

It's a pretty sad day when Glenn Beck and Baghdad Bart are the voices of reason in the GOP, however temporarily.

On the other hand, Baghdad, do you really think he should be put to death for being a failure as a terrorist?

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It is obviously unsettling that election officials are arguing for a legal regime where mere allegations of terrorism are enough to strip U.S. citizens of their Constitutional rights.

However, I think there is something to the idea that we also ought to be somewhat wary of creating an entire two-track system for the prosecution of alleged terrorists.

If we allow citizenship to be the golden ticket, and let non-citizen languish under some other set of much more harsh rules, we will do two things: first, create an incentive for foreign terrorist groups to merely recruit more U.S. citizens, and second, continue to destroy what good will remains from foreign countries when we hold their nationals under circumstances we don't tolerate for U.S. citizens.

Someone (maybe it was Ben Wittes?) argued that to create a long-lasting legal regime that will earn international buy-in, we can't afford such a naked two-track process.

Whatever process we employ, it ought to be created via the legislature and not the judiciary.

With two poor shots, each will end up hitting the other's target.

Joe's comparison of "affiliation" and "enlistment" makes me think that in an immigrant nation such as America there continue ethnic ties with foreign places that sometimes may appear to be anathema to America's interests (that may be changing from time to time), testing a citizen's (whether by birth or naturalization) loyalties, even where such a citizen may have good intentions. Here, the line was crossed. But in many instances, there are gray areas.

I don't know why this should be particularly shocking. As a general rule, it's not that conservatives want less respect for the constitution than liberals. They just tend to want it violated in different ways. Your average liberal gets to think of himself as more civil-libertarian than conservatives only by dint of refusing to recognize as rights those civil rights he wants violated, such as property rights, or the 2nd amendment.

So, Beck isn't a cardboard cutout anti-civil-civil liberties hatemonger conservative. This would only surprise people who'd never listened to him.

At the WaPo today (5/5/10), Ann Telnaes' video cartoon "Sen. McCain and Rep. King Speak Out Against Reading Suspected NYC Bomber His Miranda Rights" is quite explosive.

As for Glenn Beck, he is joined here by our former backpacker and Brett to replace a past slapstick trio; no, not the Marx or Ritz Brothers.

do you really think he should be put to death for being a failure as a terrorist?

Yes, yes, and an emphatic "yes."

In light of Scalia's opinion in Hamdi, I'm not sure there are 5 votes which would support tightening the denationalization rules. Of course, this is Scalia....

do you really think he should be put to death for being a failure as a terrorist?

Yes, yes, and an emphatic "yes."
# posted by PMS_CC : 10:49 AM

Why? He didn't kill anyone. Why the bloodlust?

Doesn't Lieberman have some associaton with Yale?

The notion that you should lose your rights as a citizen the moment you're accused of engaging in terrorism was already on full display in 2002 in the mistreatment of Jose Padilla.

I was also heartened by Glenn Beck's adoption of Martin Luther King's pledge. See "Libertarian Pledge of Nonviolence."

Why would the veins-in-my-teeth crowd want to denaturalize someone for attacking the United States at the behest of a foreign power? That seems like treason with a death penalty. Unless they have so debased the English language that treason now applies only to Obama and not traitors.

Lower that child molesters, Bart? Lower than serial rapists? Lower than genocidaires, Bart? That's pretty low!


Yes, traitors are the lowest of the low.

After this country embraced him and extended the privilege of citizenship, Shahzad betrayed his fellow citizens and attempted to mass murder hundreds of New Yorkers by burning them alive with a car fire bomb at the behest of a foreign terror group.

Being put down like the family dog with a lethal injection is far too good for this scumbag.

Baghdad, you seriously think that trying to kill people is worse than actually accomplishing it? That is pretty F'd up.

I assume you are outraged that Terry Nichols was not put to death?

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I share Bart's attitude as to what a scuzzball this guy is for signing up for citizenship and then doing this.

That said, I am not sure it meets the legal definition of treason. Not every terrorist bombing is an act of war. If he joined Al Qaeda after becoming a citizen and then participated in this plot, it might constitute adhering to the country's enemies, giving them aid and comfort.

Seems to me there's a nice cold cell at ADX Florence waiting for this guy.

I am just a layperson here, but hopefully some of the bright legal minds who contribute to this site can educate me. I do have a couple of questions that I've been pondering over the last news cycle.

1) Do the 5th and 6th Amendments only apply to US Citizens? My reading of the text (which is amateurish and plain) is that all persons are entitled to basic Constitutional protections, so whether Joe Terrorist were a US citizen or not is frankly beside the point. If he is subject to prosecution under US law then he retains protection under the Constitution's rights of the accused.

2) It is also my understanding that very clearly the Miranda warning does not confer any rights upon the accused -- those rights are already preserved in the 5th and 6th Amendments -- but rather, the Miranda warning is required to ensure that any potentially self-incriminating evidence stemming from interrogation of a detained person occurs only after (a) the accused person has been advised of his existing Constitutional rights as an accused person, and (b) the person understands those rights and (c) the person willingly waives those rights. The state may not simply assume that a person has waived their rights unless (a) and (b) have both been met. But after they have been met, then a person may waive their rights by the simple act of opening their mouth and speaking.

So am I wrong, or am I really, really wrong, about one or both of these?

Howard Gilbert:

It had always been an expatriating act (leading to loss of citizenship) to serve in the armed forces of a foreign state engaged in an armed conflict with the US. It is not, therefore, so great a step to expand that to also include serving in the armed forces of a foreign non-state terrorist group engaged in an armed conflict with the US.
I'd read that present law has one exclusion to the prohibition on serving in a foreign military: People are allowed to serve in the Israeli military without penalty. I don't know if this is true. Does anyone else have any more information on this?

Arne, I'm pretty sure you can serve in any foreign military you like, as long as they're not at war with us. There is no special Israel exception that I know of. Some background information here.

There are two expatriating acts: To serve as an officer in any foreign army (even in peace time), and to serve as an enlisted man in the army of a foreign state engaged in an armed conflict with the US.

There is no special rule for any particular foreign country. If your long term plans involve a three year hitch in the French Foreign Legion, you can be assured that there will be no legal consequences (because you cannot become an officer in the Legion in less than three years and because it seems a safe bet that France will not declare war on the US).


Rights of the People have been held to extend to citizens and aliens who reside among the citizenry as part of the People. Shahzad definitely enjoys the Bill of Rights.

Until the Boumediene case, no court of which I am aware ever held that foreign enemy combatants at war with the People enjoyed constitutional rights - in that case habeas corpus. The Supremes in In re Quirin held during WWII that German saboteurs did not enjoy 5th or 6th Amendment rights.


Boumediene explicitly did not hold that detainees had Constitutional rights. That question was remanded to the lower courts. It found instead that the power of the Article III courts to issue Writs of Habeas Corpus extended to Guantanamo and could not be blocked by Congress unless it exercised the Suspension Clause. That is, it found that Judges in the DC Circuit have a Constitutional power to issue Writs to Guantanamo, not that detainees have any Constitutional right to demand it.

Quirin clearly did not say that German saboteurs do not have rights under the Fifth and Sixth Amendments. What it said is that the Fifth and Sixth Amendments did not require a civilian trial:

"In the light of this long-continued and consistent interpretation, we must conclude that § 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts."

A spy and saboteur once he has passed through lines of defense is subject to the concurrent jurisdiction of the military courts (for military offenses to which he is liable as an enemy combatant) and of the civilian courts (for ordinary civilian crimes that he commits while pretending to be a civilian). Thus if (hypothetically) a saboteur tries to rob a bank and is tried for bank robbery, he is entitled to all the protections of the Fifth and Sixth Amendments during the civilian trial of a civilian criminal matter. However, if he is instead tried before a military tribunal on the offense of being a saboteur, then he is entitled to the protections provided in international law and the statutes creating the military commission. For example, under the current Obama military commissions he would not be entitled to Fifth Amendment protection against the use of un-Mirandized statements in a Military Commission but would be in the hypothetical civilian trial.

In considering how reasonable the first part is, it is important to note two things:
first he says not "serving in the armed service of" but "affiliated with" a terrorist organization.
Second, what counts legally as a terrorist organization is entirely up to the administration who decides such things by fiat.
Under current interpretations of "terrorist organization" and "affiliation" this would include anyone who shipped medical supplies to a hospital in southern Lebanon, since all are connected to Hizbullah.
The first part, therefore, is nearly as fascist as the last.

Mark Lance


In the MCA, Congress expressly denied a statutory right to habeas corpus to Boumediene. The Suspension Clause implies a constitutional right to Habeas Corpus. When the Boumediene Five held that Congress did not properly suspend Habeas Corpus for Boumediene, it held that Boumediene had a constitutional right to habeas corpus. There is no other source for that right.

As to Quirin, there is no substantive difference between the Court's holding that the rights guaranteed by the Fifth and Sixth Amendments do not extend to enemy belligerents and holding that the Amendments do not apply to them. Quirin expressly held that enemy belligerents fell under the customary law of war.


The Boumediene decision teaches us that a Writ was originally a royal command. It could be issued by the King or by the King's Bench (a judge acting in the King's name). The Writ of Habeas Corpus allowed the King's Bench to enforce the King's law preventing local jurisdictions from holding the King's important subjects unlawfully. After Magna Carta the King himself became subject to the law, and then the Writ could be used to inquire about a detention instigated by the King himself.

In its core, the Writ is a power of the courts, part of the Judicial Power that Article III assigns to the judiciary. In common law, however, the Writ is a sua sponte power, initiated by the judge based on any reason he has to suspect that someone is being detained illegally.

After the Revolution, the new Congress was not satisfied with the record of English courts protecting civilian rights. So instead of relying on the common law power of the courts to inquire about the legality of detention, they added a statutory right of citizens to petition the court, and a process where the response to the petition was automatic.

The MCA stripped detainees in Gitmo of all statutory Habeas rights. What was left is common law Habeas which 1) under the Constitution cannot be blocked except by the exercise of the Suspension clause, 2) has never been used by any court in the history of the US since every prior Habeas proceeding was statutory Habeas, and 3) is a power of the judge and not a right of the detainee. Since there had never been a common law Habeas process, the Supreme Court left it up to the judges of the DC Circuit to figure out what the procedures would be.

The Suspension Clause is not about individual rights. It is not in the Bill of Rights. It is part of the checks and balances system. Habeas is a power of the Court. Congress has a check on this power, but it can only be exercised in certain enumerated emergencies.

There is a subtext of the decision that imposes a moral but not a legal right. The courts should be a protection against illegal detention. Therefore, if someone is illegally detained, and this becomes apparent to a judge having jurisdiction over the location of detention, then the judge has a obligation of his office to use the Writ to inquire about the case. However, if it is clear to the judge that the detention is legal, then the judge has no obligation to initiate any formal proceedings (unlike statutory Habeas where the petition automatically triggers some process and review).

This distinction became critical to the logical analysis of Boumediene. Everyone before the decision assumed that the question before the courts was whether the detainees at Gitmo had rights under the Constitution. That triggered a long argument about the historical reach of the Bill of Rights outside the US. The Supreme Court corrected this and explained that since the Writ was a power of the court, it reached to any location where the Court could issue an arrest warrant, search warrant, subpoena, or order of protection. The DC Circuit has routinely issued such orders to Gitmo, so they must also be able to issue the Writ. Once you ask the right question, what seemed to be a complex question of law and history turns out to be a trivial question with an obvious answer. Of course, this meant that we still don't know if the Gitmo detainees have any rights under the Constitution because the Court bypassed that analysis to reach its trivial decision.


There is no federal common law.

The MCA expressly withdrew all statutory authority for habeas corpus.

The Court held: "Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections... "

It is true that the Suspension Clause is considered to impliedly incorporate the common law habeas corpus right that existed at the time of the ratification of the Constitution, but there is no current federal common law basis for the writ.

Of course, this did not prevent the Boumediene Five from effectively treating the Constitution as common law by incorporating a fictional privilege that never existed under the American common law of the day and indeed was contrary to the British common law cases of Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) and The Case of the Three Spanish Sailors, 96 Eng. Rep. 775 (K.B. 1779), which expressly held that foreign prisoners of war did not enjoy habeas corpus review or any other rights of Englishmen.

"There is no federal common law." Bart

"The writ of habeas corpus was preserved in the Constitution — the only common-law writ to be explicitly mentioned" from the opinion of Scalia and Stevens in Hamdi v Rumsfield.

You quote: "Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ"

Since a Writ was a royal command, one may have the privilege to seek it but none has a right to demand it. You no more have a constitutional right to a common law Writ of Habeas Corpus than you have to a Writ of Certiorari.


Article I, Section 9 states in pertinent part:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

The writ of habeas corpus is only termed a "privilege" because Congress may suspend it under limited circumstances.

Absent a proper suspension, the ability to petition for habeas corpus review is an implied constitutional right.

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"There is no federal common law.”

Ugh. The actual quote from Erie is “there is no federal general common law.” Erie, of course, overturned Swift, from 1842, which allowed federal courts to create common law in traditional zones of state policy. Swift was closer to the text of the Constitution, where the federal courts are common law courts. Moreover, the Erie doctrine doesn't make much sense when one sees that the Seventh Amendment (still unincorporated) required a jury for cases at common law over $20. The pretense that there is no common law the federal courts makes the seventh superfluous

Even after Erie, what about Bankruptcy? Admiralty? Federa Procedure? The Bill of Rights? What do you call that case law?

I don't have time to address the misanalysis of habeas – and Howard has it under control

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