Al-Awlaki's Can of Worms

Anwar al-Awlaki may be dead, but the controversy surrounding his demise is far from over.  Many Americans and members of Congress are still alarmed that a U.S. citizen was ordered assassinated without due process of law.  And an important point that the Obama administration could make in its defense is contained in a can of worms that the president would probably rather not open.

It is the same can that was noted to exist by the Bush administration and two Supreme Court justices back in 2004 in the case of Hamdi v Rumsfeld, although the court's final decision did not open it either. 

The worms in the can: the assertion that al-Awlaki, just like Yaser Esam Hamdi, might not have been a U.S. citizen in the first place.

"Why is Hamdi being treated as a citizen at all?" asked constitutional law expert Dr. John Eastman in his 2004 editorial, "Wrong Question in Hamdi."

The same question was posed regarding al-Awlaki by former congressman Tom Tancredo, one of the signers of an amicus brief submitted in Hamdi: was al-Awlaki ever really an American citizen?

The Hamdi briefs prepared by the Center for American Unity (CAU) and the Eagle Forum argued that the "birthright citizenship" practice -- the grant of citizenship to every baby born on U.S. soil, even to non-citizen parents here temporarily or illegally -- is not supported by a correct interpretation of the 14th Amendment or application of existing judicial precedent.

Hamdi and al-Awlaki were born in the U.S to temporarily resident non-citizen parents.  It is interesting to consider whether either Hamdi or al-Awlaki, if born elsewhere, would have been eligible to naturalize as U.S. citizens.  Current immigration law places even "ideological restrictions" on naturalization.  And while the process of naturalization requires renouncement of former foreign citizenship, birthright citizen babies born with the additional citizenship of their parents are allowed to retain dual citizenship for life.

Both Hamdi and al-Awlaki were birthright and dual citizens. 

Dual citizenship, a sort of privileged "supra citizen" status, essentially enables a person to alternate between nationalities depending on the circumstances -- a status some experts characterize as "civic bigamy."  The State Department notes that "dual nationals owe allegiance to both the United States and the foreign country" and recognizes the security clearance implications.  By their actions, both Hamdi and al-Awlaki obviously exhibited an allegiance that was not to America -- that is, until they were officially classified as "enemy combatants," and it became advantageous for them to claim U.S. citizenship with its habeas corpus rights. 

Imagine how difficult it would be to hold a competition in which a team player could switch sides, whenever he chose.  Or suppose that either team captain could assert the right to forcibly draft players.  Then imagine if the conflict was not a game, but real war.

"War is all about taking sides.  Unless of course, you can't, because you belong on both sides," remarked Francis Stead Sellers in her article, "When Conflict Focuses on Citizenship." 

Experts argue that the birthright practice and the dual citizenship it creates undermine the original intent of the 14th Amendment.  A strict interpretation of the phrase "subject to the jurisdiction" as alluding to allegiance and not as superfluous to "born in the country" would prevent such conflicts in citizenship.  The CAU amicus brief in Hamdi noted:

Sen. Howard, sponsor and author of the Citizenship Clause, when questioned about the meaning of "jurisdiction," responded that the phrase was intended to be read as meaning "not owing allegiance to anybody else"... Sen. Trumbull, Chairman of the Judiciary Committee...noted that even "partial allegiance if you please, to some other government" is sufficient to disqualify a person under the jurisdiction requirement.

The law of most countries (including the U.S.) grants citizenship to the children born abroad of its citizens.  Thus, a child born in the U.S. to alien parents is born with allegiance to some other government -- the government of its parents.

Ultimately, the Hamdi court neglected to address the citizenship question and ruled that the Executive Branch did not have the power to indefinitely hold a U.S. citizen without due process.  Although Justice Antonin Scalia did not elaborate on his usage of "presumed" in describing the citizenship of Hamdi in his dissent (joined by Justice John Paul Stevens), the government's Respondent brief and both amicus briefs referenced above included the same terminology.

As for the ordered assassination of "presumed" citizen al-Awlaki, even liberal commentators like Leonard Pitts are still outraged over Obama's lack of regard for the law, although few journalists seemed to notice that Obama and his defense team turned their backs on legal procedure and the judiciary of a state in recent ballot challenge hearings.  The Georgia challenges argued that Obama, with dual citizenship because of his non-citizen father, was not constitutionally eligible for the presidency as a natural born citizen.

The judge's decision, upheld by Georgia's Secretary of State and on appeal by the Superior Court, essentially held that every baby born on U.S. soil is a "natural born" citizen -- regardless of the citizenship, legal or illegal status, and permanent or temporary domicile of either of its parents.

While many have argued that Obama's natural born eligibility is supported by the fact that he had a U.S. citizen mother, the Georgia judge ruled that no citizen parents are necessary -- essentially putting anchor babies; "birth tourist" babies; and those like Obama, with his dual citizenship and only one citizen parent, on the same "natural born" bus.

Whether the mainstream recognized it or not, the Georgia ballot challenges brought both the topic of the grant of citizenship and the inextricably related definition of natural born eligibility into the spotlight. 

The assassination of al-Awlaki may ultimately bring into focus the same important and unavoidable discussion. 

Rep. Lamar Smith, the current House Judiciary chairman, signed the Hamdi amicus brief in 2004 along with Tancredo.  Even Harry Reid, back in 1993 in his bill proposing a curtailment of the birthright practice, asserted that citizenship should not be granted "solely by reason of physical presence within the United States at the moment of birth."

No matter how famous the birth certificate or how many newspaper birth announcements.

Was al-Awlaki really a citizen?  Was he a "natural born" citizen?  Who's driving that "natural born" bus, anyway?

This is likely a discussion that Obama would rather not have, as he steers clear of that can of worms.

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