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The al-Alwaki Assassination and Questions of Citizenship

October 5, 2011

Late last week, a drone strike authorized by President Obama killed Anwar al-Alwaki, an U.S.-born cleric who allegedly inspired terrorist attacks against the U.S. Also killed was another American citizen, Samir Khan, editor of Al Qaeda’s English language magazine Inspire. Glenn Greenwald, ardent defender of civil liberties, condemned the attack as a violation of the Fifth Amendment’s due process requirement: “No person… shall be deprived of… without due process of the law”. On the other side, an editorial at the National Review laid out the establishment GOP opinion, proclaiming the attack legal and begrudgingly praising Obama.

My initial response was in line with Greenwald’s. The killing of citizens without judicial restraints represents the ultimate executive power; it’s rightfully prohibited by the Fifth Amendment. The killing was unconstitutional and furthermore opened the Administration to arguments such as those made at the end of the National Review editorial: “If it’s permissible for the president to kill a U.S. citizen with no judicial proceedings whatsoever, why is it an offense against the Constitution and all we hold dear to capture foreign terrorists, interrogate them (in some cases, harshly), and detain them?”

Matt Yglesias had a different take: “Something that I think is missing from discussion of the Anwar al-Awlaki case is the question of why he was still a U.S. citizen up to the day he died.” He then links to a State Department page listing ways in which a citizen can expatriate themselves, that is, shed their citizenship. Included in those are taking an oath to a foreign nation and serving in a foreign army engaged in hostilities against the United States. al-Alwaki had basically done these things, except it was to a non-state actor instead of a foreign nation.

Viewed from this perspective, the problem shifts from an unconstitutional overreach to a deficiency in U.S. citizenship law exploited by the asymmetrical organization of terrorist groups. If what the Administration says is true, it was a reasonable thing for him to be killed. However, there would still need to be a degree of due process in order to assure that the Executive’s justification for targeting a U.S. citizen is true and adequate. This would likely take the form of a trial in absentia, in which a judge could evaluate the evidence presented by the government to ascertain whether the targeted person has in fact acted to renounce their American citizenship. The government would also need to show that physical arrest of the target was not feasible and the burden of proof would need to be very high to avoid abuse or misuse.

In fact, Rep. Charlie Dent (R-PA) has introduced legislation along those lines that would allow the State Department to “make an administrative determination if the individual intended to renounce his or her citizenship”. This isn’t an optimal solution. It’s still constrained by the intent requirement and thus would depend on how “intent” is defined. As I said, it would also need safeguards, including a mechanism for judicial review, to prevent executive overreach of the sort the National Review editorial seeks to justify. However, it seems better to allow the revocation of citizenship via a judicial process instead of the killing of citizens with no process. Hopefully it wouldn’t be six to a half dozen in practice. The whole situation is another challenge presented by the existence of dangerous non-state actors and should be dealt with through legal channels, as opposed to extralegal measures that degrade civil liberties and the Constitution.

[Ed. note: “Repatriated” is a good song, maybe too relevant.]

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