al-Awlaki and Citizenship

by Peter Spiro

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.

http://opiniojuris.org/2011/10/03/al-awlaki-and-citizenship/

21 Responses

  1. I agree that Samir Khan is a very interesting person in this context.  That the conservatives a la Jack Goldsmith go back to IAC ideas to justify this points out the de facto acceptance by them of a racial hierarchy – or good old second class citizenship.  John Walker Lindh gets to be an American Taliban and a trial.  Awlaki gets to be an American terrorist and a drone up his derriere.  But, of course, Awlaki is much more dangerous.  I wait to see Adam Gadahn getting a drone up his derriere.

    It is like our country is sleepwalking through every ghosts in the dark matter of its past – unable to articulate the inchoate contradictions that form part of the American soul – contradictions born of so many racialized aspects of the myths of our history.

    This is a white American problem with American history: people of color understand the depths of the horrors of that history for their ancestors.

    But, do not worry, someone will come along and make a plausible presentation of what was going on so that everyone can be lulled to sleep and not seek accountability.  Look at how we have allowed ourselves to allow torturers to clog up our discussion shows with their drivel, rather than call them to account in criminal prosecution.  Bin Laden understood us too well and our inability to escape these archetypal contradictions of our history once we were attacked by him and made to feel vulnerable.

    All you need to do is to drive through the segregated neighborhoods all across our country – in 2011 – and ponder how so far after Brown we are STILL here.

    Maybe you guys can talk it over with your one black friend.

    Best,
    Ben

  2. Although I find targeting an American citizen overseas troubling from a policy standpoint, the fundamental legal question would seem to be whether we are engaged in an armed conflict (presumably NIAC) against al Qaeda (including “associated” AQAP) that would include taking action in Yemen.
    If so, then al-Awlaki was lawfully targeted as a belligerent (all combat targeting is by definition “extra-judicial”), regardless of his citizenship (just as Confederate President/Commander-In-Chief Jefferson Davis could have been targeted by the Union in the U.S. Civil War, another NIAC, despite the fact that he too was an American citizen).
    Nor would al-Awlaki’s race seem important (unless Ben is claiming that Congress’ Authorization to Use Military Force against al Qaeda was racially motivated).  A caucasian American (of whatever religion) who engaged in international terrorism, the response to which amounts to a NIAC, could be similarly targeted.

  3. The point that I am making is the one Glenn Carle – a caucasian CIA interrogator – was making.  Glad I hit a nerve.
    Best,
    Ben

  4. Response…
    But Ben, JWL was captured and in a thatre of war to which the laws of war applied — and he might not have been adequately represented by counsel, since he took an oath with the Taliban and should have been recognized to have combatant status and combatant immunity for lawful acts of war (and international law is a two-way-street, so the U.S. should have recognized this point merely in terms of self- common interest re: protection of U.S. military).
    Hamdi, quoting Ex parte Quirin, recognized that citizenship does not obviate what can be lawfully done under the laws of war.  Under the Constitution, AA had constitutional rights overseas, but the targeting of him was permissible, not under the laws of war, but under Art. 51 of the U.N. Charter — assuming the Exec. claim that AA was directly participating in armed attacks or ops (he was a targetable DPAA).  And in terms of due process, since he was targetable, that was the process that was due.
    When a SWAT team needs to take a head shot to kill a hostage-taker in the U.S., citizenship of the hostage-taker is unimportant.  The Const. applies, but the process that is due the hostage-taker is different than that owing to one who is taken into custody in the U.S.

  5. Man, I’m really busy! Call my people and we’ll set up a lunch.

  6. Jordan, Ben Wittes has also trotted out hostage-takers. Like Yamamoto, it is an irrelevant example. Awlaki was not seen with a gun to the head of an innocent civilian. While the law has been subjected to thorough debate on sites like this, the facts have gotten little attention. Good legal discussions argue about whether we are in a NIAC with AQAP or not, but on the facts assume al-Awlaki is a targetable member of AQAP. Not only is the law secret in his case, but so are the facts. What could be publicly stipulated to be facts consists of:

    Al-Awlaki and Nidal Hassan exchanged emails (Hassan was investigating Muslim radicalism for a research paper). Awlaki praised Hassan for attacking a military target – service members about to deploy to a Muslim country.
    Abdulmutallab had contact with Awlaki, possibly in London, probably in Yemen. Awlaki praised the attempted bombing.
    Shahzad was a “fan and follower” of Awlaki.

    That’s it. Experts such as Gregory Johnsen have said his role is inspirational, not operational. As such, his speech is protected under the 1st Amendment. Thus, he has to be indicted for a crime to be actually brought to justice – in a courtroom, even in absentia, not by bringing a rough justice to him – just like any other American.

  7. Jordan,

    “assuming the Exec. claim that AA was directly participating in armed attacks or ops (he was a targetable DPAA).  And in terms of due process, since he was targetable, that was the process that was due.”

    I understand the Exec claim is 1) imminent threat 2) AQ or AQ associated and 3) could not reach him for arrest = person we can drone.

    For the sums to work it would be AA = DPAA = 1) imminent threat 2) AQ or AQ associated and 3) could not reach him for arrest = person we can drone.

    Just like in a proportionality analysis, the difficult point I am making is that the process of doing that math may weigh things differently by race – AA gets over the threshhold evidence quicker than JWL and here I am also recognizing the different paradigms one is under between  armed conflict and self-defense.

    My point which is raising a troubling issue is similar to Glenn Carle’s recognizing in his book tour on c-span that a northern European would be more likely to be released from interrogation earlier than the people from the Middle East he had been interrogating.

    Just like the police – when do they take the head shots and when do they try a bit harder to take the person alive.  You are aware of the range of views in different communities about the reasonableness of the police approaches as applied in the United States.

    What I am raising is the question of the reasonableness of the approaches to  Middle Easterners as applied even if the legal structure is perfect.  Especially when Rizzo calls some of these cases “murder.”

    I am sorry if that troubles people, but I think it is a legitimate underpinning to the discussion when one sees the effort to invoke many of the undersides of American history (Seminole wars) as rationales for things we are doing in this struggle.  In this sense I am again echoing Judge Robertson’s 2008 obiter dicta in Hamdan about Chambers v/ Florida being needed to be kept in mind when looking at these cases.  Warning us against going down a path we have gone down in the past.

    It is not so much the law, it is the manner in which the evidence is weighed leading to the possibility of differential outcomes.  That is what is troubling me.

    Put another way, citizenship should protect you if your government got it sums wrong when it targeted you. It should not just be “mistakes were made.”

    Best,
    Ben 

  8. Response…
    Mark: I am one who recognizes that the U.S. cannot be at “war” with al Qaeda under traditional international law (and if the U.S., it could be nothing but an “international” armed conflict).  Thus, I do not take the position that the laws of war as such allow the targeting of a member of al Qaeda in Yemen unless, as others have recognized, such person is directly participating in hostilities in a real war, say in Aghanistan (e.g., by cell phone).  Re: AA, this does not seem to be the case.
    Next, the issue is raised whether AA is targetable under art. 51 of the U.N. Charter as one who is directly participating in armed attacks, continual armed attacks (using a process of armed attacks focus).  I believe that he was IF the U.S. Exec. is correct that he was directly invovled in operations (e.g., planning, coordinating with others).
    Ben: what you have stated to be the Exec. claim, I admit, would not be enough — “imminent” is not enough and mere membership is not enough — he would have to in fact be a DPAA, directly participating in continual armed attacks.  And Ben, I appalud your concern regarding racist aspects of targeting and interrogation decisions.  If true, we should know more about such and make efforts to stop racist or religious intoleratnt types of decisionmaking.  Yours is clealy an important concern.
    Best, Jordan

  9. Jordan, sounds good. Regarding the color of their skin, an important comparison:
     
    Awlaki – never listed on the FBI Most Wanted Terrorist list. Ordered killed by the CIA and military. He is wanted by the Yemeni civil authorities.
    Adam Gadahn – indicted for treason and material support for terrorism, wanted by the FBI http://www.fbi.gov/wanted/wanted_terrorists/adam-yahiye-gadahn/view.

  10. A question for my own clarification, more than anything else: does Article 51 of the UN Charter supersede the United States Constitution? If not, then that argument is moot and the President violated the 5th Amendment. 

    Don’t get me wrong; the human side of me – the one with several dogs in this fight – is quite glad the worthless POS is gone. And My hope is that Adam Gadahn meets a similar fate. But the strict Constitutionalist that resides in my head is screaming about this one. And it’s that side that’s winning. Where is the “Bush LIED” crowd on this one? Shockingly quiet, it seems…

  11. Homefrontsix – I am part of the Bush Lied crowd – see my piece today at http://www.saltlaw.org/blog (http://www.saltlaw.org/blog/2011/10/05/confronting-fundamentally-un-american-conduct-resisting-pathological-and-deviant-behavior/) and I am right here on this too.  Also, Glenn Greenwald has been all over this.  The heart of it is what Jordan has said as to whether DPAA = 1)imminent threat 2) AQ or AQ associated and 3) no ability to arrest.

    Wouldn’t we add to the math that if we flip to CCF (continuous combat function) we are even higher than DPAA standard or CCF > DPAA > 1)imminent threat 2) AQ or AQ associated and 3) no ability to arrest.

    The problem is whether there is evidence that meets CCF or is between CCF and DPAA or between DPAA and 1), 2) and 3).  And then you go to what the burden of proof has to be at each level – more likely than not, substantial evidence, or beyond a reasonable doubt.  This to me is the breaking out of what is going on to try to go beyond just “trust us”.  And for me as for Ron Paul the citizen targeting puts a special chill on this maybe because of the traditional US citizen-foreigner distinction.

    The math on citizen rights > foreigner with no allegiance to US rights is one way of looking at this.  Another way is to think in terms of the US right of diplomatic protection and the discretion to exercise it or not for a given citizen abroad (kind of flipping that idea I recognize but I think I get at something meaningful for the range of possible US responses to this citizen abroad).  Another part of this is the pressure that US folks place on the government as to how it is to exercise its discretion with regard to this citizen abroad.

    It is all this kind of stuff that gets played around with as a matter of both domestic and international law.

    Another thing would be human rights <= or > than citizen rights <=> foreigner rights without allegiance being compared with CCF > DPAA > 1), 2), and 3.  What if we insist that in this space there are = signs all the way through – pretty heavy no?

    Best,
    Ben

  12. The race card. From a limited sample size of three. Good grief. Benjamin G. Davis’s posts really are a joke most of the time. Race this, race that, everything is shot through with race. Yawn.

  13. My question has yet to be answered and, if answered in the affirmative, renders moot the entire mathematical equation that Ben and Jordan have put forth: does Article 51 of the UN Charter supersede the Constitution of the United states of America?

  14. OCB, if you think the sample size is three for racial disparities in our criminal “justice” system, you’re ignorant. (meaning you just don’t know, I’m trying to educate, not belittle). The other part of this equation – our foreign policy – it is more difficult to judge, because the defining issue is power, not justice. However, there is a case to be made that we treat foreign white people better than the other colors.
     
    Also, I’m somewhat new here, but I’ve never read Ben’s comments as he’s a racial determinist. It’s a factor for sure. If you ignore race, which is standard practice, you’re missing something. Maybe “it” is important, maybe not, but “it” is always there.

  15. Response…
    Homefrontsix:  The U.S. Const. applies abroad for, at least, U.S. nationals and in the case of an unavoidable clash with the U.S. Const., int’l law would not be applied by the Exec.  BUT the question shifts to what process is “due” one who allegedly is “directly participating in” ongoing armed attackes — the 5th Amend. has to be interpreted with reference to context.  It is not unusual for Supreme Court Justices to use international law as an aid for interpretation of the 1st, 4th, 5th, and 8th Amendments to our Const.

  16. Jordan ~ thank you for the clarification. I am still torn on my take on this but truly I am uncomfortable with the slippery slope it seems to walk.

  17. ONE NOT-SO-MINOR CORRECTION TO THIS DISCUSSION:  At least a few of the comments above have conflated the decision to use military force (aka jus ad bellum) for which Article 51 of the UN Charter applies, with how the hostilities are conducted (aka jus in bello) for which Geneva, Hague, etc. apply.  Nor are these different paradigms–they are simply different aspects of the Law of Armed Conflict / Law of War / International Humanitarian Law, usually considered in a sequential manner.
    If you agree with the argument that the U.S. is engaged in ongoing hostilities with al Qaeda (including AQAP), then the jus ad bellum decision has already been made (rightly or wrongly, but supported domestically by Congress’ 1991 AUMF).  The question then becomes whether targeting al-Awlaki comports with jus in bello (e.g. as a putative civilian taking a Direct Part in Hostilities, not merely for his propaganda, but for his role in actively planning/supporting terrorist attacks).
    If you don’t agree that the U.S. is engaged in ongoing hostilities with AQ (which would, by definition, be NON-International since only 1 State is involved–remember that “Inter National means “Between States”), only then would you need to consider whether the U.S. actions are defensible under the UN Charter, either as self-defense (art. 51), or as authorized by the UNSC (art. 42).
    As to HomefrontSix’s express question whether the UN Charter supersedes the U.S. Constitution, in a word, “NO!”  Under the Supremacy Clause in Art. VI of the Constitution, treaties are on par with federal law (i.e. binding so long as not unconstitutional).  However, treaties are generally considered not to be self-executing within the U.S.  What this generally means in the context of using military force is that a President has to have both domestic support for the use of force (e.g. 2001 AUMF against al Qaeda), and international support for using military force (under either Art. 42 or 51 of the UN Charter).  Your implied question appears to be, however, whether the use of military force trumps 5th Amendment due process.  I think that the analysis mentioned by others above that if either law enforcement or military force is authorized in a given situation, then no more process is due (however much we might question the morality of targeting a U.S. citizen in various scenarios).

  18. Response…
    “readers” should click onto “fearlesshumanity” [above] for further discussion.
    In response to BattleJAG, the actual phrase would be conflict of an international character.  Further, such conflicts have included those between states and nations (even if the U.S., wars with Indian nations and tribes), states and belligerents (our Civil War, Lieber Code, etc.).  The realistic question today should be: what internationalizes an armed conflict?  How about the crossing of borders, the expansion of a theatre of war into another country, etc.? Also, the Taliban was the de facto govt. of Afghanistan 10 years ago today, and the de jure govt. accoridng to at least three states.  Also, U.S. soldiers have combatant status and combatant immunity in an armed conflict of an international character, so it in their interest to be recognizably involved in a conflict of an international character whenever they are deployed to fight abroad (with or without the foreign territorial state’s consent). DOD should change their tune on this one — to protect our military personnel with respect to lawful conduct during a conflict of an international character.
    p.s. UN art. 52 also allows “regional action” such as the NATO authorized war in Kosovo — it was lawful under international law.
    p.s.p.s.  the AUMF merely authorized “appropriate” conduct, whcih means appropriate under relevant law, including international law (as recognized actually in Hamdi).  Our courts have often recognized the international law is a necessary background for statutory interpretation — e.g., Charming Betsy rule, and then the Cook rule, etc.
    and — Restatement notes that the actual trends up to that time at least were that a treaty is presumptively self-executing.  Moreover, we use the language of the treaty considered in context test and should recognize that rights/duties set forth in “shall” language are usually mandatory, self-executing.  Our Chief Justice, prefering the opposite (possibly for ideological reasons since he cited nothing to support his preference) in Medellin was rightly criticized with respect to such dictum by other Justices in the case.

  19. The sample size IS three for targeted killing of United States citizens, a decision taken at the highest echelons of government and the national security apparatus, and therefore not a function of the “justice” system. Perhaps you’re ignorant (meaning you just don’t know, I’m trying to educate, not belittle), but a sample size of three (or even fewer if we exclude Kahn as a collateral death and Ben’s assumption that Lindh was hypothetically targetable) is not meaningful evidence of “racial disparit[y].” Ben’s neurosis (here and elsewhere) has reached parody levels. When you’re finding racial angles in posts that ostensibly have nothing to do with race, you’re probably obsessed.

  20. Good discussion from BattleJAG and JordanPaust (PS your name link on this post goes to Jordan Travel – as in the mideast country and fearlesshumanity is below. PPS that tiny column of text is annoying).
     
    OCB, I find Benjamin G. Davis’ comments quite cogent. Do you have any?

Trackbacks and Pingbacks

  1. [...] One way commentators have approached the issue is the preliminary question of whether Al-Awalki was still indeed a US citizen. The US Supreme Court has ruled that it is a violation of the 14th Amendment to the US Constitution to summarily strip an American of their citizenship even if they are fighting for a foreign army (if you consider Al-Qaeda to be a proper army). In order to so, it must be shown that Al-Awlaki swore allegiance to another state with the explicit intention of renouncing his US citizenship. There is no evidence he did this. Moreover, the Obama administration never claimed he was no longer an American citizen when it added him to the target list. Another intriguing commentary posed the more sociological question of whether there is a class of …. [...]