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05 February 2013

Drone Strikes on Americans: Illegal, Unethical and Unwise

“These strikes are legal, they are ethical and they are wise."

- Jay Carney, 5 February 2013

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 upon one’s own application after the age of 18 (Sec. 349 (a) (1) INA);


2. Taking an oath, affirmation or other formal declaration of allegiance to a FOREIGN STATE or ITS POLITICAL SUBDIVISIONS after the age of 18 (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 after the age of 18 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. (The Department of Homeland Security is responsible for implementing this section of the law) (Sec. 349 (a) (6) INA);


7. CONVICTION for an act of treason (Sec. 349 (a) (7) INA).


NONE of the Americans that Obama has assassinated had “lost their citizenship,” as some foolishly and ignorantly claim.   You’ll notice the use of FOREIGN GOVERNMENT and FOREIGN STATE. Obviously, al Qaeda is neither nor are most terrorist organisations.

It is the citizenship status that is the problem which needs to be corrected. Without a doubt, citizenship neither requires the military to question the citizenship status of combatants on a battlefield in the midst of a firefight nor does it require the Federal government to pull its punches because an American might become endangered if its acts against its declared enemy. Thus, the military did not need to first determine if there were Americans on a battlefield or hostile place (John Walker Lindh) nor did it have to forgo the bombing of Tokyo in WWII because Tokyo Rose might be living amongst the inhabitants nor did the Federal government have to grant Americans, who left to join the GERMAN army in WWII and were caught spying, a civilian trial rather than a courts martial.

The execution programme is quite different. It is the specific targeting of Americans that is problematic because they are entitled to a modicum of due process.  Furthermore, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court ruled that the President may hold enemy combatants, including Americans, but also held that detainees who are US citizens HAVE RIGHTS OF DUE PROCESS and MUST be able to challenge their enemy combatant status before an impartial court. In the 3 cases where Americans have been executed by drone, none was even indicted.

If a President cannot strip Americans, who are enemy combatants fighting for non-government enemies of their due process rights in connection with detention, he cannot do the same by ordering their assassination.

If Congress amended Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481) to say:

2. Taking an oath, affirmation or other formal declaration of allegiance to a foreign state or its political subdivisions or a TERRORIST ORGANISATION THAT IS CURRENTLY INVOLVED IN HOSTILITIES WITH THE UNITED STATES IN A CONGRESSIONAL-RECOGNISED CONFLICT AFTER A PROFFER IS MADE BEFORE AND IS THEN ACCEPTED BY A COURT OF COMPETENT JURISDICTION. after the age of 18 (Sec. 349 (a) (2) INA);
…then, there would be NO problem. It goes away completely.

The law needs to be brought into the 21st century before we just accept the notion that an American president – of ANY political persuasion – has the authority as Commander-in-Chief to deny his fellow citizens of their due process rights and then summarily execute them.

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