On the Propriety of the U.S. Assassinating a U.S. Citizen

Last week, the United States assassinated one of its citizens.

Anwar al-Awlaki was born in Las Cruces, New Mexico in 1971. He was arguably still a U.S. citizen when he was killed by that missile. Glenn Greenwald was correct in saying that the United States assassinated one of its own citizens without due process.

8 U.S.C. § 1481 governs when a U.S. citizen loses U.S. citizenship. Among the voluntary acts that result in the loss of citizenship is “entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States.” As Matthew Yglesias pointed out, al-Qaeda is not a “foreign state,” so he didn’t surrender citizenship this way. Even so, the loss of citizenship is not necessarily automatic. “[T]he trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in [§ 1481(a)], but also intended to relinquish his citizenship.” Vance v. Terrazas, 444 U.S. 252, 261 (1980). Perhaps al-Awlaki’s actions were treasonous, but even treason requires a trial (see 8 U.S.C. § 1481(a)(7)). Being blown up by a Hellfire missile on the say-so of the CIA is not due process.

Questions remain about the degree of his terrorist involvement.

The U.S. government claims that, among other things, al-Awlaki was the head of Al-Qaeda in the Arabian Peninsula. This “fact,” along with many others, is disputed. Probably the only fact about al-Awlaki that is not disputed is that he spread anti-American messages. But the other allegations are possibly true, or possibly false. We have trials so that juries can sort out facts so that, in criminal prosecutions, government assertions do not go unchallenged, especially when they could be dubious. (Remember the 600 people imprisoned at Guantanamo Bay? Remember how the government insisted that they were all dangerous terrorists? Then you must also remember that most of them weren’t terrorists at all.)

Last year, a U.S. District Court entertained the propriety of assassinating al-Awlaki. That case, brought by al-Awlaki’s father, was dismissed for lack of standing. But the judiciary is very deferential to the executive when it comes to prosecuting a war — sometimes too deferential, as Fred Korematsu could have told you. The U.S. government continues to keep fifty prisoners in Guantanamo Bay who will not be tried, but nevertheless, will remain there indefinitely because the government asserts that they’re terrorists, but doesn’t have enough evidence to prove it. Does this make sense?

Make no mistake: there are people out there who don’t like the United States and are certainly plotting against it. It could very well be that al-Awlaki was very high up on the terrorist org-chart. But when it comes to assassinating a U.S. citizen, the burden rests on the government to show that its American target had indeed relinquished U.S. citizenship, within the parameters of some kind of adversarial proceeding. Without this, we’re left with a government that can decide, behind the opaque curtain of state secrets, which of its citizens live and which are blown up by a remote-control drone.