The American Civil Liberties Union and the Center for Constitutional Rights have brought suit against the Obama administration for ordering the targeted killing of American-born al Qaeda leader Anwar al-Awlaki, who is believed to be holed up in Yemen. These groups argue that the president doesn't have the legal authority to order the assassination of American citizens. That's right, so in order for the kill order to stand, Awlaki should be stripped of his citizenship.
President Obama has exceeded his power in ordering Awlaki's assassination. Americans abroad are protected by constitutional guarantees of due process, at least when faced with U.S. government action. The implications of Mr. Obama having the legal authority to place American citizens abroad on a government hit list are too alarming to contemplate. If the precedent of unilaterally targeting Awlaki without due process stands, then anyone could go on the list.
Awlaki would no longer have constitutional protections if he lost his citizenship. In 1940, Congress passed legislation that established a number of statutory "expatriating acts," which automatically voided American citizenship if undertaken voluntarily. These included taking an oath to a foreign power, serving in the military of a country at war with the United States, or committing treason. The intent of Congress was to make clear that some actions were by their nature fatal to being an American.
Subsequent Supreme Court decisions restricted but did not overturn the law. In Afroyim v. Rusk (1967), the high court determined the 14th Amendment is "most reasonably ... read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it." This doesn't mean Awlaki remains a citizen until he explicitly says otherwise. In Vance v. Terrazas (1980), the court ruled that "intent to relinquish citizenship" may be "expressed in words or ... found as a fair inference from proved conduct."
Awlaki easily passes the "expatriating acts" test. He is a senior al Qaeda leader who's actively engaged in promoting jihad against our country. He helped instigate the Fort Hood massacre and the failed Northwest Flight 253 Christmas Day underwear bombing. Awlaki is literally at war with America.
It is more than a "fair inference" that Awlaki no longer considers himself an American. The theme of his most recent videotaped rant is the permissibility of jihadists to kill any and all Americans at any time without special instructions. "Don't consult with anybody in killing the Americans," he said. "They are the party of the devils." His consistent use of the third person in referring to Americans is a clear indication that he doesn't consider himself one of us. He made this point explicitly when he stated that followers of Islam such as himself and Americans "are two opposites who will never come together." In his heart and mind, Awlaki has left his birth country behind.
The way is clear for the government to strip Awlaki of his citizenship, which should be a necessary precondition for any covert direct action against any American. Assassinating U.S. citizens abroad, even loathsome creatures like Awlaki, is a high crime against the Constitution. Mr. Obama would do well to take note of that before pulling the trigger.
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