Questions of Awlaki Citizenship Difficult to Answer in a Stateless War

Last week's killing of Al-Qaeda leader Anwar al-Awlaki was another major blow to al-Qaeda and other terrorist networks. It was a sign of the effective, though controversial, use of American drone attacks in counterterrorism efforts around the globe. What makes this incident unique in the counterterrorism discussion, however, is Awlaki's American citizenship. As a result, the drone attack elicits questions about the use of force against American citizens without due process of the law. The answers to these dilemmas are difficult because they involve fundamental changes in the international arena. That the U.S. government finds itself in this legally precarious position is a direct result of the failure to reconcile the laws and procedures of the state with the ambiguity of a stateless war.

Traditionally all wars were fought with defined borders, distinct armies, and major clashes of force. Individuals who aided the enemy were tried for treason. During WWII, in what is probably the closest precedent to the Awlaki situation, the Supreme Court ruled that "citizenship in the United States of an enemy belligerent does not relieve him from the consequences of belligerency." Even so, these cases are antiquated and bear little resemblance to the trans-border issues confronted in the 21st century.

The enemy in the war on terror is a stateless actor that doesn’t fit the traditional models of international law. Al-Qaeda and other terrorist organizations hold no loyalty to any government, are motivated by ideology of anti-Americanism rather than nationalism, and seek refuge wherever it can be found. Therefore, Al-Qaeda and its members belong to no state in particular and are not beholden to any one group of secular laws.

So while Awlaki was indeed an American citizen, the question of citizenship doesn’t really have a neat, clean place in the debate over justified killing of enemy combatants. In no other drone attack has the question of citizenship been openly debated despite the fact that militants come from all over the world, including the countries of Saudi Arabia, Egypt, Pakistan, Yemen, and others. (Ironically, many of these countries have long been coddled by the American government.) But the government doesn’t think in those terms. A member of Al-Qaeda is a member of Al-Qaeda.

Admittedly, from a strictly legal perspective, the ACLU and like-minded groups have a point that I am inclined to accept as valid. The ACLU claims that due process and a fair trial do matter regardless of the situation. In the world of stateless actors, however, this principle is hard to implement. For the White House, intelligence community, and the public at large, Awlaki’s citizenship was more trivial than substantive.

A long, protracted court case based on Constitutional law may have been ideal, but remains a fanciful delusion. Yes, Awlaki was an American, but he was also a member of an organization that is at war with America. We can find comfort that Awlaki probably wouldn’t have wanted a trial by the American justice system anyway.

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