[Congressional Record Volume 160, Number 134 (Thursday, September 18, 2014)]
[Senate]
[Pages S5726-S5728]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   UNANIMOUS CONSENT REQUEST--S. 2779

  Mr. CRUZ. Mr. President, I rise today to ask that Republicans and 
Democrats in the Senate to come together and unanimously pass 
legislation to address the threat of American citizens fighting for 
ISIS and bringing our statutory system into the 21st century to protect 
the national security interests of our Nation.
  As the American people are now painfully aware, the so-called Islamic 
State in Iraq and Syria, or ISIS, has emerged as the new face of the 
radical terrorist threat that has bedeviled the West in recent decades. 
This virulent jihadist group--so extreme they got kicked out of Al 
Qaeda, which I will note is not easy to do--is rampaging across Syria 
and Iraq in a campaign of oppression and genocide, including the 
relentless targeting and murder of Christians, of Jews, of Muslim 
minority sects, Yazidis--indeed, any who do not share their radical 
Sunni theology.
  While other terrorist organizations have been content with a 
parasitic relationship with state sponsors of terrorism--notably Syria 
and Iran--ISIS has a new agenda, which is to establish its own state or 
caliphate. They now control a territory about the size of Indiana with 
oilfields they can exploit on the black market to the tune of some $1.5 
million a day. Their ranks have grown in the last 3 months alone from 
roughly 10,000 to now more than 30,000.
  Unlike some regional jihadists, ISIS also represents a direct and 
growing threat to our citizens here at home, and increasingly to our 
homeland itself. Just this week there were news reports of an online 
posting urging individual jihadists in the United States to attack 
targets such as Times Square, the Las Vegas strip, and even locations 
in my home State of Texas, with homemade pipe bombs. This is not the 
first time we have heard such threats, but we have to take them 
seriously. ISIS has made no secret that its goal is not simply to 
establish a caliphate in the Middle East; its desire is to impose 
Sharia law on the Muslim population and to exterminate any religious 
minorities, and that desire is not confined by geography. When the 
leader of ISIS, Abu al-Baghdadi, was released from a detention camp in 
Iraq in 2009, he reportedly remarked to Army COL Kenneth King, ``See 
you in New York.'' This danger, this evil intends to come home to 
America.
  ISIS has in recent weeks graphically demonstrated their eagerness to 
murder American civilians by beheading two journalists, gruesomely 
demonstrating on the world stage their hatred for America. This is not 
a situation where if we simply leave ISIS alone, they will leave us 
alone. This is a case where America's national security interests 
demand a serious response, which should be both to attack ISIS directly 
and take them out in its claimed caliphate, as well as to defend 
against the attacks ISIS is planning to execute here at home.
  The Obama administration's approach to this crisis has unfortunately 
lacked a clear focus on that issue. It doesn't help that ISIS is 
surrounded by regional chaos borne out of a Syrian civil war, and ISIS 
has exploited the inherent political weakness in Iraq. However, while 
both the crisis in Syria and the upheaval in Baghdad are unfortunate, 
concerning situations, we cannot allow resolving them to become 
preconditions to any military action we might need to take against 
ISIS.
  All too often, the Obama administration proposals threaten to become 
embroiled in the midst of these political crises. For example, they 
have made training and equipping the Free Syrian Army a cornerstone of 
their plan to fight ISIS. But just this week, the leader of the Free 
Syrian Army reportedly announced he would not participate in the fight 
against ISIS unless we pledged to join in his fight against Syrian 
dictator Bashir al-Assad.

[[Page S5727]]

  While this is certainly understandable from his perspective, 
resolving the Syrian civil war is not our mission nor the job of the 
military and we should not be making the Free Syrian Army, whose focus 
is Assad, central to the American plan of defending our Nation against 
the jihadist threat of ISIS.
  The administration's ISIS policy is also marked by internal confusion 
that further demonstrates a lack of focus on what should be our clear 
mission. The President has repeatedly insisted that there will be no 
American boots on the ground in Iraq and Syria, as he wants any action 
to be led by others, even while he increases U.S. personnel in the 
country by a few hundred here and a few hundred there. Earlier this 
week, his top general, the Chairman of the Joint Chiefs of Staff, 
admitted there were circumstances under which he would change his 
advice to the President to recommending ground troops--a suggestion 
that was subsequently echoed by the Chief of Staff of the Army and even 
Vice President Biden. The American people need and deserve greater 
clarity on what exactly our military mission is, and how what the 
President envisions relates to the advice his Department of Defense is 
giving him.
  The disconnect between what we know or do not know about the 
Americans fighting for ISIS in Iraq and Syria is equally concerning. 
Estimates range from about one dozen, according to one Pentagon 
spokesman, to Secretary of Defense Chuck Hagel's reassertion of about 
100 Americans fighting with ISIS in this week's Senate Armed Services 
Committee hearing.
  Either way, Secretary Hagel agreed with my characterization of the 
risks posed that Americans will take U.S. passports after fighting with 
ISIS, after training with ISIS, to come back and commit unspeakable 
acts of terror here at home. Secretary Hagel agreed that risk was 
significant. It seems only prudent to address that threat.
  I am, therefore, going to be asking for unanimous consent for the 
Senate to pass the Expatriate Terrorist Act of 2014, which will make 
fighting for ISIS, taking up arms against the United States, an 
affirmative renunciation of American citizenship.
  I should note the Expatriate Terrorist Act is very similar to the 
bipartisan legislation proposed by Senators Joe Lieberman and Scott 
Brown in 2010 to address Americans who were joining Al Qaeda overseas, 
notably the radical cleric Anwar al-Awlaki, or here at home Faisal 
Shahzad, who attempted to blow up a car bomb in Times Square.
  The Expatriate Terrorist Act thus has applicability beyond the 
immediate threat of ISIS. It is an important adjustment of our existing 
laws governing the renunciation of citizenship. To reflect the threat 
posed by nonnation terrorist groups, as then-Secretary of State Hillary 
Clinton said concerning the Brown-Lieberman legislation:

       United States citizenship is a privilege. It is not a 
     right. People who are serving foreign powers--

  Or in this case, foreign terrorists--

     are clearly in violation of that oath which they swore when 
     they became citizens.

  The Expatriate Terrorist Act of 2014 is only a very modest change to 
current law. It is one small step in a larger and necessary effort to 
refocus our ISIS strategy that I urge President Obama to consider 
immediately.
  We also urgently need to address the question of border security on 
our southern border so our failure to defend ourselves does not become 
a weakness that ISIS and other terrorists exploit to carry out 
unspeakable acts of terror here at home.
  The American people expect Republicans and Democrats to join together 
to speak in one uniform voice when it comes to protecting the national 
security and when it comes to protecting the lives of Americans here at 
home.
  If we do not pass this legislation, the consequence will be that 
Americans fighting alongside ISIS today may come home tomorrow with a 
U.S. passport, may come home to New York or Los Angeles or Houston or 
Chicago. Innocent Americans may be murdered if the Senate does not act 
today.
  Therefore, I ask unanimous consent that the Senate proceed to the 
immediate consideration of Calendar No. 554, S. 2779. I further ask 
consent that the bill be read a third time and passed and the motion to 
reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Hawaii.
  Ms. HIRONO. Mr. President, reserving the right to object. This bill 
has not been brought before the Judiciary Committee, which has 
jurisdiction over these issues. This bill affects fundamental 
constitutional rights and should be given the full deliberation of the 
Senate.
  Legislation that grants the government the ability to strip 
citizenship from Americans is a serious matter raising significant 
constitutional issues. Again, we have not had the opportunity to fully 
consider and register a significant bill.

  In addition, objections to this bill are detailed in two letters, 
both dated September 2014. The letters are from the bipartisan 
Constitution Project and the American Civil Liberties Union.
  I ask unanimous consent that these letters be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     The Constitution Project,

                               Washington, DC, September 17, 2014.
       Dear Senator: On September 5, 2014, Senator Ted Cruz (R-TX) 
     introduced the Expatriate Terrorist Act (ETA). According to 
     Senator Cruz, the bill is a common sense counterterrorism 
     tool that would strip U.S. citizenship from Americans who 
     fight with or support foreign terrorist organizations working 
     to attack the United States. In fact, the ETA serves 
     virtually no practical purpose, raises serious constitutional 
     concerns, and would do nothing to keep America safe. I urge 
     you to oppose it.
       Like previous iterations of the same idea, the ETA would 
     amend 8 U.S.C. Sec. 1481(a), which sets out limited 
     circumstances under which U.S. citizens can be denaturalized 
     or expatriated. The bill would add the following to the short 
     list of predicate acts that can result in loss of 
     citizenship: 1) taking an oath of allegiance to a foreign 
     terrorist organization; 2) joining a foreign terrorist 
     organization's armed forces while they are fighting the 
     United States; and 3) ``becoming a member of, or providing 
     training or material assistance to,'' a foreign terrorist 
     organization that the person knows or has reason to know will 
     engage in hostilities or terrorism against the U.S.
       Senator Cruz has said repeatedly that his bill works an 
     ``affirmative renunciation'' of U.S. citizenship. To the 
     extent he means to suggest that, under the ETA, a person 
     would automatically lose citizenship simply by engaging in 
     the above conduct, he is wrong. The ETA does not and could 
     not achieve that result.
       Citizenship is a constitutional right, and the Constitution 
     prohibits the government from revoking a person's citizenship 
     against his will under any circumstances. As the Supreme 
     Court has explained, ``the intent of the Fourteenth 
     Amendment, among other things, was to define citizenship . . 
     . [and] that definition cannot coexist with a congressional 
     power to specify acts that work a renunciation of citizenship 
     even absent an intent to renounce. In the last analysis, 
     expatriation depends on the will of the citizen rather than 
     on the will of Congress and its assessment of his conduct.'' 
     As a constitutional right, citizenship can be knowingly and 
     voluntarily waived, but it cannot be taken away from an 
     individual absent such a waiver. Thus, to revoke a person's 
     citizenship the government must prove not only that he 
     committed an expatriating act prescribed in section 1481(a), 
     but also that he did so voluntarily and with the specific 
     intent to relinquish his citizenship.
       Given these requirements, the ETA will almost certainly 
     result in no additional expatriations. Unless Senator Cruz 
     expects citizens subject to expatriation proceedings freely 
     to admit that they joined or supported a foreign terrorist 
     group specifically intending to renounce their U.S. 
     citizenship, no one will in fact be expatriated. I doubt that 
     government officials would believe it an efficient use of 
     resources to try, especially given the broad reach of 
     existing laws that already provide harsh penalties for U.S. 
     citizens who engage in acts of terrorism.
       The ETA also raises serious constitutional concerns. The 
     ETA makes membership in or ``providing training or material 
     assistance to'' certain foreign terrorist organizations a 
     predicate act to expatriation. There are two constitutional 
     problems with this provision. First, neither ``training'' nor 
     ``material assistance'' is defined. Similar language in 18 
     U.S.C. Sec. 2339B was ruled unconstitutionally vague until 
     Congress added specific definitions. Because Congress has not 
     done so here, this provision of the ETA suffers from the same 
     constitutional flaw.
       Second, unlike other crimes currently listed in section 
     1481(a) that can result in loss of citizenship (see section 
     1481(a)(7)), Senator Cruz's addition does not require proof 
     of a conviction as a prerequisite. As the Constitution 
     Project's Liberty and Security Committee explained in 
     opposing similar past attempts to amend section 1481(a):
       ``[T]he language of 1481(a)(7) expressly requires a 
     conviction as a necessary prerequisite to denaturalization or 
     expatriation proceedings. This requirement protects the

[[Page S5728]]

     constitutional right of due process, since one cannot 
     actually be said to have committed the acts specified in 
     Sec. 1481(a)(7)--each of which are crimes against the United 
     States--until and unless those acts have been proven to a 
     jury beyond a reasonable doubt. As the Supreme Court 
     expressly held in Kennedy v. Mendoza-Martinez, Congress 
     cannot deprive an individual of his or her citizenship as a 
     ``punishment'' absent the procedural safeguards of a criminal 
     trial.''
       Congress has precious little time left before adjourning 
     until November to decide how and under what authority to 
     address the situation in Iraq and Syria. Members should spend 
     this time debating these grave questions, not preoccupied 
     with needless and likely unconstitutional legislation. In the 
     event that Senator Cruz moves forward with the Expatriate 
     Terrorist Act, I urge you to oppose it.
           Sincerely,
     David Cole,
       Hon. George J. Mitchell Professor in Law and Public Policy 
     at Georgetown University Law Center; co-chair of the 
     Constitution Project's Liberty and Security Committee.
                                  ____



                               American Civil Liberties Union,

                               Washington, DC, September 17, 2014.
     Re Oppose Cruz Bill S. 2779, Expatriate Terrorists Act; S. 
         2779 Is Unnecessary and Dangerous.

       Dear Senator: The American Civil Liberties Union urges you 
     to refrain from cosponsoring--and oppose if offered--S. 2779, 
     the Expatriate Terrorists Act, which is sponsored by Senator 
     Ted Cruz. The bill would strip U.S. citizenship from 
     Americans who have not been convicted of any crimes, but who 
     are suspected of being involved with designated foreign 
     terrorist organizations. S. 2779 is dangerous because it 
     would attempt to dilute the rights and privileges of 
     citizenship, one of the core principles of the Constitution. 
     As the Supreme Court explained in 1967 in Afroyim v. Rusk, 
     ``the Fourteenth Amendment was designed to, and does, protect 
     every citizen of this Nation against a congressional forcible 
     destruction of his citizenship, whatever his creed, color, or 
     race. . . . [It creates] a constitutional right to remain a 
     citizen in a free country unless he voluntarily relinquishes 
     that citizenship.'' The bill is also unnecessary because 
     existing laws already provide significant penalties for U.S. 
     citizens who engage in acts of terrorism.
       The Supreme Court has consistently found that citizenship 
     is a fundamental constitutional right that cannot be taken 
     away from U.S.-born citizens unless voluntarily renounced. An 
     already overbroad federal statute, 8 U.S.C. Sec. 1481, 
     provides that an American can lose his or her nationality by 
     performing either of the following broad categories of acts 
     with the intention of relinquishing his or her nationality:
       acts that affirmatively renounce one's American 
     citizenship, such as taking an oath of allegiance to a 
     foreign government or serving as an officer in the armed 
     forces of a foreign nation; or
       committing crimes such as treason or conspiracy to 
     overthrow the U.S. government, or bearing arms against the 
     United States, ``if and when [the citizen] is convicted 
     thereof by a court martial or by a court of competent 
     jurisdiction.''
       The Expatriate Terrorists Act would add a new category of 
     expatriating acts--``becoming a member of, or providing 
     training or material assistance to, any designated foreign 
     terrorist organization.'' This implicates several 
     constitutional concerns.
       First, the material assistance provision added by the bill 
     would treat suspected provision of material assistance as an 
     act that affirmatively renounces one's American citizenship. 
     Thus, unlike treason or conspiracy to overthrow the U.S. 
     government, this provision would not require a prior 
     conviction. It would only require an administrative finding 
     by an unspecified government official that an American is 
     suspected of providing material assistance to a designated 
     foreign terrorist organization with the intention of 
     relinquishing his or her citizenship. This provision would 
     violate Americans' constitutional right to due process, 
     including by depriving them of citizenship based on secret 
     evidence, and without the right to a jury trial and 
     accompanying protections enshrined in the Fifth and Sixth 
     Amendments. In sum, the bill turns the whole notion of due 
     process on its head. Government officials do not have the 
     power to strip citizenship from American citizens who never 
     renounced their citizenship and were never convicted of a 
     crime.
       Second, the material assistance provision suffers from the 
     same constitutional flaws that plague other material support 
     laws, and goes far beyond what the Supreme Court has held is 
     constitutionally permissible when First and Fourth Amendments 
     rights are at stake. In 2010, the U.S. Supreme Court 
     disappointingly ruled in Holder v. Humanitarian Law Project 
     that teaching terrorist groups how to negotiate peacefully 
     could be enough to be found guilty of material support. That 
     logic might apply to criminal conduct; it should not cause an 
     American to lose his or her citizenship.
       For these reasons, the ACLU urges you to refrain from 
     cosponsoring S. 2779, and oppose it if it is offered for a 
     vote. Please contact Arjun Sethi if you have any questions 
     regarding this letter.
           Sincerely,
     Laura Murphy,
       Director, Washington Legislative Office.
     Arjun Sethi,
       Legislative Counsel, Washington Legislative Office.

  Ms. HIRONO. Mr. President, I object to the unanimous consent request.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Texas.
  Mr. CRUZ. Mr. President, I would note that the objection from my 
friend from Hawaii observed that this legislation has not gone through 
the Judiciary Committee, and that is true. It is true, of course, 
because the Senate is expected to adjourn this week as Senators return 
to their home States to campaign for elections.
  If it were to go through the Judiciary Committee, it would mean it 
would not pass in time to prevent Americans fighting right now with 
ISIS from coming back and murdering other Americans. There is an 
urgency and exigency to this situation.
  This is also legislation the Senate considered before. As I noted, it 
was bipartisan legislation. Joe Lieberman, Scott Brown, Hillary Clinton 
are all in one accord.
  It is unfortunate the Democratic Senators chose to object to this, to 
prevent this commonsense change in law. I would note when it comes to 
constitutional concerns, I don't know if anyone in this Senate has been 
more vigorous or more consistent in terms of defending the 
constitutional rights of Americans than I have endeavored to be during 
my short tenure.
  I will yield to no one in passion for defending constitutional 
liberties, but I note there is an existing law that has been on the 
books for many decades covering the renunciation of U.S. citizenship.
  It is current law right now that if someone goes and joins a foreign 
nation and takes up arms against America, that act has long been 
recognized as constituting a constructive renunciation of U.S. 
citizenship. As for the question of due process, existing law provides 
due process that an individual who goes and takes up arms with ISIS--
and all this does is treat ISIS, a nonstate terrorist group, on the 
same footing as taking up arms with a foreign nation against America. 
It is a recognition of the changed circumstances of this world that 
many of the gravest threats facing this country are not coming from 
nation states but are coming from terrorist groups that sadly some 
Americans are choosing to join forces. The existing law has 
considerable due process protection such that anyone who is determined 
to have affirmatively renounced his or her citizenship has a right to 
challenge that in Federal district court and a full proceeding under 
existing due process standards to have that matter resolved.
  The question is very simple: Would any reasonable person want an 
American who is right now in Iraq, who is right now training with ISIS, 
who is right now taking up arms, who is right now participating in 
crucifying Christians, who is right now beheading children, who is 
right now participating in beheading two American journalists, who is 
right now standing arm in arm with virulent terrorists who have pledged 
to take jihad to America--would anyone in good conscience of either 
party want that person to be able to come back and land at La Guardia 
Airport with a U.S. passport and walk unmolested onto our streets? The 
obvious answer is no.
  It saddens me we could not see Republicans and Democrats come 
together, and it saddens me that in an election year the Democratic 
Senator, who is up for reelection, chose to block this commonsense 
legislation rather than to work together to protect the American 
citizens.
  I hope in time we see less election-year politics and more service to 
the men and women whom all of us are obliged to protect.
  I yield the floor
  The PRESIDING OFFICER. The Republican leader.

                          ____________________