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Lieberman’s Strip Tease

by CHRISTOPHER BRAUCHLI

Joe Lieberman can probably find something in the latest proposal from Russia that he’ll be wanting to incorporate in the legislation he is about to introduce. In the week before Joe proposed stripping U.S. citizens of their citizenship (in order to more effectively deal with terrorists who are trying to destroy the way of life we enjoy that protects what Joe is trying to destroy), the Russian parliament took up legislation that would extend the powers the Russian Federal Security Services (F.S.B.) has over organizations, to individuals. (F.S.B. is the successor to the K.B.G.)

The day after Times Square would-be-bomber, Faisal Shahzad, was arrested, Joe announced that he planned to propose legislation that any “American citizen who is found to be involved in a foreign terrorist organization, as defined by the Department of State, would be deprived of their citizenship rights.”

Under Joe’s proposal, a person would be deprived of citizenship even though nothing had been proved against the citizen. If the citizen were later found not to have been involved in the kind of activity that triggered the loss of citizenship, I am sure Joe would include a provision that would restore the person’s citizenship. Of course, during the interim, the citizen would not have been able to assert any constitutional rights available only to citizens.

Joe’s proposal would permit the former citizen to be tried before a military commission (where the conviction rate is one conviction and two acquittals so far), rather than the civilian courts (where, according to New York University’s Terrorism Trial Report Card, the government pursued more than 800 prosecutions of terrorists and has an 89% conviction rate.) In addition, depriving a person of citizenship permits prosecutors to avoid giving the suspect the Miranda warning, two words that frighten the Joe Liebermans of the world considerably more than a peremptory loss of citizenship by a suspected terrorist.

(Since the proposed legislation would deal with the hated Miranda warning, John McCain would almost certainly sign on to Joe’s legislation. Without knowing the results of the interrogation of Mr. Shahzad, John said reading him his Miranda rights was a “serious mistake.” He said: I certainly would not read this individual his Miranda rights. I would not do that.” John, who is not a lawyer, tried to clarify what he meant by saying later that the Miranda warning should only be given after the investigators have learned what the investigation is all about. By then, of course, the information may be tainted, a non-troubling fact to John.)

Here are some provisions Joe may want to add to his proposed legislation that come to us courtesy of Russia. Under existing law in Russia, the F.S.B. has the authority to impose preventive measures on organizations it considers extremist but not on individuals. A bill has been introduced in the Russian parliament that would permit officers to confront law abiding citizens who are engaged in lawful activities and give them verbal or written warnings that their activities are “unacceptable” and may constitute criminal conduct, even if they are doing nothing illegal and no charges are pending against them. The legislation introduced in the lower house of Parliament, would impose fines or 15-day jail terms on those refusing to comply with demands made by the officers. Like Joe’s U.S. proposal, this is being introduced because of the increased threat of terrorism. In a note attached to the bill the government says the new law is needed to “consolidate the establishment of special prevention measures.”

Fair Russia’s party Chairman, Gennady Gudkov, opposes the legislation. He said the K.G.B. formerly used “warnings” when “there was insufficient evidence for criminal persecution (sic).” Viktor I. Ilyukhin, a Communist deputy who serves on the Duma committee on constitutional law, believes the new law will be used to suppress all dissent. He told the newspaper Noviye Izvestiya that before the new law only prosecutors could issue warnings. “Now they spit on all that. Any citizen can be called an extremist for taking a public position, for political activity. A warning can be given to anyone who criticizes the powers that be. If you print this interview, they will announce that Ilyukhin is an extremist.”

A similar warning about the Lieberman proposal was issued by Erwin Chemerinsky, dean of the UC Irvine School of Law. In an editorial in the Los Angeles Times he observed: “The great fear is that when the government has the power to strip some people of basic rights, it cannot be easily limited. Fundamental protections of our democracy are lost, and for no gain. Responding to acts of terrorism with deprivations of civil liberties is a familiar and troubling pattern.”

Messrs. Chemerinsky and Ilyukhin got it right. Joe got it wrong. Perhaps his colleagues will figure that out and put his proposal on the Senate’s trash heap of dumb ideas, assuming there is still room.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.

 

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