A bill set to be introduced on Monday from Sen. Ted Cruz (R-TX) would greatly lower the bar for stripping an American of their citizenship in the name of fighting terrorism, leaving the door open for potential abuse and changing a standard that has been in place since the Constitution’s drafting.
Lawmakers are currently struggling to work with the administration to solve the problem of Americans and other holders of passports from western countries who are traveling to Syria to fight in that country’s civil war. As many as 100 U.S. citizens have traveled to Syria to join up with the various rebel groups struggling against Syrian president Bashar al-Assad, the U.S. believes. But around a dozen of them have joined up with the Islamic State in Iraq and Greater Syrian (ISIS), the group that has been wreaking havoc in the Middle East and the current subject of American airstrikes in Iraq.
Cruz believes that his new legislation will help counter the threat of those fighting with ISIS returning to American cities and using what they’ve learned overseas on U.S. civilians. “Americans who choose to go to Syria or Iraq to fight with vicious ISIS terrorists are party to a terrorist organization committing horrific acts of violence, including beheading innocent American journalists who they have captured,” Cruz said via press release. “There can be no clearer renunciation of their citizenship in the United States, and we need to do everything we can to preempt any attempt on their part to re-enter our country and carry out further attacks on American civilians.”
Cruz’s office says that the bill will amend “an existing statute that provides certain actions by which a United States citizen renounces their citizenship to include becoming a member of, fighting for, or providing material assistance to a designated foreign terrorist organization that is working to attack the United States or its citizens.”
The junior senator from Texas isn’t alone on seizing onto this idea to prevent the return of foreign fighters to the United States. Former senator Scott Brown, who’s running for a Senate seat from New Hampshire, said that on his potential return to Washington, he’d reintroduce legislation similar to Cruz’s from 2010 and 2012. “This makes sense. It’s common sense. The President says he doesn’t have a strategy, but how about the first strategy being taking away citizenship of those fighting alongside the terrorists?” Brown said. “If we take away their passports and strip them of their citizenship they can’t some back,” he said.
Brown isn’t entirely wrong: on the surface it would seem to be common sense that if someone has joined a terrorist group, they’ve probably renounced their allegiance to the United States. When the U.S. determined that it had the authority to conduct a lethal drone strike against cleric Anwar al-Awlaki, the argument was less about his citizenship and more about the fact that he had joined a terrorist group. Awlaki, the U.S. said, had joined forces with Al Qaeda in the Arabian Peninsula, becoming a senior member of the group and a clear threat to the homeland, thus allowing him to be targeted. The legality of the U.S.’ actions in that case is under fierce debate, mostly due to the fact that absolutely no trial was ever held before the decision to kill al-Awlaki, stripping him of what most lawyers would consider due process.
But that was an instance where the Department of Justice and other parts of the administration considered al-Awlaki “an imminent threat of violent attack against the United States.” As of now, there are no imminent threats to the U.S. from ISIS, according to Pentagon officials. That matters, because Cruz’s bill is worded in such a way that it has a number of negative consequences that go beyond the intent of the law and could wind up affecting citizens who haven’t allegedly devoted their lives to al Qaeda.
First, there’s the issue with the proposed law declaring that “providing material assistance” to a terrorist organization would be enough to remove them of protection under the law as an American citizen. Since the passage of a 1996 law, and expanded under the PATRIOT Act, the U.S. determined that providing assistance to a terrorist group was enough to be convicted of a federal offense.
The problem, however, is just what classifies as providing support. In 2010, the U.S. Supreme Court ruled in Holder v. Humanitarian Law Project that assisting terrorist groups by teaching them how to negotiate peacefully was enough to be found guilty of providing material support. This month, the Supreme Court will decide whether to hear a similar case, that of Tarek Mehanna. Mehanna was sentenced in 2011 to 210 months behind bars for translating al-Qaeda texts and posting them online.
While nobody argues that Mehanna wasn’t a supporter of al-Qaeda, at issue is the question of whether merely translating texts is enough to deserve jail time, a question that academics and analysts of terrorism would be keen to know the answer to. “If he’s doing it on behalf of a designated group, he’s providing a service, and that’s the crime,” Georgetown University law professor David Cole, who argued against the government in Humanitarian Law Project, told Mother Jones back in 2011. “It doesn’t matter if the speech is itself violent or nonviolent.” If merely translating a text for the wider audience to read is enough to be convicted of material support or assistance, Cruz’s law could potentially make it a crime that could cause an American to lose their citizenship.
So how would Cruz’s bill actually determine who qualified to be stripped of citizenship? Simple. “[T]he burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence,” the bill reads. “Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.”
In plain English, this means that the burden is on the government to prove that the alleged terrorist performed an act that would justify revoking their citizenship, as in any other case that comes before the courts. But should Cruz’s bill become law, they would only need to prove it by a “preponderance of the evidence” standard — which is to say there’s a lot of evidence against the suspect, but it’s not necessarily an iron-clad case. That’s a much lower burden of proof on the government than the “beyond a reasonable doubt” standard that applies in criminal proceedings.
That brings up another problem that Cruz’s bill brings up: the crime of taking up arms against the United States is already covered in no less a document than the Constitution. Unfortunately for Cruz and others looking for a quick fix against ISIS and other groups, the founders made it extremely difficult to prosecute an American citizen of treason. “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort,” Article III of the Constitution reads. “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
The decision to very narrowly define treason was on purpose, McGill professor of American history Jason Opal told NPR last year at the height of the Edward Snowden drama. Then the debate was over whether the former NSA contractor fit the definition of treason, one that the founders were very careful to differentiate from the British version. “Under British common law, statutory law and legislative decree, treason can mean anything from sleeping with the wife of the eldest son of the king and thereby interfering in the royal descent,” Opal explained. “It could mean counterfeiting. And most pertinent, it could mean some association with rioting.”
Anything below the treason threshold has been difficult to be enough for the U.S. government to strip Americans of their citizenship. This has been aided by a 1967 Supreme Court ruling — Afroyim v. Rusk — that “ruled that under the 14th amendment, U.S. citizens cannot be involuntarily stripped of their citizenship.” As of now, there are only loopholes to Afroyim. The first is that government has had to be able to prove that an American joined a foreign army with the intention of relinquishing their citizenship. The other is that under the law, it’s possible to lose one’s citizenship by “entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer.”
Both of those examples are a far cry from the can of worms that Cruz’s bill would potentially open in the interest of preventing the 12 people currently fighting with ISIS from launching a hypothetical ISIS attack on the United States. So far, the White House hasn’t announced a position on Cruz’s bill, with Press Secretary Josh Earnest declining to take a stand on Monday. But with the ability to more easily determine just who is and isn’t a U.S. citizen on the line, the administration would do well to look at all the possible losses of freedom that could come from passing the Expatriate Terrorist Act into law.
Ian Millhiser contributed to the reporting in this article