On Thursday, the Senate Judiciary Committee is planning to consider a measure that, under the guise of revoking the citizenship of terrorists, would in fact harm national security by interfering with and exposing terrorism investigations.
The first section of Sen. Ted Cruz’s (R-TX) Expatriate Terrorist Act (S. 247) is about forcibly stripping American citizenship from suspected terrorists. The merits — or lack thereof — of this proposal are largely beside the point because the Supreme Court has been clear that Congress has no power to do so. In a 1967 decision in Afroyim v. Rusk, the Supreme Court held:
In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship. Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or those that are necessary and proper to carry out the specifically granted ones. The Constitution, of course, grants Congress no express power to strip people of their citizenship, whether in the implied power to regulate foreign affairs or in the exercise of any specifically granted power (emphasis added).
Cruz often says that “the purpose of the Constitution, as Thomas Jefferson put it, is to serve as chains to bind the mischief of government.” As the Supreme Court has held, citizenship stripping is the very kind of mischief that Senator Cruz professes to abhor.
This part of the proposal is thus either unconstitutional or, if read to conform with Supreme Court precedent, will do nothing to change existing law regarding the government’s ability to strip citizenship from Americans suspected of joining ISIS or other terrorist groups.
It’s actually the second provision of the bill, which has mostly gone unnoticed so far, that would affirmatively harm national security. It would require the Secretary of State to revoke or deny passports to Americans who are members or attempting to become members of designated foreign terrorist organizations. But the secretary already possesses this power and has the discretion to decide when and how to exercise it to best protect national security. By eliminating that discretion, this bill would require action even when it would jeopardize ongoing counterterrorism operations. Mandatory revocation or denial would mean that terrorists would learn that the U.S. government has identified them as suspects — tipping off targets to the existence of ongoing investigations and potentially exposing intelligence sources.
As the Secretary of State already has authority to deny or revoke passports of suspected terrorists when it makes sense to do so for national security purposes, the bill would create these risks for no reason. The secretary has specific authority to prevent the travel of citizens through passport denial or revocation whenever their “activities abroad are causing or are likely to causes serious damage to the national security or foreign policy” of the United States.
Rather than aiding terrorist investigations or preventing terrorist travel, this bill would eliminate the discretion of the intelligence agencies to act at the time best suited to apprehend and stop suspected terrorists. It would weaken rather than enhance U.S. capabilities to detect and prevent terrorist attacks. And it appears to be more about Cruz’s presidential ambitions than about the security of the American people.
Kate Martin is a Senior Fellow at the Center for American Progress, where she works on issues at the intersection of national security, civil liberties, and human rights. Ken Gude is a Senior Fellow with the National Security Team at the Center for American Progress, and also leads several of the organization’s policy initiatives and projects.