In today’s world, not all U.S. citizens are ‘due’ the same kind of ‘process.’
An open debate over using drones to target individual terrorists is long overdue. Many Americans object to the killing in Yemen of Anwar Awlaki, a fellow citizen, without affording him due process. But the Supreme Court has ruled that the particular “process” that is constitutionally “due” varies with context and competing interests. So how much process was Awlaki due? My answer is some, but not in a court.
Our constitutional principles ordain that all citizens shall be treated alike. The government may not give fewer rights to those who acquire citizenship through naturalization than to those who are born here. A citizen is a citizen; end of story. Fair enough. But for a citizen who has declared himself an enemy of the United States and has refused to surrender for trial, perhaps we need a different story.
The court has also held that the government may not take away one’s citizenship against one’s will, regardless of one’s actions, except for treason, which the Constitution properly makes hard to prove if, like Awlaki, you are not under a U.S. court’s jurisdiction. In 1967, the court held that a dual citizen who voted in another nation’s election could not lose his American citizenship unless he knowingly and intentionally chose to relinquish it. Two more recent developments, however, justify a narrow limitation on this generally sound principle.
First, citizens like Awlaki, believed to be in the Al Qaeda leadership, may now operate with impunity from havens abroad. And cat’s paws — the accused Ft. Hood killer and Awlaki follower Nidal Malik Hasan may be an example — can do their murderous work right here, facilitated by their American citizenship and passports. Second, the vast increase in Americans holding dual and even triple citizenships has magnified this threat.
Dual citizenship has proliferated as easier travel and cosmopolitan mobility have fostered international relationships, which lead to more naturalizations and more marriages between people of different nationalities, who in turn can often transmit their different citizenships to their U.S.born children. Government policies, both here and abroad, have also increased dual citizenship, mostly for good reasons. Traditionally, the State Department opposed dual citizenship out of concern about conf licted loyalties, military service requirements, diplomatic protection burdens and the like. Today the government no longer resists it, recognizing the legitimate causes of dual citizenship, the practical obstacles to preventing it and the fact that, in practice, it causes little harm.
But there remains a darker side to dual citizenship: Some citizens who spend most of their lives abroad now have only notional ties to the United States rather than a genuine communal or emotional connection. Al Qaeda will surely focus recruitment efforts on this group, even though only a few will turn on their country.
Which brings us to the case of Awlaki, a dual citizen of the United States and Yemen. The government claimed there was hard, actionable intelligence that he had plotted to kill Americans, and that he was our citizen in name only. He refused to return to the U.S. and could not be captured for interrogation and trial without putting troops on the ground and in danger (and perhaps not even then).
Does the Constitution really require that he receive the judicial process owed to a citizen who lives in our society and is charged with a serious crime? I think not. Should it matter that the laws of war — and Congress has authorized force against Al Qaeda — allow us to kill a legitimate military target without any process whatsoever and regardless of his nationality? Or that an American bomb may kill anyone in a war zone, including our citizens, without raising any special legal or moral questions? Or that the “war zone” in our struggle with Al Qaeda is increasingly global? I think so.
After debating these issues, Americans must decide who would decide whether to target citizens, under which criteria and with what safeguards. To cite only one possibility among many: Congress might authorize the president to make the call but only after he makes certain required findings of fact and shares his supporting evidence with House and Senate leaders in secrecy. The process might include an internal “target’s advocate.” The government might have to make the findings and evidence public, with the fewest redactions needed to protect sources.
Due process does not always require a court, especially where speed, secrecy and expertise in intelligence and diplomacy are essential. We can secure the requisite accuracy and accountability in other ways.