We're often critical of Sen. Ted Cruz (R-Texas), but the man has a proposal before Congress that we think should be speedily and unanimously adopted -- if certain basic Constitutional and legal concerns can be appropriately addressed.
Because it's not as easy as it looks to do it, no matter how attractive we think his idea is.
Cruze introduced legislation Monday to strip U.S. citizenship from Americans who become a member of designated foreign organizations that "the citizen has reason to believe will terrorize the United States" and who intends to fights for them or provide material assistance to them.
In truth, people who do things like that, Americans, for example, who rush off to join ISIS (they've apparently lost their own heads on the way to detaching them from others), are probably already qualified to be charged with treason in the U.S., if they ever return here (alive).
Article III, Section 3 of the Constitution defines treason as levying war against the United States or in "adhering to" this nation's enemies and giving aid and comfort to those enemies.
The legislation Cruz is supporting doesn't require the additional Constitutional provisions for treason that: "No person shall be convicted of treason unless on the testimony of two witness to the same overt act or on confession in open court."
The founding fathers wanted to make it hard to convict someone of treason, so the government couldn't just throw its political opponents in jail. It was a good thought.
But that doesn't mean we have to sit idly by while someone runs off to join a group with a declared intention of attacking the United States.
"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 in a statement. "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."
This measure needs to have certain due process provisions -- reasonable proof the person actually has left to join a designated terrorist group. It may even require a new list, or subcategory, of world terrorist groups currently designated by the United States, since not all of them are aimed at America.
And if someone joins a group that later is designated as an anti-American terrorist organization, there needs to be a provision restoring citizenship if it can be shown the person left that newly designated group as soon as possible after the designation was made.
Furthermore, it is critical as to who makes the decision to withdraw citizenship (Congress? A sweep of a pen by the president? Some faceless bureaucrat?), and a right of appeal would have to be provided.
In addition, the legislation will have to find a way around Constitutional rights of U.S. citizens that are bound up in what is known as Rule 43, which essentially prevents trying a person for a crime "in absentia" (without being present and able to confront their accusers).
To do that, the legislation would have to be very carefully crafted so that revocation would be the result of a substantial presentation of facts that they have left this country and joined or materially supported declared foreign enemies of the United States. Yet at the same time, it would have to prevent accusing them outright of a crime, or Rule 43 could apply.
We need to be careful the law is properly followed, but we also have to recognize that it's silly to go overboard protecting people who have demonstrated an intention to attack the people and property of this nation.
Another problem the legislation would have to get around is the provision of stripping citizenship of an American. The Constitution currently says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...."
There are procedures, difficult and complicated, for withdrawing citizenship from Americans who obtained their citizenship through the naturalization process. But the Supreme Court has consistently ruled that in most cases an American citizen only loses his citizenship if he voluntarily does so, by oath and written affirmation, usually at a U.S. embassy.
The late (and great) Chief Justice Earl Warren once wrote that: "Citizenship is man's basic right, for it is nothing less than the right to have rights" and that "a government of the people cannot take away their citizenship simply because one branch of that government can be said to have a conceivably rational basis for wanting to do so."
At the same time, Warren said he was willing to consider allowing for loss of citizenship as a result of foreign naturalization or other actions "by which (an American) manifests allegiance to a foreign state (which) may be so inconsistent with the retention of (U.S.) citizenship as to result in loss of that status."
And that's an interesting distinction and definition, because ISIS, unlike the comparatively more "moderate" jihadists in al-Queda, actually contends it is a foreign state, so a person who joined ISIS would fall within the range of Warren's exception. And Cruz clearly wants to target those who join ISIS.
But at the same time, as much as we'd like (at least at an emotional level) to see this provision adopted, we also recognize that American citizenship is something very, very precious. It's easy to get, but it's value is enormous and it should be difficult to lose. As a result, we need to step back to a rational level and make sure that if we decide to ever revoke it, we do so for fundamental and good reasons. Joining ISIS would seem to be one. But we have to make sure the legislation isn't written so vaguely that it could later be used as simply a political weapon.
American citizenship is not something that should ever be treated lightly, although we believe those who have joined ISIS have done so.
So let's make sure this legislation is carefully crafted and includes check-and-balance procedures to address the concerns we've raised above -- and then pass it.
-- Kelly Everitt