[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.
____________________