al-Awlaki and Citizenship
How does citizenship fit into the al-Awlaki picture? It’s obviously important. Otherwise he’s just another senior-level al Qaeda operative taken out by a drone. Not insignificant, but not an event that would generate a lot of discussion, especially not on the law.
On the other hand, imagine if al-Awlaki had been an American not of Middle Eastern descent and not a dual citizen of a country like Yemen. Think an older, more together version of John Walker Lindh. Would that shift the debate? It’s interesting that most of the headlines on the story described al-Awlaki as “US-born”, not as an American citizen.
The possibility here is that even though (as a formal matter) he held US citizenship until his death, al-Awlaki was not perceived as a citizen in terms of social membership. He was a happenstance citizen, born here while his father studied in the U.S., but taken back to Yemen when he was seven. (Yaser Hamdi is another such example. Samir Kahn, killed at al-Awlaki’s side, is more interesting in this respect – the product of Queens and suburban Charlotte, though apparently naturalized, not native-born.) Al-Awlaki obviously was obviously hostile to the United States; in an older world, in which our adversaries were also states, he would have lost his US citizenship as a member of the armed forces of another state. But the only way to lose your citizenship today is to walk into a US consulate and formally renounce it, a step al-Awlaki wasn’t in a position to undertake.
One response would be to adopt a Lieberman-type terrorist expatriation measure. I don’t think that would do a lot of good, other than generate yet another layer of litigation, this one over whether particular conduct evinced an intent to relinquish citizenship (constitutionally required, as per Afroyim v. Rusk). So that leaves us with some citizens who don’t really seem like citizens, which means that the citizen/non-citizen differential for rights purposes will get smaller still.