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Testing the Bounds of U.S. Citizenship

Awlaki_1008.jpg
Awlaki_1008.jpg

Anwar al-Awlaki (Muhammad ud-Deen at en.wikipedia)

In the (unconfirmed) event anyone in the Obama administration is trying to annul the citizenship of any American recruited by al-Qaeda in order to kill him without legal encumbrance, the evidence is (mostly) clear: you can’t.

“If you’re an American citizen, we don’t take away your citizenship,” said Karen Greenberg, director of the Center on Law and Security at New York University, a think tank largely devoted to studying the constitutional implications of counterterrorism.

[Security1]The question, hypothetical as it might be, arises largely because of one man: Anwar al-Awlaki. A New Mexico-born American citizen who served as a Muslim cleric in Virginia, Awlaki moved in the last few years to Yemen, where administration officials believe he assists al-Qaeda in recruiting potential attackers targeting the United States. Awlaki has admitted ministering to Umar Farouk Abdulmutallab, the would-be bomber of Northwest Airlines Flight 253, but he has denied any culpability for the attempted strike.

Additionally, he allegedly was in contact with the accused Ft. Hood murderer, Nidal Malik Hasan, ahead of the November shootings. Awlaki has denied all involvement in terrorist activities, but defended the targeting of American civilians by terrorists last week, telling al-Jazeera, “The American populace is living within a democratic regime and they hold the responsibility of its policies; the American populace elected the criminal Bush for two presidential runs, and they elected Obama who’s not different from Bush.”

In a public discussion rare for such a sensitive topic, Dennis Blair, the director for national intelligence, told a congressional panel earlier this month that the Obama administration has in place a procedure to discuss potential military strikes targeting American citizens believed to be involved with al-Qaeda. While Blair did not specifically discuss Awlaki, the cleric survived one such airstrike in December.

But in subsequent interviews with Newsweek’s Mark Hosenball, anonymous current and former U.S. national-security officials revealed that no such special procedure need occur if a strike does not specifically target an American citizen, even if an American dies in the process, raising questions about whether the administration sought to evade the constitutional prohibition on summarily killing Awlaki that his citizenship entitles him to receive. Steve Clemons, who directs foreign policy studies for the influential New America Foundation, blogged last week that a “senior Pentagon official” was curious about the legal hurdles to annulling the citizenship of American terrorists in order to kill them.

Obama administration officials would not comment for the record, but one said that such an option was not under any serious discussion. Moral and legal considerations aside, Greenberg said it’s not possible — at least not for citizens born in the United States.

“They can’t do this with al-Awlaki. He is an American citizen, born in New Mexico. They can’t take away his citizenship,” Greenberg said, after tasking her legal staff to research the question in response to a query from TWI. However, she added, there are options available to the government to strip citizenship for naturalized citizens within the first 10 years of citizenship. Usually those options are exercised in immigration cases and lead to deportation.

Awlaki, or any other U.S. citizen, would have to formally renounce his citizenship in order to lose it, Greenberg continued. “Formally, you can write a letter” to the Justice Department, she said, informing it of such renunciation.

In June 2002, John Yoo, then a lawyer for the Justice Department’s Office of Legal Counsel, assessed that U.S. citizenship was no obstacle to the government detaining a suspected terrorist and providing him with a trial before a military commission. “[T]he President’s authority to detain an enemy combatant is not diminished by a claim, or even a showing, of American citizenship,” Yoo wrote. But even Yoo did not consider the more radical claim of stripping American citizenship from a suspected terrorist for the purpose of legally killing him; and President Obama formally annulled Yoo’s memorandum in an executive order within days of taking office.

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