Does it matter that al-Awlaki was a U.S. citizen? If so, why?

John Dempsey writes:

Do you recall the CIA ever having admitted, much less, advertise the fact, that it has assassinated an American citizen (whose citizenship should have been revoked, in my opinion), such as in the Awlaki case?

LA replies:

No, but I don’t see the relevance of his being a U.S. citizen. He was a non-uniformed person waging war on the United States. He needed to be killed.

Perhaps someone could explain to me the difference between the measures that are proper for our government to use against a Mideast jihadist instigating jihad mass murder attacks on America who is not a U.S. citizen, and the measures that are proper for our government to use against a Mideast jihadist instigating jihad mass murder attacks on America who is a U.S. citizen.

Let us also remember that if the American media applied their usual style for identifying criminals and terrorists to Awlaki, they would describe him as a “Yemen man.”

- end of initial entry -

D. Edwards writes:

Does it matter that al-Awlaki was a U.S. citizen? If so, why?

I think it does. The constitution, Article III, Section 3:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

I think that “Treason against the United States, shall consist only in levying War against them,” could easily be shown in a court of law in the United States. This is because al-Awlaki statements were made explicit to the people of the United States(potentially 330 million witness)(from Wiki):

“With a blog, a Facebook page, and many YouTube videos, he had been described as the “bin Laden of the Internet”

The problem becomes, if you go after al-Awlaki for treason why can’t you go after NYT for publishing damaging information during the Bush administration?

I’m glad this person was taken down. But, to do it in this manner reenforces the general drift to lawlessness in this nation.

LA replies:

The treason clause in the Constitution is irrelevant to this case. The clause has to do with a legal proceeding in which a man is accused of and tried for treason. In this case, a non-uniformed combattant located in a foreign country was actively instigating jihad mass murder attacks on America. He was not an adherent of any government. He was not a U.S. citizen who was fighting under a foreign flag against the U.S. and had come under our power, a case in which a treason charge would be appropriate. He was the equivalent of a murderous pirate, a person outside any law, not loyal to or under the jurisdiction of any country, waging war against and causing the deaths of Americans. He simply needed to be killed, and he was killed.

You have not addressed the question why it would be proper to kill a non-U.S. citizen terrorist who is waging war on the U.S. from foreign soil, but not proper to kill a U.S. citizen terrorist who is waging war on the U.S. from foreign soil.

John Dempsey writes:

Wouldn’t one of those sets of measures quite possibly be prohibited by the protections laid out for American citizens in the U.S. Constitution? Don’t get me wrong., I celebrate this man’s death. But with Janet Napolitano relegating right-wingers to top of the “most-likely to commit jihad in America” list, is it a wise thing to dismiss those protections as irrelevant? The government assassinated an American citizen on the basis of evidence that it is keeping secret. You have a great deal more faith in the America-hating Obama government than I have.

LA replies:

I see where you’re coming from and understand your concern. But I don’t see any reasonable connection between this case and the type of possibility you fear. Awlaki was, after bin Laden himself, the jihadist leader who was most active in recent years in fomenting mass murder attacks on America. He was a very serious enemy who had been responsible for killing many Americans and was actively seeking the deaths of many more. There is no parallel between that and the vague fears of “white conservative extremists” stirred up by Janet Napolitano. Are you seriously saying that because of the Awlaki “precedent,” the government might start assassinating white conservatives?

Also, Awlaki was not “assassinated,” he was killed as a non-uniformed enemy by a missile. The killing of bin Laden could more reasonably be called an assassination.

Please tell me what you think the government should have done about Awlaki.

John Dempsey replies:

Show just cause in order to revoke his American citizenship, which I’m fairly certain they could have done, and then kill him.

Slippery slopes, Lawrence.

LA replies:

While I myself have advocated the revocation of the U.S. citizenship of natural born citizens who are jihadist enemies of America (see my 2004 FrontPage Magazine article, “How To Defeat Jihad in America”), that is a fairly radical proposal, and I’m not aware of any natural born citizen losing his citizenship regardless of his treasons. I don’t know that judicial principles and precedents are in place to allow it to be done. So I don’t know that your proposal, as desirable as it may be, is practicable under present circumstances.

So tell me this. Would you have the government engage in a years-long effort to strip Awlaki of his citizenship, an effort that might well have failed? And if it had failed, then, since the very purpose of the move to revoke his citizenship was to free the government to take military action against him, the government would have been absolutely stopped from taking military action against him. The only thing the government could have done at that point would be to apprehend him alive in Yemen and try him for treason in federal civil court in the U.S., a process that would go on for years and years consuming inconceivable amounts of our national energy, all in order to show our adherence to the rule of law. It’s like a nightmare spawned in the brain of Eric Holder. Is this what you want and what you think is right and just?

Stewart W. writes:

There is another consideration that renders the question of al-Awlaki’s citizenship irrelevant. If the leftist U.S. government began hunting down and assassinating American conservatives, there wouldn’t be much point in tapping them on the shoulder and reminding them that what they are doing is un-Constitutional.

The Constitution is not governing their behavior, at this point. They can still be removed from power, and they know it. Once they cross that line, we will be in a full blown, hot civil war in this country, and that is the only thing keeping them in check.

Al H. writes:

Technically, I think the hellfire missile revoked his citizenship. (Shamelessly stolen from another blog comment.)

John Dempsey replies to LA:
Rule of law must mean something more than government whim. As you advocated in the FPM article you linked, we should change our law to allow for revocation of citizenship of those that wish to wage jihad against us. And if the government can change the law in order to mandate that every person in America who draws breath buy health insurance, they can certainly accomplish this, if they have the will. Otherwise, the “war on terror” remains as obscure now as when Bush first declared it back in 2001.

LA replies:

All this upset about the rule of law that I’m getting from you and others, yet none of you has answered my simple question: How does the rule of law require that we deal with a Yemen-based terrorist who is waging war on us and IS a U.S. citizen, any differently than we deal with a Yemen-based terrorist who is waging war on us and is NOT a U.S. citizen?

I see no difference. The U.S. citizen who is waging terrorist war on the U.S. has effectively renounced his U.S. citizenship. His citizenship barely rises to the level of a legal fiction. What is substantively true and important about him is not that he is a United States citizen, but that he is an enemy of the United States.

October 1

Alexis Zarkov writes:

The question raised in this entry, “What difference does it make if Awlaki was a citizen or not?”, has been the subject of some legal blogs. Professor of law Kenneth Anderson, writing in the Volokh Conspiracy, says:

The fact of U.S. citizenship is the factor in this situation that has most excited the blogosphere. Insofar as Al-Aulaqi was targeted for taking operational part in groups engaged in armed conflict with the United States, historically the fact of citizenship has been neither here nor there. That’s the easy answer—essentially just asserting the existence of the armed conflict like any other—and as a legal basis for targeting, I think the U.S. government is on solid ground if that’s its claim. And to reiterate what is said above, the U.S. government has been very careful to rely not upon “internet preacher shooting his mouth off,” but instead on distinct operational roles …

The reality, of course, is that this is not like any other armed conflict, and though I believe the U.S. government had firm grounds domestically and internationally to target Al-Aulaqi, I also believe as a matter of forward looking legal policy that the U.S. should elaborate more extensive and explicit oversight procedures in the case of targeting of U.S. citizens that will ensure the buy-in of the political branches. It seems clear that this was done informally in the designation of Al-Aulaqi as a target, but I believe this process should be formalized in the secret reporting to Congress. The courts should, as Judge John Bates did in dismissing the ACLU’s attempt to secure an injunction against targeting Al-Aulaqi, decline to intervene in processes of vital national security abroad in which the political branches have an agreed-upon procedure of oversight and accountability.

Professor Anderson essentially answers Mr. Auster’s question. No, it makes no difference. A non-citizen terrorist and a citizen terrorist get treated the same. If they both have operational roles in waging war against the U.S., they are both potential targets.

It seems to me that the CIA and the military are making very effective use of drones. Now the sworn enemies of America, the Arab Muslim fanatics, are ones subjected to terror. At any time they know they can suffer a fatal attack from a mechanical avenger from the sky. Since they get no warning, they now have to live in continuous fear. How fitting. The American Civil Liberties Union (another sworn enemy of the U.S. ?) have been told to “stick it.”

LA notes as an aside:

Anderson repeatedly spells “U.S.” incorrectly as “US”. I have corrected it throughout. The periods in “U.S.” are part of the name of our country in its abbreviated form. The increasingly common habit of spelling the name without periods must be resisted.

October 3

D. Edwards writes:

You write:

“What is substantively true and important about him is not that he is a United States citizen, but that he is an enemy of the United States. “

So too did FDR think about Japanese, Germans and Italian Americans in WW II. So too did Wilson in WW I with Germans. My problem isn’t in killing this jihadi. My problem is with a President who might use this “kill a jihadi every few months to show I’m protecting the U.S.” as an election ploy. I prefer some oversight about this process of eliminating citizens of the U.S.. My devalued $0.02. Thanks for your blog.

LA replies:

Drone-based killings of jihadists have been going on steadily since the start of the Obama administration—more than under Bush. Did you ever complain about these killings before? No. The killing of Awlaki (plus the unplanned but welcome killing of his jihadist pal and fellow U.S. citizen Samir Kahn) is simply a part of that campaign which presumably you have welcomed and supported. So, again, what relevance does Awlaki’s U.S. citizenship have to this issue? None. He was an enemy waging war on us and seeking to mass murder us. Our government has not suddenly started “killing U.S. citizens,” which is the way you are painting it; rather the government is continuing doing what it has been doing all along, which is killing jihadists.

There is no analogy between the treatment of Awlaki and the treatment of Japanese-Americans in the U.S. during WWII. They were not killed, they were relocated out of the war zone on the Pacific Coast, not because they were designated as enemies, but because Japan had attacked the U.S., it was known that there were Japanese agents in the Japanese-American population, but the U.S. government had no way of determining who among them might be Japanese agents. Japanese-Americans who chose to move out of the war zone to other parts of the country were allowed to do so.

This is not the opening of a discussion about the Japanese internment.

James P. writes:

Your readers are exercised about the issue of Awlaki’s citizenship. They are ignoring a number of pertinent additional facts: (1) He was not merely a rabble-rouser but had an operational role in planning and directing terror attacks. (2) Yemeni security forces made a two-year effort to capture him, but failed. The NYT reports: “[T]he Yemeni security services, many trained by American Special Forces soldiers, appear to have pursued Mr. Awlaki for almost two years in a hunt that was often hindered by the shifting allegiances of Yemen’s tribes and the deep unpopularity of Mr. Saleh’s government.” (3) The U.S. government repeatedly invited him to surrender and assured him he would receive due process if he did so, but he publicly and repeatedly stated he would never surrender (see this).

In short, the government did not kill Awlaki on a “whim” when he was innocently standing on a corner in an American city. They killed him after he refused to surrender and while he was actively planning to kill more Americans. Any government that did not kill him under such circumstances would be completely worthless and would have failed in its basic duty to protect American citizens.

LA writes:

In an op-ed in the New York Daily News, Rep. Ron Paul writes:

Awlaki was a U.S. citizen. Under our Constitution, American citizens, even those living abroad, must be charged with a crime before being sentenced. As President, I would have arrested Awlaki, brought him to the U.S., tried him and pushed for the stiffest punishment allowed by law. Treason has historically been judged to be the worst of crimes, deserving of the harshest sentencing. But what I would not do as President is what Obama has done and continues to do in spectacular fashion: circumvent the rule of law.

None of Paul’s arguments holds water. There was no question here of charging Awlaki with a crime and sentencing him. He was not charged and he was not sentenced. He was waging war against the United States, and he was killed before he could kill more Americans.

Second, treason was not the issue here. He was not charged with treason (though he could have been). He was an enemy combatant and was killed as such. Also, treason is almost an impossible charge to get approved nowadays.

Third, Paul fatuously assumes that the U.S. could easily have arrested Awlaki. But as the New York Times article quoted by James P. reports, the Yemenis, trained and assisted by U.S. Special Forces, had been trying to arrest him for years and had failed.

Finally, neither Paul nor any of the critics of the Awlaki killing I’ve engaged with at VFR has explained why Awlaki’s citizenship status matters. The critics say it’s wrong to kill a jihadi terrorist on foreign soil if he is a U.S. citizen. But by their reasoning, as far as I grasp it, it is also wrong to kill a jihadi terrorist on foreign soil if he is NOT a U.S. citizen. Do non-Americans have lesser human rights and a lesser right to life than Americans? Are their lives worth less than the lives of Americans? If we must arrest and try Awlaki rather than kill him, on what basis are we not obligated to arrest and try other jihadists, rather than them them?

Alexis Zarkov writes:

During WWII FDR ordered Secretary of the Navy Frank Knox to “get” Admiral Isoroku Yamamoto. The resulting military action called “Operation Vengeance” targeted Yamamoto the person, and U.S. Army Fighter planes ambushed his bomber aircraft killing him. The sole purpose of the mission was to kill Yamamoto. Suppose Yamamoto had been born in the U.S. and emigrated to Japan as a child. Does anyone think a technical American citizenship would have immunized him against Operation Vengeance? Can anyone imagine Secretary Knox telling FDR, “Sorry we can’t target Yamamoto because he holds American citizenship, and killing him would be a violation of the U.S. Constitution?” Of course not. The same applies to Al-Awlaki. Like Yamamoto, he was waging war against the U.S. and carried the status of an enemy combatant. His American citizenship was irrelevant. More and more, I am coming to the conclusion that Ron Paul is a nut case. I must commend Obama for aggressively waging war against America’s enemies, and ignoring these silly objections based on a false understanding of law.

D. Edwards writes:

A commenter at Belmont Club named “Blast from the Past” succinctly states my concerns relating to rule of law concerns:

The Secretary of State could have issued a finding that citizenship had been renounced and petitioned a Federal Magistrate to issue an order to that effect. The Congress could have passed an Act to the same end also. He could have been charged with treason and afforded a reasonable chance to appear for trial. Effectively loss of citizenship could be held as happening either due to public renunciation or as a penalty for treason following conviction. In both cases he would be liable for capital judgement for the treason when he was a citizen and he would be a legitimate target for military force as an enemy combatant. Under the current U.S. law it is hard to renounce citizenship and you usually have to do so in a U.S. embassy or consulate or if in the United States by going to a federal judge in the U.S. Court House. Trial in absentia is also contrary to U.S. practice so some improvement in the law to deal with these cases could be needed. That still does not give the POTUS a license to order the preemptive killing of a U.S. citizen. The option of going to Congress was not even explored as far as I can tell. With this administration it is reasonable to consider that arrogance and laziness explain more than a concern for operational security. If there is evidence that the operation was needed because of time sensitive intelligence to save other lives then at the minimum we need assurance that the proper members of Congress, including the Republican leadership, were consulted.

The British showed how to deal with treason by someone who thought they had renounced their duty of allegiance when they tried Lord Haw Haw. Read Dame West’s “The New Meaning of Treason.”

LA replies:

It’s hard for me to overstate how weak this argument is. “Blast from Past” proposes two possible measures for dealing with Awlaki: (a) declaring that he has in effect renounced his citizenship, at which point he would become an enemy combatant and thus a legitimate target of killing; or (b) trying and convicting him of treason in absentia, in which case he could be arrested and executed for treason. But then Blast admits (c) that it’s hard for a person to renounce citizenship and that it has to be done in person, not simply by the government declaring that the person has constructively renounced his citizenship; and (d) that trial in abstentia, including trial for treason, is contrary to U.S. practice. In short, Blast admits that his two proposals (a) and (b) are precluded by conditions (c) and (d) under existing U.S. law. But then he says: “That still does not give the POTUS a license to order the preemptive killing of a U.S. citizen.” In practical terms, then, Blast from the Past would have us do nothing about Awlaki.

I don’t mean to offend anyone, but this is not coming from a serious place. This is coming from the vicinity of Ron Paul Land.

LA adds:

The Belmont Club commenter misspells the abbreviated name of our country as “US”, without the periods. I have corrected his spelling.

James P. writes:

The Belmong Club commenter writes,

The British showed how to deal with treason by someone who thought they had renounced their duty of allegiance when they tried Lord Haw Haw.

This is irrelevant to the killing of Awlaki, because the British had him in their custody after World War II. If we had Awlaki in our custody, then no doubt we would have tried him for something, but we didn’t, and that’s the whole reason we used our drones on him.

The Lord Haw Haw analogy is doubly irrelevant because Lord Haw Haw was an American citizen, and the British tried him for treason on somewhat dubious grounds, since he had obtained a British passport fraudulently.

The British quite properly tried and executed John Amery after the war, but again, the trial took place because Amery was in British custody.

LA replies:

The commenter writes:

“The British showed how to deal with treason by someone who thought they had renounced their duty of allegiance … “

He uses the plural pronouns “they” and “their” to refer back to the singular noun “someone.” In conversation people commonly use “they” to refer to a person of undetermined sex. But we can see the mess that results when this is done in published writing.

Paul K. writes:

The opposition to the killing of al-Awlaki makes no sense to me. There was a small number of German-Americans who went to Nazi Germany to fight for Hitler—see here and here. There were also Japanese-Americans who returned to their ancestral home to fight for the emperor. Would anyone have cried “Abuse of executive power!” if they had been killed by American forces?

Perhaps I’m missing the significance of the fact that al-Awlaki was singled out for elimination, rather than being killed in battle. To me, it seems far more humane to target our enemies with pinpoint accuracy than to risk the collateral deaths of non-combatants.

D. Edwards replies to LA:
I believe the Belmont commenter and I are arguing that killing a U.S. citizen should be of a different standard. I don’t much like the President of the U.S. being able to kill, without any oversight, citizens of this country. Shouldn’t the Republican/Democratic leaders be informed of which U.S citizens are on the Presidents “hit list” as “enemy combatants”? Also, Mr. Auster, given your views, couldn’t, at some point in the future, you be considered an “enemy combatant” by the Marxist in chief? Call me “libertarian” or old fashion in being concerned about the growth of the federal government’s coercive powers over the citizens of this country.

LA replies:

The only way you or I could be considered enemy combatants would be if we waged war against the United States. I doubt very much that conservative bloggers and commenters will be designated as enemy combatants. We do face serious threats from excessive federal power. Being killed as enemy combatants is not one of them.

John McNeil writes:

I don’t have any legitimate arguments against Awlaki’s killing, but I do share Stewart W.’s concern about how this will pan out for the right in the long run. While I have no sympathy for Awlaki and I’m glad that he is dead, I do worry that this will open new doors for the Obama Administration and its potential leftwing/neocon successors. And while I don’t want to give in to Alex Jones-type conspiracy theories, this recent incident as well as being aware of the DHS’s eagerness to paint white Americans as terrorists makes me worried about how far the government will go in fighting terrorism.

If my fears have any legitimacy, then I suppose the best thing we can do is to be as peaceful a movement as possible. Don’t even speak of armed revolution (as some on the right are prone to do), since that will only give the government an excuse to resort to Waco/Ruby Ridge type tactics. Even if the left resorts to Stormtrooper tactics (such as antifa [antifascist] mobs), we must meet the fist with an open palm.

October 4

Stewart W. writes:

I think John McNeil misunderstands my position. I have no problem with the killing of al-Awlaki, an enemy combatant actively engaged in planning military operations against the U.S., precisely because I don’t see that legal or moral proscriptions against killing U.S. citizens are restraining the government in any event. They are restrained by the force of American opinion, and there would be a very different public reaction if they began targeting real, native born, ethnically-European (or African-American) citizens for purely political reasons. I’m OK with that difference.

In some ways, this killing is the ultimate “Unprincipled Exception.” From a Traditionalist position (and from our common law history), al-Awlaki was truly an outlaw, someone whose actions put him outside the protection of the law, regardless of the technicalities of legal citizenship. He was “them,” not “us,” and his actions clearly merited the modern equivalent of a “Wanted: Dead or Alive” poster.

Posted by Lawrence Auster at September 30, 2011 07:28 PM | Send

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