Abraham U. Kannof, Dueling Nationalities: Dual Citizenship, Dominant and Effective Nationality, and the Case of Anwar Al-aulaqi

• Citation: Vol. 25 No. 3
• Publication year: 2010

DUELING NATIONALITIES: DUAL CITIZENSHIP, DOMINANT AND EFFECTIVE NATIONALITY, AND THE CASE OF ANWAR AL-AULAQI

INTRODUCTION

The U.S. government ended a two-year manhunt in September 2011 when armed drones operated by the Central Intelligence Agency (“CIA”) “crossed into northern Yemen and unleashed a barrage of Hellfire missiles” at a car carrying, among others, Anwar al-Aulaqi (also spelled “al-Awlaki”1)—a dual U.S.–Yemeni citizen.2 Formerly a moderately religious Muslim, al-Aulaqi had become a leader for radical Muslims abroad over the past decade, inspiring

jihadist attacks against the West and playing an increasing role in the operations and planning of attacks by al Qaeda’s affiliate organization based in Yemen. Al-Aulaqi was born in the United States to Yemeni parents in 1971, lived in Yemen from 1978 to 1991, returned to the United States to study and work in 1991, and left the United States permanently in 2002, returning to live in Yemen in 2004. In early 2010, the Obama Administration took the “extraordinary step” of promoting the targeted killing of an individual with

U.S. citizenship by authorizing the CIA and U.S. military to capture or kill al- Aulaqi.3 Later that year, U.S. Attorney General Eric Holder suggested that al- Aulaqi “should be on the same most-dangerous list as Osama bin Laden,”4 and New York Police Department counterterrorism officials labeled al-Aulaqi, not

bin Laden, as “the most dangerous man in the world.”5

1. See, e.g., Evan Perez, Suit Challenges Reach of U.S. ‘Targeted Killings,’ WALL ST. J. (Aug. 31, 2010), http://online.wsj.com/article/SB10001424052748704323704575462030737701908.html.

2. Mark Mazzetti et al., Two-Year Manhunt Led to Killing of Awlaki in Yemen, N.Y. TIMES (Sept. 30,

   2011), http://www.nytimes.com/2011/10/01/world/middleeast/anwar-al-awlaki-is-killed-in-yemen.html.

3. Scott Shane, U.S. Approves Targeted Killing of American Cleric, N.Y. TIMES, Apr. 7, 2010, at A12.

4. Geoff Earle & Andy Soltis, The Enemy Within: AG Sounds Alarm on Homegrown Terror, N.Y. POST (Dec. 22, 2010, 2:00 AM), http://www.nypost.com/p/news/national/the_enemy_within_FVSBheZuXxZzzn bj3xRrwI.

5. Matthew Cole & Aaron Katersky, Awlaki: ‘The Most Dangerous Man in the World,’ ABC NEWS (Nov. 10, 2010), http://abcnews.go.com/Blotter/awlaki-dangerous-man-world/story?id=12109217. Indeed, only days after bin Laden was killed by a team of U.S. Navy Seals in May 2011, a U.S. strike nearly succeeded

   in killing al-Aulaqi. Martha Raddatz & Luis Martinez, Anwar al-Awlaki Targeted by U.S. Drones, ABC NEWS (May 6, 2011), http://abcnews.go.com/Blotter/anwar-al-awlaki-targeted-us-drones-osama-bin/story?id=

   13549218.

   The United States has, on occasion, killed U.S. citizens involved in conflict in the Middle East.6 In 2002, for example, Ahmed Hijazi, an American citizen,7 was killed when a U.S. Predator drone fired a missile at a car in Yemen, killing six men—all suspected al Qaeda operatives.8 The targeted

   individual, however, was Abu Ali Qaed Senyan al-Harithi, an al Qaeda leader allegedly responsible for the USS Cole bombing.9 The addition of al-Aulaqi to the U.S. government’s “hit-list” represented the first time in this post-9/11 conflict that a person with U.S. citizenship was specifically targeted.10

   
   

   Al-Aulaqi’s death made waves among news media, politicians, and law professors, sparking national debate over the legality of killing an individual with American citizenship.11 For its part, the Obama Administration defended the strike, claiming that an internal review—involving senior lawyers from across the administration—determined that the killing of al-Aulaqi was legal.12

   
   

6. See, e.g., U.S. Defends Yemen Strike, BBC NEWS (Nov. 10, 2002, 10:50 PM), http://news.bbc.co.uk/2/ hi/americas/2439305.stm.

7. Hijazi, in fact, held dual citizenship with the United States and “an unidentified Middle Eastern

   country . . . . He was not born in the United States, but resided here for an unknown period of time.” Dana Priest, CIA Killed U.S. Citizen in Yemen Missile Strike: Action’s Legality, Effectiveness Questioned, WASH. POST, Nov. 8, 2002, at A1. Though it was widely reported that Hijazi was an American citizen, it is possible that he was not a dominant and effective American national.

8. Id.

9. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Rep. of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Study on Targeted Killings, at 7, U.N. Doc.

   A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston) [hereinafter Rep. of the Special Rapporteur]; Priest,

   supra note 7.

10. Shane, supra note 3; Catherine Herridge, EXCLUSIVE: Al Qaeda Leader Dined at the Pentagon Just Months After 9/11, FOX NEWS (Oct. 20, 2010), http://www.foxnews.com/us/2010/10/20/al-qaeda-terror-leader- dined-pentagon-months. But see Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding

    Yemen on Strikes, WASH. POST (Jan. 27, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/ 01/26/AR2010012604239.html (“The [targeted killing] list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added.”).

11. See, e.g., Michael Martinez, U.S. Drone Killing of American al-Awlaki Prompts Legal, Moral Debate,

    CNN (Sept. 30, 2011), http://articles.cnn.com/2011-09-30/politics/politics_targeting-us-citizens_1_al-awlaki- yemeni-embassy-drone-missile. For example, U.S. Representative Ron Paul denounced President Obama for “assassinating” al-Aulaqi, while U.S. Representative Peter King, former U.S. Vice President Dick Cheney, and former U.S. Speaker of the House Newt Gingrich applauded the strike and insisted that it was legal. Wolf Blitzer, BLITZER’S BLOG: Impeach Obama? Ron Paul, Newt Gingrich Disagree, CNN (Oct. 6, 2011, 4:04 PM), http://situationroom.blogs.cnn.com/2011/10/06/blitzers-blog-impeach-obama-ron-paul-newt-gingrich- disagree; Martinez, supra.

12. Peter Finn, Secret U.S. Memo Sanctioned Killing of Aulaqi, WASH. POST (Sept. 30, 2011), http://www.

    washingtonpost.com/world/national-security/aulaqi-killing-reignites-debate-on-limits-of-executive-power/ 2011/09/30/gIQAx1bUAL_story.html.

    This controversy, however, was not entirely new; in fact, the U.S. government’s targeting of al-Aulaqi was challenged in a domestic court just one year earlier. Al-Aulaqi’s father, with help from two civil liberties groups,13 filed a lawsuit in federal court for the District of Columbia as “next friend” of

    his son in August 2010, challenging the legality of the Obama Administration’s targeting of al-Aulaqi.14 The suit raised several issues, some of which fall outside of the scope of this Comment,15 in an attempt to block the United States from targeting al-Aulaqi.16 The thrust of the plaintiff’s argument, however, lay in the fact that the U.S. government was targeting a person with

    U.S. citizenship without affording him due process or other constitutional protections typically afforded to citizens.17 The plaintiff argued that “the question was whether the government has the power to kill any American citizen it labels as a terrorist without review by the courts.”18

    
    

    Modern theory of citizenship is premised on the idea that citizens accept certain duties and give up certain freedoms, and in return, government is instituted to secure for citizens their fundamental rights.19 This understanding of “reciprocal” rights and duties is heavily grounded in seventeenth- and eighteenth-century theories of social contract;20 and to this day, the U.S.

    
    

13. The American Civil Liberties Union (“ACLU”) and the Center for Constitutional Rights (“CCR”).

14. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 1 (2010); Perez, supra note 1.

15. For example, plaintiff argued that the United States could not target any person for killing within Yemen, regardless of citizenship, because at the time of filing, the United States was not in “armed conflict”

    with Yemen or Yemeni groups. Al-Aulaqi, 727 F. Supp. 2d at 9; Perez, supra note 1. The plaintiff distinguished conflict in Yemen from that of the United States’ wars in Iraq and Afghanistan: “The expansion would exceed the legal limits of the program, the civil-liberties groups say. Jameel Jaffer, director of the ACLU’s National Security Project [and lead lawyer for plaintiff], said ‘Yemen is not Afghanistan or Iraq. The legal limits on the authority they claim hasn’t been specified.’” Perez, supra note 1. In addition, the plaintiff sought “an injunction ordering defendants to disclose the criteria that the United States uses to determine whether a U.S. citizen will be targeted for killing.” Al-Aulaqi, 727 F. Supp. 2d at 9.

16. Perez, supra note 1.

17. Scott Shane & Robert W. Worth, Challenge Heard on Move To Kill Qaeda-Linked Cleric, N.Y. TIMES, Nov. 9, 2010, at A12.

18. Id.

19. Timothy A. Canova, Democracy’s Disappearing Duties: The Washington Consensus and the Limits of Citizen Participation, in DEMOCRATIC CITIZENSHIP AND WAR 199 (Yoav Peled et al. eds., 2011).

20. Id.; see also, e.g., THOMAS HOBBES, LEVIATHAN (Richard Tuck ed., Cambridge Univ. Press 1996)

    (1651); JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1988) (1689); JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT (Maurice Cranston trans., Penguin Putnam 1968) (1762). For example, Thomas Hobbes believed that in the absence of political authority, humans would live in a state of nature and constant war with all other men, where the life of man would be “solitary, poore [sic], nasty, brutish, and short”; to avoid this dark fate, Hobbes writes, the free man must establish a civil society through a social contract in which each gains civil rights in return for subjecting himself to civil law. HOBBES, supra, at 84, 96. However, perhaps in contradiction to contemporary understandings of citizenship, Hobbes

    government provides naturalization candidates with a document enumerating some of the reciprocal duties and rights that come with U.S. citizenship.21

    
    

    One problem...