Something that I think is missing from discussion of the Anwar al-Awlaki case is the question of why he was still a U.S. citizen up to the day he died. You might ask yourself, what if during the height of the Vietnam War an American had defected to the North Vietnamese and served in their military. Couldn’t our soldiers shoot him? Wouldn’t that be the case even if he was in a support capacity rather than a battlefield role? Well at least part of the answer is that you’d lose U.S. citizenship if you defected:
Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481), as amended, states that U.S. citizens are subject to loss of citizenship if they perform certain specified acts voluntarily and with the intention to relinquish U.S. citizenship. Briefly stated, these acts include:
1. Obtaining naturalization in a foreign state (Sec. 349 (a) (1) INA);
2. Taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions (Sec. 349 (a) (2) INA);
3. Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA);
4. Accepting employment with a foreign government if (a) one has the nationality of that foreign state or (b) an oath or declaration of allegiance is required in accepting the position (Sec. 349 (a) (4) INA);
5. Formally renouncing U.S. citizenship before a U.S. diplomatic or consular officer outside the United States (sec. 349 (a) (5) INA);
6. Formally renouncing U.S. citizenship within the U.S. (but only under strict, narrow statutory conditions) (Sec. 349 (a) (6) INA);
7. Conviction for an act of treason (Sec. 349 (a) (7) INA).
What Awlaki’s done is basically in the spirit of items 1-4 on the list. But it doesn’t count, because al Qaeda’s not a foreign government. The correct way out of this seems to me to amend the relevant section of the Immigration and Nationality Act such that swearing allegiance to al Qaeda can count as an expatriating act in the same way that defecting to North Korea would. Then you would need a quasi-judicial process through which an evidentiary determination could be made that someone has, in fact, expatriated himself. It’s less fun than ad hoc determinations by the DOD and the White House staff, but it would sit a heck of a lot easier with me.