At the highest levels of the US military, a quiet discussion is going on about putting in place a legal framework that would permit the US government to strip American citizenship from terrorists.
The case of Las Cruces, New Mexico born al Qaeda commander Anwar al-Aulaqi, who has been a key organizer and recruiter for the terrorist organization in Yemen is the primary driver of this exploration of possibly modifying US law to allow “de-citizening.”
As the Washington Post‘s Dana Priest recently revealed, al-Alaqi was added recently to a short list of other Americans for whom there are kill orders in place.
A senior Member of the Senate Select Committee on Intelligence has told me that to his knowledge, there has been no serious discussion in the Committee of stripping US citizenship from terrorists, but a senior Pentagon official has confirmed that some in the military are exploring the upsides and downsides of such a more routenized mechanism for stripping citizenship.
A national security attorney who serves in an advisory capacity to President Obama has reported to me that there is no legal way for the US military or the government to strip citizenship from Americans.
But Eugene Volokh, exploring in a Salon article the case of American gone al Qaeda adventurer John Walker, writes in 2001 that “8 U.S.C. § 1481 : US Code – Section 1481” may provide such a mechanism.
As Volokh then wrote pondering whether a terrorist could be stripped of his US citizenship:
Maybe. A federal statute says that a citizen loses his citizenship by “serving in the armed forces of a foreign state if such armed forces are engaged in hostilities against the United States” but only if he does so “with the intention of relinquishing United States [citizenship].”
This topic can be more ably discussed by sharp legal minds like Jeffrey Toobin, Jeffrey Rosen and Glenn Greenwald — but it seems to me that establishing a regularized legal framework specifying that alleged terrorists be stripped of US citizenship so that the military can deal with those de-nationed individuals differently reminds me of the kind of legal gray area that Cheney national security adviser David Addington loved to create.
By posting this question, I trust that others will review other cases and the legal background of this question of stripping citizenship in times of war — and weigh in.
The Pentagon’s top stars are mulling over this issue now and just beginning to probe receptevity in the administration and among some in Congress.
— Steve Clemons